The federal district court judge hearing the case challenging a K-12 admissions policy adopted by the Board of the Thomas Jefferson High School for Science & Technology (TJ) in Fairfax County, Virginia has now ruled against the school.  In a Memorandum Opinion filed on February 25, 2022, District Judge Claude M. Hilton concluded that the policy was “motivated by a racial purpose or objective” and would have “a substantial disparate impact on Asian-American applicants to TJ.”  Characterizing the plan as one that sought “racial balancing for its own sake,” Judge Hilton held that it is “patently unconstitutional.”   “Whether accomplished overtly or via proxies,” he declared, the applicable Supreme Court precedents made it clear that “racial balancing is not a compelling interest.”   He also determined that, even if the School Board’s goals were constitutionally permissible, there were a number of options available to it that could have been adopted.  “[T]he Board’s actions were,” accordingly, “not narrowly tailored.” 

As we note in our the History section of our discussion of the case, the policy was adopted in an effort to increase African American and Hispanic enrollments and foster “diversity.”  The prior admissions system employed what was characterized as a “grueling admissions test” and required an application fee that was believed to be a further bar to minority applications.  A group of parents formed the Coalition for TJ (Coalition) and brought suit, alleging that TJ’s decision to abandon its prior policies was designed to discriminate against Asian American students.

TJ defended what it characterized as a “holistic” admissions policy that tracked the merits and principles of the approach approved by the Supreme Court in Grutter v. Bollinger (2003) and Fisher v. The University of Texas at Austin (2016) (Fisher II).  But that defense is for the time being barred by the Court’s refusal to extend the logic of Grutter to K-12 education in Parents Involved in Community Schools, Inc. v. Seattle School District No. 1 (2007).  Judge Hilton noted this, stressing that Grutter in particular “relied upon considerations unique to institutions of higher education.”

The decision generated predicable reactions.  One of the lawyers representing the Coalition stated that “[w]e hope this ruling sends the message that government cannot choose who receives the opportunity to attend public schools based on race or ethnicity.”  Professor Justin Driver from the Yale Law School, in turn, observed that it is “difficult to overstate the significance” of the ruling, characterizing it as “the latest and boldest indication yet that conservatives wish once again to offer radical reinterpretations of the 14th Amendment Equal Protection Clause.” 

A lawyer representing the Board indicated that it was considering an appeal.  This is, accordingly, almost certainly simply one step in a process that will take considerable time to unfold.

List of Citations

Fisher v. The University of Texas at Austin, 579 U.S. 365 (2016)

Grutter v. Bollinger, 539 U.S. 306 (2003)

Memorandum Opinion, February 25, 2022, Coalition for TJ v. Fairfax County School Board, United States District Court for the Eastern District of Virginia

Parents Involved in Community Schools, Inc. v. Seattle School District No. 1, 551 U.S. 701 (2007)

Campbell Roberston & Stephanie Saul, Judge Strikes Down Elite Virginia High School’s Admission Rules, New York Times, February 26, 2022