The United States Court of Appeals for the Fourth Circuit recently handed down an important 2-1 ruling 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 had argued in the district court (successfully) that the school’s recent changes in admissions criteria inflicted constitutional harm upon them and arose from an impermissible desire to accomplish “racial balancing.” The Court of Appeals for the Fourth Circuit, however, reversed the ruling in favor of the plaintiffs, and allowed TJ to continue to use its new admissions policy. Whether the U.S. Supreme Court will (when asked) grant review is not clear. But the issues the case raises are certainly ones the Court will have to take up before too long.
The facts of the case are complex, and for present purposes we shall present a simplified version that draws from some of the litigation papers filed by the challengers. (We wrote about the case at an earlier procedural stage, and readers can consult our prior column for more background.) 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 plaintiffs have put the point, “[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 plaintiffs 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 Fourth Circuit, however, disagreed. The two-judge majority found that TJ officials’ purposes and objectives in making the admissions changes were constitutionally innocent, and that in any event the plaintiffs had not made the showing, required by equal protection doctrine, that they had been adversely “disparately impacted” by the changes in admissions policy. Each of the two determinations was sufficient to defeat the plaintiffs’ claims and might be considered an alternative holding.
The questions of what counts as disparate impact and what counts as impermissible motive are distinct, and we focus today only on the majority’s conclusion that the challenged admissions policy did not result in a disparate racial impact and therefore would not be actionable even if invidious motive could be shown.
As intimated above, the district court had found a disparate impact because the new admissions policy resulted in a decrease in the number and proportion of Asian-American applicants offered admission, compared to prior admissions cycles. The circuit court majority thought that in reaching that conclusion, the district court had used the wrong baseline. In determining, as an analytic and doctrinal matter, whether there was a disparate impact, the circuit majority concluded, what matters is how successful Asian-American applicants as a group were under the new policy in comparison to how members of other racial groups did—not how Asian-American applicants had done, relatively speaking, under the prior admissions policy. The majority explained:
The proper metric in these circumstances requires, first, an evaluation of a given racial or ethnic group’s share of the number of applications to TJ versus that group’s share of the offers extended — in other words, the group’s “success rate” in gaining admission to TJ under the challenged admissions policy. That rate of success, in turn, must then be compared to how separate, otherwise similarly situated groups fared in securing offers of admission. . . . The . . . [plaintiff], in sum, was obliged to show that, under the challenged admissions policy, Asian American students face proportionally more difficulty in securing admission to TJ than do students from other racial or ethnic groups.
Once the analysis shifts to comparing the success rate of groups under the new policy, Asian-American applicants uniquely were admitted to TJ beyond their proportion in the applicant pool; that is, they were the only racial group who garnered a larger percentage of admissions slots than their percentage of the applicant pool. Indeed, they were admitted at the highest rate of all racial groups. Therefore, the circuit court majority concluded, Asian Americans had suffered no disparate impact as a result of the new policy. It wrote:
In 2021, Asian American students accounted for 48.59% of the applications to TJ’s class of 2025, but actually secured 54.36% of the admission offers made for that class. By contrast, 10% of the TJ applicants in 2021 identified as Black, while only 7.9% of offers went to Black students; Hispanic students comprised 10.95% of the applicant pool and received 11.27% of offers; white students represented 23.86% of applicants and received 22.36% of offers; and 6.6% of applicants were “multiracial/other” students, whereas only 4.91% of the offers extended went to those students. Asian American applicants were thus the only racial or ethnic group to receive offers notably in excess of its share of the applicant pool in 2021, producing the highest admissions “success rate” of any such group.
The majority provided remarkably little explanation for why the analysis should center only on comparison among groups under the new policy and exclude altogether any inquiry into outcomes under the new policy compared to the old. Two points emerge from the majority’s breezy analysis.
First, without any discussion, but based on quotations drawn from other circuit court cases, the majority seems to suggest that it would be wrong to compare admission outcomes on a before-and-after basis because variables other than the changed policy could explain differences. Filling in the blanks in the majority’s opinion, the contention appears to be that a decrease in the success rate of Asian-American applicants might not be the result of the new policy (with new admissions criteria) but a shift in the qualifications of the applicants across cycles. Perhaps, then, in 2021, the first year of the new policy, the Asian-American applicants were a good deal weaker than in previous years (or applicants belonging to other racial groups were a good deal stronger) so that even had a new policy not been adopted there would be the same (or a similar) drop in Asian-American applicants admitted.
The circuit court majority is certainly right to suggest that assessing the impact of a changed admissions policy requires attention to the candidate pool and the difficulty in some instances in controlling for changes other than the policy revision being challenged. But that’s not a reason never to compare across time, only a reason to be sure the comparison considers all possible explanatory variables. Here, the circuit court did not suggest that the district court, in conducting its analysis across policies, did not consider all the relevant variables; if the district court had failed in that respect the obvious remedy would be to remand for a new determination. Most striking, the circuit court did not point to anything at all in the record suggesting that in fact something other than the new policy could conceivably have accounted for the drop in admitted Asian-American students. That isn’t surprising to us. As admissions officers around the country could attest, while candidate profiles vary a little from year to year, absent some exogenous shock (a school’s accreditation is rescinded, for example, or it receives a massive infusion of scholarship money) they tend to be quite stable. The circuit court’s almost unstated and in any event speculative suggestion that other factors might explain differences across time in this instance seems entirely unfounded.
