
The Supreme Court cleared the way Tuesday for the use of admissions criteria aimed at diversifying the student body at an elite public high school in Virginia, refusing to review the role race can play in admissions months after it sharply restricted Affirmative action programs in higher education. .
In rejecting a challenge to a policy that eliminated standardized testing, the court gave no reasons, as is its custom when issuing such orders. Justice Samuel A. Alito Jr. issued a dissenting opinion, joined by Justice Clarence Thomas, who sharply criticized an appeals court ruling in the case that upheld the new criteria and rejected the challengers’ argument that they harmed illegally targeting Asian Americans.
The Supreme Court in June struck down race-sensitive admissions programs at Harvard and the University of North Carolina, but left open the constitutionality of admissions standards like Virginia’s, which do not directly take race into account when trying to diversify enrollment.
The court’s decision not to take up the Virginia case, along with an order this month refusing to block West Point’s race-sensitive admissions program, suggests that most justices are unwilling to take immediate steps to explore the limits of his Virginia ruling. June. Four votes are needed to grant review, for example, and the Virginia case failed to clear that hurdle.
In his dissent on Tuesday, Justice Alito expressed his frustration.
The Supreme Court’s “willingness to accept the abhorrent decision presented below is difficult to understand,” Justice Alito wrote. “We should wipe the decision from the books, and since the court refuses to do so, I must respectfully dissent.”
The revisions to Virginia’s admissions program came in the wake of protests over the killing of George Floyd in 2020. Amid concerns about the few Black and Hispanic students attending the school, one of the nation’s top public high schools, the Thomas Jefferson High School for Science and Technology in Alexandria, Virginia, adopted what it said were race-neutral admissions standards. The school board eliminated a rigorous entrance exam and prioritized admission to the top students from each area public high school rather than the top applicants from any school.
Admissions officers were also instructed to consider “experience factors,” such as whether students were poor, learning English, or attending a high school that was “historically underrepresented.” But officers were not told the race, sex or name of any applicant.
A group of parents, many of them Asian Americans, opposed the plan and, calling themselves the Coalition for TJ, sued to stop it.
Joshua Thompson, an attorney with the Pacific Legal Foundation, a libertarian legal group that represents the parents’ group, expressed disappointment that the judges had declined to intervene.
“Discrimination against students on the basis of race is not only ethically wrong but also a clear violation of the constitutional guarantee of equal protection,” he said in a statement.
Karl Frisch, president of the Fairfax County School Board, said he welcomed the conclusion of years-long litigation.
“We have long believed that the new admissions process is constitutional and in the best interest of all of our students,” he said in a statement. “It ensures that all qualified students from all Fairfax County neighborhoods have a fair opportunity to attend this exceptional high school.”
Richard D. Kahlenberg, a class-conscious affirmative action advocate, said the court had struck the right balance, handing a victory to “poor and working-class students of all races.”
“This is an important signal that selective high schools, colleges and universities should feel confident using race-neutral strategies to achieve diversity,” he said in a statement.
The Supreme Court’s action left in place a ruling by a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Virginia, that declared in May that Thomas Jefferson did not discriminate in his admissions. The Pacific Legal Foundation asked the Supreme Court to hear its appeal, saying the new admissions plan was “intentionally designed to achieve the same results as overt racial discrimination.”
The Supreme Court’s June decision in Students for Fair Admissions v. Harvard, the coalition’s petition said, “could mean little if schools could achieve the same discriminatory result through race-neutral representatives.” The petition noted that Chief Justice John. G. Roberts Jr.’s majority opinion, citing an earlier ruling, said that “what cannot be done directly cannot be done indirectly.”
Lawyers for the school board responded that the new admissions criteria had nothing to do with race and, rather, focused on removing socioeconomic and geographic barriers.
“The new policy is neutral and race-blind,” the school board report said. “It was not designed to produce, and in fact did not produce, a student population that approximates the racial demographics of Fairfax County or any other predetermined racial balance.”
After the changes went into effect in 2021, the percentage of Asian American students offered admission dropped from 73 percent to 54 percent. The percentage of black students increased from 2 percent to 8 percent; the percentage of Hispanic students increased from 3 percent to 11 percent; and the percentage of white students increased from 18 percent to 22 percent.
In the Fairfax County school system in 2020, about 37 percent of students were white, 27 percent were Hispanic, 20 percent were Asian, and 10 percent were Black.
Writing for the majority in the appeals court’s May decision, Judge Robert B. King, appointed by President Bill Clinton, said before-and-after numbers were not the proper starting point. That, he said, citing the school board report, would turn “the status quo ante into an immutable fee.”
He added that the school had a legitimate interest in “broadening the variety of students’ backgrounds.”
Justice Alito, dissenting Tuesday, questioned that reasoning. “What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional as long as it is not overly severe,” Justice Alito wrote. “This reasoning is indefensible and demands correction.”
He explained, citing a previous decision. “Although the new policy affected Asian American applicants ‘harder’ (because it decreased their chances of admission and improved the chances of all other racial groups), the majority of the panel held that there was no disparate impact because they were still overrepresented in the TJ student body,” Justice Alito wrote.
He added: “That is a clearly flawed understanding of what it means for a law or policy to have a disparate effect on members of a particular racial or ethnic group.”
Dissenting in the Fourth Circuit, Judge Allison J. Rushing, appointed by President Donald J. Trump, made a similar point. Most, she wrote, had refused to “look beyond the neutral veneer of politics” and consider instead “an indisputable racial motivation and an undeniable racial outcome.”
The decision overturned a 2022 ruling by Judge Claude M. Hilton of the U.S. District Court in Alexandria, who found that changes made by the school board had disproportionately burdened Asian American students and were “racially motivated.”
“It is clear that Asian American students are disproportionately harmed by the board’s decision to review TJ’s admissions,” Judge Hilton wrote. “Currently and in the future, Asian American applicants are disproportionately deprived of a level playing field.”