As I discussed in this post, last May a divided panel of the Fourth Circuit ruled that the admissions policy that the Fairfax County School Board adopted in 2020 for its extraordinary magnet school Thomas Jefferson High School for Science & Technology (“TJ”) did not violate the Equal Protection rights of Asian American applicants.
Today the Supreme Court, in another display of its surprising timidity in deciding which cases to put on its docket for review, denied the petition for certiorari filed by the plaintiff group challenging the new policy. Justice Alito, joined by Justice Thomas, wrote a ten-page dissent that is very worth reading. Here is his opening paragraph:
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. A group representing applicants for admission to a highly competitive public magnet school brought suit, claiming that changes in the school’s admissions requirements violated the Equal Protection Clause. They alleged that the changes were made for the purpose of discriminating on the basis of race, to the detriment of Asian-American applicants. The District Court found that direct and circumstantial evidence supported that claim and issued an injunction against implementation of the changes. On appeal, however, a divided Fourth Circuit panel reversed and held that the plaintiff ’s claim failed simply because the challenged changes did not reduce the percentage of Asian-American admittees below the percentage of Asian-American students in the schools in the jurisdictions served by the magnet school. What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe. This reasoning is indefensible, and it cries out for correction.