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A new case just arrived on the Supreme Court’s “shadow docket” that could upend a quarter-century of higher education policy and end diversity programs that were once on the cutting edge of conservative thinking. Coalition for TJ v. Fairfax County School Board is a significant escalation in the school admissions wars, because it rests on the assumption that the current crop of Republican judges will not tolerate diversity programs that do not explicitly consider race.
Twenty-five years ago, as governor of Texas, George W. Bush signed a law creating the state’s “top 10 percent” rule, which, as the name implies, guarantees Texas students who graduate in the top 10 percent of their high school class admission to state-funded universities. The program is still in effect today, although the state’s flagship school, the University of Texas at Austin, now only accepts the top 6 percent of students due to an increase in applicants.
The 10 percent rule was enacted in response to a 1996 federal appeals court decision, which struck down an affirmative action program at UT-Austin’s law school. But it quickly took on a political life of its own. As a candidate for president, and later as president, Bush touted the 10 percent plan as a conservative alternative to affirmative action programs that explicitly took account of race when deciding who to admit.
The idea behind the plan was that it would open the doors of Texas’s best public universities to students at predominantly Black or Latino high schools, many of whom historically were unlikely to attend places like UT-Austin.
And yet, this program, which was a centerpiece of Bush’s higher education proposals and which has been emulated by red and blue states alike, is now threatened by the Coalition for TJ case pending before the Supreme Court. Coalition for TJ involves a highly selective public high school that switched less than two years ago to an admissions process that mirrors the Texas rule, partially to create a more diverse student body. The arguments advanced by the plaintiffs in this case potentially threaten any program undertaken for the purpose of fostering diversity at selective schools.
The Coalition for TJ plaintiffs, moreover, have a very real shot of prevailing. The Supreme Court, with its 6-3 Republican supermajority, is increasingly hostile toward any effort to lift up racially disadvantaged groups. And it is widely expected to strike down affirmative action programs at Harvard and the University of North Carolina next year.
But a victory for these plaintiffs would still be an enormous escalation by the Supreme Court, as it would potentially rule out programs that are race-neutral — meaning that they do not require school officials to consider the race of individual applicants when deciding who to admit — but that were enacted in order to foster greater diversity.
“Race-conscious” versus “race-neutral” programs, briefly explained
The Supreme Court has heard a string of cases, stretching back to Regents of the University of California v. Bakke (1978), involving university admissions programs that are “race-conscious,” meaning that they explicitly took account of race when deciding which students to admit. In Bakke, for example, the Court struck down a medical school admissions program that set aside 16 of the school’s 100 seats in the incoming class for Black, Asian, Native American, or “Chicano” applicants.
Bakke and other, more recent decisions, however, also made clear that race-conscious programs are sometimes allowed. While schools cannot use quotas or other mathematical formulas that give an advantage to applicants of a certain race, current law permits schools to consider race when deciding among similarly qualified applicants, all of whom are likely to thrive at the school.
That could change soon, however. Right now, two cases are pending before the Supreme Court which challenge race-conscious admissions programs at Harvard and the University of North Carolina. These more modern affirmative action programs also give some preference to applicants who would add racial diversity to the school, but only in fairly marginal cases. Under Harvard’s system, for example, race is one of several factors — other such factors include athletic ability, legacy status, or economic disadvantage — which can “tip” an outstanding applicant who would otherwise be rejected into the small pool of Harvard applicants who are accepted.
Coalition for TJ, by contrast, involves a race-neutral system for selecting who is admitted to the Thomas Jefferson High School for Science and Technology (“TJ”), a public magnet school in northern Virginia known for its outstanding STEM instruction and high levels of college matriculation for graduates. TJ draws its students from nearby middle schools.
Until recently, TJ used a battery of three standardized tests to screen applicants. The top performers on these tests were then designated “semifinalists,” and admitted students were selected from among these semifinalists based on their GPA, test scores, teacher recommendations, and several writing assignments that semifinalists submitted as part of the application process.
In late 2020, the school changed its admissions process and modeled it after Texas’s 10 percent plan. Under the new system, each middle school that is eligible to send students to TJ receives a certain number of slots equivalent to 1.5 percent of the school’s eighth grade class size — so, much like the Texas system, the top applicants from each of these middle schools are guaranteed admission.
After these seats are filled, the school also admits about 100 more students, who are evaluated based on factors such as their GPA and an essay submitted by applicants. Certain underrepresented applicants, such as those from middle schools that historically sent few students to TJ, or students from low-income families, are also given a preference.
