The Supreme Court declined to review the Fourth Circuit Court of Appeals’ ruling that a Virginia high school’s admissions policy did not violate the Constitution, nor was its goal of creating a diverse student body unconstitutional. This ruling comes less than a year after the Supreme Court struck down Harvard University and the University of North Carolina at Chapel Hill’s policies which used race as a factor for student admissions.

The Fairfax County School Board (hereinafter referred to as the Board) operates, among other schools, the Thomas Jefferson High School for Science and Technology (hereinafter referred to as the School). The School is consistently ranked among the nation’s best public high schools and is a selective magnet school located in Alexandria, Virginia. Prior to 2020, the School’s admissions policy required students to reside in one of five participating school districts, possess a grade point average of at least 3.0, take a course in algebra, submit a $100 application fee, and take three standardized tests. Applicants who proceeded to the semi-finalist selection round would sit for an additional examination comprised of various writing prompts and a problem-solving essay, as well as submit two teacher recommendations. This admissions process resulted in the admission of very few low-income students, English-language learners, special education students, and few Black, Hispanic, or multiracial students.

In 2020, school board staff submitted a new admissions procedure for the Board’s review. Also in 2020, the Commonwealth of Virginia enacted a state budget that required several schools, including the Thomas Jefferson High School for Science and Technology, to set diversity goals for its student body and to develop a plan to meet those goals.

Meanwhile, the Coalition for TJ was organized during that same year. The Coalition focused its attention on potential modifications to the School’s admissions process and combatting a perceived “Anti-Asian” motivation.

The Board ultimately voted to remove the $100 application fee and the standardized tests from the School’s admissions process and to apply a “holistic review” of applicants. The “holistic review”  allocated a certain number of applicant seats to each of the School’s participating school divisions and applicants in those divisions would be based on a “portrait sheet,” describing the applicant’s skills, a problem-solving essay, and four “experience factors,” including special education status, eligibility for free or reduced-price meals, status as an English-language learner, and attendance at a historically underrepresented public middle school.

After the implementation of the new admissions policy, Asian-American applicants received over half of the offers extended (54.36%), while they were slightly less than half of the School’s applicant pool. However, before the implementation of the admissions policy, Asian Americans received between 65-75% of all offers extended. As a result, the Coalition for TJ filed a lawsuit against the Fairfax County School Board.

The Eastern District of Virginia entered judgment in favor of the Coalition for TJ, and the Board appealed.

The Fourth Circuit Court of Appeals ultimately held that the School’s race-neutral admissions policy did not have a disparate impact on Asian-American applicants, and the Board’s revision of the admission policy was not motivated by invidious discriminatory intent against Asian-American applicants.

Because the admissions policy was facially race-neutral, the Fourth Circuit reviewed the policy to determine whether it imposed a disparate impact on Asian-American applicants. The court was tasked with determining whether the policy was created with discriminatory intent. The court held that proving discriminatory intent requires more than sheer “awareness of consequences.” In other words, to prove discriminatory intent, the Coalition for TJ must successfully establish that the Board enacted the new admissions policy because of, not just in spite of, its adverse effects on an unidentifiable group, in this case, Asian Americans.

The Court reasoned as follows:

“To the extent the Board may have adopted the challenged admissions policy out of a desire to increase the rates of Black and Hispanic student enrollment at [the School] — that is, to improve racial diversity and inclusion by way of race-neutral measures — it was utilizing a practice that the Supreme Court has consistently declined to find constitutionally suspect.”

As to the Coalition for TJ’s argument that the Board should have known that expanding the School’s Black and Hispanic populations might naturally and foreseeably result in the negative impact of enrollment figures for Asian-American students, the Fourth Circuit held that this was wholly insufficient to infer constitutionally impermissible intent. The Court opined that the facts establish that the Board intended to improve the socioeconomic and geographic diversity of the School’s student body and not to accomplish the collateral goal of excluding Asian-American students from the School.

Ultimately, the Fourth Circuit held that broadening student backgrounds in the classroom serves, at minimum, as a legitimate interest in the context of public primary and secondary schools. The court remanded the case to the Eastern District of Virginia to enter judgment in favor of the Board.

Upon the Coalition for TJ’s petition for review of the Fourth Circuit’s decision, the Supreme Court declined to review the decision without comment. Justice Alito wrote a dissenting opinion, which Justice Thomas joined, opining that the Fourth Circuit’s opinion was based on an incorrect understanding of what is required to prove intentional race discrimination.

In the wake of the Supreme Court’s decision to strike down university admissions policies that consider race as a factor, schools are left wondering, what does this Fourth Circuit decision mean for us?  The Fourth Circuit relied upon the Supreme Court’s 1968 decision wherein it held that the judiciary should not intervene in conflicts that arise in the daily operation of school systems except where those conflicts very clearly implicate basic constitutional values. As such, the operational decisions of primary and secondary schools will ordinarily be disturbed where there is a direct infringement upon constitutional values. Moreover, the Fairfax County School Board decision suggests that admissions policies that are facially neutral will not be viewed unfavorably. That is, where the policy does not expressly consider race as a factor, even if the policy’s implementation might have some effect on the racial makeup of the school’s applicants. However, schools should not stop there, school boards should also ensure that the goal of their admissions policies is not intended to exclude any constitutionally protected class, including race, gender, disability, sexual orientation, etc.

If you are a school official or administrator who would like a legal review of your school’s admission policy, contact RaShawnda Murphy Williams at rwilliams@cshlaw.com, or any of our attorneys in the Education Law practice group.