The Elite High School admissions plan can be tested by the Supreme Court

In the coming weeks, the Supreme Court will most likely bar colleges and universities from using race as a factor in admissions decisions. Indeed, when matters dispute the admissions programs at Harvard and the University of North Carolina were contested in Octobersome judges were already looking at the next question looming on the horizon: whether admissions officers can promote racial diversity by using race-neutral criteria.

“Your position,” Judge Brett M. Kavanaugh told an attorney for the challengers, “going forward, if accepted, will put a lot of pressure on what qualifies as race neutral in the first place.”

That question became more concrete last week, then a divided three-judge panel of a federal appeals court enabled an elite public high school in Alexandria, Va., to review its admissions policy by, among other things, eliminating standardized tests and freeing up places for the top students at every public high school in the area.

Those changes resulted in a class with more Black and Hispanic students and far fewer Asian Americans. In a dissent to last week’s decision that appeared to be directed to the Supreme Court, Judge Allison J. Rushing wrote that the majority had refused to “look beyond the neutral veneer of the policy” and instead considered “an undisputed racial motivation and an undeniable racial outcome.”

It’s a good bet the Supreme Court will agree to an appeal in that case and use it to answer outstanding questions in its upcoming decisions on Harvard and UNC’s admissions practices

Those universities take into account race as such. Not high school.

Indeed, admissions officers at the school, Thomas Jefferson High School for Science and Technology, known as TJ, are not told the race, sex, or name of any applicant.

But the school did change its admission requirements in 2020 after protests over the murder of George Floyd. “We all have a responsibility to our community to speak up and take actions that counteract racism and discrimination in our society,” said Ann Bonitatibus, the school’s principal. wrote in a message to students and their families.

She added: “Our 32 black students and 47 Hispanic students fill three classrooms. If our demographics truly represented “that of the county’s public schools,” “we would enroll 180 black and 460 Hispanic students, filling nearly 22 classrooms.”

Revisions to the school’s admissions policy were difficult, but eventually the school board abolished standardized testing and reserved seats for the top 1.5 percent of students at every public high school in the area.

Admissions officials were also instructed to consider “experience factors,” such as whether students were poor, learned English, or attended a high school that was “historically underrepresented” in high school.

After the changes went into effect in 2021, the percentage of Asian-American students fell from 73 percent to 54 percent. The percentage of black students grew from just 2 percent to 7 percent; the percentage of Hispanic students grew from 3 percent to 11 percent; and the percentage of white students grew from 18 percent to 22 percent.

In the Fairfax County school system overall, about 37 percent of students are white, 27 percent Hispanic, 20 percent Asian, and 10 percent Black.

Writing for the majority in last week’s decision, Judge Robert B. King, who was appointed by President Bill Clinton, said the before and after numbers were not the right place to start the analysis. That, he said, citing the school board’s brief, would “turn the previous status quo into an immutable quota.”

Judge Rushing, who was appointed by President Donald J. Trump, disagreed, writing that the constitution’s guarantee of equal protection would be “empty if governments could deliberately achieve discriminatory ends under cover of neutral means.”

Judge Rushing served as clerk to Judge Neil M. Gorsuch when he was an appellate judge, and to Supreme Court Justice Clarence Thomas. When a challenge to the new high school admissions policy reached the Supreme Court a year ago as part of an emergency relief application, those two justices, along with Judge Samuel A. Alito Jr., voted to rule. moved on.

The Supreme Court has in decisions by another eraendorsed and even required consideration of race-neutral criteria.

In a concurring opinion in last week’s decision, Judge Toby J. Heytenswho was appointed by President Biden, said those precedents must count for something.

“After decades of telling school officials to consider race-neutral methods to ensure a diverse student body before turning to race-conscious ones,” he wrote, “it would be rather legal lure to say such a thing as race-neutral. unconstitutional.”

Scholars, too, say such a move would be an astonishing turnaround.

“It would be a surreal turn of events if the court were to later rule that the very decision-making process the court has long required renders a resulting race-neutral policy unconstitutional.” Sonya B. Starrwrote a law professor at the University of Chicago an article about this case and similar cases to be published next year in The Stanford Law Review.

But such a turnaround can hardly be ruled out. Three judges voted last year to block the high school’s admissions program before the appeals court even ruled. And it only takes four votes to add a case to the Supreme Court’s roll.