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Supreme Court declines to hear challenge to Virginia high school’s ‘race-neutral’ admissions policy

The Supreme Court declined Tuesday to hear a challenge to a top Virginia high school’s “race-neutral” admissions policy that critics say discriminates against Asian American students.

The case raised several key questions about the court’s landmark ruling last year invalidating affirmative action policies at the nation’s colleges and universities. By declining to take the appeal, the Supreme Court left in place a lower-court ruling that sided with the school.

Conservative Justices Samuel Alito and Clarence Thomas said they would have taken up the case.

“The court’s willingness to swallow the aberrant decision below is hard to understand,” Alito wrote in a dissent that was joined by Thomas. “We should wipe the decision off the books, and because the Court refuses to do so, I must respectfully dissent.”

Fairfax County School Board chair Karl Frisch said in a statement Tuesday that the board has “long believed that the new admissions process is both constitutional and in the best interest of all of our students.”

The controversy arises from an admissions policy adopted by the highly selective Thomas Jefferson High School for Science and Technology in 2020 to increase diversity. The policy sought “to mitigate socioeconomic obstacles faced by students of all races” to ensure disadvantaged students were admitted to the school, whose student body was historically comprised of students from affluent areas.

Admissions were previously driven largely by standardized tests. Under the new plan, the school admitted a small share of the highest-performing students from each middle school in the county. One hundred slots were separately reserved “for the highest-evaluated applicants overall, regardless of where they attend middle school.”

A group of parents in Fairfax County, Virginia, sued the school board in 2021, alleging the new policy violated the Constitution’s Equal Protection Clause because it sought to balance the student body’s racial makeup by “excluding Asian Americans.” Asian-American students had comprised 70% of enrollment before the changes. The school told the court that while that number initially fell, it rose to 62% in 2023.

“A new species of racial discrimination has been spreading through some of our largest public school systems,” the school’s challengers, called the Coalition for TJ, told the court. “Like the discrimination this court invalidated (in colleges last year), it primarily targets Asian-American students.”

The Supreme Court last year threw out policies used by Harvard and the University of North Carolina that considered race as one of many factors in admissions, a standard that had been approved by previous precedents. But the decision didn’t address whether schools could consider socio-economic or geographic factors as a proxy for race.

A federal judge in 2022 ordered the Thomas Jefferson school to stop using the new admissions policy, ruling that it was “racially discriminatory.”

But a divided panel of the federal appeals court in Richmond later reversed, saying that the policy did not disparately impact Asian American students and that the challengers couldn’t establish that it was adopted with discriminatory intent.

Alito in his dissent pushed back forcefully on that holding, describing it as “a virus that may spread if not promptly eliminated.”

“What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe. This reasoning is indefensible, and it cries out for correction,” he wrote.

Attorneys for the school had told the justices that the admissions policy “did not in fact result in a student body that matches the demographics of the county, maintains predetermined percentages of any racial group, or otherwise reflects racial balance of any sort.”

“This case simply does not provide any occasion to decide whether a public school may employ race-neutral criteria for the purpose of achieving racial balance because – as the court of appeals held – the admissions policy for TJ does not seek, cannot be manipulated to achieve, and did not produce racial balance of any kind,” they wrote in court papers, adding that there is also no evidence for the coalition’s “reckless charge that the Board changed TJ’s admissions policy for the purpose of discriminating against Asian-Americans.”

The case underscores how significant the uncertainty continues to be from the court’s ruling in the college admissions cases. The appeal arrived at the Supreme Court in August, just weeks after the justices decided the Harvard and UNC cases.

Several related cases percolating in lower courts could soon make their way up to the high court.

This story has been updated with additional details.

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