Supreme Court declines to review decision upholding race-based admissions

Sends dangerous signal to colleges that want to keep preferring blacks

Thomas Jefferson High School for Science and Technology (TJ) is an elite high school in Fairfax County, Virginia. In fact, it’s considered one of the best high schools for science and technology in America.

Until recently, TJ selected its students based solely on merit, as determined by scores on standardized tests. However, the County determined that this process was yielding too few black and Hispanic students. Accordingly, it changed the selection process for the express purpose of admitting more blacks and Hispanics and, therefore, fewer whites and (especially) Asian-Americans.

In place of standardized tests, TJ implemented a system that distributes the vast majority of slots to the top 1.5 percent of students at each of the county’s middle schools. Because some of the county’s middle schools are predominantly black and/or Hispanic, the change all but ensured the increased selection of students from these groups — exactly the outcome the change in selection method was intended to achieve.

Changing a selection procedure for the purpose of favoring one racial group over another constitutes intentional race discrimination, pure and simple. If an organization changed its selection procedure in order to increase white representation at the expense of blacks, no court in the land would hesitate to find illegal discrimination. The result must be the same when the change is intended to achieve the reverse result.

Accordingly, a federal district court found that TJ’s new selection process amounts to unlawful discrimination. However, the U.S. Court of Appeals for the Fourth Circuit reversed in a 2-1 decision. The appeals court based its decision on the fact that even with the change in selection process, Asian-Americans still make up a higher percentage of that school’s student body than they do of the student bodies of the feeder schools in the jurisdiction.

This decision is outrageous. As I said here, the high representation of Asian-Americans at TJ has no bearing on whether this group was negatively impacted by the policy change, and whether the change was intended to achieve that result. Moreover:

The court’s reliance on [bottom line representation numbers] is offensive and racialist. It implies that individual Asian-Americans, no matter how meritorious, can’t be the victim of intentional discrimination as long as Asian-Americans as a group make out well. Individuals no longer count — only group identity.

The majority decision also smacks of approving a cap on Asian-American admissions, the way Ivy League schools used to cap Jewish admissions. At the very least it caps the point at which courts will worry about whether Asian-Americans have been discriminated against.

The students aggrieved by TJ’s racialist admissions policy asked the Supreme Court to review the court of appeals decision. However, by a vote of 7-2, the Court declined to do so.

Only Justices Alito and Thomas dissented. All three of Donald Trump’s nominees voted not to hear the case — the wimps.

The Court’s refusal to hear the case doesn’t mean it agrees with the Fourth Circuit’s decision. It might or it might not.

What it does mean is that the Court is willing, as of now, to let stand admissions practices that are blatantly racialist. Having struck down the discriminatory policies of Harvard and North Carolina, the Court apparently has no stomach to ensure its decision has general effect.

This is especially disturbing because colleges are in the process of deciding how they will try to get around the Supreme Court’s ruling on racial preferences. There’s no serious doubt that they will attempt to do so (and probably already are in the process of doing it, as they decide whom to admit as freshmen this Fall). The only questions are: (1) how bold will they be and (2) will they succeed.

The denial of cert in the TJ case is, in effect, an invitation for colleges to be quite bold. It’s true that they won’t be able to rely on the precise facts cited by the Fourth Circuit. Elite colleges certainly will not admit Asian-Americans to the tune of 50 percent or more, as TJ still does.

But, as I explained here, colleges like Dartmouth apparently are using the kind of “race norming” used by TJ (and upheld by the Fourth Circuit) to admit blacks by, in effect, comparing their qualifications to those of other blacks, rather than to all applicants. More generally, the denial of cert signals that the Court might well take an extended timeout from reviewing discriminatory admissions policies.

Rather than belabor the point with my rhetoric, I’ll conclude by quoting excerpts from Justice Alito’s excellent dissent:

The Court of Appeals’ decision in this case is based on a patently incorrect and dangerous understanding of what a plaintiff must show to prove intentional race discrimination. . . What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe. . . .

[T[hat holding effectively licenses official actors to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups.

That is indefensible. . . .

Suppose that white parents in a school district where 85 percent of the students are white and 15 percent are black complain because 10 of the 12 players (83 percent) on the public high school basketball team are black. Suppose that the principal emails the coach and says: “You have too many black players. You need to replace some of them with white players.” And suppose the coach emails back: “Ok. That will hurt the team, but if you insist, I’ll do it.”

The coach then takes five of his black players aside and kicks them off the team for some contrived—but facially neutral—reason. For instance, as cover, he might institute a policy that reserves a set number of spots on the roster for each of the middle schools who feed to the high school. According to the reasoning of the Fourth Circuit majority, this action would not violate equal protection because the percentage of black players left on the team (approximately 42 percent) would exceed the percentage of black students in the school. I cannot imagine this Courts sustaining such discrimination, but in principle there is no difference between that imaginary case and the one now before us.

If the District Court’s evaluation of the evidence is correct, the panel majority’s fallacious reasoning works a grave injustice on diligent young people who yearn to make a better future for themselves, their families, and our society. In addition, the Fourth Circuit’s reasoning is a virus that may spread if not promptly eliminated.

Indeed, the First Circuit has already favorably cited the Fourth Circuit’s analysis to disparage the use of a before-and-after comparison in a similar equal protection challenge to a facially neutral admissions policy. See Boston Parent Coalition for Academic Excellence Corp. v. School Comm. for Boston, 89 F. 4th 46, 57–58 (2023). And TJ’s model itself has been trumpeted to potential replicators as a blueprint for evading [the Harvard case].

The Court’s willingness to swallow the aberrant decision below is hard to understand. We should wipe the decision off the books, and because the Court refuses to do so, I must respectfully dissent.

One can understand the denial of cert as stemming from some combination of caution, fatigue, and maybe cowardice. This seems like the most plausible explanation.

However, it’s also possible to understand it as evidence that a majority of the Court wants black representation at elite colleges to remain high, even if this means discriminating against Asian-Americans and whites on the basis of race.