Yesterday the Supreme Court denied certiorari in Coalition for TJ v. Fairfax County School Board, a case that raised the question of whether the Fairfax County School Board violated the Equal Protection Clause when it overhauled the admissions process for Thomas Jefferson High School.
A top public high school with a rigorous curriculum, Thomas Jefferson employed a competitive and race-neutral process that in recent years led to a student body of over 70% Asian Americans. In 2020, the school board changed the process, dropping its reliance on standardized tests and reserving most seats with an allocation to each public middle school in the qualifying region. Other seats were based on grades, an essay, and “Experience Factors” that included eligibility for free meals or special education services. With these changes in place, Asian American students’ share of admissions offers dropped considerably, but remained above 50%, while more white, Hispanic, and black students were admitted than before.
The new admissions criteria were race-neutral, but the factual record includes communications between board members and school officials that reveal at least a partial purpose to change the racial makeup of the school. The district court found that the changes were impermissibly motivated by race, but a divided 2–1 panel of the Fourth Circuit reversed.
Justice Samuel Alito, joined by Justice Clarence Thomas, issued a sharp dissent from the denial of certiorari. The panel opinion had invoked “elementary arithmetic” to show that “Asian American students, as a class, experience no material disadvantage under the policy’s functioning.” No, Alito asserted, “the panel’s ‘elementary arithmetic’ was elementary error.” It basically held “that intentional racial discrimination is constitutional so long as it is not too severe. This reasoning is indefensible, and it cries out for correction.”
Whether or not the evidence at trial was sufficient to establish discriminatory intent—and Alito did not address that question—both the dissenting justices and the dissenting judge on the Fourth Circuit, Allison Jones Rushing, identified a clear problem with the panel’s opinion. This is no small matter. In the aftermath of last year’s Supreme Court decision in Students for Fair Admissions v. President and Fellows of Harvard College striking down racial discrimination in university admissions, Thomas Jefferson’s admissions practices were emulated by several institutions of higher learning. The Fourth Circuit decision, which was handed down a month before SFFA, should not be treated as the operative standard for students who need protection or school administrators who need direction.
The Supreme Court had several options, including to issue a GVR order (granting certiorari, vacating the judgment below, and remanding the case for reconsideration) in light of its SFFA decision. Whether or not that would have changed the outcome of the case, it would have made it far more likely that the Fourth Circuit would correct an erroneous standard. But simply denying certiorari leaves much uncertainty about the law and makes it easier to evade a landmark decision that is less than a year old.