Amicus Curiae Brief — Coalition for TJ, Petitioner v. Fairfax County School Board
Supreme Court briefSep 20, 2023
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No. 23-170
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------COALITION FOR TJ,
Petitioner,
v.
FAIRFAX COUNTY SCHOOL BOARD,
Respondent.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fourth Circuit
---------------------------------♦--------------------------------BRIEF AMICUS CURIAE OF
CENTER FOR EQUAL OPPORTUNITY
IN SUPPORT OF PETITIONER
---------------------------------♦--------------------------------DEVON WESTHILL
Counsel of Record
CENTER FOR EQUAL OPPORTUNITY
1054 31st NW, Suite 330
Washington, D.C. 20007
(202) 886-2000
devon.westhill@ceousa.org
Counsel for Amicus Curiae
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Whether the Fairfax County School Board (the
Board) violated the Equal Protection Clause when it
overhauled the admissions criteria at Thomas Jefferson High School for Science and Technology (TJ).
ii
TABLE OF CONTENTS
Page
Question Presented .............................................
i
Table of Contents .................................................
ii
Table of Authorities .............................................
iv
Statement of Amicus Curiae ................................
1
Introduction and Summary of Argument ............
2
Argument .............................................................
4
I.
The Board has a long and sordid history of
manipulating TJ admissions practices for
racial purposes ..........................................
4
A. 1990–1997: The Board discriminates
against applicants on the basis of race
and ethnicity, and creates racially segregated “pipeline” programs ................
6
B. 1998–2003: The Board tests geographic
quotas and participates in privately
funded pipeline programs that racially
discriminate .........................................
9
C. 2004–2019: The Board alters TJ’s mission and admissions process with the
explicit purpose of racially balancing
TJ’s student body ................................ 11
D. 2020: The Board again introduces geographic quotas as a proxy for race ...... 15
II.
The Board’s use of race triggers strict
scrutiny ...................................................... 18
A. Employing facially race-neutral means
to achieve a racial outcome triggers
strict scrutiny ....................................... 19
iii
TABLE OF CONTENTS—Continued
Page
B. Any level of action taken for a racial
purpose triggers strict scrutiny .......... 21
III.
This Court has only ever permitted the
use of race-neutral alternatives to achieve
a racial purpose as a narrowly tailored
means to achieve a compelling state interest .............................................................. 22
IV.
This Court should close the back door left
ajar in Fair Admissions ............................. 24
Conclusion............................................................ 26
iv
TABLE OF AUTHORITIES
Page
CASES
Adarand Constructors, Inc. v. Peña,
515 U.S. 200 (1985) ..................................... 18, 22, 23
Bostock v. Clayton Cnty.,
140 S. Ct. 1731 (2020) .............................................21
Brown v. Artery Organization, Inc.,
654 F. Supp. 1106 (D.D.C. 1987) .............................21
Brown v. Bd. of Educ.,
349 U.S. 294 (1955) .................................................23
City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ........................................... 18, 22
Coal. for TJ v. Fairfax Cnty. Sch. Bd.,
68 F.4th 864 (4th Cir. 2023) ....................................22
Cummings v. Missouri,
71 U.S. 277 (1867) ............................................. 19, 21
Fisher v. Univ. of Tex.,
570 U.S. 297 (2013) ........................................... 19, 22
Grutter v. Bollinger,
539 U.S. 306 (2003) ................................. 1, 11, 22, 23
Guinn v. United States,
238 U.S. 347 (1915) .................................................20
Hernandez v. New York,
500 U.S. 352 (1991) .................................................21
Hunt v. Cromartie,
526 U.S. 541 (1999) ..................................... 19, 21, 23
Johnson v. California,
543 U.S. 499 (2005) .................................................19
v
TABLE OF AUTHORITIES—Continued
Page
League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006) .................................................18
Loving v. Virginia,
388 U.S. 1 (1967) .....................................................21
Parents Involved in Cmty. Sch. v.
Seattle Sch. Dist. No. 1,
551 U.S. 701 (2007) ................................. 1, 19, 22, 23
Personnel Adm’r of Mass. v. Feeney,
442 U.S. 256 (1979) ..................................... 20, 21, 23
Ricci v. DeStefano,
557 U.S. 557 (2009) ...................................................1
Shaw v. Hunt,
517 U.S. 899 (1996) .................................................19
Shaw v. Reno,
509 U.S. 630 (1993) .................................................18
Smith v. Shalala,
5 F.3d 235 (7th Cir. 1993) ........................................25
Students for Fair Admissions v.
President & Fellows of Harvard College,
143 S. Ct. 2141 (2023) ..................... 1-3, 17-19, 21-24
Swanner v. Anchorage Equal Rights Comm’n,
115 S. Ct. 460 (1994) ...............................................25
Tito v. Arlington Cty. School Bd.
(No. 97-540-A, 1997 U.S. Dist. LEXIS 7932) ........ 8, 9
Tuttle v. Arlington Cnty. School Bd.,
195 F.3d 698 (4th Cir. 1999) .................................. 8, 9
vi
TABLE OF AUTHORITIES—Continued
Page
Vill. of Arlington Heights v.
