On May 23, 2023, the U.S. Court of Appeals for the Fourth Circuit decided a case involving the admission policy for Thomas Jefferson High School of Science and Technology. The court voted 2-1 to uphold the school’s new admissions plan that has the effect of increasing Hispanic and Black students while reducing Asian-American students. This case may be an omen for the decision expected within a few weeks from the Supreme Court in similar cases involving Harvard and the University of North Carolina.
Background
In the 1950s, the Washington DC metropolitan area developed affluent suburbs while its central city decayed. Fairfax County, VA—on the western side of DC—converted from mostly farms into a sprawl of single family houses. Its growing tax base created what was then one of the top public school systems in the country. Northern Virginia—a group of counties including Fairfax, Loudoun, Prince William, and others—has since become the wealthiest area in the country.
More recently, Washington DC and close-in suburbs—particularly on the Virginia side of the Potomac—such as Arlington and Alexandria gentrified, causing low income and marginalized communities to move to the outer suburbs. The result is that Fairfax County has become highly segregated with individual subdivisions and neighborhoods either being exclusive and affluent or struggling and destitute. As a result, academic performance at neighborhood grade schools and middle schools varies drastically. Some of the high schools even began to experience significant gang problems.
In 1985, the Fairfax County School Board converted an existing high school into a magnet school called the Thomas Jefferson High School for Science and Technology (known by locals as ‘TJ’). TJ reached out for corporate support and for adult volunteers. The community supported the new school immensely, for example, TJ was the first high school in the nation with its own supercomputer.
The Secondary Schools Committee of the Cornell Club of Washington took an immediate interest in TJ, and quickly established a pipeline where a large group of TJ graduates would enroll as Cornell freshmen each year. As word spread of TJ as a pathway to Ivy League schools, demand to attend TJ grew and its admissions became highly selective. Only one in five applicants are admitted into TJ.
In addition to Fairfax County students, TJ sold seats to neighboring school districts including Arlington, Loudoun, and Prince William Counties, and the Cities of Fairfax and Falls Church. Each of those districts paid for the right to send a limited number of students to TJ.
By 2020, TJ established an elaborate admissions process based upon merit. It included standardized test scores, a demanding unique-to-TJ exam, and letters of recommendation from teachers. The Fourth Circuit found:
The pre-2020 admissions process at TJ tended to produce incoming classes that were drawn principally from a limited group of “feeder” middle schools in Fairfax County. Those TJ classes also included very few low-income students, few English-language learners, few students receiving free or reduced-price meals, few special education students, and just a few Black, Hispanic, or multiracial students.
Seventy-three percent of the class of 2024 were Asian-American. That class had “ten or fewer” black students. TJ accepted 480 students total that year.
The New Admissions Policy
In 2020, following the death of George Floyd, the Fairfax County School Board became concerned with the low black and hispanic attendance at TJ. It adopted a new admissions policy which eliminated the standardized admissions test for TJ, eliminated the $100 application fee, raised the minimum GPA, and expanded the freshman class from 480 to 550. Seats in the TJ freshman class were also allocated for the top 1.5% of applicants from every Fairfax County middle school. The new plan called for a “holistic review” of all applicants. After the seats assigned to each middle school were filled, the last 100 seats would be available to the whole applicant pool.
Slide showing the projected impact of the old v new policy on TJ Class of 2024
The school board claims that both the old and new policies are race-blind because “Admissions evaluators do not know the race, ethnicity, or gender of any applicant.” Each applicant is identified by a number rather than a name.
The class of 2025 was the first selected under the new plan. For the first time in a decade, all 28 Fairfax County middle schools sent at least one student to TJ. Although 48% of the applicants for that class were Asian-Americans, the selected class was 54% Asian-American. Black students received 7.9% of the offers.
The Courts Weigh in on Anti-Asian Discrimination
The Coalition for TJ, a group of primarily Asian-American parents, sued to block the new admission plan. The District Court refused to preliminarily block the new plan on December 3, 2021. Both parties then asked for summary judgment to allow the court to decide the case without further discovery or a trial.
