In a split decision Tuesday, the Fourth Circuit Court of Appeals ruled in favor of an elite Virginia high school that has been accused of anti-Asian discrimination.
The ruling comes before the Supreme Court decides cases involving the University of North Carolina at Chapel Hill and Harvard University, which could see the justices rule race-conscious admission policies to be unconstitutional. In this case, the Fourth Circuit reversed the district court, which ruled a 2020 policy instituted by Thomas Jefferson High School for Science and Technology (TJ) in Fairfax County, Va., to be racial balancing in all but name.
The school’s new policy eliminated a standardized test that was previously part of its admissions policy and instituted a “holistic review” that considered applicants on four “experience factors” — income status, English-speaking ability, disability status, and whether the applicant comes from a historically-underrepresented high school. The policy was thus race-neutral on its face.
Writing for the two-judge majority, Judge Robert Bruce King held that “the challenged admissions policy does not disparately impact Asian American students and that the Coalition cannot establish that the Board adopted its race-neutral policy with any discriminatory intent.”
He came to his decision by evaluating a given racial or ethnic group’s share of the number of applications versus that group’s share of the offers extended.
“In 2021, Asian American students accounted for 48.59% of the applications to TJ’s class of 2025, but actually secured 54.36% of the admission offers made for that class…Asian American applicants were thus the only racial or ethnic group to receive offers notably in excess of its share of the applicant pool in 2021, producing the highest admissions ‘success rate’ of any such group,” wrote King.
For Judge Allison Rushing, who dissented, the school board had “repeatedly, consistently, and forthrightly declared its racial motivation” to instituting the policy. Communications between Fairfax County school board members also revealed their admission the process targeted Asian Americans.
In text messages, board members Stella Pekarsky and Abrar Omeish agreed that “there has been an anti Asian feel underlying some of this, hate to say it lol” and that Asian students were “discriminated against in this process.” The pair also said Superintendent Scott Braband “had made it obvious” with “racist” and “demeaning” remarks and that he “came right out of the gate blaming” Asian students and parents.
The effect of the policy was clear to Rushing: “The Policy reduced offers of enrollment to Asian students at TJ by 26% while increasing enrollment of every other racial group. This was no accident. The Board intended to alter the racial composition of the school in exactly this way.”
Rushing thus concluded based upon the policy’s motivations and ends that the Equal Protection Clause of the Fourteenth Amendment was violated.
Further, Rushing criticized the majority’s stated reasoning that noted Asian Americans still had a high success rate. “If a State enacts a policy with the purpose and effect of trimming down the success of one particular racial group to a level the State finds more appropriate, it has discriminated against that racial group,” she argued.
“Our Constitution guarantees every person equal treatment under the law regardless of race. That guarantee would be hollow if governments could intentionally achieve discriminatory ends under cover of neutral means,” Rushing wrote.