Metro Hous. Dev. Corp.,
429 U.S. 252 (1977) ..................................... 19, 21, 23
Wygant v. Jackson Bd. of Educ.,
476 U.S. 267 (1986) .................................................18
Yik Wo v. Hopkins,
118 U.S. 356 (1886) .................................................22
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. XIV .......................................... 2, 21
U.S. Const. amend. XV ................................................20
OTHER AUTHORITIES
Aaron Sibarium, Law School Administrators
Huddle to Circumvent Affirmative Action Ban,
WASH. FREE BEACON (Aug. 23, 2023) ........................3
American Association of Law Schools, AALS
Conference on Affirmative Action: Panel,
YOUTUBE (Aug. 2, 2023) ...................................... 3, 24
Brian Pinaire, Barred from the Vote: Public Attitudes Toward the Disenfranchisement of Felons, 30 Fordham Urb. L.J. 1519 (2003) ..................20
David A. Strauss, Discriminatory Intent and the
Taming of Brown, 56 U. CHI. L. REV. 948
(1989) .......................................................................23
vii
TABLE OF AUTHORITIES—Continued
Page
DEP’T OF EDUC. & DEP’T OF JUST., QUESTIONS AND
ANSWERS REGARDING THE SUPREME COURT’S
DECISIONS IN Students for Fair Admissions v.
Harvard College AND University of North Carolina (Aug. 14, 2023) ...............................................24
Drew Lindsay, Success Factory: Inside America’s
Best High School, WASHINGTONIAN (Sept. 21,
2009) ..........................................................................4
Emma Brown, Math and Science Gaps Found at
Elite Fairfax School, WASH. POST (May 30,
2012) ........................................................................13
FAIRFAX CNTY. SCH. BD., BLUE RIBBON COMMISSION ON ADMISSIONS (2004) ......................................12
FAIRFAX CNTY. SCH. BD. POL’Y 3555.4 .........................13
Governor’s Schools, VA. DEP’T OF EDUC. .......................5
Hilde Kahn, A Stubborn Excellence Gap, EDUC.
NEXT (Jun. 26, 2018) ...............................................13
Jay Mathews, Is TJ Soft on Math?, WASH. POST
(Feb. 27, 2011 11:29 PM) .........................................14
John Dell, The New Thomas Jefferson? It Includes Remedial Math, WASH. POST (May 25,
2012) ........................................................................14
Kevin Sief, Fairfax Chamber of Commerce
Starts Foundation to Bolster Public Schools,
WASH. POST (Feb. 25, 2011) .....................................11
viii
TABLE OF AUTHORITIES—Continued
Page
Maria Glod, Va. Principal Issues Apology for Remarks Linking Ethnicity and Cheating Was
Wrong, Fairfax Leader Says, WASH. POST (May
3, 2006) ....................................................................17
OFFICE OF RESEARCH AND STRATEGIC IMPROVEMENT,
OFFICE OF TJHSST ADMISSIONS, THOMAS JEFFERSON HIGH SCHOOL FOR SCIENCE AND TECHNOLOGY: IMPROVING ADMISSIONS PROCESSES
(Nov. 2020) ......................................................... 16, 17
PAMELA VARLEY, VALUES IN CONFLICT: THE FUROR
OVER ADMISSIONS POLICY AT A POPULAR VIRGINIA MAGNET SCHOOL (2006) ................... 6-11, 15, 16
PAMELA VARLEY, VALUES IN CONFLICT: THE FUROR
OVER ADMISSIONS POLICY AT A POPULAR VIRGINIA MAGNET SCHOOL SEQUEL (2006) .....................12
Pia Nordlinger, Good School, Bad Quota, WKLY.
STANDARD (Jun. 8, 1998) ............................................9
TJHSST Freshman Application Process, FAIRFAX CNTY. PUB. SCHS ..................................................5
RULES
Sup. Ct. R. 37.2(a) .........................................................1
Sup. Ct. R. 37.6 .............................................................1
1
STATEMENT OF AMICUS CURIAE1
The Center for Equal Opportunity (CEO) is a
nonpartisan, nonprofit research and educational organization formed pursuant to Section 501(c)(3) of the
Internal Revenue Code devoted to issues of race and
ethnicity. Its fundamental vision is straightforward:
America has always been a multiethnic and multiracial nation, and it is becoming even more so. This
makes it imperative that our national policies do not
divide our people according to skin color and national
origin. CEO supports colorblind policies and seeks to
block the expansion of racial preferences in all areas
including in admissions to educational institutions.
CEO has participated as amicus curiae in numerous
cases relevant to the analysis of this case. See Ricci v.
DeStefano, 557 U.S. 557 (2009); Parents Involved, 551
U.S. 701; Grutter v. Bollinger, 539 U.S. 306 (2003); Fair
Admissions, 143 S. Ct. 2141 (2023).
Amicus submits this brief to explain that it is
essential for federal courts to apply strict scrutiny to
evaluate changes to admissions policies enacted for a
racial purpose at educational institutions such as the
changes made by the Board in the instant case.
---------------------------------♦---------------------------------
1
The parties were notified of the filing of this brief at least
10 days before its filing. See Sup. R. 37.2(a). Pursuant to Rule 37.6,
amicus affirm that no counsel for any party authored this brief in
whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this
brief.
2
INTRODUCTION AND
SUMMARY OF ARGUMENT
In Students for Fair Admissions v. President & Fellows of Harvard College, 143 S. Ct. 2141 (2023), this
Court recognized that the use of race in the college admissions process violates Title VI of the Civil Rights
Act of 1964 and the Equal Protection Clause of the
Fourteenth Amendment. This case provides the Court
with an ideal vehicle to expand on its position in Fair
Admissions that “eliminating racial discrimination
means eliminating all of it.” Id. at 2161.
