Will the Supreme Court reaffirm its decision to end race-based admissions?

This article original appeared on the Washington Examiner

After the Supreme Court ruled in Students for Fair Admissions v. Harvard that universities could not discriminate in college admissions based on race, top lawyers on the Left rushed to contain the fallout. Expressing that she was “disturbed” by the “deliberate overread of the recent court decisions,” President Joe Biden’s assistant secretary of education for civil rights, Catherine Lhamon, insisted that schools could grant race-based scholarships and host race-segregated events. And former Obama Solicitor General Don Verilli made it clear that if he has his way, K-12 schools can discriminate against white and Asian students.

It’s telling that Fairfax County Public Schools in Virginia retained Verilli in Coalition for TJ v. Fairfax, which is up for certiorari before the Supreme Court. At issue in the case is whether a public school district can use facially race-neutral means to discriminate based on race.

Formed in 1985, Thomas Jefferson High School for Math and Science was, until recently, the No. 1 public high school in America. It also has become a laboratory for the Fairfax County School Board to test the limits of the equal protection clause.

For Fairfax County administrators, this magnet school’s merit-based admissions policy presented a huge “problem”: Too many Asians, and too few black students, were being admitted. School district officials were not exactly subtle about it in their racial preferences. As they debated ways to racially rebalance, one board member texted another, “I mean there has been an anti asian feel underlying some of this, hate to say it, lol.”

By admitting the top 1.5% of students at each middle school, the district hoped to limit the number of Asian students coming from the gifted and talented centers that overwhelmingly fed their students into TJ. The race-engineering half-worked: Despite expanding its class size by 64 seats, TJ admitted 54 fewer Asian students. But instead of admitting far more minorities, white students were disproportionately the beneficiaries. As a board member texted, the policies “whiten our schools and kick our [sic] Asians. How is that achieving the goals of diversity?”

Fairfax’s intent to discriminate by race to advance “diversity” is not a new post-George Floyd phenomenon. In the early 1990s, Fairfax was dissatisfied with the number of black and Hispanic students who met the test score and GPA cutoff to make it into the semifinalist pool, so it created a race-based supplemental list to favor minority status over merit. The district also funded test preparation programs exclusively for black and Hispanic students. Concerned that this was illegal, the district outsourced the race-based test preparation program while maintaining its oversight.

In the early 2000s, the TJ admissions director selected the admissions committee based on race, hoping that minority staff would discriminate in favor of their own race. That did not work well enough, either. So the district removed the cap on semifinalists entirely, cutting the pool off once enough black and Hispanic students entered the semifinalist pool.

Dissatisfied by how many white and Asian students were being admitted, Fairfax then required teacher recommendations to address how a student would specifically contribute to the “diversity” of TJ’s incoming class. By 2015, more than a third of the students at the nation’s top STEM magnet school were not proficient in math. And, of course, this all predates the race-engineering at issue in this lawsuit.

Fairfax is banking on Verilli’s representation to help them avoid any accountability, but it is hard to see how even the world’s most talented counsel could overcome the clear dicta of the Supreme Court’s Fair Admissions ruling: “What cannot be done directly cannot be done indirectly,” wrote Chief Justice John Roberts. Fairfax County did not explicitly give black and Hispanic students bonus points for their race in the admissions process. But it did try by seemingly every indirect means it could think of to discriminate against Asian and white students.

Will the Supreme Court hear Coalition for TJ? Or will it hold that Fair Admissions achieved America’s color-blind principles? One court decision is not always enough. After Brown v. Board of Education, for example, schools in the South engaged in “massive resistance” against integration. A year later, in Brown v. Board II, the court declared that integration must be implemented with all deliberate haste. Even then, it took years (and military force) to effect integration.

Will the court allow public schools to engage in similar resistance against color-blind policies? Or will the justices insist that the law be followed? We will find out in the coming weeks.

Max Eden is a research fellow at the American Enterprise Institute. Anthony Pericolo is a visiting fellow at the Center for Equal Opportunity.

Related posts: