Three years ago, in Students for Fair Admissions v. Harvard (SFFA), the Supreme Court ended the use of racial classifications and preferences in college admissions. The justices who joined the majority opinion must have known that many higher education institutions would try to find surreptitiously magical ways to get around the ban. Chief Justice John Roberts wrote an admonition: “What cannot be done directly, cannot be done indirectly.” Despite that warning, dozens of schools decided to test it.
This Friday, October 9, the Court has a chance to clarify and enforce this warning when it decides to accept or reject an appeal in a case that addresses these exact issues. The case, Association for Education Fairness v. Montgomery County Board of Education, challenges the changes made by the school board in Montgomery County, Md., for admission to the county’s highly competitive magnet middle schools.
For many years, admission to the county’s magnet middle schools depended on a student’s grades, a cognitive-abilities test, and teacher recommendations. However, starting in 2016, these requirements began to get fuzzy. The school board added “peer grouping,” which penalized academically strong students from high-performing elementary schools; a year later, they added “local norming,” which awarded bonus points based on the poverty rate of the applicant’s school. The board wasn’t shy about why it implemented these changes, declaring that the goal was to “reflect the community that we live in.”
It worked: At one STEM school program, the percentage of Asian Americans plummeted from 45.6 percent to 31.5 percent. When parents of students wishing to attend the magnet schools brought a legal challenge based on race discrimination by proxy, the Fourth Circuit Court of Appeals rejected the claim on the theory that Asian-American students were still admitted at rates above their share of the population, so it couldn’t be discrimination at all.
If this isn’t a blatant endorsement of illegal racial balancing, then nothing is. This reasoning would allow any governmental body to jury-rig a facially neutral policy successfully targeting a racial group yet still escape judicial review, as long as the targeted group isn’t pushed below its percentage in the overall population.
History shows how wrong this is. In the 1920s, Harvard President A. Lawrence Lowell and alumni were distressed by the significant number of Jewish students who were “testing in.” Instead of imposing a numeric quota, Harvard simply downgraded test score results and emphasized “character” and other subjective criteria. Jewish enrollment fell from 28 percent of the freshman class to about 15 percent. Since Jews were less than 4 percent of the national population at that time, these proxies would be perfectly legal under the Fourth Circuit’s percentages test.
The federal appeals courts are now divided on these questions. The Fourth and First Circuits use this population-parity test. They refuse even to compare how a group fared under the old policy with how it fares under the new one. But the Second and Third Circuits reject this test — and rightly so. This split should compel the Supreme Court to step in. Schoolchildren’s constitutional rights should not depend on which federal court circuit they live in.
The stakes extend far beyond one Maryland school district. As the U.S. Justice Department has found, since the SFFA decision, colleges and professional schools have implemented proxies that produce racial outcomes without using direct racial classifications.
Many elite competitive universities including Yale, Princeton, and Duke submitted an amicus brief in the SFFA case telling the Court that race-neutral admissions would devastate their racial diversity. Yet their entering classes have barely changed, and this may be due to sleight-of-hand racial preferences.
The Fourth Circuit’s opinion gives these higher education institutions a roadmap to gerrymander their classes, thus making SFFA little more than a paper tiger for Asian-American students — the group most harmed by the discrimination the Court struck down.
Justice Samuel Alito has twice dissented when the Court declined to hear similar cases from Boston and Fairfax, Va., warning that the error by the lower courts continues to “metastasize.” He was right.
As the Court reminded the nation in the SFFA case, “eliminating racial discrimination means eliminating all of it.” It’s time for the justices to say so again.