Justices let race-based admissions continue

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 Roberts 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, Roberts 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 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% and 73% Asian American, respectively.

A member of the county school board announced herself “angry and disappointed” by the school enrollment produced by meritocratic metrics. She demanded the superintendent of schools “address the underrepresentation” of Blacks and Hispanics.

So TJ abandoned standardized tests, filling 450 of 550 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 (e.g., congeniality) and “experience factors.” The percentage of Asian American student shrank to 54%.

A district court issued a summary judgment that Asian Americans were deliberately harmed by TJ’s policies. But the U.S. Court of Appeals for the 4th Circuit sided with TJ, and the Supreme Court refused to review the illogical 4th Circuit reasoning.

In a scorching dissent, Justice Samuel Alito noted the court has held 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 evidence that the policy’s disparate impact on one race was planned.

But the 4th Circuit denied TJ’s policy had a disparate impact. A 4th Circuit judge dissented, saying her court’s ruling meant 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. 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.