Amicus Curiae Brief — Coalition for TJ, Petitioner v. Fairfax County School Board

No. 23-170

In the

Supreme Court of the United States

COALITION FOR TJ,

v.

Petitioner,

FAIRFAX COUNTY SCHOOL BOARD,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF OF THE COMMONWEALTH OF VIRGINIA

AND 20 OTHER STATES AS AMICI CURIAE IN

SUPPORT OF PETITIONER

JASON S. MIYARES

Attorney General of

Virginia

KEVIN M. GALLAGHER

ANDREW N. FERGUSON

Solicitor General

Counsel of Record

ERIKA L. MALEY

Deputy Solicitor

General

Principal Deputy Solicitor

General

ANNIE CHIANG

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

aferguson@oag.state.va.us

Assistant Solicitor

General

Counsel for Amicus Curiae the Commonwealth of Virginia

(Additional Counsel listed on Signature Page)

i

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE .............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

BACKGROUND ..........................................................4

ARGUMENT ............................................................. 12

I.

The Fourth Circuit’s decision is contrary to

SFFA and raises critically important questions ... 12

II. The Board’s admissions policy subjects AsianAmerican students to unconstitutional racial

discrimination under Arlington Heights ............... 16

CONCLUSION .......................................................... 23

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Coalition for TJ v. Fairfax Cnty. Sch. Bd.,

142 S. Ct. 2672 (2022) .......................................... 10

Coalition for TJ v. Fairfax Cnty. Sch. Bd.,

2022 WL 986994 (4th Cir. Mar. 31, 2022) .... 10, 20

Cummings v. Missouri,

71 U.S. (4 Wall.) 277 (1867) ............................. 4, 17

Fisher v. University of Tex. at Austin,

570 U.S. 297 (2013) ........................................ 20, 21

Freeman v. Pitts,

503 U.S. 467 (1992) .............................................. 16

Grutter v. Bollinger,

539 U.S. 306 (2003) .............................................. 21

League of Latin United Am. Citizens v. Perry,

548 U.S. 399 (2006) .............................................. 23

Miller v. Johnson,

515 U.S. 900 (1995) ........................................ 16, 21

Parents Involved in Cmty. Sch. v. Seattle

Sch. Dist. No. 1,

551 U.S. 701 (2007) ...................................... passim

Personnel Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979) .............................................. 17

iii

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) (opinion of Powell, J.) ......... 21

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

143 S. Ct. 2141 (2023) .................................. passim

Village of Arlington Heights v. Metropolitan

Hous. Dev. Corp.,

429 U.S. 252 (1977) .............................. 3, 16, 17, 18

Washington v. Davis,

426 U.S. 229 (1976) .............................................. 20

Yick Wo v. Hopkins,

118 U.S. 356 (1886) .............................................. 16

Other Authorities

Columbia University, HBCU Fellowship

Program (last visited Sept. 21, 2023),

https://tinyurl.com/2vyr624j ................................ 15

Dep’t of Justice & Dep’t of Educ., Questions

and Answers Regarding the Supreme

Court's Decision in Students for Fair

Admissions, Inc. v. Harvard College and

University of North Carolina, DOJ

(Aug. 14, 2023),

https://tinyurl.com/yc3embdj ............................... 15

Fairfax County Association for the Gifted,

TJHSST Offers Admission to 550

Students; Broadens Access to Students

Who Have an Aptitude for STEM (June

23, 2021), https://tinyurl.com/3pduh7ep ............. 20

iv

FCPS, Advanced Academics Identification

and Placement for Current FCPS

Students (last visited Sept. 21, 2023),

https://tinyurl.com/2p8te6fe .................................. 5

FCPS, Full-Time Advanced Academic

Program, Grades 3-8 (Level IV) (last

visited Sept. 21, 2023),

https://tinyurl.com/5d79b4ba................................. 5

Superintendent's Office, Regulation

3355.15 (effective Nov. 9, 2021),

https://tinyurl.com/w927zbyt ................................. 9

Supreme Court Rule 37.2(a) ....................................... 1

INTERESTS OF AMICI CURIAE 1

Amici curiae the Commonwealth of Virginia, the

State of Alabama, the State of Alaska, the State of Arkansas, the State of Georgia, the State of Indiana, the

State of Kansas, the Commonwealth of Kentucky, the

State of Louisiana, the State of Missouri, the State of

Montana, the State of Nebraska, the State of North

Dakota, the State of Ohio, the State of Oklahoma, the

State of South Carolina, the State of South Dakota,

the State of Tennessee, the State of Texas, the State

of Utah, and the State of West Virginia (the States),

represented by their attorneys general, have vital interests in protecting their citizens’ Fourteenth

Amendment rights, ensuring that local entities comply with federal law, and providing a public education

for their citizens. The Fourth Circuit’s decision undermines these interests by approving a school board policy that intentionally discriminates against AsianAmerican students in violation of the basic constitutional guarantee of equal treatment without regard to

race or color.

The States agree with the arguments advanced by

Petitioner Coalition for TJ and submit this brief to

provide their unique perspective on the importance of

this Court’s review of the Fourth Circuit’s erroneous

decision.

