- The Washington Times - Tuesday, May 23, 2023

A federal appeals court upheld the diversity policy at Thomas Jefferson High School for Science & Technology, ruling Tuesday that the plan survives constitutional scrutiny despite cutting Asian American admissions by 26%.

In a 2-1 ruling, the court said that Fairfax County, which runs the nationally renowned school, was trying to boost diversity among its incoming students based on geography and socioeconomic status, and any effect on the racial balance was secondary.

“On this record, and with application of the proper legal standard, the policy visits no racially disparate impact on Asian American students,” Judge Robert B. King, a Clinton appointee, wrote for the majority.

The case is part of a new trend in affirmative action law, with Asian American plaintiffs stepping forward to argue that attempts to rebalance classes with more Black or Hispanic students often come at the expense of Asian American students. 

The parents vowed Tuesday to appeal to the Supreme Court.

“We firmly believe that access to a quality education should be based on merit, not race. This is a climactic battle between justice and racism,” said Harry Jackson, father of a student at the school, which is frequently ranked as the nation’s best.

Jefferson operates as a selective school, meaning students must apply and be admitted. Anywhere from 2,500 to 3,000 students apply annually, and the school admits about 550.

The former admissions policy was based on an applicant’s grade point average, teacher recommendations, essays and a standardized test.

Asian American admissions have long been disproportionately high compared to their percentage of the population in Fairfax County, and there had been some grumbling.

But the issue took on new proportions after a White police officer in Minneapolis killed George Floyd, a Black man, in 2020. The county began to look for ways to diversify the population at a school where the number of Black students had shrunk so much that it couldn’t be reported — meaning 10 students or fewer.

The county said part of the problem was students came heavily from a few “feeder” schools. So the county adopted a broader admission policy that expanded geographic and socioeconomic diversity.

The result was that Asian Americans fell from 73% of students in the Class of 2024 to 55% of offers in the Class of 2025.

Judge Allison Jones Rushing, a Trump appointee, said it was impossible to look at those numbers and not see a disparate impact on Asian Americans.

“The Policy reduced offers of enrollment to Asian students at TJ by 26% while increasing enrollment of every other racial group. This was no accident,” she wrote in her dissent.

Judge King, though, said the test isn’t the rise or fall of applications year-to-year, but rather the “success rate” in any given year. In other words, if the ratio of Asian applications is relatively similar to the ratio of acceptances, the court majority said it undercuts claims of racial disparity.

In the first year under the new policy, Asian American students accounted for 48.59% of applicants but won 54.36% of offers of admission.

Among Black students the ratio was 10% of applicants and 7.9% of offers. Hispanic students were 10.95% and 11.27%. White students were 23.86% of applications and 22.36% of offers. Multiracial or other students were 6.6% of applicants and 4.91% of offers.

That meant Asians had the highest “success rate,” Judge King said.

He also rejected suggestions that the county school board was searching for ways to limit Asian admissions, saying that while that may have been part of earlier discussions it wasn’t a motivating factor in crafting the final geography-based policy.

Judge Rushing said that was tough to square with the evidence.

She pointed to officials’ repeated requests for racial breakdowns of various proposals as they sought to craft the new policy. She said the board rejected one geographic diversity proposal that would have been more advantageous to Asians in favor of the one that disadvantaged them.

She also pointed to text messages from board members, including one that said there “has been an anti [A]sian feel underlying some of this,” and another that said Asian students were “discriminated against in this process.”

Tuesday’s ruling overturns a district court ruling that had sided with the Coalition for TJ and found discrimination in the geographic admissions policy.

The 4th Circuit had allowed Jefferson to continue using the policy while it was being challenged, and the Supreme Court affirmed that move.

The justices already have major affirmative action cases pending before them challenging the admissions policies at Harvard University and the University of North Carolina at Chapel Hill.

Decisions are due in the coming weeks, and analysts expect the justices to further constrict or altogether do away with considering race in higher education admissions.

That prospect has prompted a search for alternative affirmative action policies, with Jefferson’s geography-style policy emerging as one leading option.

That seemed to weigh on Judge Toby J. Heytens, a Biden appointee, who joined Judge King in the majority in Tuesday’s ruling.

He said Jefferson’s policy didn’t tell any students where they could or couldn’t go to school, nor did it reserve spaces based on race or give an advantage to a student’s application specifically on account of race.

“The policy challenged here is not just race neutral: It is race blind,” the judge wrote in a separate opinion agreeing with Judge King.

He said that should be attractive for a Supreme Court that has repeatedly said schools can achieve racial diversity goals through non-racial tactics.

Indeed, he said Jefferson’s policy “bears more than a passing resemblance” to something Justice Samuel A. Alito Jr., a leading conservative on the Supreme Court, proposed in dissenting from a prior ruling upholding race-based preferences.

“Having spent decades telling school officials they must consider race-neutral methods for ensuring a diverse student body before turning to race-conscious ones, it would be quite the judicial bait-and-switch to say such race-neutral efforts are also presumptively unconstitutional,” Judge Heytens wrote.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

Copyright © 2023 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.

Click to Read More and View Comments

Click to Hide