Supreme Court flinches
The Supreme Court sometimes does something momentous by declining to do something. Its inactions can speak louder than its words, and did so when the court recently refused to validate its previous actions regarding what Chief Justice John G. Roberts Jr. has called “a sordid business, this divvying us up by race.”
In a 2007 case concerning Seattle’s policy of considering students’ race when assigning them to high schools, Roberts said: “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
In last year’s decision curtailing racial preferences in college admissions—race-based allocations of opportunity—Roberts, writing for the court, said: “Eliminating racial discrimination means eliminating all of it.”
So why would not four justices—the number required for the court to take a case—agree to hear the challenge to the revised admissions policies at Thomas Jefferson High School for Science and Technology, a (formerly) highly selective magnet school in Northern Virginia’s Fairfax County?
Until 2020, TJ’s race-blind admissions policies (three standardized tests winnowed applicants; the highest-ranked took a fourth test) produced 2019 and 2020 entering classes that were 72.9 percent and 73 percent
Asian American, respectively. Many of them were immigrants or immigrants’ children; immigrants are about 30 percent of the county’s population.
In June 2020, TJ’s principal publicly lamented that the school did “not reflect the racial composition” in the county’s schools. A member of the county school board announced herself “angry and disappointed” by the school enrollment produced by meritocratic metrics. She said (anger perhaps loosened this educator’s grip on grammar) she expected “intentful action forthcoming.” She demanded the superintendent of schools “address the under-representation” of Blacks and Hispanics.
So TJ abandoned standardized tests, instead filling 450 of 550 (81 percent) of places in each incoming class by allocating a specific number of places to schools in TJ’s region. The other 100 places were filled by evaluations of applicants’ “soft” skills (such as congeniality) and “experience factors.” This explicitly anti-Asian policy immediately succeeded: The percentage of Asian American students, formerly between 65 and 75 percent of TJ admissions offers, shrank to 54 percent.
A district court issued a summary judgment that Asian Americans had been deliberately harmed by TJ’s policies, whose disparate impact was circumstantial evidence of unlawful discrimination. The unambiguous statements of Fairfax officials’ racial-balancing objectives were direct evidence. But the U.S. Court of Appeals for the 4th Circuit sided with TJ, and the Supreme Court has refused to review the 4th Circuit’s manifestly illogical reasoning.
In a scorching dissent from the court’s refusal (“indefensible”; “flagrantly wrong”), Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, noted that the court has held that the “central purpose” of the 14th Amendment’s equal protection clause is to prohibit “official conduct discriminating on the basis of race.” And that a racially discriminatory purpose of a policy can be established by records showing direct evidence that the policy’s disparate impact on one race was planned.
The 4th Circuit, however, denied that TJ’s policy had a disparate impact. Amazingly, the court said this simply because Asian Americans were still a larger proportion of TJ’s student population than are other racial groups. A 4th Circuit judge dissented, saying her court’s ruling meant that the Constitution permits laws that, while facially neutral, are explicitly motivated by racial discrimination, “as long as the law’s negative effect on the targeted racial group pushes it no lower than other racial groups.” Targeting should suffice to disqualify a law. And as Alito said, the 4th Circuit’s holding “effectively licenses official actors to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups.” Such reasoning “is a virus that may spread if not promptly eliminated.”
Fortunately, the Pacific Legal Foundation, which represented those who challenged TJ’s racially discriminatory policy, is involved in similar challenges to racially motivated changes to admissions policies in highly selective secondary schools in Boston, New York and elsewhere. Progressives’ unrelenting efforts to have racial balancing supplant merit in allocating educational opportunities might give the Supreme Court an occasion to repent by reconnecting with its own precedents.
In last year’s college admissions case, Roberts warned schools that “what cannot be done directly cannot be done indirectly.” Today, however, that is not true, given the court’s refusal to hear the challenge to TJ’s blatant, because proclaimed, racial discrimination. Progressives’ thinly—very thinly—disguised racialist policies will multiply nationally until the court stops flinching from applying its precedents.