The Fairfax County School Board has a long and
sordid history of race discrimination by proxy. The
challenged overhaul of the admissions practices at TJ
in the instant case is consistent with and expands on
this history of actions undertaken for racially motivated purposes. These efforts have included but are not
limited to: 1) creating admissions preparatory programs that discriminate on the basis of race, 2) reducing or eliminating the use of standardized testing, 3)
the use of student essays and recommendations to determine and to make admissions decisions based on
the race of applicants, and 4) targeted geographic quotas.
Such race-targeted efforts are spreading after Fair
Admissions. For example, just ten days after this Court
announced its ruling prohibiting the use of race in college admissions, senior administrative officials of top
law schools met to discuss methods to maintain or
3
increase racial diversity on college campuses.2 In an
online panel moderated by University of CaliforniaBerkeley Law School dean Erwin Chemerinsky on behalf of the Association of American Law Schools, Timothy Lynch, General Counsel of the University of
Michigan, advised law school administrators to look to
Fair Admissions for guidance on how to achieve racial
outcomes without triggering strict scrutiny.3 Mr. Lynch
said:
Law schools should be thinking about the first
statement that [Chief Justice] Roberts made
[in Fair Admissions], which is trying to take
opportunities to increase diversity through
race-neutral means. The hard part of interpreting it is his language about not using the
same means, not having a back-door approach.4
Mr. Lynch identified the instant case as one “important for how [universities] move forward,” because
TJ had successfully used a superficially race-neutral
proxy for the purpose of increasing racial diversity.5
This Court has repeatedly held that a government action for the purpose of achieving a racial result triggers
2
Aaron Sibarium, Law School Administrators Huddle to
Circumvent Affirmative Action Ban, WASH. FREE BEACON (Aug. 23,
2023), https://freebeacon.com/campus/law-school-administratorshuddle-to-circumvent-affirmative-action-ban/.
3
Id.
4
American Association of Law Schools, AALS Conference
on Affirmative Action: Panel 3, YOUTUBE (Aug. 2, 2023), https://
www.youtube.com/watch?v=1Shl_vJ0xl4&t=22s.
5
Id.
4
strict scrutiny review. The fact that the means employed to achieve a racial outcome appear race neutral
does not change that fact. The Court has only permitted the use of a facially race-neutral alternative to
achieve a racial outcome as a narrowly tailored means
of achieving a compelling governmental interest. The
Court should take this opportunity to clarify that even
ostensibly race-neutral actions taken for a racial purpose violates the law.
Evaluated pursuant to the proper judicial standard of strict scrutiny, the Board’s change to the TJ admissions plan violates the Equal Protection Clause
because its manifest racial purpose does not serve a
compelling governmental interest. The Fourth Circuit’s decisions to the contrary are erroneous.
---------------------------------♦---------------------------------
ARGUMENT
I.
The Board has a long and sordid history of
manipulating TJ admissions practices for
racial purposes
TJ has long been recognized as one of the premier
high schools in the United States.6 Established by the
State of Virginia in 1985 as a Virginia Governor’s
School intended to provide “a small population of students whose learning levels are remarkably different
6
See, e.g., Drew Lindsay, Success Factory: Inside America’s
Best High School, WASHINGTONIAN (Sept. 21, 2009), https://www.
washingtonian.com/2009/09/21/success-factory-inside-americasbest-high-school/.
5
from their age-level peers” with academic opportunities “beyond those offered in their home schools,”7 TJ
provides a specialized education for grades 9-12 emphasizing science, technology, engineering, and mathematics.8 Understandably, the questions of which
students to admit to TJ, and how admissions decisions
are made, have been the source of controversy since
nearly the school’s founding.
Students are selected through a relatively complex admissions process administered by the TJ Admissions Office. Although its precise elements have
shifted over time, the process was generally consistent
from 1985-2020. First, students earned a sufficiently
high index score—a combination of entrance exam
scores and middle school grades—to earn a spot in the
semifinalist pool. Second, semifinalist students provided additional personal information, essays, and
teacher recommendations. An admissions committee
then evaluated this information to select TJ’s incoming
class.
From very early in the school’s history, this secondround process has considered race. In 1985, for example, the Board instructed the admissions committee to
take into account “considerations relative to achieving
7
Governor’s Schools, VA. DEP’T OF EDUC., https://www.doe.
virginia.gov/teaching-learning-assessment/specialized-instruction/
governor-s-schools (last visited Sept. 17, 2023).
8
TJHSST Freshman Application Process, FAIRFAX CNTY.
PUB. SCHS., https://www.fcps.edu/registration/thomas-jeffersonhigh-school-science-and-technology-admissions/tjhsst-freshman
(last visited Sept. 17, 2023).
6
an appropriate representative student body in regard
to racial/ethnic and sex distributions.”9 In the years
since, the Board has continually developed new strategies in the admissions process to racially balance the
composition of entering classes.
A. 1990-1997: The Board discriminates
against applicants on the basis of race
and ethnicity, and creates racially segregated “pipeline” programs
In 1986, the Board created a committee responsible for “oversight” of the TJ admissions process. The
committee proposed procedural changes intended to
increase the number of black and Hispanic students at
the school.10 One obstacle to be overcome in this regard
was the admissions test because, in the eyes of committee officials, an insufficient number of black and
Hispanic students achieved scores high enough to
qualify for the second-round, semifinalist pool.
