The intersection of race and education is a major flashpoint in the courts. The U.S. Supreme Court’s grant of certiorari in cases involving admissions policies at Harvard and the University of North Carolina will likely generate important rulings sometime in 2023 on the extent to which universities (both private and public) may permissibly consider the racial identity of individual applicants at the admissions stage. These attacks on affirmative action are somewhat conventional, inasmuch as the Court has decided at least three big cases on this question already this century—Grutter v. Bollinger and Gratz v. Bollinger in 2003, and Fisher v. University of Texas in 2016. But alongside these recurring battles there are distinct and cutting-edge disputes emerging—about the extent to which admissions officials can, without focusing on the race of individual applicants, select and revise the criteria used for admissions decisions (criteria that formally apply in the same way to all applicants, regardless of their race) with an eye towards influencing the racial makeup of the student bodies that result. Case in point: earlier this week the Supreme Court denied an application for emergency relief (part of the so-called “shadow” docket) in a case involving changes in the admissions policy at the Thomas Jefferson High School for Science and Technology (“Thomas Jefferson” or “TJ”) in Alexandria, Virginia, a public STEM-focused school that has a selective admissions process and that has traditionally served high-performing students. The Plaintiffs/Applicants argued in the district court (successfully) that the school’s recent changes in admissions criteria arose from an impermissible desire to accomplish “racial balancing.” The Court of Appeals for the Fourth Circuit, however, stayed the district court’s ruling in favor of the Applicants pending appellate review, and the Applicants asked the Supreme Court to undo the Fourth Circuit’s stay.
As intimated above, the high Court denied the application, but three Justices (Thomas, Alito, and Gorsuch) noted, albeit without explanation, that they would have granted the application and lifted the Fourth Circuit’s stay of the district court decision. One reasonable inference to be drawn is that these three Justices, provisionally at least, agree with the district court that what school officials had done in changing TJ’s admissions criteria to alter the racial makeup of the student body was constitutionally problematic.
The facts of the case are complex, and for present purposes we shall present a simplified version drawn in part from the Application itself. Before October 2020, Thomas Jefferson admitted incoming students “based on a competitive, merit-based process that included [middle school] GPA requirements, teacher recommendations, and a multi-component standardized test.” But in the fall of 2020, TJ’s Board undertook an overhaul of the admissions process, eliminating the standardized testing requirement and adopting a “holistic” admissions policy that, among other things, “guaranteed seats at TJ for 1.5% of the eighth-grade class of each public middle school within TJ’s reach.” This approach (akin to so-called “percentage plans” used throughout the country to guarantee school admission to the top grade-earners of feeder schools without regard to how these top grade-earners fare on standardized tests or other admissions metrics) had the (predictable and desired) effect of increasing the number of Black students who were granted admission to TJ, presumably because at least some of the feeder middle schools in the region had high percentages of Black students such that admitting 1.5% from each of these schools diversified Thomas Jefferson.
The ethnic group whose representation at TJ fell the most under the new policy was Asian Americans. As the Application put it, “[b]ecause a disproportionate number of Asian-American applicants and accepted students at TJ [had previously] come from a handful of Fairfax County Public middle schools, each of which often sent far more than 1.5% of their eighth graders to TJ, the [new policy had the effect of reducing] Asian-American enrollment.” In fact, “offers to Asian-American students dropped 19 percentage points [under the new admissions policy]—from 73% [of the total pool of admittees] to 54% in a single year.”
The Applicants built their constitutional challenge on this drop in the number and percentage of Asian-American admitted students, which seemed fully expected by TJ administrators, combined with what appears to be a pretty uncontested (if not candid) goal on the part of TJ’s Board when it changed admissions policies to have TJ’s makeup better “reflect the diversity of Fairfax County Public Schools, the community and Northern Virginia.” The district court embraced the challenge, finding that the TJ Board’s overhaul of its admissions process “was infected with talk of racial balancing from its inception,” and enjoining TJ officials from implementing their new admissions process.
