The Thomas Jefferson High School for Science and Technology (TJ) is an elite public magnet school with a “pipeline” that results in many of its graduates enrolling at Cornell. In 2020, the Fairfax County VA School Board imposed a new admissions system that lowered the portion of Asian-American students in TJ’s entering class from 73% down to 54%, with a rise in Black and Hispanic students. A U.S. District Court judge granted an injunction to block this new admission system, and then the U.S. Court of Appeals for the 4th Circuit reversed with a 2-1 vote.
The Pacific Legal Foundation (PLF) represented a group of Asian-American students and their parents who appealed that decision in light of last June’s Supreme Court decision in the Students for Fair Admissions case, which prohibited race-based affirmative action admissions programs.
In many cases, a Court of Appeals decision will end a lawsuit, unless it is appealed to the Supreme Court. However, the Supreme Court gets to pick and chose which cases it will consider.
On February 20, 2024, the Supreme Court declined to hear the TJ appeal. (Four Justices would have to vote to hear the case, but the TJ case did not get the needed votes.) Justice Alito dissented together with Justice Thomas. Justice Alito wrote:
The Fourth Circuit panel majority, by contrast, completely distorted the meaning of disparate impact. Even though the new policy bore “more heavily” on Asian- American applicants (because it diminished their chances of admission while improving the chances of every other racial group), the panel majority held that there was no disparate impact because they are still over represented in the TJ student body.
That is a clearly mistaken understanding of what it means for a law or policy to have a disparate effect on the members of a particular racial or ethnic group. Under the old policy, each Asian-American applicant had a certain chance of admission. Under the new policy, that chance has been significantly reduced, while the chance of admission for members of other racial and ethnic groups has increased. Accordingly, the new admissions policy bore more heavily on Asian-American applicants.
Justice Alito concludes:
The Court’s willingness to swallow the aberrant decision below is hard to understand. We should wipe the decision of the books, and because the Court refuses to do so, I must respectfully dissent.
Although this is a setback for the Asian-American students seeking admission into TJ, the PLF is litigating the validity of several other similar discriminatory policies at other schools.
