Dear Commons Community,
The US Supreme Court yesterday temporarily approved new admissions criteria at an elite public high school in Virginia that eliminated standardized tests, clearing the way for the use of a policy intended to diversify the student body in choosing the class that will enter in the fall.
The court’s ruling rejected a request for emergency relief from a group that objected to the new rules, saying they harmed Asian American students. As reported by The New York Times.
The court’s brief order was unsigned and gave no reasons, which is typical when the court acts on emergency applications asking the justices to intervene while appeals are moving forward. The court’s three most conservative members — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — said they would have reinstated a trial judge’s ruling blocking the new criteria. They, too, did not explain their thinking.
The school, Thomas Jefferson High School for Science and Technology in Alexandria, Va., known as T.J., changed its admissions requirements in 2020 in the wake of protests over the murder of George Floyd.
The school, among the best in the nation, is in Fairfax County, outside Washington, and accepts students from the county and from several surrounding counties and cities. Like admissions criteria at other elite public high schools across the country, the school’s policies have been at the center of fierce debates among politicians and parents about whether and how to diversify enrollment.
A related issue is already before the Supreme Court, which will hear challenges to admissions programs at Harvard and the University of North Carolina in the fall. Those programs explicitly take account of race as one factor among many.
The high school’s new program, by contrast, uses race-neutral criteria. In addition to doing away with standardized tests, the program sets aside spots for the top 1.5 percent of students from each public middle school in the area, leaving about 100 openings for everyone else, including applicants from private schools and students who have been home-schooled.
Admissions administrators also consider “experience factors,” such as whether students are poor or are learning English or are attending a middle school that was “historically underrepresented” at the high school. The administrators are not told the race, sex or name of any applicant.
After the changes went into effect in 2021, the percentage of Asian American students dropped to 54 percent from 73 percent. The percentage of Black students grew to 7 percent from no more than 2 percent; the percentage of Hispanic students grew to 11 percent from 3 percent; and the percentage of white students grew to 22 percent from 18 percent.
Across all of Fairfax County’s public schools, about 37 percent of students are white, 27 percent are Hispanic, 20 percent are Asian and 10 percent are Black.
The changes were challenged by a group called Coalition for TJ, which includes some American parents of Asian American students and which is represented by the Pacific Legal Foundation, a conservative legal organization that says it defends Americans from government overreach.
The group argued that the new admissions process amounted to race discrimination aimed at Asian American students.
Judge Claude M. Hilton of the Federal District Court in Alexandria ruled for the challengers, saying that the changes were “racially motivated.” The discussion of the planned changes, he wrote, was “infected with talk of racial balancing from its inception.”
“It is clear that Asian American students are disproportionately harmed by the board’s decision to overhaul T.J. admissions,” he wrote. “Currently and in the future, Asian American applicants are disproportionately deprived of a level playing field.”
Meet The Times’s Supreme Court Reporter
Adam Liptak, who has been covering the Supreme Court since 2008, started at The Times as a copy boy in 1984. He left to attend Yale Law School, became a practicing lawyer and worked in The Times’s corporate legal department before returning to the newsroom. Learn about how he approaches covering the court.
A divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., stayed Judge Hilton’s decision while an appeal from the school board moved forward. That had the practical effect of keeping the new procedures in place for a second admissions cycle.
In a concurring opinion, Judge Toby J. Heytens wrote that the high school’s new admissions program was lawful.
“The Supreme Court has repeatedly stated that it is constitutionally permissible to seek to increase racial (and other) diversity through race-neutral means,” he wrote. “Indeed, it has required public officials to consider such measures before turning to race conscious alternatives.”
Judge Heytens added that it would be impractical to switch back to the old criteria so late in the cycle, with admissions decisions for the fall due this month. “None of the current applicants was required to take the formerly mandated standardized tests, two-thirds of which are no longer commercially available,” he wrote.
Lawyers for the school board told the Supreme Court that a ruling for the challengers would threaten race-neutral means of achieving diversity that the court had at least tacitly endorsed. In Fisher v. University of Texas in 2016, for instance, the court rejected a challenge to an admissions program that included, among other elements, guaranteed admission to top students at every high school in the state.
The school board’s brief added that the percentage of Asian American students receiving offers of admission under the new program “substantially exceeded their share of the applicant pool,” adding that “Asian Americans were the only racial group that was substantially overrepresented compared to its share of the applicant pool.”
“Moreover, the Asian American admissions rate under the plan was 19.48 percent, well within the historical 2004-2020 range of 16.8 percent to 25 percent,” the brief said. “Those facts alone foreclose the coalition’s claim that Asian Americans were disadvantaged in the admissions process.”
A small but important judicial victory for affirmative action!