ACR Project Leads Coalition of Amici in Supporting Petition for Cert in Montgomery County Public Schools Proxy Discrimination Case

The ACR Project led a coalition of amici* in drafting and filing at the Supreme Court a brief supporting the Association for Education Fairness’s cert. petition in their challenge to the proxy discrimination of Montgomery County, Maryland’s public school system.  You can see the full brief, below.

The Issue: Does Equal Protection Prevent Intentional Discrimination Against All Americans or Only Those in Groups that Underperform?

AFEF asks whether a government may adopt facially neutral admissions criteria for a racially discriminatory purpose yet avoid any inquiry into that purpose by keeping the targeted racial group comparatively successful in the aggregate. It asks if the Constitution’s guarantee of equal protection protects all Americans, or only Americans of low-performing races.

AFEF Presents an Ideal Record for Judicial Mulligan

The Fourth Circuit says the latter. The Justices earlier passed on correcting it (over the compelling dissent of Justice Alito, co-signed by Justice Thomas). The First Circuit agrees. The Justices earlier passed on correcting it (this time, over both Justice Alito and Justice Thomas’s dissent and Justice Gorsuch’s expression of “significant concerns” with the lower courts’ analysis).

AFEF presents the Justices with a third chance on the same issue, now on an ideal procedural record.  Here, the lower courts dismissed the suit outright, with no consideration of intent evidence.  They dismissed because the facts pled allegedly failed to address an “essential element.”

AFEF plead that MCPS:

1. Set out to reduce Asian American enrollment at its magnet schools,
2. Hired consultants to figure out how to reduce Asian American enrollment at its magnet schools,
3. Followed the playbook those consultants provided, and
4. Then saw precipitous drops in the admissions of Asian American students at all the MCPS magnets.

But even after achieving those sought after reductions, MCPS’s magnets continued to admit a higher percentage of Asian American students than the Asian American share of applications.  That’s the “essential element” the Fourth Circuit used to get rid of the case–that while MCPS sought to exclude Asian Americans from its magnet schools and succeeded in dramatically reducing their admitted numbers, the plaintiffs hadn’t argued that the aggregate group numbers were worse than the racial balance of applicants.

Because of this procedural background, AFEF presents a perfect chance for the Court to cleanly reverse this erroneous legal standard.  It need not worry itself with the strength of the evidence of discriminatory intent.  The issue in AFEF is whether any such evidence matters at all.

Fourth Circuit Gets It All Substantively Wrong

We argue the Fourth Circuit misunderstands the nature of the Equal Protection right as a group allocation rather than an individual right to fair treatment. We argue the Supreme Court’s cases already show the way forward for such litigation, that they create no safe-harbor for discriminating jurisdictions that suppress over-achieving groups just a little, and that they have never shielded intentional racial balancing hiding behind carefully selected proxies.

Clear Mature Circuit Split

Our brief notes the emergence of a clear, result-determinative, mature split between the Circuits. The Second and Third Circuits expressly reject the rule adopted by the Fourth and First.

The Second Circuit has held that the absence of aggregate underrepresentation does not immunize a racially motivated policy from strict scrutiny when individual applicants were intentionally excluded because of race.  The Third didn’t go quite that far, but agreed that aggregate discriminatory impact is not the only permissible form of proof that a racially inspired proxy had operated against a plaintiff.

This means that individuals harmed in precisely the same way, making identical allegations of intentional racial discrimination through carefully selected proxies, would proceed to the merits in Delaware or Connecticut, while seeing their cases dismissed in West Virginia or Maine.

A constitutional guarantee’s application cannot vary that sharply by geography.

Justices Should Take AFEF

We argue that the Justices should accept cert. to reestablish the uniformity of its already correct precedents.

* – Manhattan Institute for Public Policy Research, Hamilton Lincoln Law Institute, and the Chinese American Citizens Alliance of Greater New York joined the ACR Project as amici.