A divided federal appeals court on Tuesday upheld the constitutionality of a new admissions policy at an elite public high school in Virginia that critics say discriminates against highly qualified Asian Americans.
The 2-1 ruling from the 4th U.S. Circuit Court of Appeals in Richmond overturns a ruling last year from a federal judge who found that the Fairfax County School Board engaged in impermissible "racial balancing" when it overhauled the admissions policy at the Thomas Jefferson High School for Science and Technology.
The school frequently is cited among the best in the nation, and parents jockey and prepare for years to get their children admitted. But for decades Black and Hispanic students have been woefully underrepresented, while Asian Americans made up more than 70% of the student body.
In 2020, the school board significantly revamped the admissions process, scrapping a standardized test that had been a linchpin in favor of a system that set aside equal numbers of Thomas Jefferson slots at each of the county’s middle schools, among other changes. The process does not take race into account. It does give weight in favor of applicants who are economically disadvantaged or still learning English.
The first freshman class admitted under the new rules saw a significantly different racial makeup. Black students increased from 1% to 7%; Hispanic representation increased from 3% to 11%. Asian American representation decreased from 73% to 54%.
Critics of the new policy say it discriminates against Asian American applicants who would have been granted admission if academic merit were the sole criteria, and that efforts to increase Black and Hispanic representation necessarily come at the expense of Asian Americans.
But Tuesday's majority opinion from Judge Robert King said the school board had a legitimate interest in increasing diversity at the school, and twisting those efforts to call it discrimination against Asian Americans “simply runs counter to common sense.”
A concurring opinion from Judge Toby Heytens went further. He said the policy is race-neutral on its face, just as courts have required.
“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,” he wrote.
Judge Allison Jones Rushing dissented.
“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. The Board intended to alter the racial composition of the school in exactly this way,” she wrote.
Rushing said the policy is neutral on its face but the debate that surrounded its implementation reflected a clear desire for racial balancing. She criticized her colleagues for refusing “to look past the Policy’s neutral varnish.”
King and Heytens were appointed by Democratic Presidents Bill Clinton and Joe Biden, respectively. Rushing was appointed by Republican Donald Trump.
Tuesday's ruling comes as the U.S. Supreme Court weighs a pivotal case challenging whether Harvard University and the University of North Carolina should be allowed to take race into account in their admissions policies.
Pacific Legal Foundation, which filed the lawsuit on behalf of a group of current, former and prospective TJ parents, said it will seek to have the case heard by the Supreme Court.
“Discrimination against students based on their race is wrong and violates the Constitution’s guarantee of equal protection," said foundation attorney Erin Wilcox.
John Foster, an attorney for the school board, praised the ruling.
“The court reached the correct decision, and we firmly believe this admission plan is fair and gives qualified applicants at every middle school a fair chance of a seat at TJ," he said.
The school's admissions policy is also under investigation by Virginia Republican Attorney General Jason Miyares.
“It is wrong to create an admissions policy using race, national origin, or any other protected class under Virginia’s Human Rights Act as a factor,” spokeswoman Victoria LaCivita said.