Students hoping to attend Thomas Jefferson high school for science and technology in Virginia, one of the most competitive magnet schools in the US, once took a rigorous standardized test for admission. They also had to pay a $100 fee to apply. Those requirements posed a barrier for many students, particularly those who lacked access to test preparation resources and low-income students whose families couldn’t afford the fee.
As racial justice protests flared across the US in 2020, the Fairfax county school board decided to abandon the test and application fee in response to criticism that the school did not enroll enough Black and Latino students. The board overhauled the school’s admissions program, adopting a race-neutral approach and instituting a holistic evaluation of students’ grades, problem-solving skills, and “experience factors”, such as free and reduced lunch eligibility and whether they were an English language learner. It also implemented a practice of guaranteeing seats for the top students at every middle school in the county.
Almost immediately after the adoption of its new policy, TJ’s population changed. By 2021, applications rose by nearly 1,000, and the percentage of Black students grew from less than 2% to 8%. The percentage of Latino and white students also increased. The percentage of Asian American students, who had previously accounted for nearly three-quarters of the student body, fell to just over half. And a coalition of Asian American parents and others who opposed the changes formed the Coalition for TJ. In March 2021, the group sued the district alleging that their race-neutral policies were aimed at racial balancing and discriminated against Asian American students.
A federal appeals court ruled that the district’s policies did not discriminate and upheld their actions as constitutional, but earlier this week, the conservative Pacific Legal Foundation, a libertarian legal group representing the Coalition for TJ, appealed to the supreme court to hear its case. The group has pursued similar legal challenges in three other cases currently in circuit courts involving specialized high schools in New York, Boston and Montgomery county, Maryland.
The filing against Thomas Jefferson high school represents the first appeal to the nation’s highest court to challenge schools’ use of race-neutral policies. Following the US supreme court’s ban on race-conscious admissions in higher education, it’s a move that conservative activists see as the next frontier in the effort to stop any effort, race-neutral or otherwise, that encourages diversity.
The Pacific Legal Foundation’s attorneys pointed to the affirmative action ban and argued that the longer the TJ case remained unresolved, the “more incentive school districts (and now universities) will have to develop workarounds that enable them to racially discriminate without using racial classifications”. They argued that TJ’s admissions standards amounted to using “race-neutral proxies” to achieve diversity and the subsequent decline in Asian American students amounted to discrimination.
What civil rights attorneys see as a removal of barriers is seen by conservative legal activists as an attempt to achieve racial balancing, meaning more opportunities for some groups come at the expense of others. Michaele Turnage Young, a senior attorney for the NAACP Legal Defense and Education Fund, said she thought the Pacific Legal Foundation was mischaracterizing the facts of the case. Young, who represents Thomas Jefferson alumni who support the changes, said: “It’s not illegal to remove barriers to equal opportunity.”
Young pointed out that TJ’s race-neutral policy changes benefited everyone, including Asian Americans. As the school grew more diverse in 2021, Asian American students who attended “historically underrepresented” middle schools saw a “sixfold increase in offers” to the high school, according to court filings, even as a lower percentage of Asian American students attended Thomas Jefferson that year. What’s more, Asian American students from low-income backgrounds rose 5,000% from one student in 2020 to 51 in 2021. “That’s not a policy that discriminates against Asian American students,” Young said. “It’s a policy that equalizes opportunity for everyone.”
It’s unclear whether the supreme court will take up the case, but some conservative justices may be receptive. In April 2022, when the court denied an emergency request from Pacific Legal Foundation to consider the case, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch disagreed with the court’s decision.
Now, after the affirmative action ban, the justices could soon again decide the fate of policies aimed at boosting diversity – a decision that civil rights attorneys worry could extend beyond education.
