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  • Curt Levey

Unfortunate SCOTUS Decision in High School Admissions Case

Committee for Justice president Curt Levey issued the following statement about the Supreme Court’s decision today to deny review of a racially motivated admissions system at Thomas Jefferson High School, a magnet school in Fairfax County, VA:

 

The Supreme Court’s decision not to review the Thomas Jefferson case is unfortunate for at least two important reasons.

 

One, the Fourth Circuit decision below upheld Thomas Jefferson’s superficially race-neutral admissions system, despite its intent of decreasing the percentage of Asian-Americans at the school. That intent made it the next logical case for the High Court to take up following its ruling last June, in the Students for Fair Admissions (SFFA) cases, that the explicit use of race in admissions under the diversity rationale is unlawful.

 

The SFFA decision left open the question of when, if ever, a facially race-neutral admissions system that is nonetheless designed to achieve a desired racial balance, passes constitutional muster. We believe that the answer is never, especially after the SFFA majority said that schools “may not simply establish through application essays or other means the regime we hold unlawful today.” It is regrettable that the Court declined to rule on such an admissions system for now.

 

Two, the Fourth Circuit decision, which now stands, was particularly egregious because it blesses an admissions system that successfully reduced the number of Asian-Americans simply because the number was not reduced beyond that group’s proportion in the local population. In a dissent joined by Justice Thomas, Justice Alito observed that the Fourth Circuit essentially held that “intentional racial discrimination is constitutional so long as it is not too severe.”

 

The Fourth Circuit’s logic is eerily similar to that used a century ago to defend the Jewish quotas at Harvard University, one of the two defendant schools in the SFFA lawsuits. At the time, Harvard modified its admissions process to limit the number of Jewish students, who were overrepresented in the student body, defending it on the grounds that plenty of Jews were admitted nonetheless.

 

Justice Alito’s dissent notes with alarm that “the Fourth Circuit’s reasoning is a virus that may spread if not promptly eliminated,” adding that “TJ’s model itself has been trumpeted to potential replicators as a blueprint for evading SFFA.” It is unfortunate that the Supreme Court did not take the opportunity today to kill that virus.

 

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For additional insight, see:

 

 

Federalist Society webinar on SFFA decision with Curt Levey

 

Supreme Court amicus brief in SFFA cases filed by Committee For Justice, Pacific Legal Foundation & others:

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