Judge Toby Heytens, nominated by President Biden to the Fourth Circuit, cast the deciding vote in a 2-1 decision that upheld an admissions policy at a selective public high school that was designed to increase student body diversity in multiple ways. A Trump judge dissent argued that the district court was correct in ruling that the policy had the purpose and effect of discriminating against Asian American students. The May 2023 ruling in Coalition for TJ v Fairfax County School Board is particularly important as the Supreme Court considers the issue of affirmative action.
What is this case about?
Thomas Jefferson High School for Science and Technology (“TJ”) is a Virginia public magnet school that is “[c]onsistently ranked among the best public high schools” in the country. Most of its students live in Fairfax County, which runs the school, although it also includes students from elsewhere in Northern Virginia. As with most magnet schools, the school board devotes considerable and careful attention to TJ’s admission policies, which are “historically rigorous.”
Board members and others expressed concern that incoming TJ classes came principally from a “limited group of ‘feeder’ middle schools,” and included few low-income, English-language learner, special education, or “Black, Hispanic or multi-racial” students. In 2020, the Board adopted a new TJ admissions policy to increase student body diversity, which it had long concluded was an important educational goal. This was also in accord with a state budget that required magnet schools like TJ to set and develop policies to meet diversity goals.
In late 2020, the Board adopted a new admissions policy. It included such factors as grades, skills, evaluation of a problem-solving essay, and whether students were eligible for reduced-price lunch, special education, English-language learners, or from a “historically underrepresented” middle school. The Board expressly mandated that the policy “must use only race-neutral methods that do not seek to achieve any specific racial or ethnic” targets. Under the revised process, students’ “name[s], race, ethnicity, or sex” were not provided to admissions evaluators.
The first entering class under the new policy “included markedly more low-income students, English-language learners, and girls”, and for the first time in more than a decade, all the County’s 28 middle schools sent students to TJ. Measured by students who received offers to attend TJ, white students made up 22.36%, Black students were 7.9%, Hispanics comprised 11.27%, and Asian Americans received 54.36%.
What happened in the lower court?
A group claiming to represent Asian American students and parents (the “Coalition”) filed a federal lawsuit challenging the new TJ admissions policy under the Constitution, claiming that the policy had both the intent and effect of discriminating against Asian Americans. Despite the high percentage of such students accepted under the new policy, they argued that their acceptance had decreased as a result, since the percentage of Asian-American students who received offers during the last five application cycles “ranged from 65% to 75%.” The Coalition also alleged that although the policy is facially neutral, the Board adopted it with a racially discriminatory purpose since they purportedly “intended to reduce the percentage of Asian American students” at TJ.
After discovery, the parties each filed a motion for summary judgment. The district court granted the Coalition’s motion, agreeing with its claims that the new policy had a discriminatory purpose and effect. The court enjoined the Board from any further use of the new policy. The Board appealed to the Fourth Circuit.
What did the Fourth Circuit and Judge Heytens decide and why is it important?
Judge Heytens cast the deciding vote in a 2-1 decision that reversed the district court and ruled that summary judgment should be entered in favor of the Board so it could continue to use the new policy. Trump judge Allison Rushing agreed with the lower court and dissented. Judge Robert King, who was appointed by President Clinton, wrote a careful 38-page majority opinion that concluded that the new policy had neither a discriminatory effect nor intent.
Initially, the majority explained, the lower court was wrong to base its conclusion of discriminatory effect on a “simple before-and-after comparison” of the percentage of Asian American students who received offers under the new vs. previous admissions policies. Past precedent has rejected the use of a particular racial group’s “performance under a prior policy” as the “proper baseline,” the majority continued, because such an assessment of one group “in isolation” does not answer the question of whether a new policy “bears more heavily on one race than another.” According to Supreme Court precedent, it is that question that is dispositive. In fact, the majority stated, using the Coalition’s preferred before and after method would turn “the previous status quo” into an improper “immutable quota.”
Based on the proper standard, the majority concluded that the new policy did not have a discriminatory effect. The statistics showed that Asian Americans had a much higher “success rate” than any other racial group, contradicting any claim that under the policy, Asian Americans “face proportionately more difficulty in securing admission” than students from other ethnic groups. In addition, the majority noted, after the new policy, Asian Americans of low income or attending middle schools previously poorly represented at TJ saw “far more offers” than in previous years.
The majority went on to reject the lower court’s finding of discriminatory intent. Based on a careful analysis of the “undisputed facts,” the majority found that the evidence relied on by the Coalition was “far too sparse” to reach its preferred conclusion. The Coalition had “never identified” any “direct evidence” of intent to harm Asian Americans. Nor did the facts show that the Board was motivated by a desire to achieve “racial balancing.”
This decision and Judge Heytens’ deciding vote are important far beyond its positive effects on TJ and students in Northern Virginia. The Supreme Court is expected soon to decide on the constitutionality of affirmative action programs to take race into account in promoting diversity in college admissions. Although the TJ case is arguably only a “distant cousin” to such other cases, as Judge Heytens pointed out in a concurring opinion, right-wing advocates have already begun to level attacks at even facially neutral policies that help increase student body or workforce diversity. The TJ ruling firmly supports the constitutionality of such plans. In addition, the decision provides another illustration of the importance of promptly confirming fair-minded judicial nominees like Judge Heytens by President Biden.