1 Under Supreme Court Rule 37.2(a), amici curiae notified counsel of record of their intent to file this brief at least 10 days prior

to the due date for the brief.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Shortly after the Fourth Circuit issued its judgment below, this Court held that “[e]liminating racial

discrimination means eliminating all of it.” Students

for Fair Admissions, Inc. v. President & Fellows of

Harvard Coll. (SFFA), 143 S. Ct. 2141, 2161 (2023).

While the racial discrimination in SFFA was overt,

this Court expressly warned that “what cannot be

done directly cannot be done indirectly.” Id. at 2176

(cleaned up). The Fourth Circuit lacked the benefit of

this Court’s decision in SFFA, and its reasoning cannot be reconciled with this Court’s analysis.

Respondent Fairfax County School Board (the

Board) set out to “remake” admissions at Thomas Jefferson High School for Science and Technology (TJ)

because it was “dissatisfied with the racial composition of the school.” App. 95a. To accomplish its “goal of

achieving racial balance,” the Board replaced its raceneutral and meritocratic admissions policy with a new

one intentionally designed to decrease Asian-American enrollment. Ibid. The Fourth Circuit held that the

policy did not violate students’ equal protection rights.

But its analysis conflicts with this Court’s subsequent

reasoning in SFFA. For instance, the Fourth Circuit

rejected the argument that the Board’s intent to increase the admission of certain racial groups necessarily disadvantaged others “in the ‘zero-sum environment’ of school admissions,” contending that this

“basic rationale has been pointedly rejected by the Supreme Court.” App. 40a. But SFFA expressly held that

school admissions are “zero-sum,” meaning that “[a]

benefit provided to some applicants but not to others

necessarily advantages the former group at the expense of the latter.” 143 S. Ct. at 2169.

3

Similarly, the Fourth Circuit held that an intent to

increase “diversity” could not be constitutionally suspect because “[t]he Supreme Court has recognized

that . . . student diversity qualifies as a compelling

state interest.” App. 44a. But this Court made clear in

SFFA that the same purported interest in the educational benefits of “diversity” was not compelling because it “cannot be subjected to meaningful judicial

review,” 143 S. Ct. at 2166, and rests on racial categorizations that are “arbitrary” and “plainly overbroad,”

id. at 2167.

Further, this Court has “many times over” reaffirmed that “racial balance is not to be achieved for its

own sake.” Parents Involved in Cmty. Sch. v. Seattle

Sch. Dist. No. 1, 551 U.S. 701, 729–30 (2007) (opinion

of Roberts, C.J.) (brackets and quotation marks omitted). Racial balancing is contrary to this Court’s “repeated recognition that at the heart of the Constitution’s guarantee of equal protection lies the simple

command that the Government must treat citizens as

individuals, not as simply components of a racial . . .

class.” Id. at 730 (brackets and quotation marks omitted). The Fourth Circuit erred in reinstituting the

Board’s unconstitutional policy.

And after SFFA, the question presented here is one

of exceptional importance. SFFA considered admissions policies that were racially discriminatory on

their face. The admissions policy here is facially neutral but discriminatory in its purpose and effect. Village of Arlington Heights v. Metropolitan Hous. Dev.

Corp., 429 U.S. 252 (1977). Now that SFFA has prohibited open discrimination, schools across the country are adopting similar tactics, seeking to continue

their racial discrimination by proxy. 143 S. Ct. at 2176

(cleaned up). This Court should reject such

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gamesmanship: “The Constitution deals with substance, not shadows.” Ibid. (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1867)).

This Court should accordingly grant the writ of

certiorari to protect the equal protection rights of students. Alternatively, it should vacate the Fourth Circuit’s decision and remand for further consideration

in light of SFFA.

BACKGROUND

TJ is an Academic-Year Governor’s School in Alexandria, Virginia, administered by the Board as part of

Fairfax County Public Schools (FCPS). It is regularly

recognized as one of the best public high schools in the

nation. Prospective students must apply for admission. Prior to 2020, eligible applicants 2 were placed in

a semifinalist pool based on standardized test scores.

App. 88a. Applicants were chosen for admission from

the semifinalist pool “based on a holistic review that

considered GPA, test scores, teacher recommendations, and responses to three writing prompts and a

problem-solving essay.” Ibid.

TJ’s mission is critically important to the Commonwealth’s, and the country’s, competitiveness. TJ

provides a highly challenging, world-class education

for gifted high-school students, focusing on science,

technology, and math. The students it educates are

this country’s future scientists, researchers, inventors, doctors, and engineers. Their skills will be crucial in fostering innovation, solving the complex

2 To be eligible, applicants were required to reside in a participating school division, be enrolled in eighth grade, have a minimum 3.0 grade point average, have completed or be enrolled in

Algebra I, and pay an application fee (which could be waived

based on financial need). App. 88a.

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problems facing society, and maintaining the preparedness of our workforce.

Certain Fairfax County middle schools serve as

Advanced Academic Program (AAP) Level IV centers.

