Discrimination in the Name of Diversity

N early a decade ago, Maryland’s largest public school district decided it had a problem. It didn’t involve student safety or plummeting test scores. It was that too many Asian-American children were being accepted into its magnet program for exceptional middle-schoolers.

This week, the U.S. Supreme Court accepted a case that will decide whether Montgomery County Public Schools’ plan to rebalance the racial makeup of the program violated the Constitution’s promise of equal protection under the law.

By the 2013–14 school year, half the students accepted to the county’s four magnet programs were Asian-American. To “correct” this “problem,” the district commissioned a study to see how it could begin to de-emphasize traditional criteria in an effort to grant more spots to black and Hispanic children.

Released in 2016, the report concluded that there were “significant racial and socioeconomic disparities in the enrollment and acceptance rates to academically selective programs, which suggest a need to revise the criteria and process used to select students for these programs.” The report suggested “broadening the definition of gifted” to include “non-cognitive measures such as motivation and persistence, using group-specific norms that benchmark student performance against school peers with comparable backgrounds,” and “offering automatic admissions for students in the top 5-10% of sending elementary or middle schools.”

The motivations in seeking these changes were not subtle. A board member expressed concern over the “substantial underrepresentation of students of color” in the magnet programs and expressed hope that “programs will become more diverse and be more reflective of our student population.”

As is the case with college admissions, concerns over the inclusion of “students of color” do not apply to Asian Americans, a group once largely barred from entering the United States by the federal government. And when the Montgomery County school district began running field tests using their new criteria, they got the result they wanted. At one magnet school, the percentage of Asian-American students in the program dropped from 45.6 percent to 31.5 percent, while the proportion of black, Hispanic, and white students all rose (by 5.3 percent, 8.3 percent, and 2.7 percent, respectively). At another school, the percentage of Asian-American participants dropped by 27.9 percent and at another by 15.4 percent.

Asian-American parents noticed. So did the school board, whose complaint was that the field test hadn’t gone far enough. One member had already warned colleagues that “if we expand blindly we are going to end up in the same place ten years from now,” because “privilege is not going to go away.” In Montgomery County, apparently, “privilege” is what you call a ten-year-old who aces a cognitive abilities test.

The mechanics were clever, in the way a pickpocket is clever. The new field test’s “peer grouping” rule made it harder for kids at high-performing elementary schools to win seats. A “local norming” provision scrapped the countywide yardstick and graded children on their own school’s curve. Asian-American families in the county are clustered in a handful of high-performing schools, so the district never had to write the word “Asian” anywhere. Geography did the sorting.

When a group of mostly Asian parents sued in 2020,* the district swapped the field test for a lottery open to students scoring in the 85th percentile on a standardized assessment. Those percentiles were locally normed, too. Data the parents later obtained showed that kids at schools with the lowest rates of poverty among their school population needed to score in the 93rd percentile countywide to qualify for the STEM lottery. Kids at the county’s highest-poverty schools needed to score in the 60th percentile. This made it even harder for Asian-American students to qualify for the STEM programs than under the field test.

Yet the parents lost, and not because a court found that the district had done no wrong. The Fourth Circuit had adopted a rule in a similar case involving Virginia’s Thomas Jefferson High School. Under it, a plaintiff can’t even raise discriminatory intent unless the targeted group’s share of admissions falls below its share of the applicant pool. Asian-American kids didn’t fall below that line, so the case was tossed. Intent never entered the room.

The current legal standard is therefore that a school board can set out to shrink a racial group’s numbers, succeed, and still walk away clean, so long as the victims stubbornly keep outperforming everyone else. Justice Samuel Alito, dissenting when the court passed on the Thomas Jefferson case, said the rule “effectively licenses official actors to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups.” The crime is excused because the victims were too good at surviving it.

The circuit courts have now split. The First and Fourth apply the Thomas Jefferson standard. The Second and Third, in cases from New York and Philadelphia, have rejected it. So a Maryland sixth-grader’s equal protection now depends on which side of the Mason-Dixon line her parents bought a house.

The Supreme Court’s own precedent says this can’t stand. In the 2023 case Students for Fair Admissions v. Harvard, Chief Justice John Roberts wrote that “eliminating racial discrimination means eliminating all of it,” and that what cannot be done directly through racial quotas cannot be done indirectly through ostensibly race-neutral programs with disparate impacts. Sixteen years earlier, he put it more simply: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

G. K. Chesterton observed that America is the only nation founded on a creed. That creed’s first article is that government treats citizens as individuals, not as tokens of a group. Montgomery County wanted its magnet programs to “reflect the community.” The Constitution asks for something harder: that the community treat each child as a person. The justices now get to remind the district which one is the law.

*Disclaimer: The author works for Pacific Legal Foundation, which is representing the parents in their lawsuit against Montgomery County Public Schools.