Apparently, eliminating racial discrimination doesn’t mean eliminating all of it.
That seems to be the takeaway from the Supreme Court’s refusal last month to grant a review of Coalition for TJ v. Fairfax County School Board. It has been no secret to anyone that the Fairfax County, Virginia, board and administrators at Thomas Jefferson High School — who were sued — had colluded in changing the admissions process at the school intentionally to discriminate against high-achieving 13- and 14-year-old Asian applicants.
The Wall Street Journal reported two years ago on the text messages and emails between the powers that be making changes to the admissions process in the name of diversity, equity and inclusion.
One school board member explained the changes “will whiten our schools and kick [out] Asians.” She went on to say, “I mean, there has been an anti Asian feel underlying some of this, hate to say it lol!”
The response from a fellow board member was “Of course it is.” Indeed, as the amicus brief the Center for Equal Opportunity filed in this case explained, “the Fairfax County School Board has a long and sordid history of race discrimination” going back over 30 years.
Had my wife and I continued living in Fairfax County, as we did for several years, our children may have been subjected to both a preference and a downgrade based on their race and ethnicity. Under the new TJ admissions regime, my children might have been recipients of a preference because of their Black father but discriminated against because of their mother’s Asian heritage. In our astonishingly multiracial, multiethnic country, this is the type of bizarre result we can expect as subjects of progressive racial experimentation.
The Supreme Court’s refusal to take this case — less than a year after it prohibited blatant racial affirmative action in colleges — adds to failures that were contained in that case itself. Failures include not overturning Grutter v. Bollinger, the 2003 case that established the legal carve-out for overt race preferences in college admissions in pursuit of diversity. That is, discriminating on the basis of race in pursuing the purported educational benefits of a diverse student body is technically still good law.
Another unforced error was the portion of the court’s opinion last year that allegedly outlawed affirmative action which stated that schools can still consider applicant essays discussing their race. The inclusion of this added gloss of legal legitimacy to something that was never illegal to begin with had the predictable effect of leading schools to change essay prompts to solicit information on the race or ethnicity of applicants. Columbia University went so far as to require 90-second “video statements,” a move that many viewed as a crude attempt to sort applicants by racial appearance.
Error after error after error. But don’t take my word for it.
In dissent from the denial in the TJ case, Justice Samuel Alito, joined by Justice Clarence Thomas, blasted the divided 4th U.S. Circuit Court of Appeals panel ruling as a “patently incorrect and dangerous understanding of what a plaintiff must show to prove intentional race discrimination.” Consequently, Justices Alito and Thomas explained the comical reasoning that the two-judge majority of the lower court used “is indefensible, and cries out for correction.”
By declining to take up the case and allowing the 4th Circuit ruling to stand, the Supreme Court sent the message that Justices Alito and Thomas concluded “that intentional racial discrimination is constitutional so long as it is not too severe.” Given their actions after the court’s other errors, what should we expect schools to do after this most recent supreme blunder?
To be fair, despite their being held up as a backstop for any number of the nation’s problems, the courts — even the Supreme Court — can’t do everything. And as conservatives know well, it shouldn’t try. The job of a judge is to say what the law is, not what it should be. That is why we have elections, and they have consequences.
Electoral consequences include, of course, who will be president, and thus the chief executive responsible for enforcing the law. That person will make the immensely important selections of who will lead the powerful civil rights and legal departments of the federal government and who will be nominated to fill openings in the federal judiciary. It’s worth noting that none of the Trump appointees, but instead only the two oldest members of the court, saw fit to take the TJ case.
Perhaps of even greater importance are the electoral consequences at the state and local levels. As the TJ case illustrates, it can be critical to one’s everyday life who serves on a local school board. For these reasons, in the long run, the court of public opinion will likely be more powerful than the court of law. In any event, let’s hope it’s at least less prone to serial error.
