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In the affirmative-action debate, all eyes are on the Supreme Court, which will soon make two high-stakes rulings on the subject. Meantime, a 2-1 decision from a Fourth Circuit Court of Appeals panel offers a sideshow worth watching.
In the case at issue, the leaders of Thomas Jefferson High School for Science and Technology, or TJ—a highly selective public magnet school in Fairfax County, Virginia—bemoaned the demographic imbalance that resulted from the school’s academics-focused admission policies. (The class of 2024, for example, is more than 70 percent Asian, and Hispanics and blacks fall far short of their general-population proportions in the overall school district.) The school board then switched TJ to a different system that, while not considering race directly, reduced Asian admissions by about a quarter. Among other changes, the new policy ditches standardized testing and guarantees admission to at least 1.5 percent of each middle school’s eighth-grade class.
Last year, a district court held that this policy violated the Constitution’s equal-protection guarantee, in a ruling I wrote about for City Journal. The Fourth Circuit majority disagreed.
The case raises important issues for education at all levels. Historically, different rules have applied to the use of race in college vs. K–12 admissions: colleges have more leeway to consider race directly in the interest of promoting diversity. But if the Supreme Court ends the explicit use of race in college admissions, as now appears likely, college administrators will engage in much behavior that strongly resembles the decision-making at issue in the TJ case.
To win under current precedents, TJ’s challengers must show, essentially, that the policy disproportionately harmed Asians and that it was intended to do so. Demonstrating these facts would trigger the “strict scrutiny” that applies when the government relies on racial classifications, under which the school would have to prove that the policy was narrowly tailored to achieve a compelling governmental interest (and racial balancing doesn’t count as one).
The appeals court found that neither of these requirements was met.
Despite TJ’s Asian share falling dramatically after the policy change, the court contends that the policy has no disparate impact against Asians because Asian students are still overrepresented at TJ relative to their share of the applicant pool. The implications of this argument are striking. By this logic, if applicants from a certain racial group perform especially well on academic measures, admissions departments are free to undermine that group as much as needed to nullify the performance advantage, so long as the discrimination takes the form of facially race-neutral policy changes.
Even if there was a disparate impact at TJ, however, the majority maintains that the plaintiffs haven’t proven it was intentional, despite ample evidence showing a desire to reshape the school’s demographics. The panel’s dissenting judge, for example, noted “a resolution [the Board] adopted saying as much, the racial data it requested and considered in the process, the means it selected, and the candor of individual Board members’ internal discussions.”
According to the majority, however, the policy contains no outright quotas and in fact requires race-neutral selection methods. The board members’ complaints about TJ’s demographics “reveal—at most—individual aspirations to improve student diversity.” Some of the evidence, moreover, is from a period when an earlier proposal was being considered. Finally, a presentation that noted the earlier proposal’s impact on racial numbers also included data on other demographics as well, such as English language learners. (It’s not clear why that last bit is exculpatory.) Far from proving a desire to reduce Asian enrollment, the majority says, “the undisputed facts show only that the Board intended to improve the overall socioeconomic and geographic diversity” of TJ. Even if the board wanted to increase black and Hispanic enrollment in particular, and even if that mathematically necessitated lower enrollment of other groups, that doesn’t automatically translate to discriminatory intent under current case law.
At this point, two courts have looked at the same record and come to different conclusions about the school board’s motivations and their legality. Colleges’ decision-making will produce similarly controversial records if affirmative action is banned at that level.
As I detail in a forthcoming Manhattan Institute brief (available next month), colleges tend to pursue “race-neutral” policies to achieve racial diversity when they’re not allowed to consider race directly. Such policies, from socioeconomic preferences to giving automatic admission to the Top 10 percent of students in each high school class, are quite well-received across the political spectrum.
But they raise a number of difficult issues, including their effect on academic standards and the extent to which they may be calibrated to achieve a desired racial balance. The key statistical issue in the TJ case—whether it’s legal for a school to kneecap an overrepresented racial group so long as the group doesn’t become underrepresented—will clearly need to be resolved at the college level, as well.
Soon, we’ll have rulings from the Supreme Court on college-level affirmative action. Over time, the TJ case and many more like it will be resolved, too. Taken together, they will lay out the limits both on the explicit use of race and on clever workarounds to engineer racial outcomes by “race-neutral” means.
Photo by Carol Guzy/The Washington Post via Getty Images