Group Fighting ‘Discriminatory’ Virginia School Admissions Policy Heads to Supreme Court

The Supreme Court in Washington on Sept. 21, 2020. Samira Bouaou/The Epoch Times

A group of parents, students, and teachers fighting against an admissions policy that a judge says discriminated against Asian Americans asked the Supreme Court on April 8 to intervene.

The updated policy at the Thomas Jefferson High School for Science and Technology (TJ) removed standardized tests from the equation and added “experience factors,” which included attendance at a middle school deemed historically underrepresented at TJ.

The policy led to a lower percentage of Asian-American students.

In February, U.S. District Court Judge Claude Hilton, a Reagan appointee, concluded “it is clear that Asian-American students are disproportionately harmed” by the new system, which “does not treat all applicants to TJ equally.” He ordered the system abandoned.

A federal appeals court, though, paused the block against the system while Fairfax County Public Schools appeals the ruling.

In its emergency application to the Supreme Court, lawyers for Coalition for TJ said the appeals court “gave short shrift to both the public interest in not enforcing unconstitutional policies and the interests of Asian-American students who will be forced to endure another year of harm.”

They asked the court to overturn the pause.

Unless that happens, “hundreds of Asian-American applicants to TJ, including children of coalition members, will be forced to compete for seats at TJ in a system intended to discriminate against them because of their race,” the application stated.

Later Friday, Chief Justice John Roberts, a George W. Bush appointee, ordered Fairfax County to respond to the filing by 5 p.m. on April 13.

“We are emboldened to see that Chief Justice John Roberts immediately requested a response from Fairfax County Public Schools. We are thrilled that he is taking our case as seriously as we do,” Harry Jackson, a cofounder of Coalition for TJ and a plaintiff, told The Epoch Times in an emailed statement.

Fairfax County did not respond to a request for comment.

In its motion to block the district court’s order, the school district said the order “flies in the face of decades of Supreme Court and circuit-court precedent establishing that race-neutral measures adopted to promote diversity are presumptively permissible under the Equal Protection Clause.”

While the percentage of Asian Americans accepted under the system dropped, the racial group’s share of offers exceeded their share of the applicant pool, officials said, arguing that a year-to-year comparison of the number of Asian Americans admitted cannot prove a disparate impact because each year’s pool is composed differently.

In a split decision, two judges on a three-judge appeals court panel agreed.

Circuit Judge Toby Heytens, a Biden appointee, said “it is undisputed that the challenged admissions policy is race neutral since evaluators are not told the race of any of the applicants, which means, under court precedent, the policy is not constitutionally suspect unless plaintiffs can demonstrate that the policy was adopted with discriminatory intent.

Circuit Judge Robert King, a Clinton appointee, agreed.

Circuit Judge Allison Jones Rushing, a Trump appointee, dissented, citing a previous ruling that “mere injuries, however substantial,” including money, time, or energy, are not enough to approve a stay, or pause.

Fairfax County had asserted it would take time and energy to design a new admissions policy.

“While designing and implementing a new admissions policy on a short timeline may be inconvenient, it is not irreparable,” Rushing said. “Nor is it unforeseen; since at least September of 2021, the Board has been on notice that it should be prepared with a new policy in the event of an adverse decision.”