D.C.–area magnet school at center of continuing fight over affirmative action

Petitions of the week

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

In June, the Supreme Court issued a landmark ruling that struck down the admissions programs at Harvard and the University of North Carolina. By a vote of 6-3, the justices held that the programs violated the 14th Amendment’s equal protection clause because they explicitly took an applicant’s race into account in admissions decisions. In his opinion for the court, Chief Justice John Roberts cautioned that universities should not try to circumvent the court’s decision “through application essays or other means,” emphasizing that “‘what cannot be done directly cannot be done indirectly.’” This week, we highlight petitions that ask the court to consider, among other things, whether a high school admissions policy that considers socioeconomic factors “indirectly” discriminates against applicants because of their race.

Nestled in a well-to-do suburb of Washington, D.C., Thomas Jefferson High School for Science and Technology is consistently ranked as one of the top public high schools in the country. Known locally as TJ, the northern Virginia school until recently had admissions requirements more extensive than some universities, evaluating a pool of 8th-grade applicants based on a competitive entrance exam as well as grades, essays, and letters of recommendation.

In 2020, the Fairfax County School Board instituted a new admissions policy at TJ. Gone was the entrance exam, replaced by a holistic, two-track system. Under the new policy, after admitting the top students from each public middle school in the area, TJ allocates its remaining seats based not only on academic performance but also on socioeconomic factors, such as whether an applicant comes from a low-income family or a historically underrepresented middle school, or is learning English as a second language. Admissions officers do not know an applicant’s name or race.

In 2021, a group of parents and alumni went to court to challenge the constitutionality of the new admissions policy. They argued that the board established the policy expressly to decrease the number of Asian American students at TJ. Under the new system, the percentage of offers of admission made to Asian American students fell from 73% to 54%, while the percentage of offers made to students of other races increased: from 2% to 8%, for Black students; from 3% to 11%, for Hispanic students; and from 18% to 22%, for white students.

A federal district court in Virginia agreed with the challengers and ordered TJ to stop using the new admissions policy. The school board asked the U.S. Court of Appeals for the 4th Circuit to allow the school to continue admitting students under the policy while it prepared to appeal that ruling. The 4th Circuit granted that request in March 2022.

The parents then came to the Supreme Court on an emergency basis, asking the justices to reinstate the district court’s order preventing TJ from using the new admissions policy. In a one-sentence, unexplained order in April 2022, the court refused. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch – two votes shy of the threshold needed for emergency relief – indicated that they would have granted the parents’ request.

The 4th Circuit issued a full ruling in May, a month before the justices’ high-profile decisions in the Harvard and University of North Carolina cases. A divided court of appeals upheld TJ’s new admissions policy. Because the policy does not openly discriminate against applicants based on race, the court held, the parents had to show either that it nonetheless had a racially disparate impact against Asian American applicants, or that the school board had implemented it to intentionally discriminate against those applicants. The 4th Circuit concluded that the facts before it supported neither conclusion.

In Coalition for TJ v. Fairfax County School Board, the parents ask the justices to grant review and reverse the 4th Circuit’s ruling. They urge the justices to take up the question teed up by the chief justice in his opinion in the Harvard case: whether, and when, race-blind factors in admissions nonetheless act as a mere proxy for race and thus violate the equal protection clause. This question is of “national importance,” the parents explain, in light of “several ongoing challenges to competitive K-12 admissions criteria that seek to accomplish a racial objective ‘indirectly.’”

A list of this week’s featured petitions is below:

Daves v. Dallas County, Texas
23-97
Issues: (1) Whether Younger v. Harris and its progeny require federal courts to abstain from adjudicating petitioners’ constitutional challenges to respondents’ pretrial detention of many thousands of presumptively innocent people; and (2) whether, under this court’s precedent, legislation enacted during a lawsuit renders the asserted claims moot if the legislation does not provide the relief sought in the litigation, such that the courts could still provide the plaintiff with effectual relief.

Intel Corporation v. Vidal
23-135
Issue: Whether 35 U.S.C. § 314(d), which bars judicial review of “[t]he determination … whether to institute an inter partes review,” applies even when no institution decision is challenged to preclude review of U.S. Patent and Trademark Office rules setting standards governing institution decisions.

Coalition for TJ v. Fairfax County School Board
23-170
Issue: Whether the Fairfax County School Board violated the 14th Amendment’s equal protection clause when it overhauled the admissions criteria at Thomas Jefferson High School for Science and Technology.

Gonzalez v. United States
23-226
Issue: Whether a district court must recalculate a movant’s sentencing range as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time of the offense before exercising its discretion to reduce the movant’s sentence for a covered offense under the First Step Act of 2018.

Little v. Doguet
23-291
Issue: Whether Younger v. Harris and its progeny require federal courts to abstain from adjudicating petitioner’s constitutional challenges to respondents’ pretrial detention of many thousands of presumptively innocent people.

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