App. 105a. Gifted students, many of whom would attend other middle schools based on their residential

addresses, are admitted to these centers based on

work samples and aptitude test scores. FCPS, Ad-

vanced Academics Identification and Placement for

Current FCPS Students (last visited Sept. 21, 2023),

https://tinyurl.com/2p8te6fe. AAP centers “offer[]

identified students a highly challenging instructional

program” that “is designed to meet the needs of advanced learners.” FCPS, Full-Time Advanced Academic Program, Grades 3-8 (Level IV) (last visited

Sept. 21, 2023), https://tinyurl.com/5d79b4ba. Historically, many of the students accepted to TJ attended

particular AAP centers. E.g., App. 71a (half of the 486

total offers extended to the class of 2024 came from six

feeder schools). Moreover, a disproportionate share of

applicants from these six AAP centers were AsianAmerican. E.g., App. 71a–72a. While not every AAP

center sent significant numbers of students to TJ,

every “feeder” school for TJ was an AAP center. Compare 4th.Cir.App. 0187 with id. at 2899–900.

In the fall of 2020, the Board, along with Superintendent Scott Brabrand, began overhauling the

school’s admissions process to change “the racial

makeup of TJ.” App. 93a. Three events precipitated

these changes. First, the Board was “pushed . . . to act

quickly to change TJ admissions with an explicit eye

towards its racial composition” due to state agency initiatives to improve “diversity” at Governor’s Schools,

which the Board interpreted as admissions “within

5% of diversity in their local districts.” App. 100a–

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101a. Second, in May 2020, widespread unrest arose

in response to George Floyd’s murder. App. 14a–15a,

90a. Finally, a week later, admissions statistics for

TJ’s Class of 2024 showed that fewer than ten Black

students had been admitted. App. 90a.

In response, Board members, Brabrand, and TJ’s

principal determined that the school’s racial composition must change. Six days after the admissions statistics were released, TJ’s principal lamented that the

school “d[id] not reflect the racial composition in

FCPS” because, if it did, it “would enroll 180 Black

and 460 Hispanic students, filling nearly 22 classrooms.” App. 14a, 60a, 90a. Later that month, Board

member Sanders emailed Brabrand declaring that

“the Board and FCPS need to be explicit in how we are

going to address the under-representation of Black

and Hispanic students.” App. 14a, 90a. And Board

member Keys-Gamarra told her colleagues, “in looking at what has happened to George Floyd, we now

know that our shortcomings are far too great . . . so we

must recognize the unacceptable numbers of such

things as the unacceptable numbers of African Americans that have been accepted to TJ.” App. 14a–15a,

90a, 100a.

Concluding that “TJ should reflect the diversity of

FCPS, the community and Northern Virginia,” FCPS

staff developed a “merit lottery” proposal for TJ admissions, which Brabrand presented to the Board.

App. 91a, 106a–107a. Brabrand’s presentation projected the racial effect of his proposal—“a drastic drop

in Asian-American students at TJ.” App. 102a. The racial modeling touted a projected rise in Black enrollment from 1% to 7% and Hispanic enrollment from 3%

to 8%, with a concomitant decrease in Asian-American

enrollment from 73% to 54%. 4th.Cir.App. 0310.

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Among other features, the merit lottery would

have used “Regional Pathways” to cap offer numbers

within FCPS regions. App. 91a. Board members recognized that geographic caps could be used to obtain

their desired racial outcome. See App. 108a (Board

member Sanders advising that “geographic diversity”

will “result in greater diversity in the demographics.”); App. 17a n.3. Some Board members,

however, expressed concern that a lottery “seems to

leave too much to chance,” asking: “will chance give us

the diversity we are after?” App. 107a. Brabrand then

proposed a revised merit lottery, including a holistic

review of some applicants. App. 17a, 92a–93a. This revised proposal added “Experience Factors,” which had

the purported “advantage” of “statistically . . .

provid[ing] some increase in admittance for underrepresented groups.” App. 17a, 67a, 91a–92a.

During the October Board session, the Board took

several votes—something it typically does not do during work sessions and which was not mentioned in the

session’s public description. App. 92a. It unanimously

voted to direct Brabrand to eliminate the TJ admissions examination. Ibid. And it dictated that a diversity plan submitted to the Commonwealth “shall state

that the goal is to have TJ’s demographics represent

[that of] the NOVA region.” App. 62a, 92a. No public

comment was permitted before either vote and no notice was given to the public that these votes would occur. Ibid.

In the subsequent weeks, FCPS staff released a

white paper comparing a holistic option with

Brabrand’s hybrid merit lottery proposal. App. 104a.

This white paper “included voluminous racial modeling and discussion of efforts to obtain racial diversity

at TJ.” Ibid. Brabrand then presented two plans to the

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Board: the hybrid merit lottery and the holistic plan

featured in the white paper. App. 104a–105a. This holistic method would consider a student’s GPA, written

submissions, and the “Experience Factors” (including

“attendance at an underrepresented middle school”),

and featured “regional pathways” setting geographic

caps for offers. Ibid.

The Board accepted Brabrand’s holistic proposal

with one modification: the Board replaced the regional

pathways with a provision setting aside seats for the

top 1.5% of the 8th grade class at each public middle

school. App. 105a. The Board voted in favor of that

proposal, despite not having given prior public notice

or an opportunity to comment on the 1.5% set-aside.

