In the coming weeks, the Supreme Court is very likely to ban colleges and universities from using race as a factor in admissions decisions. Indeed, when the cases challenged the admissions programs at Harvard and the University of North Carolina they were discussed in Octobersome judges were already considering the next question on the horizon: whether admissions officials can promote racial diversity using race-neutral criteria.
« Your position, » Judge Brett M. Kavanaugh told an attorney for the challengers, « will put a lot of pressure going forward, if it’s accepted, on what qualifies as race neutral in the first place. »
That question became more concrete last week, when a split panel of three judges of a federal appellate court allowed an elite public high school in Alexandria, Virginia to overhaul its admissions policy by eliminating, among other things, standardized testing and reserving places for top students at every public middle school in the area.
These changes have produced a classroom with more black and Hispanic students and far fewer Asian Americans. In disagreement with last week’s decision which seemed to be addressed to the Supreme Court, Judge Allison J. Rushing he wrote that the majority had refused to « look beyond the neutral varnish of the policy » and consider instead « an unquestioned racial motivation and an undeniable racial achievement ».
It’s a decent bet that the Supreme Court will agree to hear an appeal in that case and use it to answer questions left open in its upcoming decisions on Harvard and UNC admissions practices
Those universities take into account race as such. Not high school.
In fact, the admissions officers of the school, Thomas Jefferson High School for Science and Technology, known as TJ, are not told any applicant’s race, gender, or first name.
But the school changed its admissions requirements in 2020 after protests over the murder of George Floyd. “Each of us has a responsibility to our community to speak up and take action that addresses racism and discrimination in our society,” Ann Bonitatibus, school principal, written in a message to students and their families.
He added, “Our 32 Black and 47 Hispanic students fill three classrooms. If our demographics actually represented « those of the public schools in the county, » we’d enroll 180 black and 460 Hispanic students, filling nearly 22 classrooms. »
Revisions to the school’s admissions policy took a tortuous path, but the school board ultimately eliminated standardized testing and reserved places for the top 1.5 percent of students at every public middle school in the area.
Admissions officers were also instructed to consider « experience factors, » such as whether students were poor, learning English, or attending a middle school that was « historically underrepresented » in high school.
After the changes went into effect in 2021, the percentage of Asian American students dropped to 54% from 73%. The percentage of black students grew to 7% from no more than 2%; the percentage of Hispanic students rose to 11% from 3%; and the percentage of white students grew to 22% from 18%.
In the Fairfax County school system overall, about 37% of students are white, 27% Hispanic, 20% Asian, and 10% black.
Writing for the majority in last week’s decision, Judge Robert B. King, which was nominated by President Bill Clinton, said the before-and-after numbers weren’t the right place to start the analysis. That, he said, citing the school board’s brief, would turn « the previous status quo into an immutable share. »
In dissent, Judge Rushing, appointed by President Donald J. Trump, wrote that the constitutional guarantee of equal protection « would be empty if governments could intentionally achieve discriminatory ends under the cover of neutral means. »
Justice Rushing served as a clerk to Judge Neil M. Gorsuch when he was an appellate court judge and to Justice Clarence Thomas in the Supreme Court. When a challenge to the new high school admissions policy came to the Supreme Court a year ago in the context of an emergency relief application, those two justices, along with Judge Samuel A. Alito Jr., voted to block it while the appeal moved forward.
In a concurring opinion in last week’s decision, Judge Toby J. Heytenswho was nominated by President Biden, said those precedents must count for something.
“Having spent decades telling school officials that they need to consider race-neutral methods of ensuring a diverse student body before turning to race-conscious ones,” she wrote, “it would be quite judicial bait to say that such a racially neutral to race the efforts are also allegedly unconstitutional.”
Even scholars say such a move would be a stunning reversal.
“It would be a surreal turnaround if the court later held that the same decision-making process that the court has long demanded renders a subsequent race-neutral policy unconstitutional,” Sonja B. Starrlaw professor at the University of Chicago, wrote in an article about this case and others like it will be published next year in The Stanford Law Review.
But such a turnaround is by no means out of the question. Three judges voted to block the high school admissions program last year before the appeals court had even ruled. And it only takes four votes to add a case to the Supreme Court roll.