Notably, neither the old system nor the new system takes explicit account of an applicant’s race. Indeed, under the new system, school officials who screen applicants are not told each applicant’s race, gender, or name. TJ’s admissions program, in other words, is “race-neutral,” using a set of criteria to screen applicants that do not include race.
Yet, while TJ’s system is race-neutral, there is considerable evidence that the local school board decided to change the school’s admissions process, at least in part, because of concerns that the old process did not produce a student body that resembled the racial demographics of the local community.
In June of 2020, for example, the school released demographic data on its freshman class which, according to a federal judge, showed that the “number of Black students admitted was too small to report.” Shortly thereafter, the school principal wrote a message to students and parents stating that “we each have a responsibility to our community to speak up and take actions that counter racism and discrimination in our society,” and noting that the school’s student body “did not reflect the racial composition” in the local school district. A school board member later commented that “we must recognize the ... unacceptable numbers of African Americans that have been accepted to TJ.”
In the final five years that the school used its old admissions process, Asian Americans received at least 65 percent of offers to matriculate at TJ. In the first year that the school used the new process, by contrast, just over 54 percent of admitted students were Asian American. Meanwhile, other racial groups gained ground. About 7 percent of the students offered admission in 2021 were Black.
The Supreme Court has historically favored race-neutral programs that increase racial diversity
The Coalition for TJ plaintiffs emphasize the evidence that TJ changed its admissions process as part of an intentional effort to racially diversify the school. According to their court filing asking the justices to block the new system, this system requires Asian American applicants “to compete for seats at TJ in a system intended to discriminate against them because of their race.”
If this argument — that race-neutral programs are suspect if they are motivated by a desire to increase racial diversity — succeeds, it could sound the death knell for similar race-neutral programs intended to diversify schools and universities, including the top 10 percent plan favored by Bush. Advocates of programs like it haven’t been shy about their own intentions to use race-neutral means to foster student diversity.
As a candidate for president, for example, Bush touted Texas’s program and a similar program in Florida as a way to “affect the pool of applicants of minority students available for higher ed in a positive way.” Similarly, in a 2003 speech delivered when he was president, Bush praised top 10 percent-style programs in California, Florida, and Texas as a way that “diversity can be achieved without using quotas.”
The Supreme Court’s affirmative action decisions, moreover, largely endorse Bush’s view that schools may try to achieve greater levels of racial diversity, and that race-neutral programs are the preferred method to do so — although the Court’s decisions also give schools slightly more leeway to use race-conscious programs than Bush would have allowed.
In Grutter v. Bollinger (2003), for example, the Court acknowledged that “numerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’” The idea is that students don’t just learn from their instructors, they also learn from the varied experiences of their classmates. So a student of any race who attends a racially diverse school will receive a superior education.
More recently, in Fisher v. University of Texas at Austin (2016), the Court echoed the idea that the desire to increase “‘student body diversity’ ... is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.” While racial quotas and the like are forbidden, schools have some leeway to set admissions standards that foster diversity.
Fisher also held that race-neutral methods of promoting diversity are preferred to race-conscious methods. Indeed, if a school wishes to use race-conscious admissions standards, it must first prove that a race-neutral method “would not promote its interest in the educational benefits of diversity ‘about as well and at tolerable administrative expense.’”
Under current law, in other words, public schools and universities have a legitimate interest in fostering racial diversity, and they may intentionally design their admissions standards to increase the likelihood that students from underrepresented racial groups are admitted. Schools with race-conscious admissions programs may struggle to justify those programs in court, but the Supreme Court has historically treated race-neutral programs intended to enhance diversity as benign.
But there’s no guarantee that the Court will continue to view such race-neutral programs as acceptable. Fisher was a 4-3 decision, with retired Justice Anthony Kennedy writing the majority opinion, and the late Justice Ruth Bader Ginsburg joining the majority. Both Kennedy and Ginsburg were replaced by archconservative Trump appointees. (The reason only seven justices decided Fisher is that the case was handed down after Justice Antonin Scalia’s death created a vacancy on the Court, and Justice Elena Kagan was recused.)
The Court’s current Republican supermajority has shown extraordinary hostility toward laws intended to promote racial equality, and it is well to the right of an earlier generation of Republicans, like former President Bush. In 2006, for example, Bush signed legislation reauthorizing the Voting Rights Act, which forbids race discrimination in elections, but the current Supreme Court has since largely dismantled this historic piece of civil rights legislation.
It’s not hard to imagine, in other words, that the Court’s current majority could hold that any policy motivated by a desire to increase opportunities for underrepresented racial minorities is constitutionally suspect.
