In the coming weeks, the Supreme Court will most likely prohibit colleges and universities from using race as a factor in admissions decisions. In fact, when the cases challenging the admissions programs at Harvard and the University of North Carolina were discussed in OctoberSome judges were already considering the next question on the horizon: whether admissions officers can promote racial diversity by using racially neutral criteria.
“His position,” Judge Brett M. Kavanaugh told a lawyer for the challengers, “will put a lot of pressure in the future, if accepted, on what qualifies as a neutral race in the first place.”
That question became more concrete last week, when a three-judge split panel of a federal appeals court allowed an elite public high school in Alexandria, Virginia, to to review your admissions policy among other things, eliminating standardized tests and reserving seats for the best students in all public middle schools in the area.
Those changes produced a class with more black and Hispanic students and far fewer Asian Americans. In a dissent from last week’s decision that appeared to be directed at the Supreme Court, Judge Allison J. Running he wrote that the majority had refused to “look beyond the neutral veneer of politics” and instead consider “indisputable racial motivation and undeniable racial outcome.”
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 about Harvard and UNC’s admissions practices.
Those universities take into account race as such. High school no.
In fact, admissions officers at the school, Thomas Jefferson High School for Science and Technology, known as TJ, are not told any applicant’s race, gender or name.
But the school changed its admission 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 to counter racism and discrimination in our society,” Ann Bonitatibus, school principal, wrote in a message to students and their families.
She added: “Our 32 Black students and 47 Hispanic students fill three classrooms. If our demographic data truly represented” that of the county’s public schools, “we would enroll 180 black and 460 Hispanic students, filling nearly 22 classrooms.”
Revisions to the school’s admissions policy took a winding road, but in the end the school board eliminated standardized tests and reserved seats for the top 1.5 percent of students at each public middle school in the area.
Admissions officers were also told to consider “experience factors,” such as whether students were poor, English learners, or attended 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 from 73 to 54 percent. The percentage of black students increased to 7 percent from no more than 2 percent; the percentage of Hispanic students increased from 3 percent to 11 percent; and the percentage of white students grew from 18 to 22 percent.
In the fairfax county school system overall, about 37 percent of students are white, 27 percent are Hispanic, 20 percent are Asian, and 10 percent are black.
Writing for the majority in last week’s decision, Judge Robert B. King, who was appointed by President Bill Clinton, said the before-and-after numbers were not the right place to start the analysis. That, he said, citing the school board report, would turn “the previous status quo into an immutable quota.”
Dissenting, Judge Rushing, a President Donald J. Trump appointee, wrote that the Constitution’s equal protection guarantee “would be hollow if governments could intentionally achieve discriminatory ends under the cover of neutral means.”
Judge Rushing served as a law clerk to Judge Neil M. Gorsuch when he was a judge on the appeals court and to Justice Clarence Thomas on 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 request, those two justices, along with Justice Samuel A. Alito Jr., voted to block it while the appeal progressed.
The Supreme Court has in the decisions of another erait supported and even demanded the consideration of criteria of racial neutrality.
In a concurring opinion in last week’s decision, Judge Toby J. Heytenswho was appointed by President Biden, said those precedents must count for something.
“Having spent decades telling school officials that they should consider race-neutral methods to ensure a diverse student body before turning to the race-conscious,” he wrote, “it would be judicial bait and switch to say that such methods are race neutral. efforts are also allegedly unconstitutional.”
Academics also say that such a move would be a surprising change.
“It would be a surreal twist for the court to later hold that the very decision-making process that the court has long required renders a resulting policy of racial neutrality unconstitutional.” Sonja B. Starrlaw professor at the University of Chicago, wrote in an article about this case and others like it to be published next year in The Stanford Law Review.
But such a twist is not out of the question. Three judges voted to block the high school admissions program last year before the appeals court had ruled. And it only takes four votes to add a case to the Supreme Court docket.