Ibid. Board member McLaughlin abstained from voting in part due to the problematic process, explaining

that she “could not recall a messier execution of

Board-level work.” Ibid.

After voting for this proposal, Board members remained unsure whether the 1.5% set-aside would be

based on the school a student attended or the one she

was zoned to attend. App. 105a–106a. This distinction

is highly significant for the disproportionately AsianAmerican students attending gifted AAP centers rather than their zoned schools. See p.5, supra. Numerous stakeholders pointed out that basing the set-aside

on the attending school would create “a ‘special penalty’ on students from traditionally low-performing regions who pursued placement at a feeder school.” App.

73a. Students not attending AAP centers would have

higher chances of admission, “not because [admissions

officers] compared them [to AAP students] and

thought them equally qualified, but because [they]

never compared them at all.” 4th.Cir.App. 0333. Basing the set-aside on the attending school would thus

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“purposely [favor] academically weaker students . . .

over the ones that FCPS has identified as needing

Level IV [gifted] services.” Ibid. This result “makes no

sense,” ibid.—apart from serving the purpose of racial

balancing. In response, Brabrand insisted that the

Board had voted for “attending school,” which would

produce “the geographic distribution the Board

wanted.” App. 94a.

As the Board knew, the structure of the 1.5% setaside disadvantages the disproportionately AsianAmerican applicants from the top AAP centers. It burdens these applicants by forcing them to compete

largely “against other applicants from the same

school,” rather than all other eligible students. Superintendent’s Office, Regulation 3355.15 at 5 (effective

Nov. 9, 2021), https://tinyurl.com/w927zbyt (emphasis

added). The set-aside leaves only about 100 of 550 total seats in each class unallocated. App. 72a–73a.

These requirements “disproportionately force[] AsianAmerican students to compete against more eligible

and interested applicants (often each other) for the allocated seats at their middle school.” App. 98a. And

the inclusion of “Experience Factors” further disadvantages the disproportionately Asian-American applicants attending AAP centers at the “feeder

schools.” Those factors gave a preference to students

attending middle schools “historically underrepresented” at TJ; approximately a quarter of such applicants were Asian-American, far lower than the overall

percentage of Asian-American applicants. See

4th.Cir.App. 2915; id. at 2961; id. at 0094-95.

Just as the Board had predicted and intended, the

new admissions policy drastically decreased the number of Asian-American students admitted to TJ. The

proportion of offers extended to Asian-American

10

applicants in the five years prior to the policy change

never fell below 65%, and was typically between 70%

and 75%. App. 76a–77a. Indeed, 73% of the offers extended to the last class admitted under the previous,

meritocratic system were extended to Asian-American

applicants. Ibid. Only 54% of offers for the first class

after the Board imposed the challenged admission policy were extended to Asian-American applicants; the

school extended 56 fewer offers to Asian-American applicants for the class of 2025 despite the admitted

class size increasing by 64 students. App. 77a.

Coalition for TJ sued, alleging that the new policy

unconstitutionally discriminated against AsianAmerican applicants. The district court agreed, granting Coalition for TJ summary judgment and enjoining

the Board from using the policy. App. 111a. A divided

panel of the Fourth Circuit granted the Board’s motion to stay the injunction. Coalition for TJ v. Fairfax

Cnty. Sch. Bd., 2022 WL 986994 (4th Cir. Mar. 31,

2022). The Coalition filed an emergency application

with this Court, requesting that it vacate the stay. Coalition for TJ v. Fairfax Cnty. Sch. Bd., 142 S. Ct. 2672

(2022). This Court denied the application. Ibid. Justices Thomas, Alito, and Gorsuch would have granted

the application. Ibid.

The Fourth Circuit then reversed the district court

over Judge Rushing’s dissent, and remanded for entry

of summary judgment in favor of the Board. App. 45a.

The majority held “that the challenged admissions

policy does not disparately impact Asian American

students and that the Coalition cannot establish that

the Board adopted its race-neutral policy with any discriminatory intent.” App. 11a. The majority held it

constitutionally irrelevant that the “Board . . .

adopted the challenged admissions policy out of a

11

desire to increase the rates of Black and Hispanic student enrollment at TJ.” App. 41a. Doing so, according

to the majority, amounted “to improv[ing] racial diversity and inclusion by way of race-neutral measures”—

“a practice that the Supreme Court has consistently

declined to find constitutionally suspect.” Ibid. The

majority also held that there was no disparate impact

because the “proper metric” is 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.” App. 31a. Under that metric, the majority held Asian-American applicants were not disadvantaged because “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.” App. 32a. Judge Heytens issued a separate concurrence, also contending that this Court has

“repeatedly blessed seeking to increase racial diversity in government programs through race-neutral

means.” App. 52a (Heytens, J., concurring).

Judge Rushing dissented. The dissent explained

that despite the policy’s “neutral varnish,” “the evidence shows an undisputed racial motivation and an

undeniable racial result.” App. 54a. “By any metric,

the new admissions Policy adversely—and disproportionately—affected the enrollment of Asian students

at TJ.” App. 76a–77a. “Perhaps most telling, Asian

students were the only race to experience any decrease in admissions numbers while offers to all other

races measured by the Board increased.” App. 77a.

