On February 20, 2024, the United States Supreme Court denied a petition for a writ of certiorari in Coalition for TJ v. Fairfax County School Board. Coalition for TJ involves an admissions policy at a prestigious public magnet high school which has significantly impacted racial demography at the school: among other notable impacts, the relative share of offers of admission made to Asian American students dropped while the relative share of offers of admission made to Black and Hispanic students rose. The Fourth Circuit held that the admissions policy does not violate the law; the Supreme Court’s decision to deny review means the Fourth Circuit’s opinion remains in place.

 What You Need to Know:

 The Fourth Circuit had concluded that the challenged admissions policy did not disparately impact Asian American students and that the plaintiff advocacy group had not established that the School Board adopted the policy with any discriminatory intent. 

• In light of these conclusions, the Court applied the rational basis standard of review to the case, not strict scrutiny.
• Although the Fourth Circuit’s decision – made just a month before the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College– implicated some assumptions which are in doubt post-SFFA, the Supreme Court declined to take up the case. 
• The Supreme Court’s inaction reflects a possible lack of interest in wading back into issues related to admissions – at least so soon.
• At present, race neutral admissions policies – even those which may impact the demographics of an incoming class – remain legally defensible. 

TJ Admissions Policy Substantially Impacted Diversity of Admitted Students

Coalition for TJ involved the admissions policy at Thomas Jefferson High School for Science and Technology (“TJ”), a prestigious public magnet school in northern Virginia. In 2020, TJ’s admissions process – which had, for 2019, yielded a class which was 71.5 percent Asian American and 19.5 percent white – was amended with the stated goal of enhancing “diversity” at the school. The school adopted a practice of admitting the top students at each of the public middle schools in the surrounding area, then filling remaining seats with students selected pursuant to a “holistic” approach which included, in addition to academic performance, factors such as family income and whether English was an applicant’s first language. The name, ethnicity, race, and sex of applicants were not disclosed to admissions personnel while decisions were being made. 

The new policy had a profound effect. Subsequent classes contained “markedly more low-income students, English-language learners, and girls than had prior classes at TJ,” and included students from all 28 middle schools in Fairfax County, whereas in prior years, close to a third of such schools “had received zero offers of admission to TJ.” In terms of race, the share of offers of admission to Asian American students fell by somewhere between 10 percent and 20 percent. But, the Court of Appeals emphasized that “while slightly less than half of TJ's applicants in 2021 identified as Asian American (specifically, 48.59 percent), well over half of the offers extended (54.36 percent) went to those students.” The Court also emphasized that “Asian American students attending middle schools historically underrepresented at TJ saw a sixfold increase in offers, and the number of low-income Asian American admittees to TJ increased….” Black, Hispanic, white, and “multiracial/other” students all saw their share of offers of admission increase, although each continued to receive a share of offers which was lower than each group’s representation in the applicant pool. 

The Fourth Circuit Upheld the Policy

A group of parents and alumni sued, alleging that the admissions policy was discriminatory. They asserted that the policy was adopted in order to reduce the number of Asian American students at TJ and had a disparate impact on such students – arguments which echoed those being made by the advocacy group Students for Fair Admissions in that group’s then-ongoing suits against Harvard and the University of North Carolina. The Coalition for TJ prevailed in the district court on summary judgment, with the court concluding that the policy was subject to strict scrutiny because the policy was motivated by the School Board’s diversity-related goals, which the court concluded “primarily meant racial diversity” and suggested the School Board was attempting to engage in racial balancing. But, on appeal, the Fourth Circuit reversed and remanded for an entry of summary judgment in favor of the School Board.

Rational Basis Standard of Review Applied

The Fourth Circuit determined that there was no proof of discriminatory purpose, and no proof of discriminatory effect, so the policy should be considered under the rational basis standard of review, not the more rigorous strict scrutiny standard. Citing to the Supreme Court’s past affirmative action cases finding that “promoting a broad spectrum of student diversity qualifies as a compelling state interest,” such as Grutter v. Bollinger, 539 U.S. 306 (2003), the Court concluded that “expanding the array of student backgrounds in the classroom serves, at minimum, as a legitimate interest in the context of public primary and secondary schools.” 

Despite Desire to Increase Black and Hispanic Enrollment, No Intent to Discriminate

In determining that there was no proof of discriminatory purpose, the Fourth Circuit observed that “the record is devoid of any statements by Board members, meeting minutes, or other documentation showing that the policy was adopted ‘because of’ a specific intent to reduce the number of Asian American students at TJ or to otherwise bring hardship to bear on those students.” 

