A federal district court recently struck down the Fairfax County School Board’s (FCSB) revamped admissions scheme at the highly selective magnet school, Thomas Jefferson High School, in Alexandria, Va., as racially discriminatory against Asian American students. Although a 2-1 Fourth Circuit panel stayed the Coalition for TJ v. FCSB judgment and the Supreme Court declined to grant an emergency application vacating the stay, leaving the revamped admissions scheme in place for at least another year, its long-term survival is far from certain.
In the Fourth Circuit, Judge Allison Jones Rushing dissented vigorously from the stay. Supreme Court Justices Clarence Thomas, Samuel Alito and Neil Gorsuch also voted to grant the emergency motion. Given the interest from at least three justices, this likely will not be the Coalition for TJ’s last trip to the Supreme Court. Media and lawyers who are following the TJ case have thus questioned what its implications are for the Supreme Court cases challenging race-preferential admissions at Harvard University and the University of North Carolina (UNC).
Coalition for TJ v. FCSB and Students for Fair Admissions Inc. (SFFA) v. Harvard/SFFA v. UNC differ in that Harvard and UNC acknowledged using race in undergraduate admissions, whereas the Fairfax County School Board claims its admissions process is race-neutral. Plaintiff Coalition for TJ counters that the board’s quota system guaranteeing seats to each Fairfax County Middle School lets the board engineer a particular racial result without acknowledging it was doing so.
In general, governmental authorities cannot discriminate on the basis of race under the Constitution. Similarly, under Title VI of the Civil Rights Act of 1964, recipients of federal funds are banned from engaging in racial discrimination. Previous Supreme Court decisions nonetheless have recognized some limited exceptions to these prohibitions. Notably, in the higher education context, Grutter v. Bollinger held that universities can use race in admissions if that use furthers a compelling interest in the educational benefits of student body diversity and is narrowly tailored to achieve that interest.
Grutter’s diversity exception is an uneasy fit with the rest of the court’s anti-discrimination jurisprudence. As the SFFA petition put it, Grutter “departs from the Constitution’s original meaning, contradicts other precedents, has eroded over time, and has no true defenders.” Therefore, many expert commentators think the court is likely to overrule Grutter in the consolidated SFFA cases.
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