Thus, “the new Policy bore not just more heavily on

one race than another, it bore exclusively on one race.”

Ibid (quotation marks omitted). The Board “plainly

stated its intention to craft an admissions policy for

TJ that would reform the racial composition of the student body to reflect the racial demographics of the

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district.” App. 58a. And “in private discussions, some

of the twelve Board members candidly admitted their

belief that the process targeted Asian students.” App.

74a.

The Coalition now seeks this Court’s review.

ARGUMENT

I. The Fourth Circuit’s decision is contrary to SFFA

and raises critically important questions

The Fourth Circuit issued its ruling a month before this Court’s decision in SSFA, and it is incompatible with SFFA’s analysis. SSFA held unconstitutional admissions policies that explicitly took into consideration applicants’ race to ensure sufficient “representation of certain minority groups from year to

year.” SFFA, 143 S. Ct. at 2154–56, 2167 (quotation

marks omitted). This Court invalidated those admissions policies for violating applicants’ equal-protection

rights. 3 Id. at 2176.

The Fourth Circuit’s analysis below is contrary to

SFFA’s reasoning in numerous respects. First, the

Fourth Circuit rejected the Coalition’s argument that

the policy disadvantaged Asian-American applicants

because “the Board sought to increase the number of

Black and Hispanic students enrolled at TJ and, in

the ‘zero-sum environment’ of school admissions

where the number of available seats is finite, that effort naturally led to fewer overall Asian American students enrolling at TJ.” App. 39a–40a. Indeed, the

Fourth Circuit held that this argument’s “basic rationale has been pointedly rejected by the Supreme

3 The challenge against Harvard raised a Title VI claim, but vio-

lations of the Equal Protection Clause amount to Title VI violations. SFFA, 143 S. Ct. at 2156 n.2.

13

Court.” Ibid. But SFFA expressly adopted the same

argument: that school admissions are “zero-sum,”

such that “[a] benefit provided to some applicants but

not to others necessarily advantages the former group

at the expense of the latter.” 143 S. Ct. at 2169.

Thus, the Fourth Circuit’s decision exemplifies

what SFFA called “most troubling of all”: “a judiciary

that picks winners and losers based on the color of

their skin.” Id. at 2175. While the Fourth Circuit

“would certainly not permit [admissions] programs

that discriminated against black and Latino applicants, it is perfectly willing to let the [policy] here continue.” Ibid. In the Fourth Circuit’s view, courts are

“supposed to tell state actors when they have picked

the right races to benefit.” Ibid.; see also App. 41a

(holding the Board “adopted the challenged admissions policy out of a desire to increase the rates of

Black and Hispanic student enrollment at TJ—that

is, to improve racial diversity and inclusion”). That is

not, as the Fourth Circuit believed, “a practice that

the Supreme Court has consistently declined to find

constitutionally suspect.” App. 41a. Rather, the

Fourth Circuit’s holding that TJ may constitutionally

seek to advantage particular racial groups reflects the

same “remarkably wrong” view of “the judicial role”

that SFFA rejected. 143 S. Ct. at 2175.

Second, the Fourth Circuit’s holding that the intent to increase racial diversity cannot be unconstitutionally discriminatory because it is a “compelling

state interest” is also contrary to SFFA’s analysis.

App. 44a. SFFA held that the amorphous claimed “educational

benefits

of

diversity”—including

“produc[ing] engaged and productive citizens, . . . enhanc[ing] appreciation, respect, and empathy, or . . .

train[ing] future leaders”—are not “compelling.” 143

14

S. Ct. at 2167 (cleaned up) (explaining that those interests “are inescapably imponderable”). It condemned the position “that there is an inherent benefit

in race qua race—in race for race’s sake.” Id. at 2170.

It also rejected the schools’ use of racial categories

such as “grouping together all Asian students” and

“Hispanic” students, holding that the use of these “arbitrary” and “plainly overbroad” categories “undermines” the purported state interest in “diversity.” Id.

at 2167–68. The Board here used the exact same

flawed racial categories in seeking to increase “diversity” in TJ’s “demographics.” App. 108a, see pp.6–7,

supra. Thus, the Fourth Circuit’s analysis of the

Board’s purported interest in “diversity” is incompatible with SFFA.

Third, the Fourth Circuit’s holding that TJ’s policy

had no discriminatory intent or disparate impact is at

least in serious tension with SFFA’s analysis. In that

case, Harvard’s policy sought to avoid certain racial

“group[s being] notably underrepresented” in comparison to prior classes, while the University of North

Carolina sought to avoid a “percentage enrollment

within the undergraduate student body [that] is lower

than their percentage within the general population.”

143 S. Ct. at 2171–72. SFFA held both those goals

were invalid as “outright racial balancing,” because

they sought “some rough percentage of various racial

groups,” thus “treat[ing] citizens . . . as simply components of a racial . . . class.” Id. at 2172. The Fourth

Circuit’s conclusion that the Board’s policy here is not

racial balancing, despite the voluminous evidence

that the Board sought “rough percentage[s] of various

racial groups,” is inconsistent with this Court’s reasoning. Ibid.; see App. 37a–39a; see pp.6–8, supra.