In 1990, the Board adopted a racial affirmative action policy urged by TJ’s then-admissions coordinator.
Members of the admissions office were instructed to
identify promising black and Hispanic applicants from
outside the semifinalist pool and present them to the
Board’s oversight committee for a “second look.”11
9
PAMELA VARLEY, VALUES IN CONFLICT: THE FUROR OVER
ADMISSIONS POLICY AT A POPULAR VIRGINIA MAGNET SCHOOL 8
(2006).
10
Id.
11
Id.
7
Applicants were subsequently admitted to TJ pursuant to this procedure, displacing applicants of other
races with index scores sufficient to reach the semifinalist pool.
Still dissatisfied with the number of black and
Hispanic students admitted through the “second look”
process, the Board in 1992 sought to create a “pipeline”
of academically competitive students with the Board’s
desired racial and ethnic identities. The Board directed
Fairfax County Public Schools (FCPS) to develop a
two-year math and science enrichment program called
“Visions” for promising black and Hispanic middle
school students.12 This program included TJ exam
preparation.13
These two initiatives—“second look” and Visions—
succeeded in raising the proportion of black and Hispanic students at TJ. Total enrollment of students of
these racial groups at TJ ranged between 8.5% and
12.3% during the seven-year period spanning 1991 to
1998.14 By comparison, TJ’s first graduating class (admitted in 1985) was 95.3% percent white or Asian.15
In 1997, a group of parents whose children had
qualified as semifinalists but were denied admission to
the school learned that approximately thirty black or
Hispanic students had been admitted to TJ under its
12
Id.
Id. at 10–11.
14
Id.
15
Id. at 10.
13
8
affirmative action program despite having index scores
that would have disqualified the applicants from consideration if they were white or Asian.16 The parents
complained to the Board, intimating that they might
file a lawsuit.17
The Board was keenly aware these parents had
colorable discrimination complaints. The neighboring
school district in Arlington County, Virginia, lost a lawsuit that same year after defending its policy of reserving half of its seats in a popular elementary school
lottery for racial and ethnic minority students. The
judge in that case ruled that diversity could never constitute a compelling governmental interest and, in the
alternative, even if it could, that Arlington County’s
program was not sufficiently tailored to further diversity. Tito v. Arlington Cty. School Bd. (No. 97-540-A,
1997 U.S. Dist. LEXIS 7932, at *16, E.D. Va. May 13,
1997). Arlington County responded by modifying the
lottery to award points based on three equally
weighted “diversity” factors: (1) whether the applicant
was from a low-income or “special” family background,
(2) whether English was the applicant’s first or second
language, and (3) the racial or ethnic group to which
the applicant belonged.18 Through this policy, Arlington County school officials sought to attain a student
body “in proportions that approximate the distribution
of students from those groups in the district’s overall
16
Id. at 12.
Id.
18
Tuttle v. Arlington Cnty. School Bd., 195 F.3d 698, 701 (4th
Cir. 1999).
17
9
student population.”19 The District Court again condemned Arlington County, calling the revised lottery “a
transparent attempt to circumvent Tito.”20
In response to Tito, Tuttle, and continuing pressure from Fairfax County parents who alleged that the
admissions policy discriminated against their children,
the Board discontinued its segregated “Visions” pipeline program and its policy of admitting black and
Hispanic students with prohibitively low index
scores.21 As a result, enrollment at TJ of students of
these races dropped below levels acceptable to the
Board.
In 2000, the Board instructed then-superintendent Daniel Domenech to increase TJ’s racial diversity
in a way the Board would deem legally “safe.”22 This
directive led to the Board’s first experiments with geographic quotas as a proxy for race.
B. 1998-2003: The Board tests geographic
quotas and participates in privately
funded pipeline programs that racially
discriminate
With the Board cautious of any policy that included
overt racial preferences, superintendent Domenech
19
Id.
Pia Nordlinger, Good School, Bad Quota, WKLY. STANDARD
(Jun. 8, 1998), https://www.washingtonexaminer.com/weeklystandard/good-school-bad-quotas.
21
VARLEY, supra note 9, at 13.
22
Id.
20
10
resorted to “geographic diversity” to achieve the desired racial composition at TJ.
In 2002, the Board increased TJ’s incoming class
size from 400 to 430, reserving thirty seats for semifinalists from “underrepresented” middle schools who
would have otherwise been rejected.23 But this plan
failed. Twenty-eight of the new set-aside seats went to
white and Asian instead of black and Hispanic applicants, which did not racially mix the school as intended.24
Notwithstanding, a significantly higher number of
black and Hispanic students applied to TJ. The total
number of applicants from these racial groups increased from 271 to 394, and 45 ranked in the top 800
compared to only 15 the previous year, with 30 offered
admission compared to just nine the previous year.25
School officials attributed this surge to publicity to the
debate around TJ admissions together with a concerted push by the Parent Teacher Student Association’s Diversity Committee to host information
sessions for minority families and to sponsor a series
of test preparation sessions with eighth-grade minority students.26
The Board also replaced the racially discriminatory Visions program with a similar program called
23
Id. at 18.
Id. at 19.
25
Id.
26
Id.
24
11
Quest, funded by the private Fairfax Education Foundation,27 a nonprofit with ties to the county’s school
system.28 The Board apparently believed that it could
continue operating a racially discriminatory program
in its middle schools, so long as the funding for this
program came from an outside organization.
