In Students for Fair Admissions v. Harvard, the Supreme Court held that racial discrimination in school admissions is unconstitutional. Elite institutions have all but announced their intent to skirt the ruling. Thomas Jefferson High School for Science and Technology, one of the nation’s top public schools, recently adopted an apparently race-neutral mechanism intended to balance its student body racially. The Coalition for TJ, a nonprofit dedicated to “promoting diversity and excellence” at Thomas Jefferson, sued the school, seeking to enjoin the policy. They have petitioned the Supreme Court to take the case, which would allow the Court to head off institutional resistance to Harvard and avoid repeating one of its greatest mistakes.
In 1954, the Supreme Court ruled in Brown v. Board of Education that the Constitution forbids racial discrimination in children’s education, repudiating decades of state government Fourteenth Amendment violations. The story didn’t end there, though. The Court’s ruling required the parties to return the following year to discuss the judicial remedy for the states’ unconstitutional behavior.
In 1955, in Brown v. Board of Education II, the Court told the parties how it would enforce its ruling. Faced with the certainty of “massive resistance” by many offending school districts, the Court elected to hit pause, merely requiring states to begin complying with the Constitution “with all deliberate speed.” Decades later, Justice Thurgood Marshall joked that “I’ve finally figured out what ‘all deliberate speed’ means. It means ‘slow[ly].’” In a more serious moment, he told his biographer Dennis Hutchison that Brown II “gave us nothing” and left him “shattered.” Litigation had produced a nice piece of paper, but actual integration would wait decades (including through the three years that Virginia shuttered all its public schools), arriving only after the Civil Rights Act of 1964; some brass-tacks persuasion by Richard Nixon; a nationally televised college-football beat-down of the still-segregated, all-white Alabama by an integrated USC team; and, of course, more litigation.
Like Brown, this summer’s Harvard case declared that schools can no longer racially discriminate in choosing which students to educate. Once again, the Court knows that the world is full of those (from the president of the United States on down to the leadership of the offending institutions) intent on “massive resistance.” Once again, such pressures incentivize the justices to hit pause and punt.
And in walks the Coalition for TJ. TJ is a magnet school that traditionally chose its students through a competitive entrance exam. Fairfax County Public Schools, which runs TJ, set out in 2020 with a goal of racially balancing the institution to be more “representative” of the area’s population. That’s not mind-reading: the school board unanimously passed a resolution announcing that its objective was to “have TJ’s demographics represent” the local “region.” The district junked the test and, eventually, crafted an admissions policy that successfully reduced Asian admissions by about one-third in its first year, even while avoiding words like “race.”
The board’s discriminatory intent made the policy constitutionally impermissible. The Court’s jurisprudence holds that the Fourteenth Amendment forbids intentional discrimination based on protected characteristics, whether through explicitly discriminatory policies or policies that indirectly achieve the same discriminatory results. As my Manhattan Institute colleague Ilya Shapiro and I demonstrate in our amicus brief in the case, the Fairfax board intending to balance TJ’s student body racially is a constitutional problem, even if their policy is facially race-neutral.
A district court agreed and enjoined TJ from using that approach. A court of appeals overturned that decision, despite the offending government never suggesting the policy change had served any valid, compelling interest.
The appeals court’s decision effectively coaches up every racialist decisionmaker in America on how to obscure their discriminatory intent to survive judicial scrutiny. The Coalition for TJ (whose members are mostly immigrant parents of Asian Northern Virginia kids) now asks the Supreme Court, one year after Harvard, to respond to such bad-faith efforts to flout their ruling and continue pursuing racial “diversity” in education.
This dispute is eerily similar to the one from 1955. The Court faces the same issues, with the same clear answers and the same inherent risks. Political calculation and cowardice again counsel the Court not to do or say too much (indeed, not to do anything), to step back from enforcing the constitutional rights of children, and to let matters play out elsewhere.
The Court got this wrong the first time. We’ll soon know whether the justices agree, or whether they will again “give us nothing.”
Photo by Tom Brenner for The Washington Post via Getty Images