Supreme Court allows Virginia public school to keep its admissions policy for now

By Ariane de Vogue, CNN Supreme Court Reporter

The Supreme Court cleared the way for the admissions policy of an elite public high school in Virginia to remain in effect Monday, even though critics say it discriminates against Asian American students.

The court denied a request from a coalition of parents to block the program while the appeal process plays out. Justices Samuel Alito, Clarence Thomas and Neil Gorsuch noted their dissent and would have sided with the parents.

Lawyers for the school board insist that the policy is “race neutral” and is meant to add more diversity to the school.

The court’s move comes as the justices have already agreed to hear a case with similar strains next term concerning the race-based admission policies at Harvard and the University of North Carolina. The facts and circumstances in the two disputes are different, but they center on a school’s push to improve diversity without violating equal protection principles.

The case at hand targets a decision by the Fairfax County School Board in Virginia to overhaul the admissions process at the Thomas Jefferson High School for Science and Technology. The school — known as “TJ” — is one of the best public schools in the nation. It serves gifted students in science, technology, engineering and mathematics and is one of a handful of regional public schools in Virginia that provides advanced studies and requires students to apply for admission.

A coalition of parents said the new policy is a “racially motivated” process that adversely impacts Asian American students and was intended to make it more difficult for them to gain admission. After the new policy was put into place, the percentage of Asian American students who were offered spots in the school dropped from 73% to 54% in one year.

A district court barred the admissions policy in February, holding that it violates the equal protection rights of Asian American students. A federal appeals court, however, agreed to put that decision on hold.

The coalition of parents asked the justices to lift the stay put in place by the federal appeals court. On Monday, the court declined to do so.

Under the previous policy, admissions were based on teacher recommendations, written exams, standardized tests and essays, among other factors. According to the board, under the prior policy, students at just eight of Fairfax County’s 26 middle schools accounted for 87% of the county’s share of TJ’s admitted students in the four years preceding 2020. In the summer of 2020, state officials expressed concern that the school had historically admitted very few disadvantaged students.

The board overhauled the admissions process, eliminated standardized tests and guaranteed seats at TJ for 1.5% of the eighth grade class of each public middle school within the school’s reach. It also instituted a “holistic” evaluation of the students that takes into consideration “experience factors” such as socioeconomic background.

The board also adopted a mandate requiring the use of “only race-neutral methods that do not seek to achieve any specific racial or ethnic mix, balance or targets.”

But Erin E. Wilcox, a lawyer for the coalition of parents, claimed in court papers that the process to overhaul TJ admissions was “infected with talk of racial balancing from its inception.”

She said that in the Class of 2025, the first admitted under the new admissions policy ,”offers to Asian-American students dropped 19 percentage points — from 73% to 54% in a single year.”

“Every other racial group, including White students, increased their share of offers,” she said.

That was in part because a disproportionate number of Asian American applicants and accepted students came from only a handful of Fairfax County public schools, each of which often sent far more than 1.5% of its eighth graders to TJ.

Wilcox argued that “the guarantee left only about 100 ‘unallocated’ seats for students to compete for irrespective of middle school, including private school and home school applicants.”

“Specifically, the question is whether a school board violates the equal protection rights of disadvantaged students when it implements selective admissions criteria with the goal of producing racial balance, ” Wilcox said.

Wilcox has received the support of Virginia’s attorney general, Republican Jason S. Miyares, as well as 15 other states. In a friend-of-the court brief, Miyares charged that the board had set out to “remake” admissions with a goal of “achieving racial balance” out of pressure from state agencies and following the nationwide unrest after George Floyd’s murder.

He insisted that the board had replaced a “race-neutral and meritocratic admissions policy” with one “intentionally designed to decrease Asian-American enrollment.”

The school board hired powerhouse lawyer Donald B. Verrilli, who served as former President Barack Obama’s solicitor general, to persuade the high court to stay out of the dispute and allow the appeals court decision to stand while the legal challenges play out. Verrilli argued in court papers that the policy for admitting students “sets no racial quotas, goals or targets” and is administered in a “race-blind” manner.

“Board regulators forbid consideration of race in admissions decisions, and all applications are anonymized so evaluators do not know the race of any individual applicant,” he argued. He noted that final admissions decisions are due this month and that overhauling the admissions policy now would be “convulsive.”

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