DEI Under Scrutiny, Part VI: Supreme Court Declines to Hear Case Over Race-Neutral Measures Allegedly Intended to Increase Racial Diversity

Quick Hits

• The Supreme Court declined to review a case in which a group of parents aligned with activist group Pacific Legal Foundation challenged race-neutral admissions at a selective public high school in Virginia that had resulted in lowering the overall representation of Asian American students who were admitted.
• The Court continues to leave open questions surrounding whether race-neutral policies allegedly aimed at increasing racial diversity violate the Equal Protection Clause.
• This case is significant for workplace DEI measures because of the likely interpretation of the Equal Protection Clause consistent with similarly worded employment nondiscrimination laws, such as Section 1981 and Title VII.

On February 20, 2024, the Supreme Court denied a petition for a writ of certiorari in Coalition for TJ v. Fairfax County School Board, which had asked the Court to review the decision by the U.S. Court of Appeals for the Fourth Circuit to uphold the constitutionality of admissions policies adopted by the Thomas Jefferson High School for Science and Technology (TJ) in Fairfax County, Virginia. The admissions policies at issue focused on socioeconomic and geographic factors but had the effect of reducing the percentage of Asian American students and increasing the percentages of Black, White, and Hispanic students offered admissions.

The Coalition for TJ, which is represented by the Pacific Legal Foundation (PLF), had alleged that the policies, while not explicitly taking race into account, were nonetheless intended to reduce Asian American student enrollment and “racially balance” the student body in violation of the Equal Protection Clause of the Fourteenth Amendment.

The petition was filed on the heels of the Supreme Court’s June 2023 decision in Students for Fair Admissions v. Harvard College (SFFA decision), in which the Court held that certain race-conscious admissions policies in higher education were unconstitutional, and the petition offered the justices an opportunity to further weigh in on the extent to which race-neutral admissions policies with the alleged intent to achieve and/or effect of achieving racial balancing are permissible. The denial comes weeks after the high court declined to temporarily block the United States Military Academy from considering race in its admissions program in a challenge brought by the same group (i.e., SFFA) that filed the Harvard College case.

Justice Samuel Alito, who was joined by Justice Clarence Thomas, disagreed with the denial and issued a ten-page dissenting opinion in which he argued that the Fourth Circuit’s reasoning upholding the admissions policies was “indefensible” and “crie[d] out for correction.”

Background

Following the SFFA decision, activist legal groups opposed to affirmative action stated that they would continue to push litigation and other legal efforts to end affirmative action policies, including race-neutral measures instituted with alleged race-balancing intent.

In that context, the Coalition for TJ challenged the new admissions policies instituted by the Fairfax County School Board for TJ, which is ranked as one of the top high schools in the United States, alleging that the facially race-neutral factors used were “proxies” or substitutes for race and designed to increase the racial diversity of enrolled students.

The Board, however, argued that there was no evidence that its race-neutral admissions policy was intended to reduce the enrollment of Asian American students or otherwise achieve any sort of racial balancing.

In February 2022, the U.S. District Court for the Eastern District of Virginia ruled that the new admissions policies were unlawful because they had a disparate impact on Asian American student applicants. But in May 2023, the Fourth Circuit, in a 2–1 decision, reversed, finding that there was no evidence that new admissions policies were motivated by “invidious discriminatory intent.”

Key to the Fourth Circuit’s majority ruling was its determination that the policies themselves were not only race-neutral but race-blind. The court found that Asian American students were not materially disadvantaged by the policies—even though admissions for Asian American students, who had accounted for between 65 percent and 75 percent of admitted students during the prior five years, decreased to a little over 54 percent—because Asian American students still received a higher percentage of offers of admission than students from any other racial or ethnic group measured, with Asian American students from low-income families and from middle schools with historically low representation significantly outperforming their prior admission rates. The Fourth Circuit noted, to hold otherwise would “simply turn ‘the previous status quo into an immutable quota.’”

Race-Neutral Policies

The Board adopted the admissions policies at issue in December 2020 after considering multiple proposals. According to the Board’s Supreme Court brief, under the prior admissions policies, “students needed a minimum GPA of 3.0 and had to be enrolled in algebra or higher math” to be eligible to apply. Applicants also had to pay a $100 application fee and take three standardized tests. Students who scored high enough on the tests were then given a second round of tests that included writing prompts, and they were asked to submit two teacher recommendations.