The constitutional issues cases like this one present can be complicated, and we are thus not able to meaningfully engage all of them here. But a few important analytic and doctrinal points do jump out. First, the Applicants may be too quick to assert that the TJ’s Board’s goal to make TJ better reflect the racial makeup of the community in which TJ is located must be understood as a desire to limit Asian-American enrollment in particular. To be sure, increasing the number of students from some underrepresented racial groups (such as Blacks, Latinx and Native American persons) may necessarily mean reducing the representation of other groups (such as Asian Americans) given relatively fixed entering class sizes and the resulting zero-sum nature of school admissions. But the Supreme Court itself, in cases where women or ethnic minority group members have challenged facially neutral criteria on the ground their use is motivated by impermissible gender or racial bias, might be seen to have drawn (rightly or wrongly) a distinction between a government desire to help Group A and a desire to harm Group B, even if assisting Group A would necessarily involve less success for Group B. Consider, for example, Personnel Administrator of Massachusetts v. Feeney, which built on the seminal Washington v. Davis case where the Court explained that proof of disparate impact plus proof of invidious motive could result in the invalidation of a facially neutral law. In Feeney, where women challenged a facially neutral civil-service-hiring preference for veterans that had the (foreseeable) effect of helping many more men than women, the Court seemed to require the challengers to prove a government animus towards women, as opposed to simply an affinity towards men, in order to successfully attack the law. In the TJ case, it may well be that the school’s Board foresaw that Asian-American enrollment would drop, but had no ill will towards Asian Americans so much as a desire to increase the number of Blacks and students from other underrepresented groups. Indeed, even if we recast the Feeney test away from ill will or animus towards simply equal government respect for all racial or gender groups (which is perhaps a better formulation), TJ’s motives might be legitimate to the extent TJ would have sought to alter admissions criteria if it were Asian Americans, rather than other ethnic minority groups, who were scarce rather than plentiful at TJ under the old admissions regime.
Second, it may not help TJ in this regard that White students, along with Blacks, increased their share of admissions offers, leaving Asian Americans as the only racial group whose share went down. Perhaps this could make the TJ case more like the Harvard dispute, which one of us (Amar) has argued could rightly be understood not necessarily as highlighting a problem with affirmative action generally, but instead with affirmative action plans that seek to burden Asians more than Whites. Or perhaps the fact that Asian Americans are the only racial group to experience a drop in its share of admitted students is simply a function of how successful this group had been under the prior admissions regime; it might be that there were no reasonably workable changes to admissions criteria that would have increased the number of Black and Latinx students that also wouldn’t have increased the number of White students somewhat.
Third, just as the Applicants may be too quick to infer anti-Asian bias, TJ may be too quick to argue that the Applicants’ claims are defeated simply by virtue of the fact that Asian Americans remain at least proportionately represented (indeed, still overrepresented) at TJ, compared to their share of the TJ applicant pool or the overall community population, even after the admissions overhaul. If there were demonstrated animus towards Asian Americans in the board’s actions, the fact that Asian Americans still outperform their demographic baseline in getting into TJ would not excuse the impermissible effort to reduce their numbers. Imagine, for instance, that the school district board in an overwhelmingly White community voted to eliminate selective admissions (and move instead to a lottery) at a desirable and popular magnet high school precisely because Nigerian Americans were filling a majority of slots under the selective admissions regime, a fact that irked a majority of school board members. (Think board members who frequently and publicly expressed disdain for the “dark-skinned newcomers wrongly eating up seats at our school.”) Could anyone deny that such a decision by the Board would be constitutionally problematic even though under the new lottery system Nigerian-American applicants would be proportionately represented? This point seems too obvious even to elaborate.
That brings us to the fourth point, and it is an important one. In contrast to the hypothetical just presented, the nation lacks doctrinal clarity on whether adopting or changing admissions criteria with the overt goal of increasing, rather than decreasing, minority representation is constitutionally problematic as a matter of first principles of equal protection. It is true, of course, that the Court has made it clear in the context of overt, facial racial classifications that affirmative action is just as subject to strict scrutiny as was old-fashioned discrimination. Thus, the affirmative-action set-aside programs in Adarand Constructors v. Pena and Richmond v. Croson were subjected to the same test as were the laws that sought to exclude minorities from higher education institutions or from juries, such as those at issue in Sweatt v. Painter and Strauder v. West Virginia. We live in an equal protection world that seems to embrace symmetry (at least as to the applicability—if not the outcome—of strict scrutiny) in the realm of facial classifications based on race. But we don’t yet know the extent to which symmetry applies to the Washington v. Davis line of cases. For this reason, we don’t know what the fate of so-called percentage plans like those that have been used by the University of California and the University of Texas (by which students graduating in the top X% of their high school classes are admitted, regardless of test scores or other traditional admissions factors) would be if it were to be proven that such plans were consciously intended to increase the number of Black and Latinx and Native American students on public college campuses and would not have been adopted absent such motive. Would these plans then be viewed with the same skepticism we would apply if, say, a university chose to lean heavily on SATs because these scores have the effect of reducing the number of minority students who are admitted? The Court has not directly answered this question, something the Applicants in the TJ case point out as a reason the Court should take up its case.
