Fourth Circuit Divide Over TJ Admissions Policy Foretells Next Battles on Racial Diversity

In a ruling today in Coalition for TJ v. Fairfax County School Board, a divided panel of the Fourth Circuit addressed the question whether the admissions policy that the Fairfax County School Board adopted in 2020 for its extraordinary magnet school Thomas Jefferson High School for Science & Technology (“TJ”) violated the Equal Protection rights of Asian American applicants. The majority, in an opinion written by Judge Robert B. King and joined by Judge Toby Heytens, ruled that the admissions policy was constitutionally permissible. (Judge Heytens also wrote a concurring opinion.) Judge Allison Jones Rushing dissented.

For those keeping score at home: King was appointed by Clinton, Heytens by Biden, and Rushing by Trump.

In the next five weeks or so, the Supreme Court will issue its rulings on whether the admissions policies of Harvard and UNC unlawfully discriminate on the basis of race. If, as expected, the Court rules that those policies are unlawful, the next battles will be over what, if anything, colleges can do to promote racial diversity in their admissions policies. The competing opinions in the TJ case may well provide some insights into how those battles will be fought.

TJ’s former admissions policy winnowed applicants through three phases, including a first round of three standardized tests. Under the new policy adopted in 2020, each public middle school in TJ’s participating school divisions is allocated a number of seats equal to 1.5% of that school’s eighth-grade population.

1. Both the majority and the dissent agreed that the legal issue could be decided on summary judgment. They agreed, that is, that there were no relevant facts in dispute. That said, they disagreed widely on what the undisputed facts show.

According to King, the plaintiff group, the Coalition for TJ, failed to show that the School Board had an intent to discriminate against Asian American students when it adopted the admissions policy: the Coalition “fails to identify any evidence suggesting that the Board adopted the policy ‘at least in part because of’ some calculated adverse effect on Asian American students.” (Slip op. at 23.) Such matters as “statements and text messages from individual Board members regarding TJ’s admissions standards” and the school superintendent’s “consideration of racial data” in his presentation of a rejected admissions proposal “neither individually nor collectively … reveal any intent to adjust TJ’s student population along racial lines.” (Slip op. at 32.)

King contends that the School Board was at most aware that its new admissions policy would reduce the number of Asian American students. He invokes Supreme Court precedent for the proposition that “mere ‘awareness of consequences’ is not sufficient for proving a discriminatory purpose.”

Rushing observes that the new admissions policy “reduced offers of enrollment to Asian* students at TJ by 26% while increasing enrollment of every other racial group.” She concludes that the School Board “intended to alter the racial composition of the school in exactly this way—as demonstrated by a resolution it adopted saying so much, the racial data it requested and considered in the process, the means it selected, and the candor of individual Board members’ internal discussions.” (Slip op. at 48.) Rushing devotes more than a dozen pages to detailing the “undisputed contemporaneous evidence [that] makes plain the Board’s intent to racially balance TJ to reduce Asian student enrollment.” (See slip op. at 52-66.)

2. King also contends that the plaintiff Coalition must show that the admissions policy “exacts a disproportionate impact” on Asian Americans. (Slip op. at 22.) For that purpose, he argues, the district court’s “simple before-and-after comparison” of the number of admitted Asian American students is inadequate. (Slip op. at 23.) Instead, the “proper metric” is “the group’s ‘success rate’ in gaining admission to TJ under the challenged admissions policy.” Because Asian Americans had the highest admissions “success rate” of any racial or ethnic group, they were not disproportionately impacted by the new policy. Rather, the “unequal results at play here” (slip op. at 37) benefited Asian Americans.

Rushing rejects King’s metric. The large drop in offers of admission to Asian students shows that the new policy had a disproportionate adverse impact. (Slip op. at 68.) A before-and-after comparison is entirely proper.

3. Based on their different readings of the facts, King and Rushing applied different standards of review to TJ’s admissions policy.

For King, the admissions policy was to be assessed under the very deferential rational-basis standard. In his view, the policy rationally served its aim of “foster[ing] diversity of all stripes among TJ’s student body.” (Slip op. at 38-39.)

For Rushing, because the policy was motivated by a racial purpose, it was subject to strict scrutiny, and it could not survive such scrutiny. In particular, the Supreme Court has made clear that the interest in diversity that it has recognized in higher education does not apply to elementary and secondary schools. (Slip op. at 74.)

We shall soon see whether that supposed interest in the racial/ethnic diversity of college student bodies survives the Harvard and UNC cases.

* Rushing notes that she “uses the racial terms the Board used when designing the policy.”