Critically, the Court rejected as an “inferential leap” the proposition that the Board “sought to increase the number of Black and Hispanic students enrolled at TJ and, in the ‘zero-sum environment’ of school admissions where the number of available seats is finite, that effort naturally led to fewer overall Asian American students enrolling at TJ — thus exposing a discriminatory intent toward those students.” The Court referred to the “desire to increase the rates of Black and Hispanic student enrollment” and “improve racial diversity and inclusion by way of race-neutral measures” as “utilizing a practice that the Supreme Court has consistently declined to find constitutionally suspect” – not knowing, of course, that just a month later, the Court would, in SFFA, dramatically curtail race conscious measures, further emphasize the essentialness of race neutrality, and explicitly adopt the characterization of admissions as a “zero-sum environment” (“College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter”).

Despite Decrease in Admissions Rate of Asian American Students, No Disparate Impact

In determining that there was no proof of discriminatory effect, the Fourth Circuit observed that Asian American students “have had greater success in securing admission to TJ under the policy than students from any other racial or ethnic group” and were “the only racial or ethnic group to receive offers notably in excess of its share of the applicant pool in 2021, producing the highest admissions ‘success rate’ of any such group.” Because Asian American students “do better in securing admission to TJ than students from any other racial or ethnic group,” the Court concluded that these students “as a class, experience no material disadvantage under the policy's functioning.”

Possible Conflict Between the Fourth Circuit’s Ruling and SFFA

As noted, the Supreme Court denied the petition for a writ of certiorari in Coalition for TJ. Justice Samuel Alito (joined by Justice Clarence Thomas) wrote a rigorous dissent, taking issue with the application of the rational basis standard; critiquing the Fourth Circuit’s understanding of disparate impact (observing that Asian Americans’ chance of admission “has been significantly reduced, while the chance of admission for members of other racial and ethnic groups has increased”); and characterizing the decision as “effectively licens[ing] 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.” 

Justice Alito observed that “TJ’s model itself has been trumpeted to potential replicators as a blueprint for evading SFFA.” But, race neutral means of achieving diversity were explicitly not barred by the SFFA case, which addressed the impermissibility of race conscious means. Moreover, while in SFFA, the Supreme Court cast doubt on the continuing legal vitality of student diversity as a compelling state interest, the Court studiously avoided overruling precedent to that effect, again suggesting that the Fourth Circuit’s reliance on this principle was not necessarily misplaced.  

Lesson for Colleges and Universities: Race Neutral Means of Enhancing Diversity Remain Legally Viable

In prohibiting race conscious admissions decision-making in SFFA,the Supreme Court cautioned that colleges and universities “may not simply establish through…other means the regime we hold unlawful today,” as “what cannot be done directly cannot be done indirectly.” So, what lessons does Coalition for TJ hold for institutions seeking guidance related to the congruence of their admissions policies with the Equal Protection Clause and/or Title VI?

The Supreme Court’s inaction, particularly when considered in conjunction with its decision not to enjoin race conscious admissions practices at United States service academies earlier this month in Students for Fair Admissions v. United States Military Academy West Point, reflects a possible lack of interest by the Court in wading back into admissions – at least so soon. At present, race neutral admissions policies – even those which are thoughtfully implemented in connection with lawful diversity-related goals and which may impact the demographics of an incoming class – appear to remain legally defensible. 

It is important to stress that the Fourth Circuit’s ruling relied on its finding that TJ had adopted its new policy for race neutral purposes related to diversity, including increasing diversity based on family income, students’ statuses as English language learners, and encouraging recruitment from schools with a scant history of sending students to TJ. TJ’s policy was also combined with safeguards to prevent the consideration of race and ethnicity in individual decision-making, namely withholding from application evaluators the demographic information of students whose applications were under review. To the extent that colleges and universities are concerned that SFFA should be read to bar such efforts, the Court’s declining to opine when directly presented an opportunity to do so means that such efforts are viable, at least in the Fourth Circuit, and wherever the Coalition for TJ Court’s reasoning is adopted. 

As the legal sands are likely to continue to shift, it is essential that institutions continue to carefully consider their admissions policies and practices to take a nuanced, individualized approach, advancing their diversity-related goals and promoting their institutional missions through any available lawful means. The Higher Education Industry Group at Saul Ewing will continue to monitor this complex and evolving area of the law.