FAIRFAX COUNTY, Va. (7News/AP) — The Fourth Circuit Court of Appeals on Tuesday upheld the Thomas Jefferson High School admissions policy stating that it does not discriminate against Asians and Asian American students.
Virginia courts were hearing arguments on whether the school's admissions process unconstitutionally discriminates against Asian Americans in violation of the Equal Protection Clause. The 2-1 ruling Tuesday from the appellate court in Richmond overturns a ruling last year that found the Fairfax County School Board engaged in impermissible “racial balancing” when it overhauled the admissions policy at the Thomas Jefferson High School for Science and Technology.
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"After thorough consideration of the record and the appellate contentions, we are satisfied that the challenged admissions policy does not disparately impact Asian American students and that the Coalition cannot establish that the Board adopted its race-neutral policy with any discriminatory intent. Moreover, we are satisfied that the policy passes constitutional muster under a rational basis standard of review. Accordingly, it is the Board — not the Coalition — that is entitled to summary judgment on the Equal Protection claim. As explained herein, we reverse the judgment of the district court and remand for entry of summary judgment in favor of the Board," the court said Tuesday.
The school's new admissions procedures got rid of standardized testing requirements and altered other minimum requirements to apply and some Asian American parents in Fairfax County said it discriminates against their children. Parents protested the "unfair" admissions process at a school board meeting in March 2022.
“Thomas Jefferson High School for Science and Technology has long been a symbol of academic excellence and a crown jewel in America’s educational system, and it has played an integral role in nurturing the talents of some of the brightest minds in our nation,” said Ying Julia McCaskill, an immigrant from China and the mother of students at TJ.
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In 2022, the U.S. Supreme Court declined to step in to prevent Fairfax County Public Schools from using the admissions policy for this school year.
The court document states, "Because the new admissions Policy for TJ violates the rights of Asian students under the Equal Protection Clause, I would affirm the district court’s order granting summary judgment to the Coalition."
Court officials added that this decision freezes the admissions policy "in its prior form or forecloses future changes to the school’s admissions plan. The Policy’s discriminatory purpose and effect are what render it unconstitutional."
Earlier this year, three Thomas Jefferson High School seniors made it on the list of 2023 US Presidential Scholars. TJ consistently ranks among the nation’s best public high schools.
But for decades Black and Hispanic students have been woefully under-represented, while Asian Americans made up more than 70% of the student body.
In 2020, the school board significantly revamped the admissions process, scrapping a standardized test that had been a linchpin in favor of a system that set aside equal numbers of Thomas Jefferson slots at each of the county’s middle schools, among other changes. The process does not take race into account. It does give weight in favor of applicants who are economically disadvantaged or still learning English.
The first freshman class admitted under the new rules saw a significantly different racial makeup. Black students increased from 1% to 7%; Hispanic representation increased from 3% to 11%. Asian American representation decreased from 73% to 54%.
Critics of the new policy say it discriminates against Asian American applicants who would have been granted admission if academic merit were the sole criteria, and that efforts to increase Black and Hispanic representation necessarily come at the expense of Asian Americans.
But Tuesday's majority opinion from Judge Robert King said the school board had a legitimate interest in increasing diversity at the school, and twisting those efforts to call it discrimination against Asian Americans “simply runs counter to common sense.”
A concurring opinion from Judge Toby Heytens went even further. He said the school board's new policy is race-neutral on its face, just as courts have required.
“Having spent decades telling school officials they must consider race-neutral methods for ensuring a diverse student body before turning to race-conscious ones, it would be quite the judicial bait-and-switch to say such race-neutral efforts are also presumptively unconstitutional,” he wrote.
Judge Allison Jones Rushing dissented.
“The Policy reduced offers of enrollment to Asian students at TJ by 26% while increasing enrollment of every other racial group. This was no accident. The Board intended to alter the racial composition of the school in exactly this way,” she wrote.
Rushing said the policy is neutral on its face but the debate that surrounded its implementation reflected a clear desire for racial balancing. She criticized her colleagues for refusing “to look past the Policy’s neutral varnish.”