15

Further, the question of how the Equal Protection

Clause applies to facially race-neutral admissions policies that are intended to promote racial “diversity” is

a critically important one following SFFA. As schools

around the country replace race-conscious policies

with facially neutral ones, there is a high risk—as

SFFA itself recognized—that they will simply “establish through . . . other means the regime we hold unlawful today,” using proxies to maintain the same racial balance they can no longer impose “directly.” 143

S. Ct. at 2176. For instance, the Department of Justice

and Department of Education issued guidance about

SFFA. Dep’t of Justice & Dep’t of Educ., Questions

and Answers Regarding the Supreme Court’s Decision

in Students for Fair Admissions, Inc. v. Harvard Col-

lege and University of North Carolina, DOJ (Aug. 14,

2023), https://tinyurl.com/yc3embdj. In it, the agencies instruct institutions of higher education on methods to maintain the same racial demographics of their

student bodies. Ibid. One suggestion, for example, is

that institutions use “admissions models and strategies that . . . offer admission to students based on attendance at certain secondary or post-secondary institutions.” Ibid. Using that method, institutions could

favor schools or organizations with a targeted racial

composition to maintain their desired racial balance.

See, e.g., Columbia University, HBCU Fellowship

Program (last visited Sept. 21, 2023), https://tinyurl.com/2vyr624j (providing admission to HBCU

seniors or recent graduates to Columbia University

School of Professional Studies full-time Master of Science program).

This Court should accordingly grant the petition to

resolve this exceptionally important question, and to

reaffirm that “[t]he Constitution deals with substance, not shadows.” 143 S. Ct. at 2176 (cleaned up).

16

Alternatively, the Court should at least vacate the

Fourth Circuit’s ruling and remand for the Fourth

Circuit to reconsider these issues in light of this

Court’s guidance in SFFA.

II. The Board’s admissions policy subjects AsianAmerican students to unconstitutional racial discrimination under Arlington Heights

The petition should also be granted because the

challenged policy violates the constitutional rights of

Asian-American students. The challenged policy is

“directed only to racial balance, pure and simple,” an

objective this Court “has repeatedly condemned as illegitimate.” Parents Involved in Cmty. Schs. v. Seattle

Sch. Dist. No. 1, 551 U.S. 701, 726 (2007) (opinion of

Roberts, C.J.); Freeman v. Pitts, 503 U.S. 467, 494

(1992) (“Racial balance is not to be achieved for its

own sake.”).

This Court has long held that a facially race-neutral law is unconstitutional where its purpose is invidious racial discrimination. See Village of Arlington

Heights v. Metropolitan Hous. Dev. Corp., 429 U.S.

252, 266 (1977); Yick Wo v. Hopkins, 118 U.S. 356,

373–74 (1886) (prohibiting discriminatory enforcement of facially neutral laws). Where used as tools of

racial discrimination, facially neutral policies “are

just as abhorrent, and just as unconstitutional, as

laws that expressly discriminate on the basis of race.”

App. 56a (Rushing, J., dissenting) (quotation marks

omitted); see Arlington Heights, 429 U.S. at 264–66.

Policymakers cannot evade the Equal Protection

Clause’s “central mandate” of “racial neutrality in

governmental decisionmaking” simply by concealing

their discriminatory intent behind facially neutral

proxies. Miller v. Johnson, 515 U.S. 900, 904 (1995).

17

As SFFA put it, “[w]hat cannot be done directly cannot

be done indirectly,” because “[t]he prohibition against

racial discrimination is levelled at the thing, not the

name.” 143 S. Ct. at 2176 (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1867)).

Courts will not invalidate a facially race-neutral

law solely because it results in a racially disproportionate impact. Arlington Heights, 429 U.S. at 265. Instead, “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Id. at 265–66. For the intent to be discriminatory, the government must have enacted the

challenged policy “at least in part ‘because of,’ not

merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Adm’r of Mass. v. Feeney, 442

U.S. 256, 279 (1979).

Here, “[t]he specific sequence of events leading up

to the challenged decision” reveals the Board’s invidiously discriminatory purpose of achieving a preferred

racial balance at the expense of Asian-American applicants. Arlington Heights, 429 U.S. at 267. First, the

events that catalyzed the Board’s actions—the protests following George Floyd’s murder, and pressure

from government officials to change the school’s racial

composition to match the demographics of the school

system—confirm that the Board designed the challenged policy to balance the school’s racial composition. See pp.5–6, supra. The Board has put forward no

reason for changing the policy apart from increasing

“diversity,” and the record demonstrates that the “diversity” the Board wanted to achieve was racial. See

pp.5–7, supra; see App. 108a (policy change intended

to “increas[e] diversity through redefining merit”).

