Today, we joined with the Manhattan Institute in submitting an amicus brief to the Court of Appeals for the 4th Circuit, supporting the Coalition for TJ in defending the lower court’s summary judgment enjoining the Fairfax County Public Schools from continuing to racially discriminate against Northern Virginia’s Asian population in school assignments.
Below, the trial court found that, when the FCPS Board altered the admissions process for Thomas Jefferson High School — a math and science magnet that was then the highest ranked public high school in America — they intentionally sought to make the school’s population “match” that of its region within four years, primarily by accepting fewer Asian kids. While couched in race-neutral terms, the Board’s intervention was openly justified by its proponents and high-ranking FCPS officials as serving the need to achieve a “representative” population at TJ; the trial court recognized that the Board sought “to accomplish their goal of achieving racial balance” by “decreas[ing] enrollment of the only racial group ‘overrepresented’ at TJ–Asian Americans.”
We argued that the Board was wrong to insist on allocating children’s K-12 education based on race, just as their predecessors were wrong during Jim Crow, and just as the school districts involved in Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. were wrong 15 years ago.
More specifically, we argued that the lower court rightly applied strict scrutiny to the Board’s intentional-if-thinly-veiled racial discrimination and that the Board utterly failed to meet that standard (in fact, they not only failed to meet it, they didn’t even try to do so, waiving the argument for the purposes of appeal).
We argued that Parents Involved set clear red-lines, forbidding precisely this kind of race-balancing and allowing race-conscious assignments of children to schools only: (a) to redress a recent history of intentional racial discrimination; (b) in higher education;* or, maybe, (c) where undertaken to end documented racial isolation. But Northern Virginia has no recent history of intentional racial discrimination in schooling to address; TJ is a high school, not involved in higher ed.; and eminent researchers have concluded that TJ’s region exhibits dramatically less racial isolation than the typical American metropolitan area. Indeed, when TJ’s total population amounts to less than 0.5% of the region’s total student body, we argued that the Board’s policy change could not possibly have been intended to address any group’s racial isolation (even if any existed, which it does not) — nothing the Board could do at or to TJ could affect the racial isolation of any group across the region. No policy affecting so small a subset of students could possibly have been “narrowly tailored” to address a hypothetical community’s isolation.
We also highlighted, on a policy level, that TJ’s experience since the Board altered its admissions policy calls into question whether the increased race-based “diversity” the board engineered through its racial balancing has improved education for anyone at TJ. Unquestionably, the Board’s intervention produced an incoming class dramatically less prepared to thrive than its predecessors. The data on results available so far is hard to square with the notion that enhancing “racial diversity” — alone — improved the education TJ provides. The early results so far available include teacher admissions that a final exam crafted to be “substantially easier” than those “given to previous classes,” for which students were provided “unprecedented supports … not given to previous students,” produced “the lowest scores we’ve ever seen.” While that data, like at least one parallel inconclusive data set so far available, is insufficient to yet conclude that the Board has produced a “mismatch” at the high school level, it appears consistent with the “mismatch hypothesis,” shows no educational gains at TJ from “diversity,” and sufficiently differs from prior experience to raise red-flags for the entire undertaking.
You can read more, below.
* – Parents Involved treated Grutter v. Bollinger as good law. The Supreme Court will address whether it is in the ongoing Harvard and UNC cases. For now, at the 4th Circuit, we are treating it like a live precedent, even if it is one that deserves to be overturned.