King and Heytens were appointed by Democratic Presidents Bill Clinton and Joe Biden, respectively. Rushing was appointed by Republican Donald Trump.
Tuesday's ruling comes as the U.S. Supreme Court weighs a pivotal case challenging whether Harvard University and the University of North Carolina should be allowed to take race into account in their admissions policies.
In a statement to 7News, The Coalition for TJ said:
"The Coalition for TJ remains steadfast in its mission to protect equal opportunity under the law, despite the decision by the Fourth Circuit Court of Appeals allowing the new racist, anti-merit admissions policy implemented by the Fairfax County School Board for Thomas Jefferson High School for Science and Technology."
We expected the ruling, and we are heartened by the dedication and expertise of our legal team at the Pacific Legal Foundation, which will continue to advocate for fairness and merit-based admissions by taking this case to the United States Supreme Court."
Fairfax County Public Schools also issued a media statement:
"A federal appeals court today ruled that the Fairfax County School Board’s revised admission process for Thomas Jefferson High School for Science and Technology, designed to widen access to the school, is constitutional and non-discriminatory, and will stay in place.
“The court reached the correct decision, and we firmly believe this admission plan is fair and gives qualified applicants at every middle school a fair chance of a seat at TJ. We look forward to offering seats to a new group of remarkable and incredibly well-qualified young scholars in the years to come,” said John Foster, division counsel for the Fairfax County School Board.
In its decision, the Fourth U.S. Circuit Court of Appeals said, “[We] are satisfied that the Board’s adoption of the challenged admissions policy fully comports with the Fourteenth Amendment’s demand of equal protection under the law [there is no] evidence suggesting the Board adopted the policy ‘at least in part because of’ some calculated adverse effect on Asian American students — that is, the Coalition makes no showing of discriminatory intent by the Board.”
Today’s decision reversed an earlier ruling by a district trial judge, who declared key portions of the admissions plan invalid. The earlier ruling was based on a comparison of the percentage of Asian-American children in the first admitted class of the new policy (54 percent) to the previous year under the old admissions policy (73 percent).
Fourth Circuit of Appeals Judge Toby Heytens said, "Under the policy challenged here, no students were told ‘where they (can) and (can) not go to school based on the color of their skin.’ No points are awarded based on race nor do evaluators consider race as part of a ‘holistic-review calculus.’ Instead, this case involves a school whose governing Board decided to replace a facially race-neutral policy with another The policy challenged here is not just race neutral: It is race blind.”
The current admissions policy, adopted in late 2020, eliminated a $100 application fee as well as a battery of standardized tests, some of which have since been discontinued by their publishers. It maintained the rigorous academic standards that historically characterized TJ’s admissions process."
FCPS also put out this letter Friday:
May 26, 2023
Dear FCPS Community,
Earlier this week, the U.S. Circuit Court of Appeals for the Fourth Circuit ruled in favor of the Fairfax County School Board in a legal case challenging the 2020 changes to the admissions policy for Thomas Jefferson High School for Science and Technology. The Court found that the “central aim” of the “race-neutral” and “fully race-blind” policy “is to equalize opportunity for those students hoping to attend one of the nation’s best public schools, and to foster diversity among TJ’s student body.” The “undisputed facts” before the Court showed “that the Board intended to improve the overall socioeconomic and geographic diversity of TJ’s student body.”
The changes adopted in 2020 included: eliminating the $100 application fee and standardized testing; increasing the minimum GPA and coursework requirements for eligibility; increasing the class size to 550; guaranteeing each public middle school seats for its top applicants in a number equal to 1.5% of the eighth-grade class; and giving a fixed number of additional points to students from economically-disadvantaged families, English-language learners, and students with Individualized Education Plans.
These changes have helped to make TJ accessible to all talented students with a passion for science and technology, from every corner of the County and our neighboring school divisions. The students at TJ continue to amaze us every day. Because of their hard work and commitment to excellence, TJ continues to be ranked as the #1 high school in the country.
The Board is committed to providing fair and equitable educational opportunities to all students. The Court decision this week confirms that we are moving in the right direction.
Fairfax County School Board
Some Associated Press reporting was used in this story.