SCOTUS has decided in a 5-3 decision that they will NOT hear the Thomas Jefferson High School affirmative action case. Justice Samuel Alito issued a scathing 10-page dissent in response.

The Supreme Court on Tuesday decided to punt on a case about the admissions policy at a selective public high school in Northern Virginia that had the potential to further dismantle the reach of affirmative action in education.

The justices who declined to add the case to their docket did not provide a reason for their decision to deny review in the suit asserting that Thomas Jefferson High School for Science and Technology discriminates against Asian and Asian American applicants.

The Supreme Court’s action allows the school to maintain the new admissions policy. However, two members of the high court–Justices Samuel Alito and Clarence Thomas–expressed strong disagreement with their colleagues’ refusal to take up the case.

Exactly what IS this new admissions policy that the school adopted at some point in 2020 without involving the public…as in the parents? Instead of an incredibly difficult entrance exam, along with grades, tests, essays, and letters of recommendation, the school in the name of equity and fairness went the holistic route. 

In 2020, the Fairfax County School Board adopted a new, “holistic” admissions policy that the board said was intended to increase socioeconomic diversity at the school. Under the new policy, the school filled part of the incoming class with the top students at each public middle school in the area. To fill the remaining 100 seats, school officials considered a variety of factors, including academic performance, whether the applicant comes from a low-income family, and whether English is the applicant’s second language. In reviewing an application, school officials did not know an applicant’s name, ethnicity, race, or sex.

Read that again. The school wanted to increase the diversity of the student body. In other words, they wanted more of ‘other’ races and less of the high-achieving Asian Americans who had been making up a significant percentage of the student body. What happened next? Acceptance into TJ High School by Asian American students DROPPED in the first year by 19% while offers to Blacks and Hispanics quadrupled. 

I’m ALL for a good strong student getting into a high-performance school or college based upon their MERIT. I’ve always and, I mean always, thought anyone looking at someone first or even second through the lens of their race and/or gender to determine eligibility is a disservice to everyone, but especially to that student. Attempting to “balance” the racial composition of a school or workplace means that someone is still benefitting and LOSING due to affirmative action practices.

https://twitter.com/PacificLegal/status/1760038155355394059

Justice Alito’s scathing dissent discusses that, but also bluntly outlines how the Thomas Jefferson work-around is still affirmative action and discrimination due to distortion of the meaning of disparate impact:

The Fourth Circuit panel majority, by contrast, completely distorted the meaning of disparate impact. Even
though the new policy bore “more heavily” on Asian American applicants (because it diminished their chances of admission while improving the chances of every other racial group), the panel majority held that there was no disparate impact because they were still overrepresented in the TJ student body.

That is a clearly mistaken understanding of what it means for a law or policy to have a disparate effect on the members of a particular racial or ethnic group. Under the old policy, each Asian-American applicant had a certain chance of admission. Under the new policy, that chance has
been significantly reduced, while the chance of admission for members of other racial and ethnic groups has increased. Accordingly, the new admissions policy bore more heavily on Asian-American applicants.

The panel majority, however, thought that this did not matter. The simple fact that Asian Americans were still overrepresented in the TJ student body was enough to doom the Coalition’s equal protection claim. As far as the Fourth Circuit was concerned, the Board could have adopted a policy designed solely to reduce the Asian American offer rate and still evaded liability. The holding below effectively licenses official actors to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups.

That is indefensible.

It is indeed indefensible. And, Justice Alito is also correct that using tortured reasoning to do end-runs around the Harvard Affirmative Action case is a virus. One that, with the Fourth Circuit’s decision in place, is now being used in other cases. 

Thomas Jefferson High School is now able to go forth and continue this “holistic” admissions approach. Will they also, in the name of equity and fairness, decide once again to withhold notifications of National Merit Awards to deserving students so that feelings won’t get hurt? I wouldn’t be surprised if that happens again. 

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Here in Fairfax County, Virginia, parents and children are resolute, as news spreads that the majority of Supreme Court justices decided not to hear our case, Coalition for TJ v. Fairfax… pic.twitter.com/jRwBmu2nBh

— Asra Nomani (@AsraNomani) February 20, 2024

It’s worth clicking on and reading Asra’s entire tweet. As she points out, veiled racism using twisted affirmative action tactics is still racism and discrimination. 

Justice Alito’s scathing dissent is well worth your time to read and bookmark. We are and will be seeing more of this I’m afraid. 

Feature Photo Credit: Scales via Pixabay, cropped and modified