Supreme Court won’t jump into another fight over diversity in school admissions

WASHINGTON (CN) — The Supreme Court refused on Tuesday to review an admissions policy at an elite Virginia high school, signaling a reluctance to continue its examination of school diversity. 

Justices Samuel Alito and Clarence Thomas dissented from the court’s decision. Alito wrote an opinion, which Thomas joined, stating that the decision should not be allowed to stand. 

“What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe,” the Bush appointee wrote. “This reasoning is indefensible, and it cries out for correction.” 

Alito said the school had discriminated against Asian American students and called the appeals court ruling a “virus” that would spread if not eliminated. 

“The holding below 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,” Alito wrote. 

The majority did not provide an explanation for declining to hear the case.

Parents at Thomas Jefferson High School for Science and Technology asked the Supreme Court to review the school’s admissions policy. The highly selective school implemented the policy to remove socioeconomic barriers to its application and admission process, but the parents say these changes were intended to discriminate against Asian American students. 

The parents suggested their case presented the high court with an opportunity to weigh how race-neutral criteria can be used to increase diversity. 

“The issue in this case is simple — did the board’s overhaul violate the Equal Protection Clause,” wrote Joshua Thompson, an attorney with the Pacific Legal Foundation representing the parents. 

But the school board says no such issue is before the court. While the parents claim Thomas Jefferson’s admissions were overhauled to increase racial diversity, the school argues these changes were focused on socioeconomics. 

​​”This case simply does not provide any occasion to decide whether a public school may employ race-neutral criteria for the purpose of achieving racial balance because — as the court of appeals held — the admissions policy for TJ does not seek, cannot be manipulated to achieve, and did not produce racial balance of any kind,” Donald Verrilli Jr., an attorney with Munger Tolles representing the school board. 

Prior to 2020, students applying to Thomas Jefferson needed a minimum GPA of 3.0 and had to be enrolled in algebra or higher math. Applicants also had to pay a $100 fee and take three standardized tests. If applicants met all those criteria, then they had to take a second round of tests and submit teacher recommendations. 

As a result, the majority of students admitted to Thomas Jefferson came from only eight out of 26 middle schools. These feeder schools were located in more affluent areas. Less than 2% of the students Thomas Jefferson admitted qualified for free or reduced-price meals and only a few identified as Black, Latino, or multiracial. 

Starting in 2020, the board implemented a new admissions policy to factor in academic measures that would reduce the socioeconomic and geographic skew of the school's student body. The board scrapped the application fee, standardized tests and teacher recommendations. 

The new policy guaranteed that every Fairfax County middle school would have a seat in the incoming Thomas Jefferson class. The reserved seats would only be offered to students who met the school's academic requirements. Regardless of which middle school applicants came from, the highest-evaluated applicants overall would have 100 seats set aside for them. 

In 2021, the school received a thousand more applications than the year before and admitted students from all 26 middle schools for the first time in 15 years. Those admitted also represented high proportions of low-income students, English-language learners, and female students. 

Asian American students received 65% to 75% of all admissions offers in the years leading up to Thomas Jefferson’s policy change. In 2021, they received 54% of offers. In subsequent years, the rates of Asian-Americans hovered around 60%. 

The parents sued the board claiming the new policy discriminated against Asian American students in violation of the Equal Protection Clause. A court agreed, finding the board acted with discriminatory intent to increase the representation of Black and Hispanic students. The court ordered the board to stop using the new policy, but an appeals court paused the ruling. The Supreme Court declined an emergency application to vacate the stay. 

On appeal, the Fourth Circuit reversed the lower court’s finding that the board acted with discriminatory intent. 

The parents urged the Supreme Court to review the matter, suggesting the justices’ input was necessary in efforts to indirectly increase diversity. 

“Coming as it does on the heels of last term’s decision curtailing racial discrimination in higher education admissions, this is one of several ongoing challenges to competitive K-12 admissions criteria that seek to accomplish a racial objective ‘indirectly’ because it ‘cannot be done directly,’” Thompson wrote. 

Follow @KelseyReichmann

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