C. 2004-2019: The Board alters TJ’s mission
and admissions process with the explicit purpose of racially balancing TJ’s
student body
In the fall of 2003, the Board was confronted with
two circumstances that it found undesirable: the failure of its geographic proxy scheme, and this Court’s
ruling in Grutter v. Bollinger, 539 U.S. 306 (2003) (restricting an educational institution’s consideration of
race). The Board decided to tackle the TJ entrance examination, which it viewed as a longstanding obstacle
to its racial diversity goals.
Superintendent Domenech initially proposed adding a non-verbal section to the TJ exam and expanding
the semifinalist pool by replacing the index scoring
27
Id.
Kevin Sief, Fairfax Chamber of Commerce Starts Foundation
to Bolster Public Schools, WASH. POST (Feb. 25, 2011), https://www.
washingtonpost.com/education/fairfax-chamber-of-commercestarts-foundation-to-bolster-public-schools/2011/01/04/ABb33jD_
story.html?_=ddid-3-1694926440 (noting that FCPS superintendent
had previously served on the Foundation’s board).
28
12
system with a minimum exam score.29 The Board instead empaneled a “Blue Ribbon Commission” to analyze how to “increas[e] the diversity of [TJ’s] student
body based on [TJ’s] mission and belief statements.”30
This commission suggested that the Board abandon its
two-stage admissions process and, instead of creating
a semifinalist pool, consider every applicant on the
basis of their entire admissions packet. The Board declined this suggestion but voted in December 2004 to
expand the semifinalist pool.
No longer would there be a fixed pool of 800: heeding the conclusion of the commission that the admissions process “relied too heavily on scores from one
standardized test” that white and Asian students performed disproportionately well on,31 the Board instead
established minimum combinations of scores and
grades on a sliding scale, such that a high GPA could
balance out a lower test score, and vice versa.32 Under
this new system, 1,601 out of 2,902 applicants to TJ in
the fall of 2004 qualified as semifinalists.33
29
PAMELA VARLEY, VALUES IN CONFLICT: THE FUROR OVER
ADMISSIONS POLICY AT A POPULAR VIRGINIA MAGNET SCHOOL
SEQUEL 1 (2006).
30
FAIRFAX CNTY. SCH. BD., BLUE RIBBON COMMISSION ON
ADMISSIONS 13 (2004), https://static1.squarespace.com/static/
5f4289cac951f24569ad9488/t/5fff31973ca0ce3823453fa5/161055
9896411/TJBlueRibbonReport.pdf.
31
Id. at 14.
32
VARLEY, supra note 29 at 3.
33
Id. at 4.
13
Between 2004 and 2020, the Board tinkered extensively with the admissions process. These changes included altering the mission statement of the school,
reducing the required number of recommendations
from math and science teachers, and asking recommending teachers to disclose students’ ability to contribute to “diversity.”
The Board also “corrected” TJ’s chartering purpose, declaring the school’s mission was to prepare
“future leaders . . . to address future complex societal
and ethical issues.”34 To achieve this bold new goal, the
Board sought diversity within its student body,
“broadly defined to include a wide variety of factors,
such as race, ethnicity, gender, English for speakers of
other languages (ESOL), geography, poverty, prior
school and cultural experiences, and other unique
skills and experiences.”35
By 2011, such changes so demonstrably reduced
the academic readiness of the student body that a
group of math teachers expressed concern to the Board
and in local media.36 One nationally renowned middle
34
FAIRFAX CNTY. SCH. BD. POL’Y 3555.4, https://www.
boarddocs.com/vsba/fairfax/Board.nsf/files/99QRKR6E6833/$file/
P3355.4.HighSchoolforScienceandTechnology.pdf.
35
Hilde Kahn, A Stubborn Excellence Gap, EDUC. NEXT
(Jun. 26, 2018), https://www.educationnext.org/stubborn-excellencegap-despite-efforts-diversity-stalls-elite-public-high-school/.
36
See, e.g., Emma Brown, Math and Science Gaps Found at
Elite Fairfax School, WASH. POST (May 30, 2012), https://www.
washingtonpost.com/local/education/math-and-science-gaps-foundat-elite-fairfax-school/2012/05/30/gJQAmT2s2U_story.html (noting that the proportion of freshmen on a “watch list” of students
14
school math teacher, distressed that TJ had rejected
the most mathematically gifted eighth grader in Fairfax County, shared the Board’s revised teacher recommendation materials with the Washington Post to
illustrate how the admissions process had been “corrupt[ed].”37 TJ’s 2004 recommendation form asked
teachers to rate candidates on “interest in math,” “selfdiscipline,” and “problem-solving skills.”38 In 2011, that
same form sought information about a student’s “intellectual ability,” “commitment to [science, technology,
engineering, and mathematics],” and whether the applicant’s background, skills, and past experiences
would “contribute to the diversity of [the TJ] student
body.”39
with low grade-point averages “nearly doubled;” and that the issue
became public after seven math teachers sent a letter to the Board
detailing their concerns); John Dell, The New Thomas Jefferson?
It Includes Remedial Math, WASH. POST (May 25, 2012), https://
www.washingtonpost.com/opinions/the-new-thomas-jefferson-itincludes-remedial-math/2012/05/25/gJQAlZRYqU_story.html (detailing that FCPS no longer selected students primarily based on
their promise in science, technology, and mathematics, resulting
in a class where one-third of entering students were in “remediation in their math and science courses”).
