Coalition for TJ v. Fairfax County School Board
Unpublished Order, Doc: 28 (2023)
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Rule of Law:
A facially race-neutral government policy that has a disparate racial impact violates the Equal Protection Clause only if it was adopted with a discriminatory purpose, meaning the government acted at least in part 'because of,' not merely 'in spite of,' its adverse effects on an identifiable racial group.
Facts:
- Thomas Jefferson High School for Science & Technology (TJ) is a selective public high school in Fairfax County, Virginia.
- Prior to December 2020, TJ's admissions process required standardized tests, a minimum GPA, an application fee, and teacher recommendations.
- In the summer of 2020, statistics revealed that the number of Black students admitted to TJ's incoming class was too small to report.
- In response, the Fairfax County School Board considered various changes to TJ's admissions policy throughout the fall of 2020.
- In December 2020, the Board adopted a new, facially race-neutral admissions policy.
- The new policy eliminated standardized tests and the application fee, raised the minimum GPA, and added a requirement for specific honors courses.
- The new policy also guarantees seats for the top 1.5% of students from each public middle school and considers 'experience factors' such as socioeconomic status, English learner status, or attendance at a historically underrepresented middle school. Evaluators do not see an applicant's name, race, or gender.
- In the first year under the new policy, offers to Asian American students fell to 54.36% from a historical average of over 65%. However, Asian American students constituted only 48.59% of the applicant pool.
Procedural Posture:
- Coalition for TJ sued the Fairfax County School Board in the U.S. District Court for the Eastern District of Virginia, alleging the new admissions policy violated the Equal Protection Clause.
- The district court (a federal trial court) denied two motions for a preliminary injunction filed by the Coalition.
- The district court later granted summary judgment in favor of the Coalition, finding the policy was adopted with discriminatory purpose.
- The district court issued an injunction, prohibiting the Board from using the new admissions policy.
- The Board filed a motion to stay the injunction pending appeal, which the district court denied.
- The Board (as appellant) then filed an emergency motion for a stay pending appeal with the U.S. Court of Appeals for the Fourth Circuit, with the Coalition for TJ as appellee.
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Issue:
Does a facially race-neutral public high school admissions policy, adopted with an awareness that it would decrease the percentage of admitted Asian American students, violate the Equal Protection Clause of the Fourteenth Amendment?
Opinions:
Concurring - Judge Heytens
No. A facially race-neutral policy does not violate the Equal Protection Clause simply because decisionmakers were aware of its potential adverse effects on a racial group; a plaintiff must show the policy was adopted 'because of,' not merely 'in spite of,' those effects. The Board is likely to succeed on the merits. First, the district court's disparate impact finding was flawed because it used the wrong baseline by comparing the new policy to the old one. The proper comparison is the percentage of Asian American applicants (48.6%) versus the percentage of offers they received (54.4%), which demonstrates no disparate impact. Second, the district court's finding of discriminatory intent is inconsistent with Personnel Adm'r of Mass. v. Feeney, which holds that 'awareness of consequences' is insufficient to prove discriminatory intent. The Board's goal of increasing diversity through race-neutral means is permissible and encouraged by Supreme Court precedent like Fisher v. University of Texas. The evidence does not suggest impermissible 'racial balancing' but rather a permissible effort to broaden opportunity. The balance of harms and public interest also favor a stay, given the logistical chaos that enjoining the policy mid-cycle would cause for thousands of students.
Dissenting - Judge Rushing
Yes. A facially neutral policy violates the Equal Protection Clause if discriminatory purpose was a motivating factor, and the district court correctly found, based on the undisputed record, that the Board acted with discriminatory intent to reduce Asian American enrollment for the purpose of unconstitutional racial balancing. The Board has not shown irreparable harm, as administrative inconvenience and reputational harm are insufficient. In contrast, the Coalition and affected students face irreparable harm, as the 'violation of constitutional rights for even minimal periods of time' is always irreparable. The Board is not likely to succeed on the merits because the district court properly conducted a sensitive inquiry under Arlington Heights and found that the Board sought to decrease the enrollment of 'overrepresented' Asian-American students to better 'reflect the racial composition' of the area. This constitutes impermissible racial balancing, which is unconstitutional whether achieved through a direct quota or a facially neutral proxy motivated by discriminatory intent.
Analysis:
This case highlights the high bar for proving discriminatory intent when challenging a facially race-neutral policy under the Equal Protection Clause. The concurrence strongly signals that government efforts to increase diversity through race-neutral means, such as holistic review or top-percentage plans, are constitutionally permissible even if they foreseeably alter the racial composition of an institution. This reasoning reinforces the critical distinction from Feeney between being aware of a policy's racial consequences and adopting it with the purpose of harming a specific racial group. This decision provides support for school districts and other government bodies seeking to enhance diversity without resorting to race-conscious measures, suggesting such policies will not automatically trigger strict scrutiny just because they reduce the proportion of a previously overrepresented group.
