Less than a year after its decision striking down the admissions programs at Harvard and the University of North Carolina as unconstitutional on the ground that they explicitly considered an applicant’s race as part of their admissions process, the Supreme Court on Tuesday declined to wade into the battle over race in admissions again. The justices rejected a request to weigh in on a challenge to an admissions policy at a prestigious public magnet school in Virginiathat does not take race into account directly, but instead considers socioeconomic factors in allocating some of the school’s 550 seats. The challengers, a group of parents and alumni, contended that the policy was created to reduce the number of Asian American students, who had previously received nearly three out of four offers of admission.
Justice Samuel Alito dissented from the court’s decision not to take up the case, in an opinion joined by Justice Clarence Thomas. Alito contended that the ruling by the U.S. Court of Appeals for the 4th Circuit upholding the admissions policy had been “based on a patently incorrect and dangerous understanding of what a plaintiff must show to prove intentional race discrimination,” and he called the 4th Circuit’s reasoning “a virus that may spread if not promptly eliminated.”
The school at the center of the dispute is Thomas Jefferson High School for Science and Technology, a northern Virginia school currently ranked fifth in the U.S. News & World Reports list of the best high schools in the country. Until recently, the school relied on an entrance exam – for which some students reportedly began to prepare as early as third grade—to select its new class, along with the applicants’ grades, essays, and letters of recommendation.
In 2020, the Fairfax County School Board adopted a new, “holistic” admissions policy that the board said was intended to increase socioeconomic diversity at the school. Under the new policy, the school filled part of the incoming class with the top students at each public middle school in the area. To fill the remaining 100 seats, school officials considered a variety of factors, including academic performance, whether the applicant comes from a low-income family, and whether English is the applicant’s second language. In reviewing an application, school officials did not know an applicant’s name, ethnicity, race, or sex.
The number of Asian American students offered admission at TJ, as the school is known, fell by 19 percentage points under the new policy: Instead of receiving 73% of the offers in the new class, Asian American students received 54% of all offers made for the class of 2025. The number of offers made to Black and Hispanic students, on the other hand, roughly quadrupled.
The challengers went to federal court in Virginia, where they argued that the new policy violates the Constitution’s equal protection clause. Even if the policy does not specifically consider race, they contended, it nonetheless was intended to lower the number of Asian American students at TJ.
U.S. District Judge Claude Hilton agreed with the challengers and barred the school from using the new admissions policy. But after the U.S. Court of Appeals for the 4th Circuit put Hilton’s ruling on hold during the school board’s appeal, the challengers came to the Supreme Court in April 2022, asking the justices to reinstate Hilton’s order. A divided court declined to do so, with Thomas, Alito, and Justice Neil Gorsuch indicating that they would have granted the challengers’ request.
Fourteen months after the court declined to block the school from using the new policy, the justices issued their decision in Students for Fair Admission v. Harvard College. In his opinion for the court, Chief Justice John Roberts warned that schools should not try to do an end-run around the court’s decision “through application essays or other means.” He stressed that “what cannot be done directly” – the consideration of an applicant’s race – “cannot be done indirectly.”
Just a month before that decision, the 4th Circuit issued a decision that upheld TJ’s new policy. Because the admissions policy did not expressly consider race, the court of appeals explained, the challengers could prevail only if they could show either that the new policy disproportionately affected Asian American applicants or that the school board had adopted the policy because it intended to discriminate against those applicants. But the challengers could not do so, the court concluded.
The challengers came to the Supreme Court in August, asking the justices to review the 4th Circuit’s decision. They told the justices that the case “presents a question of national importance that the Court has yet to answer directly” – whether “racial balancing” is constitutional “when it is done through ostensibly neutral criteria rather than through explicitly racial classifications.”
After considering the case at five consecutive conferences, the justices on Tuesday turned the challengers down without explanation.
In a 10-page opinion, Alito was sharply critical of the 4th Circuit’s decision. He characterized it as holding, “in essence, that intentional racial discrimination is constitutional as long as it is not too severe” because Asian American applicants still were admitted at a rate that exceeded their representation in the applicant pool. But such a rule, Alito suggested, would effectively allow government officials “to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups” – an “indefensible” position, in Alito’s view.
Alito described his colleagues’ “willingness to swallow the aberrant decision below” as “hard to understand.” “We should wipe the decision off the books,” Alito concluded, “and because the Court refuses to do so, I must respectfully dissent.”
In a statement released on Tuesday morning, a lawyer representing the challengers expressed disappointment with the court’s decision not to take up their case. “The Supreme Court missed an important opportunity to end race-based discrimination in K-12 admissions,” said Joshua Thompson, an attorney with the Pacific Legal Foundation. “Discrimination against students based on their race is not only ethically wrong but also a clear violation of the Constitution’s guarantee of equal protection.
This post is also published on SCOTUSblog.
