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Supreme Court lets elite Virginia high school keep admissions policy in race dispute

Parents and state officials claim the policy billed as race-neutral discriminates against Asian American applicants. 

WASHINGTON (CN) — The Supreme Court refused Monday evening to block a new admissions policy aimed at diversifying the student body of an elite Virginia high school. 

The court included no written explanation with its order but noted dissents from Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. A parent group had asked the justices to vacate a lower court order and stop the school from using its new policy. 

Fairfax school officials implemented a new admissions program at Thomas Jefferson High School for Science and Technology — a so-called governor’s school and one of the nation’s top high schools — in 2020 in an attempt to further diversify the student body. State officials found that the school had historically admitted very few disadvantaged students, so the board’s new policy takes into account experience factors such as socioeconomics, special education needs and whether they speak English at home. Following the plan's implementation, the school admitted higher proportions of low-income students, English language learners and girls. 

A parent group claimed the new system disadvantaged Asian American students and filed suit for violations of the Equal Protection Clause. The district court denied two preliminary injunctions but ruled in favor of the parents, finding that the plan would not survive strict scrutiny and had a disparate impact on Asian students.

When the Fourth Circuit put the ruling on hold pending appeal, the parents asked the Supreme Court to enter a stay. They say the new admissions process “was infected with talk of racial balancing from its inception” despite claims it is race-neutral. 

“A new divide has emerged as public-school districts across the country have recently overhauled admissions criteria for selective K-12 schools, seeking to alter the racial composition of the admitted students,” Erin Wilcox, an attorney with the Pacific Legal Foundation representing the parents, wrote in their application. 

She continued: “School districts — including the Board in this case — candidly admit their goal of admitting more Black and Hispanic students, but deny any intent to discriminate against the Asian-American students who typically bear the brunt of the changes. Multiple courts have held that such facially race-neutral policies that treat applicants differently to achieve racial balance discriminate against Asian-American applicants — and thus must satisfy strict scrutiny.” 

The school board likens its new plan to a “Top Ten Percent plan” from the University of Texas that has been endorsed by the court. It claims that the percentage of Asian American students who are accepted is actually considerably higher than the percentage of those who apply. The board urges the court to keep the stay in place since admission decisions for the freshman class are due this month. 

“Overhauling the admissions process at this late date would be convulsive,” Donald Verrilli, an attorney with Munger, Tolles & Olson, wrote in the school board's opposition brief. “It would require an enormous expenditure of time and effort to create an entirely new process; burden and upset the applicants and their families who expect to receive admissions decisions by the end of this month; irreparably damage the Board’s standing in the eyes of the community, thereby harming the Board’s ability to discharge its responsibilities; and result in students choosing other highly competitive options over TJ because they will not have TJ offers in hand before they must decide on offers from other schools.” 

Virginia and 15 other states filed an amicus brief that urges the justices to rule in favor of the parents and vacate the stay. 

“The challenged policy is ‘directed only to racial balance, pure and simple,’ an objective this Court ‘has repeatedly condemned as illegitimate,’” Virginia Solicitor General Andrew Ferguson wrote in the states’ brief. “The violation of the constitutional rights of Asian-American applicants ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’” 

The case is just the latest legal battle in suits challenging admissions policies involving race. The Supreme Court is set to hear a challenge to affirmative action policies at Harvard and the University of North Carolina that students say discriminate against Asian American applicants.

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