18

Second, the Board’s conduct deviated from its normal procedures. See Arlington Heights, 429 U.S. at

266–67 (deviations from normal procedures are evidence of discriminatory intent). Board members found

the process “shoddy and rushed,” remarking that they

could not “recall a messier execution.” App. 93a; see

p.8, supra. The Board also adopted the 1.5% set-aside

without prior public notice or opportunity for comment. See p.8, supra. Most glaringly, Board members

did not even understand until after voting for the policy whether the 1.5% set-aside would be based on students’ zoned or attending schools—and then deferred

to Brabrand’s insistence on using the attending

schools, despite the serious concerns raised by stakeholders about unfairness to the disproportionately

Asian-American applicants attending gifted centers.

See pp.8–9, supra.

Third, the legislative history reveals that, just as

in Parents Involved, “the goal established by the

school board [was] attaining a level of diversity within

the schools that approximates the district’s overall demographics.” 551 U.S. at 727 (opinion of Roberts,

C.J.). Shortly before the Board began considering proposals to revamp the admissions policy, TJ’s principal

lamented that the school did not match the district’s

racial demographics. See p.6, supra. The Board itself

declared a “goal” of having “TJ’s demographics represent [that of] the NOVA region.” See p.7, supra. Indeed, the Board rejected a lottery-based admissions

system because of concerns that a lottery would “leave

too much to chance” and might not achieve the racial

balance the Board sought. App. 107a. The Board also

closely considered the projected racial effects of

changes to TJ’s admissions policy, App. 63a–71a, including studying a white paper filled with racial modeling, App. 62a–63a. While the Fourth Circuit

19

asserted that this racial modeling was irrelevant because it did not model the exact proposal ultimately

adopted, App. 39a, the data before the Board made

clear the likely racial impact of its policy, App. 70a

(Rushing, J., dissenting). Thus, just as in Parents Involved, “the goal established by the school board [was]

attaining a level of diversity within the schools that

approximates the district’s overall demographics.”

551 U.S. at 727 (opinion of Roberts, C.J.).

At the same time, Board members candidly (and,

they believed, privately) recognized that “this process”

“discriminated against” Asian-Americans and that

“there has been anti [A]sian feel underlying some of

this,” “made . . . obvious” by Brabrand’s “racist” and

“demeaning” statements. App. 74a. Board members

even acknowledged deliberate racism in the process.

App. 74a (Pekarsky explaining that Brabrand “[c]ame

right out of the gate blaming” Asian-Americans). Accordingly, the contemporaneous statements of the Superintendent and Board members make clear that the

policy changes were intended, at least in part, to decrease admissions of Asian-American students. And,

while the Board argued that it intended to increase

admissions of Black and Hispanic applicants, in the

“zero-sum” world of competitive school admissions, an

intent to provide a benefit “to some applicants but not

to others necessarily advantages the former group at

the expense of the latter.” SFFA, 143 S. Ct. at 2169.

Here, the new policy came at the expense solely of

one group—Asian-American students. App. 77a

(Rushing, J., dissenting). Under the new policy, the

proportion of Asian-American applicants extended offers for the class of 2025 dropped 19% from the previous year, App. 77a (Rushing, J., dissenting), while offers extended to students of every other racial group

20

increased. 4 The challenged policy thus “bears more

heavily on one race”—Asian-Americans—“than

[]other[s].” Washington v. Davis, 426 U.S. 229, 242

(1976); see pp.9–10, supra.

This Court has made clear that this sort of racial

balancing for its own sake is “patently unconstitutional.” Fisher v. University of Tex. at Austin, 570

U.S. 297, 311 (2013) (cleaned up); see also SFFA, 143

S. Ct. at 2172. The prohibition on racial balancing “is

one of substance, not semantics”; racial balancing “is

not transformed from ‘patently unconstitutional’ to a

compelling state interest simply by relabeling it ‘racial diversity.’” Parents Involved, 551 U.S. at 732

(opinion of Roberts, C.J.); SFFA, 143 S. Ct. at 2166–

67, 2171–72. While the Board chose facially neutral

means to achieve its end, “racial balancing is no less

pernicious if, instead of using a facial quota, the government uses a facially neutral proxy motivated by

discriminatory intent.” Coalition for TJ, 2022 WL

986994, at *7 (Rushing, J., dissenting).

The Fourth Circuit’s ruling to the contrary is irreconcilable with this Court’s precedents and the commands of the Equal Protection Clause. The Fourth

Circuit held that the “district court thus erred in . . .

assessing racially disparate impact” by comparing the

admissions “under [the] prior policy” to admissions

under the new policy. App. 31a. Instead, the Fourth

Circuit held, the “proper metric” was the “success

rate” of Asian-American applicants: their “share of the

number of applications to TJ versus that group’s share

TJHSST Offers

Admission to 550 Students; Broadens Access to Students Who

Have an Aptitude for STEM (June 23, 2021), https://ti4 See Fairfax County Association for the Gifted,

nyurl.com/3pduh7ep.

21

of the offers extended.” Ibid. Under that metric, the

Fourth Circuit held the policy had no “disparate impact” because “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.” App.

32a. In other words, the Fourth Circuit holds that a

facially neutral policy cannot be racially discriminatory so long as the rate of offers to members of each

racial group are at least equal to the group’s proportion of the entire applicant pool.