In February 2022, the District Court found that the new policy discriminated against Asian-Americans, and that the policy was adopted “with invidious discriminatory intent.” The decision found that the school board had asked for racial data about the entering classes and concluded that “diversity primarily meant racial diversity.” The District Court ordered a return to the old policy.
The school board appealed the District Court order and sought a stay from the Fourth Circuit to allow the new policy to remain in effect. On March 31, 2022, the Fourth Circuit granted the stay because it thought that the school board was likely to win when the case was to be decided on its merits.
The Coalition for TJ then appealed the Fourth Circuit’s decision granting the stay to the Supreme Court’s shadow docket. Chief Justice Roberts referred the question to the full court, and on April 25, 2022, the court declined to vacate the stay, with Justices Thomas, Alito and Gorsuch indicating that they would vote to lift the stay. So, the case returned to the Fourth Circuit with the new policy remaining in effect.
On May 23, 2023, a three judge panel of the Fourth Circuit voted 2-1 to uphold the new policy because it did not show discriminatory intent. The opinion stated:
“[T]o demonstrate that an evenhanded, facially race-neutral policy like that challenged here is constitutionally suspect, the plaintiff pursuing an Equal Protection challenge must show (1) that the policy exacts a disproportionate impact on a certain racial group, and (2) that such impact is traceable to an “invidious” discriminatory intent.”
U.S. Court of Appeals for the Fourth Circuit
Although the new policy lowered the number of Asian-Americans from 73% of the class to 54%, the Fourth Circuit still found no “disparate impact” from the new policy on Asian-American applicants. The decision noted that the Supreme Court in Grutter v. Bollinger had found “diversity” to be an appropriate goal in higher education admissions decisions. So, two of the judges voted to find that the new policy was Constitutional.
Judge Rushing dissented because the school board’s intent to alter the racial balance of the TJ entering class was clear. He wrote, “Racial balancing offends the Equal Protection Clause” of the Fourteenth Amendment.
Impact Upon Cornell
In effect, Cornell relied upon TJ’s highly selective admissions policy to vet students for freshman admissions. With the new system resulting in a wider variation of academic ability coupled with Cornell’s “test-optional” admissions policy, high school grade point average and the Cornell alumni interviews may become more important to Cornell’s decisions under TJ’s new admissions policy.
Although TJ offers students as academically prepared as students from Northeastern Prep Schools, accepting TJ students has the added advantage of satisfying Cornell’s geographical diversity goals as well as generally representing a lower socioeconomic mix than big-name prep schools.
The irony is that when Cornell recruits for black or other underrepresented minority students, it solicits applications from inner city schools in New York State or Chicago rather than from geographically diverse high schools, including TJ (which is located in one of the wealthiest counties in Virginia). So, expanding the black enrollment at TJ will probably not influence the demographics of the students that Cornell will accept from TJ as freshmen.
Cornell has a new admissions task force scheduled to issue a preliminary report any time now. Will its recommendations favor admissions of minority students from schools like TJ or east coast preparatory schools over those from inner city high schools?
For the long term, when the Coalition for TJ appeals the Fourth Circuit decision to the Supreme Court, observers believe that the new admission policy’s fate will be decided by Justices Thomas, Alito, and Gorsuch, and more broadly the new conservative majority on the Supreme Court.
William Jacobson, Clinical Law Professor at Cornell predicts:
SCOTUS strikes down affirmative action in the Harvard and UNC cases later next month, ruling that the 2003 Grutter v. Bollinger case no longer is good law. Since this 4th Circuit decision relied on Grutter, SCOTUS will vacate the 4th Circuit decision and remand for further consideration in light of its rulings in Harvard and UNC.
Professor William Jacobson, Cornell Law School
Alternatively, if the Supreme Court wants to apply its new approach to high school admissions as well as to higher education, it may use the TJ case as the vehicle for that extension.
Under the old policy, admissions was strictly merit based, and the very best students received a great preparation for college-level study. Those students, as expected, went on to great success in higher education and in life. The new policy, by the school board’s own admission, shares valuable TJ seats with less meritorious students because of race. Time will tell whether the bottom half of the TJ class will experience the same level of success going forward.
The Review asked Cornell for statistics about its acceptance of TJ students, but it refused.