The Board stated the prior “admissions process consistently resulted in an admitted class made up disproportionately of students from a small subset of [Fairfax County’s] middle schools located in its more affluent areas.” In modifying its policy, the Board removed three admissions policies it identified as creating “potential barriers” to admission:

• the $100 application fee, “which imposed a financial hurdle for high-performing low-income students”;
• the standardized testing requirement, which allegedly “disadvantaged students ‘who could not afford [the] expensive test-preparation services’ used by their more affluent peers”; and
• the teacher recommendation requirement, which allegedly favored students from the few middle schools that sent the most students to TJ.

The Board adopted new admissions policies that:

• allocated admissions seats to the county’s twenty-six public middle schools, equal to 1.5 percent of the individual school’s eighth-grade class size, reserved for each school’s highest-evaluated students based on GPA (3.5 or higher) and two written assessments;
• awarded seats within each geographic region based on written submissions, including a problem-solving essay; and
• granted admissions points based on four “Experience Factors”: (1) eligibility for free or reduced-price meals; (2) status as an English language learner”; (3) eligibility for special education services; and (4) attendance at a historically “underrepresented” public middle school, that is, a school that had traditionally sent few students to TJ.

The Board further added one hundred admission seats set aside for the highest-evaluated applicants overall, regardless of where they attended middle school. The admissions process was race-blind in the sense that evaluators did not know any applicant’s name, gender, race, or ethnicity.

Potential Impact on Employer DEI Programs

Some onlookers had anticipated that the Supreme Court would use the Coalition for TJ case to provide more clarity regarding the permissibility of race-neutral admissions policies to increase diversity, after the majority in the SFFA decision opined, with little direction that even race-neutral measures could still be unlawful, writing “[w]hat cannot be done directly cannot be done indirectly,” citing an 1867 Supreme Court case, Cummings v. Missouri.

That left open the questions of whether facially race-neutral measures intended to improve diversity that changes or are intended to change the racial representation in admissions offers are unlawful.

Those questions are significant for employers, as race-neutral DEI initiatives and programs designed to increase diversity in the workplace are facing similar legal challenges, including so-called “reverse discrimination” employment law cases. The Court’s interpretation of equal protection claims in the education context is likely to influence interpretations of similarly worded federal employment nondiscrimination laws, namely, Section 1 of the Civil Rights Act of 1866 (42 U.S.C. § 1981) and Title VII of the Civil Rights Act of 1964.

Yet the high court may have another chance to look at the issues, as there are several other similar cases concerning race-neutral policies in the education context pending in the lower courts, and more such suits are expected to follow in both the education and employment contexts.

There are indications that at least three of the high court justices are skeptical of the constitutionality of the facially race-neutral admissions policies at issue in Coalition for TJ (and, likely, similar measures in the employment context). In addition to Justices Alito and Thomas, Justice Neil Gorsuch also dissented in April 2022 to the Court’s rejection of the Coalition for TJ’s bid to stop the new admissions policies at an earlier point in the litigation.

In his dissent from the denial of certiorari, Justice Alito wrote that the Fourth Circuit’s decision to uphold the new admissions policies was wrong because it was clear from the evidence that the policies had a disparate impact on Asian American students, regardless of whether Asian American students were still overrepresented in the TJ student body. Justice Alito wrote that the Fourth Circuit’s holding “effectively licenses official actors to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups.”

For more information on DEI policies, initiatives, and strategies, including increased demands for inclusivity and belonging in the United States and globally, as well as challenges and litigation threats following the Supreme Court’s decision that race-conscious affirmative action admission policies violate the Equal Protection Clause of the Fourteenth Amendment, please see Ogletree Deakins’ “DEI Under Scrutiny” series, which examines the evolving DEI legal landscape since the Supreme Court’s decision and offers employers assistance in balancing these concerns while moving forward with legally defensible programming and initiatives.

To assist employers with navigating these new challenges, Ogletree Deakins’ DEI Task Force—a multidisciplinary team of lawyers from our Diversity and Inclusion, Environmental, Social, and Governance (ESG), Litigation, OFCCP Compliance, Government Contracting, and Reporting, and Pay Equity practice groups—has developed a toolkit to assist with evaluating DEI initiatives, assessing legal risk, and providing recommendations and best practices. For more information, please contact the Ogletree attorney with whom you work or email clientservices@ogletree.com.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity and Inclusion, Employment Law, Higher Education, and OFCCP Compliance, Government Contracting, and Reporting blogs.

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