37
Jay Mathews, Is TJ Soft on Math?, WASH. POST (Feb. 27,
2011 11:29 PM), https://www.washingtonpost.com/wp-dyn/content/
article/2011/02/27/AR2011022704827.html?wprss=rss_metro.
38
Id.
39
Id.
15
D. 2020: The Board again introduces geographic quotas as a proxy for race
In 2020, the Board once again decided to set aside
seats at specific middle schools to decrease the number
of white and Asian students admitted to TJ. This decision to overhaul admissions in the case at issue began
when TJ Principal Ann Bonitabitus lamented that TJ
“did not reflect the racial composition of FCPS.” Cert.
petition at 7. The Board again subordinated TJ’s traditional merit-based admissions criteria. The Board first
considered a merit lottery to drastically reduce the
white and Asian enrollment at TJ. Cert. petition at 8.
But it decided that such a process would still yield too
many Asian students.
The Board had once again come to the crux of its
challenges in racially balancing TJ: family motivation
to pursue the best educational opportunities available
for their children. FCPS had long-established regional “Gifted and Talented (GT) Centers” for advanced learners—a system former superintendent
Daniel Domenech recognized had historically low
black and Hispanic enrollment.40 Students who availed
themselves of the accelerated coursework in GT Centers were those most successful on TJ’s admissions
exam, leaving few qualifying students in other neighborhood schools.
40
VARLEY, supra note 9 at 5 (noting that Domenech’s “own
educational philosophy was at odds with [the county’s] muchbeloved educational tradition” of creating “separate schools for
children identified as ‘gifted and talented’ ”).
16
To overcome this hurdle to achieving its desire for
racial variety at TJ, the Board proposed eliminating
the entrance exam entirely and granting a quota to
every school in the county. It also added “experience
factors” to the application process to further disadvantage white and Asian applicants. Cert. petition at 9.
The Board never intended to increase geographic
diversity, since the middle schools granted slots within
the quota scheme all funnel students into the same GT
centers. A plan intended to increase geographic representation would have allocated seats according to
county regions based on their population. Instead, students enrolled in the GT centers are ineligible for seats
set aside for their local high school, despite living
within its geographic boundaries. This plan had the
sole, express purpose of racially balancing the student
body by capping the number of white and Asian students admitted to TJ.
The Board has known for years that its wish to
enroll more black and Hispanic students at TJ is
frustrated by a “pipeline” issue. This issue has been
studied exhaustively.41 Black and Hispanic students
have historically been under-identified for “Gifted and
Talented” programs in Fairfax County, resulting in relatively low enrollments in the advanced middle school
41
See generally OFFICE OF RESEARCH AND STRATEGIC IMPROVE-
MENT, OFFICE OF TJHSST ADMISSIONS, THOMAS JEFFERSON HIGH
SCHOOL FOR SCIENCE AND TECHNOLOGY: IMPROVING ADMISSIONS
PROCESSES (Nov. 2020), https://go.boarddocs.com/vsba/fairfax/
Board.nsf/files/BWE23Y004896/$file/TJ%20White%20Paper%2011.
17.2020.pdf; VARLEY supra note 9 at 5-6.
17
math classes that students must complete in order to
apply to TJ.42 Moreover, a study prepared by the Board
in 2020 found that of the eighth grade students enrolled in advanced math courses eligible to apply to TJ
that year, just 38% of black students and 35% of Hispanic students chose to apply to TJ.43 In contrast, 64%
of eligible Asian students applied.44
In its haste to remedy a decades-long, systemic issue that became politically inconvenient during the social unrest that gripped the country in 2020, the Board
has once again sought to engineer a preferred racial
balance at TJ. Its chosen method in doing so evinces a
clear preference for certain races and against others.
Principal among this animus appears to be anti-Asian
sentiment, once on display in remarks by former TJ
principal Elizabeth Lodal, who resigned following an
apology for her criticism of Asian students in 2006.45
The revelations of anti-Asian attitude in the record, especially, is disturbingly similar to the factual circumstances in Fair Admissions. The Board’s extensive,
longstanding efforts to both discriminate for a racially
42
See generally OFFICE OF RESEARCH AND STRATEGIC IMPROVE-
MENT, supra note 41.
43
Id. at 11.
Id. at 12.
45
Maria Glod, Va. Principal Issues Apology for Remarks Linking Ethnicity and Cheating Was Wrong, Fairfax Leader Says, WASH.
POST (May 3, 2006), https://www.washingtonpost.com/archive/
politics/2006/05/03/va-principal-issues-apology-for-remarks-spanclassbankheadlinking-ethnicity-and-cheating-was-wrong-fairfaxleader-saysspan/01cfcf99-d02f-4c11-b68e-e4997cf6d972/.
44
18
motivated purpose and to evade judicial sanction must
end.
II.
The Board’s use of race triggers strict
scrutiny
This Court has explained that the “central purpose” of the Equal Protection Clause is to “prevent the
States from purposefully discriminating between individuals on the basis of race.” See Shaw v. Reno, 509
U.S. 630, 642 (1993). Therefore, “[a]ny preference based
on racial or ethnic criteria must necessarily receive a
most searching examination. . . .” Wygant v. Jackson
Bd. of Educ., 476 U.S. 267, 273 (1986). “[T]he purpose
of strict scrutiny is to ‘smoke out’ illegitimate uses of
race. . . .” City of Richmond v. J.A. Croson Co., 488 U.S.
469, 493 (1989).
What Justice Clarence Thomas calls “genuine”
strict scrutiny is “strict in theory, but fatal in fact.”
Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 237
(1985); Fair Admissions, 143 S. Ct. at 2177 (Thomas, J.,
concurring). Genuine strict scrutiny remedies the “sordid business” of “divvying us up by race” that has
plagued our nation’s history. League of United Latin
Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts,
C.J., joined by Alito, J., concurring and dissenting).
Even for ostensibly good reasons such as diversity, see
Fair Admissions 143 S. Ct. at 2196-97 (Thomas, J.,
concurring), or statistical evidence of inequality, see
Croson at 488 U.S. at 499, the use of race did not survive strict scrutiny. That is because “[t]he worst forms
19
of racial discrimination in this Nation have always
been accompanied by straight-faced representations
that discrimination helped minorities.” Fisher v. Univ.
of Tex., 570 U.S. 297, 328 (2013) (Thomas, J., concurring). Only the rarest circumstances can overcome
“genuine” strict scrutiny, such as prison race riots and
remedial action for prior race discrimination that violated the Constitution or statute. Johnson v. California, 543 U.S. 499, 505-06 (2005); Parents Involved in
Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720
(2007); Shaw v. Hunt, 517 U.S. 899, 909-10 (1996); Fair
Admissions, 143 S. Ct. at 2162.
A. Employing facially race-neutral means
to achieve a racial outcome triggers
strict scrutiny
Intentional race discrimination arises where an
allegedly race-neutral policy, which is applied without
bias, results in a racially disparate impact motivated
by discriminatory intent. See Vill. of Arlington Heights
v. Metro Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977).
This idea is summed up in the maxim, “what cannot be
done directly cannot be done indirectly.” Fair Admissions, 143 S. Ct. at 2176. The prohibition against racial
discrimination is “levelled at the thing, not the name.”
Cummings v. Missouri, 71 U.S. 277, 325 (1867). Laws
or policies that are “motivated by a racial purpose or
object” are subject to strict scrutiny. Hunt v. Cromartie,
526 U.S. 541, 546 (1999). Strict scrutiny also applies to
seemingly neutral laws or policies which have a “disproportionately adverse effect” that “can be traced to a
20
discriminatory purpose.” See Personnel Adm’r of Mass.
v. Feeney, 442 U.S. 256, 272 (1979).
There are many constitutionally permissible reasons to enact each one of TJ’s admissions changes. But
each decision—and especially the wholesale elimination of the admissions test in 2020 at issue in the instant case—violated the Equal Protection Clause
because at least one reason for each change was to reduce the number of white and Asian students admitted
to TJ.
This is common sense, and proxies are not new.
After the passage of the Fifteenth Amendment, southern states passed “grandfather clauses,” which exempted anyone whose grandfather could vote before
the passage of the Amendment from voting restrictions established to target black Americans. This
Court was unanimous in that there was “no room for
dispute” of the underlying, repugnant racial purpose
and held that grandfather clauses violated the Fifteenth Amendment. Guinn v. United States, 238 U.S.
347, 363 (1915). Many Jim Crow laws, such as “[p]oll
taxes, grandfather clauses, and property tests” were
“ostensibly race-neutral” but nonetheless, were enacted for a racial purpose. See, e.g., Brian Pinaire et al.,
Barred from the Vote: Public Attitudes Toward the Disenfranchisement of Felons, 30 FORDHAM URB. L.J. 1519,
1525 (2003). It would blink reality to hold that the
state is prohibited from discriminating on the basis of
race if officials can merely establish proxies to achieve
the same results.
21
This Court’s subsequent rulings recognize that the
Civil War Amendments would be mere formalities if
shadows or semantics defeated substance. See Cummings, 71 U.S. at 325 (1867); Rather, “[t]he clear and
central purpose of the Fourteenth Amendment was to
eliminate all official sources of invidious racial discrimination in the United States.” Loving v. Virginia,
388 U.S. 1, 10 (1967) (emphasis added).
B. Any level of action taken for a racial
purpose triggers strict scrutiny
A racial purpose “implies that the decisionmaker
. . . selected . . . a particular course of action at least in
part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Hernandez v. New
York, 500 U.S. 352, 360 (1991); accord Feeney, 442 U.S.
at 279. This implies “but for” causation. Fair Admissions, 143 S. Ct. at 2209 (Gorsuch, J., concurring) (citing Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1742
(2020)). The Court does not excuse race discrimination
merely because there are non-racial motivations present, however abundant. See Hunt, 526 U.S. at 541;
Arlington Heights, 429 U.S. at 265-56 (needing to show
impermissible racial intent was a motivating factor,
not a primary one); Feeney, 442 U.S. at 272 (“A racial
classification . . . is presumptively invalid”); Brown v.
Artery Organization, Inc., 654 F. Supp. 1106, 1117
(D.D.C. 1987) (requiring under the Fair Housing Act
that housing decisions are “not the product in any way
of racial purpose or motive” (emphasis added)). “Eliminating racial discrimination means eliminating all of
22
it”: a single motivation because of race—even if it is
one among thousands—still requires strict scrutiny.
Fair Admissions, 143 S. Ct. at 2154; see also Croson,
488 U.S. at 493 (1989).
Each individual change in TJ’s admissions policy
alone should trigger strict scrutiny, as each “was applied and administered by a public authority with an
evil eye and an unequal hand.” Yik Wo v. Hopkins, 118
U.S. 356, 373-74 (1886).
