Admissions policy withstands constitutional attack

Where a new admissions policy at Thomas Jefferson High School for Science & Technology visits no racially disparate impact on Asian American students, the district court erred when it concluded the policy violates the Fourteenth Amendment’s guarantee of equal protection.

Background

The question is whether the admissions policy adopted by Virginia’s Fairfax County School Board in 2020 for use at Thomas Jefferson High School for Science & Technology, or TJ, purposefully discriminates against Asian American students, in contravention of the Fourteenth Amendment’s Equal Protection Clause. The Coalition for TJ commenced this litigation against the Board in the district court, seeking to have the challenged admissions policy invalidated as unconstitutional.

Following the submission by the parties of cross-motions for summary judgment, the district court ruled that the challenged admissions policy violates the Fourteenth Amendment’s guarantee of equal protection. More specifically, the court concluded that the policy exacts a disparate impact on Asian American applicants to TJ, that it was adopted by the Board with invidious discriminatory intent and that it fails to satisfy strict scrutiny review. On that basis, the court awarded summary judgment to the coalition, denied the Board’s summary judgment motion and enjoined the Board from any further use of the policy.

Analysis

To demonstrate that an evenhanded, facially race-neutral policy like that challenged here is constitutionally suspect, the plaintiff pursuing an Equal Protection challenge must show (1) that the policy exacts a disproportionate impact on a certain racial group and (2) that such impact is traceable to an “invidious” discriminatory intent. Only then will such a policy be subject to strict scrutiny review. Otherwise the rational basis standard of review applies, where the plaintiff must establish that the challenged policy is not “rationally related to legitimate government interests.”

Against that backdrop, the Board’s adoption of the challenged admissions policy fully comports with the Fourteenth Amendment’s demand of equal protection under the law. On this record, and with application of the proper legal standard, the policy visits no racially disparate impact on Asian American students.

Indeed, those students have had greater success in securing admission to TJ under the policy than students from any other racial or ethnic group. Moreover, the coalition fails to identify any evidence suggesting that the Board adopted the policy “at least in part because of” some calculated adverse effect on Asian American students — that is, the coalition makes no showing of discriminatory intent by the Board.

Finally, the challenged admissions policy faces no obstacle under rational basis review, and so the coalition has failed to meet its burden with respect to an Equal Protection claim. In these circumstances, the district court’s judgment is reversed and remanded for entry of summary judgment in favor of the Board.

Reversed and remanded.

Concurring opinion

Heytens, J., concurring:

Throughout this litigation, the coalition has been coy about the full implications of its claims. But it seems to me the coalition cannot win its case unless at least one of two premises is true. Accepting either would require major alterations to current law and have troubling consequences.

The first possibility is that the challenged policy is constitutionally suspect because Asian American applicants, as a group, appear somewhat less likely to be admitted under the current race-neutral policy than under the race-neutral policy it replaced. That cannot be right.

A second possibility is that the challenged policy is unconstitutional because the Board hoped it would increase the number of Black and Hispanic students at TJ. The coalition has waived that argument here, and rightly so. Any such argument would be no more tenable than the previous one.

Dissenting opinion

Rushing, J., dissenting:

Because the evidence shows an undisputed racial motivation and an undeniable racial result, I respectfully dissent.

Coalition for TJ v. Fairfax County School Board, Case No. 22-1280, May 23, 2023. 4th Cir. (King), from EDVA at Alexandria (Hilton). Donald B. Verrilli Jr. for Appellant. Erin Elizabeth Wilcox for Appellee. Sydney Foster for Amicus United States. Andrew Nathan Ferguson for Amicus Commonwealth of Virginia. VLW 023-2-135. 75 pp.