The Supreme Court, citing the equal protection clause of the 14th Amendment, has "repeatedly condemned" racial balancing – a policy focused on racial proportionality by aligning the composition of a school’s student population with the school district’s racial demographics – as "illegitimate" and "patently unconstitutional," and "racial classifications" as "pernicious."
Yet, school boards like those in Philadelphia and Fairfax, Virginia, have replaced merit-based admissions to elite academic high schools with policies intended to achieve racial diversity in the classroom through racial balancing of the student body.
These polices to promote certain races (usually Black and Hispanic) must discriminate against others (usually Asian Americans).
The problem in the minds of these school boards is that the student populations do not align with the local racial demographics and, in their view, too many high-achieving Asian Americans are earning admission. Their solution: contrived admissions policies that at their core discriminate based on race and are antithetical to the constitutional principle of equality.
Now, just weeks before the U.S. Supreme Court will issue decisions in Students for Fair Admission (SFA) v. Harvard and SFA v. University of North Carolina (UNC), the U.S. Court of Appeals for the 4th Circuit has jumped into the fray.
In Coalition for TJ v. Fairfax County School Board, a divided three-judge panel, reversed the district court’s decision that the Fairfax County School Board’s new admissions policy for the Thomas Jefferson High School for Science & Technology (known as TJ) violates the equal protection clause.
Prior to 2020, admission to TJ, generally regarded as the premier science and tech high school in the country, was based on a highly competitive, merit-based, multi-step process that included multiple standardized tests. In 2020, the school board radically altered this process. It implemented a "holistic review" that eliminated any required testing, and allocated the student slots on a quota basis to each of the schools in TJ’s district, regardless of the relative academic merit of the applicants overall.
The 4th Circuit determined that the new TJ admissions policy did not constitute unconstitutional racial balancing of the student body nor, it concluded, was there evidence of any race-based discriminatory intent against Asian American applicants. In the circuit court’s disoriented view, the school board was simply focused on the goal of "fostering diversity" without any specific racial motivations.
The circuit court’s misguided decision to endorse this new policy is plainly contrary to the overwhelming evidence of race-based discrimination. As highlighted by Judge Allison Jones Rushing’s dissenting opinion, the "undisputed contemporaneous evidence" "leaves no doubt about the board’s discriminatory purpose," its intention to alter the "racial composition of the student of body to reflect the racial demographics of the district," and that the school board, using student demographic data, "successfully engineered" the policy to target Asian American student enrollment at TJ.
In fact, in its first year, the new admissions policy resulted in a significant increase in the percentage of admitted Black and Hispanic students while substantially reducing the admission of Asian American students by 26%.
The school board’s attempt to rationalize its race-based discrimination under the guise of "diversity," does not render the admissions policy constitutional. The mandate of the equal protection clause is one of substance, not semantics. Regardless of how the school board "engineered" its admissions policy, race was always the key factor driving the adoption of the plan, with racial balancing and discrimination against Asian American applicants the endgame.
Soon the Supreme Court will be issuing its decisions in the Harvard and UNC cases on whether race can be considered in college admissions and whether Harvard’s admission policy discriminates against Asian American applicants.
It is time for the Supreme Court to end the constitutional hypocrisy that permits discriminatory diversity admissions policies. As seen in the Harvard, UNC and Coalition for TJ cases, "diversity" has become the Trojan horse of racism invading college and high school admission offices.
Brown v. Board of Education set the standard that a student has a right to school admission "on a nondiscriminatory" and "nonracial basis" as it ended the malicious practice of racial segregation of schools. There is no exception to this fundamental constitutional principle for the diversity mantra of identity politics.
Indeed, as emphasized by the late Justice Antonin Scalia’s concurring opinion in City of Richmond v. Croson, our "Constitution is color-blind," and "discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society." It has no place in college admissions nor in admission to selective academic high schools like TJ.
It has taken seven years for the Harvard and UNC cases to reach the Supreme Court. The court should seize this opportunity to strike back at the pernicious, divisive identity politics that drive the progressive diversity agenda; end raced-based admissions and racial balancing; and revitalize the constitutional compass of the equal protection clause.