This reasoning is hopelessly irreconcilable with

the command of equal protection. For one thing, it

would bless unadorned racial balancing for its own

sake, which is “patently unconstitutional.” Grutter v.

Bollinger, 539 U.S. 306, 330 (2003); see also Fisher,

570 U.S. at 311; Parents Involved, 551 U.S. at 723.

Moreover, this theory would sanction a policy dangerously close to racial quotas, in which a school board

would be free to engineer a system to align the number of offers extended to members of a particular racial group to the proportion that racial group comprised of the applicant pool. Such a system strikes “at

the heart of the Constitution’s guarantee of equal protection,” which “command[s] that the Government

must treat citizens as individuals, not as simply components of a racial . . . class.” Parents Involved, 551

U.S. at 730 (opinion of Roberts, C.J.) (quoting Miller,

515 U.S. at 911) (brackets omitted); see Grutter, 539

U.S. at 334 (“[A] race-conscious admissions program

cannot use a quota system—it cannot ‘insulate each

category of applicants with certain desired qualifications from competition with all other applicants.’”

(quoting Regents of Univ. of Cal. v. Bakke, 438 U.S.

265, 315 (1978) (opinion of Powell, J.) (brackets omitted)). And under the Fourth Circuit’s ruling, schools

could try to reimpose the pre-SFFA regime by

22

maintaining the success rate for applicants of certain

“underrepresented” racial groups at the school’s preferred levels—just so long as the policy has a facially

neutral veneer and so long as offers are extended to

disfavored racial groups at no less a rate than their

share of the candidate pool. SFFA, 143 S. Ct. at 2171;

see p.15, supra.

The Fourth Circuit also erred in holding that

“Asian American students are [not] differently situated from others when it comes to the operation” of

the admissions policy. App. 33a. Asian-American applicants are differently situated because they disproportionately attend a handful of gifted centers that

have disproportionately high percentages of eligible

applicants. See p.5, supra. These centers draw middle-school students from multiple schools who have

scored highly on aptitude tests and offer them advanced classes. See ibid. The 1.5% set-aside thus “disproportionately forces Asian-American students to

compete against more eligible and interested applicants” attending these top gifted centers, rather than

competing against all students. App. 98a. There is no

apparent reason for the Board to make it disproportionately difficult for students who attend these middle-school gifted centers to obtain admission to its

magnet high school, apart from the Board’s desire to

change that school’s racial composition. Indeed, the

Board’s racial-balancing policies were targeted at

Asian-American applicants with such precision that it

is difficult to account for them apart from their discriminatory purpose. The discriminatory effect of the

policy—that it will “whiten [the] schools and kick ou[t]

Asians”—was not an unfortunate byproduct; it was

the policy’s purpose. App. 74a.

23

***

“It is a sordid business, this divvying us up by

race.” League of Latin United Am. Citizens v. Perry,

548 U.S. 399, 511 (2006) (opinion of Roberts, C.J.). The

sort of race-based exclusion from educational benefits

intended by the Board “is precisely the sort of government action that pits the races against one another,

exacerbates racial tension, and provokes resentment

among those who believe that they have been wronged

by the government’s use of race.” Parents Involved,

551 U.S. at 759 (Thomas, J., concurring) (brackets and

quotation marks omitted). The Fourth Circuit’s blessing of this discriminatory policy should not be permitted to stand.

CONCLUSION

This Court should grant the petition.

September 22, 2023

Respectfully submitted,

JASON S. MIYARES

ANDREW N. FERGUSON

KEVIN M. GALLAGHER

ERIKA L. MALEY

ANNIE CHIANG

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

aferguson@oag.state.va.us

Attorney General

of Virginia

Deputy Solicitor

General

Assistant Solicitor

General

Solicitor General

Counsel of Record

Principal Deputy Solicitor

General

Counsel for Amicus Curiae the Commonwealth of Virginia

24

Counsel for Additional Amici States

STEVE MARSHALL

Attorney General

State of Alabama

TREG TAYLOR

Attorney General

State of Alaska

TIM GRIFFIN

Attorney General

State of Arkansas

CHRISTOPHER M. CARR

Attorney General

State of Georgia

THEODORE E. ROKITA

Attorney General

State of Indiana

KRIS KOBACH

Attorney General

State of Kansas

DANIEL CAMERON

Attorney General

Commw. of Kentucky

JEFF LANDRY

Attorney General

State of Louisiana

ANDREW BAILEY

Attorney General

State of Missouri

AUSTIN KNUDSEN

Attorney General

State of Montana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

DREW WRIGLEY

Attorney General

State of North Dakota

DAVE YOST

Attorney General

State of Ohio

GENTNER F. DRUMMOND

Attorney General

State of Oklahoma

ALAN WILSON

Attorney General

State of South Carolina

MARTY J. JACKLEY

Attorney General

State of South Dakota

JONATHAN SKRMETTI

Attorney General

State of Tennessee

KEN PAXTON

Attorney General

State of Texas

25

SEAN D. REYES

Attorney General

State of Utah

PATRICK MORRISEY

Attorney General

State of West Virginia