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Keep Your Discrimination Quiet

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Keep Your Discrimination Quiet

A Virginia high school earned legal rebuke for its race-conscious admissions policy, but schools that keep quiet may get away with similar behavior. March 3, 2022
Education
The Social Order
Politics and law

Late last week, a federal judge ruled against the Fairfax County, Virginia, school board. The entity had discriminated against Asian students, the judge found, when it changed the admissions process for the highly selective Thomas Jefferson High School (TJ), a public institution focused on science and technology. The decision is a victory for those who oppose the use of race to determine school admissions. But the case’s finer details highlight the tough road ahead for affirmative action’s opponents.

TJ is located in Fairfax County but is open to students from several surrounding counties as well. In the five years leading up to the admissions change, Asian students had represented 65 percent to 73 percent of TJ admittees; that dropped to 54 percent with the new rules for the Class of 2025. This was no side effect of a policy change made for nonracial reasons—policymakers intentionally pursued the goal of achieving a different racial balance, one more in line with the general population of the area from which TJ draws.

Legally, the judge’s decision is brief and straightforward. While current Supreme Court precedent allows the open consideration of race in college admissions, the rules for lower education are a bit stricter and more firmly rooted in the rules for racial discrimination by government entities in other areas. When the government uses racial categorizations, “strict scrutiny” applies: the government has to show that the policy advances a “compelling” interest and is “narrowly tailored” to achieve its goal. Racial balancing for its own sake is not considered a compelling interest—though schools have leeway to improve “access” for underrepresented minority groups, as the school board emphasized in its response to the suit.

The new TJ policy doesn’t directly use race as a factor in admissions the way that many colleges do. But fortunately for the plaintiffs, the process behind the policy was flagrantly shot through with a desire for raw racial balancing. Policymakers weren’t even shy about it, and the decision provides a greatest-hits collection of sorts. They lamented that TJ admissions didn’t “reflect the racial composition” of the overall school district, for instance—and, fearing intervention from the state government, contemplated “talk” that the state could require schools like TJ to come within “5 percent of diversity in their local school districts.”

Such comments show the intent behind a policy that worked to the detriment of Asian students, the only overrepresented racial group at TJ. Strikingly, though, in arguing its case, the school board claimed that it didn’t really count as a “disparate impact” for the Asian share at the school to drop by 10–20 percentage points after the new policy went into effect, because Asians were still overrepresented relative to their share of the applicant pool. And as the law professor Ilya Somin (whose wife was involved in the suit) has pointed out, a number of highly troubling comments didn’t even make it into the judge’s decision:

He does not . . . mention evidence that some decision-makers were also motivated by bias against Asian-American students, such as claims that having too many of them would damage TJ’s “culture,” negative stereotypes about Asian-American parents and students, and state legislator Mark Keam’s fulminations about the “unethical ways” Asian-American parents “push their kids into [TJ],” when those parents are “not even going to stay in America,” but instead are “using [TJ] to get into Ivy League schools and then go back to their home country.” Keam’s sentiments are relevant because, as [the judge] found, Fairfax County school officials were influenced in part by pressure from the state government.

Assuming this decision survives the appeals process—and with the Supreme Court looking the way it does, there’s little reason to think it won’t—this serves as a warning to policymakers not to engineer openly the racial composition of selective schools.

But “openly” is the key word. While the old policy and the new policy created different racial compositions at TJ, little is inherently suspicious about either. To simplify a bit, the old policy sorted applicants by their GPAs and test scores, then allocated slots to the qualifying students through a more holistic process that included, for example, teachers’ recommendations and writing assignments. The new policy eliminates the standardized-test requirement, hikes the minimum GPA, relies more heavily on a holistic review, and guarantees admission to at least 1.5 percent of each middle school’s eighth-grade class. The school board could have shifted from the old policy to the new one, or something close to it, without leaving such an obvious paper trail proving that racial balancing was a goal—or indeed that race was a factor at all.

Going forward, judges will have to draw lines, but they can’t stop every policy change that shifts a school’s racial balance. Courts are not going to tell schools that they must select students based mainly on test scores, or that they have to continue doing so in perpetuity once they start, or that they must eliminate all use of subjective metrics, or that they can’t make a point of admitting students from schools that serve poor areas.

Similarly motivated school boards are now on notice to keep quiet about race in public. Given the big racial gaps on standardized tests, one obvious move is to reduce use of standardized tests where possible, on any number of purportedly non-racial grounds.

And with the Supreme Court set to weigh in on affirmative action at the college level, it’s worth noting that the same process will unfold. The Court, drawing on a mix of constitutional doctrine and federal antidiscrimination law, will likely curtail or ban the open use of race as a factor in admissions, both at public schools and at private schools that receive federal funds (which is most of them). But it’s not going to write schools’ admissions policies for them. So long as the schools retain control, they will find ways to discriminate by race—whether by changing overall policies in a “race-neutral” way that happens to produce the desired demographic result, or by giving admissions officers the discretion to produce that result through the sum of many small decisions.

Racial discrimination in education is on the ropes legally, and banning the open use of race in admissions would be a victory in itself. But banning the open use of race is quite different from banning the actual use of race.

Photo: Pict Rider/iStock

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