Besides its concern with indeterminacy, the majority thought a comparison to past outcomes under a prior policy risks entrenching the prior policy. It wrote (quoting from the government’s brief):
[I]t would make little sense for us to use a prior government policy as the “proper baseline” for scrutinizing a replacement version of the same. That approach would simply turn “the previous status quo into an immutable quota,” thereby opening a new policy that might impact a public institution’s racial demographics — even if by wholly neutral means — to a constitutional attack.
We think this point also obviously wrong. The problem is that the majority confuses the impact analysis with the separate requirement that a race-based equal protection challenge show that government action was motivated by race. Absent an explicit racial classification by the government (or some smoking-gun evidence that explains a facially neutral policy), that showing is generally very difficult to make. If (as the circuit court believes was true here), the government has indeed acted “by wholly neutral means,” there can be no equal protection claim whether or not Asian Americans have been disparately impacted. Acknowledging that many new policies will impact racial groups differently surely does not paralyze government innovation and entrench the status quo; judicial recognition of changes over time attributable to purposefully discriminatory changes merely disables government from adopting changes to the status quo that are intended to inflict outcome harm on certain racial groups. And assessing impact when a policy is changed surely requires attention to the effect of the change—not pretending that a change is equivalent to government doing something from scratch.
To be clear, we are not suggesting that any change that increases the success of a racial group that is arguably the subject of invidious motive insulates that change from constitutional attack. For example, imagine that Blacks are screened out of a university by a standardized testing requirement much more so than other groups, but that requirement was not adopted for any invidious reason. Next imagine that this test is replaced by another one that admissions officials expect and desire will exclude an even higher percentage of Black applicants, but that Blacks actually fare a bit better on the new test. We are not suggesting that no equal protection claim could be made in these circumstances merely because things have improved for the group that believes it has been targeted; the fact remains that Blacks would be underrepresented relative to their share of the applicant pool, and that government was making decisions to try to exclude them. We think this would amount to a constitutional violation. But to say that an improvement in a group’s success rate doesn’t foreclose a challenge (if there is still underrepresentation relative to the applicant pool) is not to deny the obvious relevance, in an equality setting, of a (hoped for) decrease in a group’s success rate even if the group outperforms other groups, but by a smaller margin.
Stepping back from the specific facts of the TJ dispute illustrates why the majority’s approach, as a general doctrinal matter, is hard to defend. A singular focus on whether demographic outcomes correspond to demographic inputs risks shielding any number of government actions from equal protection scrutiny even when core equal protection values are implicated. Consider three examples:
A state with very high turnout among Black voters adopts new restrictions on Sunday voting. Black turnout drops significantly but still remains higher than that of any other racial group. We surely wouldn’t say there can be no equal protection (or voting rights) claim because Black voters cast ballots at higher rates.
A college draws students from a local Nigerian-American community. The college adopts a new admissions policy under which the number of students admitted from any single zip code is capped. As a result, fewer Nigerian-American students are admitted but they are still admitted at a higher rate than other ethnic groups. Perhaps there are legitimate reasons for the college’s zip code policy. But we would surely not give the government a free pass from in inquiry into motive because Nigerian Americans are punching above their weight in the applicant pool.
Latinos pass their driving test the first time at a higher rate than all other ethnic groups. The state decides to stop making testing materials and instructions available in Spanish. As a result, the Latino success rate drops to that of other groups. Would we say there can be no equal protection claim because now every group is even?
We wish the circuit court had grappled more seriously with equal protection requirements. With a more careful analysis, the court would likely have recognized the deficiencies of its approach or, at a minimum, provided a more persuasive explanation for why it believed the district court had erred. We fear that instead of sticking to constitutional requirements of equal protection, the court was distracted by a particular definition of equity as involving equal group outcomes. The trouble with grafting this notion of equity onto the Equal Protection Clause is that (as the Supreme Court has explained many times), proportionality is never a constitutional mandate, and even as group impact might be part of (and central to) an equal protection claim, at the end of the day the clause protects individuals from governmental action that causes them injury. In spinning impact in a way to shut off the equal protection challenge to the TJ policy, the circuit court, perversely, narrows the scope of the Equal Protection Clause.
None of this is to say that the outcome of the TJ case is necessarily wrong. It is at least possible that altering admissions criteria to accomplish more racial balance (though not proportional outcomes) is (putting aside its policy wisdom) a constitutionally permissible objective that does not reflect any intent the Supreme Court is prepared to call “invidious.” And possible too that the Court would have some concerns about whether the judiciary has the institutional capacity to police decisions of this kind. The ongoing push from some quarters to alter admissions criteria for all kinds of American institutions is likely to generate important questions about what kinds of mindsets on the part of policymakers courts can and should try to monitor. We hope to return to these questions in future essays.