Finally, and also importantly, while the Court as an institution hasn’t given definitive indications of its view of the permissibility of percentage plans and the like (that is, of changes in admissions criteria seemingly motivated by a desire to increase the representation of historically underrepresented racial groups in educational institutions), certain Justices do seem to have opined on the permissibility of such actions by educational administrators, and the prior statements of these Justices don’t always seem to jibe with the Justices’ current actions.
Perhaps the best example is Justice Clarence Thomas, whose dissent from the denial of the application in the TJ case seems to suggest at least some agreement (we emphasize that the dissent was without explanation) with the district court that changing admissions criteria for racial reasons may be generically problematic under equal protection principles. In the famous Grutter v. Bollinger case upholding the consideration of individual applicants’ race in admissions at the University of Michigan Law School, in dissent Justice Thomas (joined by Justice Scalia) wrote:
One must also consider the Law School’s refusal to entertain changes to its current admissions system that might produce the same [diversity-related] educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce academic selectivity . . . [T]he Law School . . . cannot have it both ways. With the adoption of different admissions methods, such as accepting all students who meet minimum qualifications, the Law School could achieve its vision of the racially aesthetic student body without the use of racial discrimination. (emphasis added).
This passage seems to us to bless changes in admissions criteria that are adopted precisely in order to produce more racial diversity (or racial aesthetics, as Justice Thomas calls it). And Justice Thomas characterizes such explicit diversity-driven changes as something other than racial discrimination. Indeed, he calls those changes, notwithstanding their presumed diversity motivation, “race-neutral.” (Justice Alito’s dissent, joined by Justice Thomas, in Fisher v. University of Texas has passages that could be similarly understood.)
To be sure, we don’t know whether, when the Court does take up this big question in a later case, Justice Thomas (and Justice Alito) will in fact frown on criteria alteration undertaken with an eye towards racial outcomes. It is possible that he would permit some such racially motivated criteria changes so long as they didn’t seek to create a world of completely proportionate representation, something the Court in earlier cases has suggested is an inappropriate government goal and may be something he sees at work in the TJ case. (In this regard, it bears noting that in the Michigan Law School case, the school’s desired “racial aesthetic,” as Justice Thomas described it, involved not proportionality but attainment of a “critical mass” of students from different racial groups.) More likely, though, is that when the issue is ultimately joined, Justice Thomas—who, in Grutter repeatedly described the educational benefits of diversity as “marginal”—will deny admissions officers the ability as a general matter to reconsider admissions criteria with an eye towards racial diversity. And such a stance would be quite unfortunate—putting aside reasonable policy objections some might raise concerning whether the reconsideration of admissions criteria being undertaken these days is wise and careful, and also putting aside the bigger constitutional question of whether the Fourteenth Amendment’s text or history (as distinguished from Supreme Court doctrine) really impose any constraints on government officials in this regard. This stance would be unfortunate because it would represent a kind of bait-and-switch: In case #1 a Justice (or the Court) says “you can’t do X, in part because Y would have been better,” or “you can’t do X but you can do Y.” And then after officials pursue Y, reasonably believing it to be a permissible course of action in light of Case #1, the same Justice (or the Court) says, in Case #2, “you can’t do Y.”
Alas, this seems a not uncommon modus operandi for Justices these days. As one of us (Amar) has noted in prior columns and academic commentary, that is precisely what Justices who joined Rucho v. Common Cause in 2019 but who nonetheless have recently voiced support for the so-called Independent-State-Legislature theory (in particular Justices Thomas, Alito, and Gorsuch) have been doing.
Such judicial conduct is reminiscent of a Peanuts cartoon involving Lucy and Linus that one of us (Amar) remembers seeing as a young child (even though the cartoon was already decades old by then):
PEANUTS © 1954 Peanuts Worldwide LLC. Dist. By ANDREWS MCMEEL SYNDICATION. Reprinted with permission. All rights reserved.
We recognize that consistency in a Justice’s individual voting record (a topic on which there has been renewed recent interest) may be a different matter from the Court’s institutional consistency across cases. We recognize also that holdings are distinct from dicta and that statements made in dissents may be different from statements made by majority opinions. Nonetheless, we believe Justices need to be much more attentive, individually and collectively, to the reliance (the biggest pillar of stare decisis) that their writings naturally and reasonably induce.