III. This Court has only ever permitted the use
of race-neutral alternatives to achieve a racial purpose as a narrowly tailored means to
achieve a compelling state interest
In a concurring opinion in the Fourth Circuit decision, Judge Toby J. Heytens claimed that the “Supreme
Court has repeatedly blessed seeking to increase racial
diversity in government programs through race-neutral means” and that “[i]t would be quite the judicial
bait and switch to say such race-neutral efforts are also
presumptively unconstitutional.” Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 891 (4th Cir. 2023).
Judge Heytens misreads this Court’s precedents
and conflates race-neutral with legal. Grutter mentions considerations of race-neutral alternatives as a
narrow tailoring element of strict scrutiny. Grutter,
539 U.S. at 339-40. So do Fisher, Croson, Adarand, and
Parents Involved. Fisher I, 570 U.S. at 312; Adarand,
515 U.S. at 237-38; Croson, 488 U.S. at 507; Parents
Involved, 551 U.S. at 733-35. There never has been a
23
presumption of constitutionality for race-neutral
measures that are a pretext for race. See Feeney, 442
U.S. at 272. “When there is proof that a racially discriminatory purpose has been a motivating factor in
the decision, . . . judicial deference is no longer justified.” Arlington Heights, 429 U.S. at 265-66; Hunt,
526 U.S. at 546 (“A facially neutral law . . . warrants
strict scrutiny . . . if it can be proved that the law was
motivated by a racial purpose.”). Judge Heytens’ misreading makes Brown and its progeny mere formalities; “it makes little sense to allow a government that
is subtle enough to use an ostensibly neutral surrogate
for race to get away with maintaining” racial discrimination. David A. Strauss, Discriminatory Intent and
the Taming of Brown, 56 U. CHI. L. REV. 935, 948
(1989).
Judge Heytens also assumes a compelling interest
where none exists. This Court has never found a compelling state interest in racial diversity in K-12
schools. See Parents Involved, 551 U.S. at 746-47.
“[F]ull compliance” with Brown I required “a system
of determining admission to the public schools on a
nonracial basis.” Brown v. Bd. of Educ., 349 U.S. 294,
300-01 (1955). Without a compelling interest, TJ’s admissions scheme fails strict scrutiny. See Adarand, 515
U.S. at 237. The Fourth Circuit cannot offer its blessing
to what was never legal.46
46
In making this point, the Court should make explicit what
Justice Thomas writes in, and ought to be clear in any fair reading
of, the Fair Admissions decision, namely, that the holding in Grutter of a compelling interest in the purported educational benefits
24
IV. This Court should close the back door left
ajar in Fair Admissions
In response to this Court’s ruling in Fair Admissions, schools have announced an intention to use facially race-neutral proxies to racially balance incoming
classes. Absent clarity from this Court, schools and administrators will operate under a misunderstanding of
Fair Admissions.
Moreover, school officials are watching TJ closely,
seeking more wiggle room to insulate from legal liability admissions practices that seek racial ends. For example, the University of Michigan’s general counsel
suggested that schools obscure any racial purpose behind changes to admissions practices:
Whatever you do, you should be aware right
now of the record you’re creating, the record
your faculties are creating. What record are
you creating? In the Thomas Jefferson dissent, they look for . . . anything that could be
used as evidence of discriminatory intent. The
key question in terms of creating the record is,
what can you say right now is the race neutral
explanation for doing it?47
Additionally, this Court should reject the use of
second-order proxies. The Biden Administration released guidance that suggests schools can establish increasingly insulated proxies for race. DEP’T OF EDUC. &
of a diverse student body, sufficient to justify racial discrimination,
is “for all intents and purposes, overruled.”
47
American Association of Law Schools, supra note 2.
25
DEP’T OF JUST., QUESTIONS AND ANSWERS REGARDING
THE SUPREME COURT’S DECISIONS IN Students for Fair
Admissions v. Harvard College AND University of North
Carolina 3-4 (Aug. 14, 2023), https://www.justice.gov/
media/1310161/dl?inline.
This Biden Administration guidance advises that
“[a]n institution may consider race” in the admissions
process including through “outreach and recruitment”
for pre-college programs. Id. at 4. Graduation from
such a pipeline or “pathway program” therefore becomes a proxy for race. Notwithstanding, the Biden
Administration counsels that an “institution may give
pathway program participants preference in its college
admissions process” to achieve a racial goal indirectly
that this Court has prohibited. Id.
The Biden Administration’s advice is clear: fill precollege programs with students of the preferred races,
then admit graduates of those programs with preference to evade this Court’s edicts. See id.; Swanner v.
Anchorage Equal Rights Comm’n, 115 S. Ct. 460, 461
(1994) (citing Smith v. Shalala, 5 F.3d 235, 239 (7th Cir.
1993)). Just like those implemented by the Board, raceexclusive education preparation programs function as
a backdoor or second-level proxy to racially discriminate in admissions.
Schools should not escape their illegal use of race
by diluting their discrimination with the right number
of substitutes. This Court should clarify that if a racial
purpose motivates state action at any point, the action
26
is subject to strict scrutiny review. See Section II.B,
supra.
---------------------------------♦---------------------------------
CONCLUSION
For the reasons stated in the Petition and this
amicus brief, this Court should grant the writ of certiorari.
Respectfully submitted,
DEVON WESTHILL
Counsel of Record
CENTER FOR EQUAL OPPORTUNITY
1054 31st NW, Suite 330
Washington, D.C. 20007
(202) 886-2000
devon.westhill@ceousa.org
Counsel for Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.