Decision on Race-Based Admissions in K-12 May Serve as National Guide

March 4, 2022

On Jan. 24, 2022, the U.S. Supreme Court agreed to hear two cases on the use of race in undergraduate admissions. Just one month later, federal district courts were already beginning to hear challenges to similar programs implemented at the K-12 level.

Most recently, on Feb. 25, 2022, the U.S. District Court for the Eastern District of Virginia, Alexandria Division, granted summary judgment in favor of a coalition of parents, students, alumni and community members challenging an affirmative action admissions procedure at a prestigious public high school for gifted and talented students, which is part of the Governor’s Schools in Virginia. Specifically, Judge Claude Hilton struck down a newly implemented admissions process at Thomas Jefferson High School (TJ), ruling that the process disproportionately and unlawfully affected Asian-American applicants to the school.

In Coalition for TJ v. Fairfax County School Board, No. 1:21-cv-296 (E.D.V.A. Feb. 25, 2022), a group of more than 200 members came together in August 2020 to oppose changes to the admissions process at TJ. The Coalition for TJ included, among others, Asian-American parents with children who had either applied to TJ or planned to do so in the near future. Before the fall of 2020, the admissions process to TJ included minimum academic criteria, as well as required standardized testing. Students that satisfied the academic requirements and achieved certain minimum scores on their tests moved to a “semifinalist round,” during which the school conducted a holistic review considering factors such as academic performance, teacher recommendations and written essay responses.

The school board changed the application process at TJ in fall 2020. According to the U.S. District Court, the school board acted in response to a Virginia General Assembly budget bill that required schools like TJ to submit a report to the governor on the existence of and progress toward diversity goals, as well as the increased focus on the opportunities available to underrepresented groups in the wake of George Floyd’s death in May 2020.

Along with changing the academic prerequisites, the school board changed the evaluation process to include one “holistic evaluation” that included the consideration of academic performance and certain “experience factors.” These experience factors included an applicant’s (a) attendance at a middle school deemed historically underrepresented at TJ; (b) eligibility for free and reduced-price meals; (c) status as an English language learner; and (d) status as a special education student. The school board also enacted a process that guaranteed admission for students at each public middle school in a participating school division equivalent to 1.5% of the school’s eighth-grade class and offered seats in the first instance to the highest-evaluated applicants from each school.

When the school board enacted these admissions changes, the first class admitted under the new system increased by 64 students, but the number of Asian-American students decreased by 56 students from the prior year. In addition, while Asian-American applicants received 73% of offers for the class of 2024, under the new admissions program, Asian-American applicants received only 54% of offers. The Coalition for TJ challenged the new program, arguing that these new admissions statistics evidenced a disparate impact against Asian-American student applicants, and filed for summary judgment against the school board.

The court agreed with the Coalition for TJ, finding that the case presented “substantial evidence” of disparate impact, and that the “undisputed evidence demonstrated precisely how [the school board’s] actions caused, and will continue to cause, a substantial racial impact.” The court found that both of the new admissions processes at TJ — the guaranteed admissions program and consideration of “experience factors” in the holistic evaluation — disproportionally harmed Asian-American students.

Because the admissions process was motivated by a “racial purpose,” the court applied a strict scrutiny standard to its analysis. The court noted that the school board’s actions confirmed that its goal was to change TJ’s admissions process to bring about racial balance at TJ and to reflect the demographics of the surrounding areas. The court held that the school board could not satisfy the high strict scrutiny standard, finding that the school board’s actions left “little doubt that its decision to overhaul the TJ admissions process was racially motivated,” and that the process to change admissions at TJ was made with a “noticeable lack of public engagement and transparency.”

Specifically, the court relied on U.S. Supreme Court cases that held that racial balancing for its own sake was unconstitutional and ruled that “racial balancing” alone cannot serve as a compelling interest. The court also held that, even if the school board could identify a compelling interest, there were other steps the school board could have taken to accomplish this goal, including increasing the size of TJ or providing free test prep.     

In the wake of challenges before the Supreme Court to the consideration of race in admissions processes at Harvard University and the University of North Carolina, this opinion should cause K-12 schools across the nation to carefully consider the legal implications of any programs designed to alter the racial composition of its student body. This opinion may serve as a national guide to other school districts considering race-based admissions programs.

Based on the District Court’s opinion, school districts should pursue transparency regarding any changes to admissions procedures and should not make “racial balancing” the motivating factor for any changes to an admissions process. The Supreme Court has acknowledged that there is a compelling government interest in remedying past intentional discrimination and obtaining the benefits of diversity in higher education. But in Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court rejected an attempt to extend the diversity rationale to K-12 schools. The court explained that its prior recognition of a compelling interest in diversity in Grutter v. Bollinger had rested on circumstances that were “unique to institutions of higher education” and involved consideration of race “only as part of a highly individualized, holistic review.”

Diversity, including racial diversity, remains an important goal for many K-12 schools, and schools should review and carefully consider changes to their admissions policies to avoid legal challenges similar to those seen in this case.

McGuireWoods has a dedicated team of attorneys to help schools and school districts navigate legal issues with admissions processes at the K-12 and higher education levels, and will continue to monitor updates in this space. Please contact any of the authors of this article for questions or assistance regarding admissions programs and affirmative action programs.