SCOTUS strikes down affirmative action….

In a 6-3 decision the Supreme Court shot down a part of the admissions process at Harvard and the University of North Carolina because it factored a student’s race into the decision. This ruling will have a major impact on higher education, particularly in schools that are highly selective about admissions. But what about our K-12 schools?

Board members and superintendents in some of our larger districts will need to consider the SCOTUS ruling as they make decisions about attendance zones and admission to magnet or “choice” schools. If there is an effort to ensure a mix of students that roughly matches the demographics of the district, it will have to be done without overtly factoring in race. For a good example of how to do this, consider the 4th Circuit’s decision in Coalition for TJ v. Fairfax County School Board.

Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia is a highly selective and nationally recognized school. It’s tough to get in. A group of Asian American students and parents (The Coalition for TJ) sued the school board alleging that the board’s newly adopted admissions policy discriminated on the basis of race, disfavoring Asian Americans.

Was this because Asian students were underrepresented at TJ? Hardly. In 2019, 71.5% of the students at TJ were Asian American even though that group comprised just 19.5% of students in the district. After the board tinkered with the admissions process the number of Asian American students dropped to 54.3%. While this is still a majority of the students at TJ and much higher than the percentage of Asian students in the district, the Coalition alleged that the board was seeking to increase the numbers of African American and Hispanic students at the expense of Asian American students who were better qualified. There were a few statements by board members and others, particularly after the murder of George Floyd, that indicated that racial balancing was the goal. The Coalition argued that the effort to balance by race disproportionately and negatively affected only one group—the Asian American students.

The 4th Circuit ruled that the board’s new admissions criteria did not discriminate on the basis of race. The court noted that the new admissions policy was racially neutral on its face and specifically barred identification of a student’s ethnicity as admissions were considered. Moreover, the new policy produced some positive outcomes. There was a large increase in the number of student applications to TJ and a freshman class that had more girls, more low income students, more English Language learners and representation from more middle schools. In fact, the new freshman class had some students from each of the district’s 28 middle schools. In one previous year there were eight middle schools that got no offers for admission to TJ. The statistics about low income Asian students were particularly noteworthy. With the new admissions policy in place there were 51 low income Asian students who were offered admission to TJ. There had been exactly one in 2020.

The TJ admissions policy is too complicated to explain here. But if you are in a district that chooses students on a selective basis for some of your schools, you and your lawyers will want to study this important decision.

Will the Supreme Court take this one? The 4th Circuit’s decision was issued about a month prior to the SCOTUS bombshell. Very likely the lawyers for the Coalition will ask the 4th Circuit to reconsider in light of the Harvard/UNC decision. My prediction is that the Supremes will steer clear of this issue for awhile, letting the dust settle, so to speak. I doubt they will take up the case. If they do, I suspect they will affirm the 4th Circuit’s decision. I expect that the courts will favor a school district’s efforts to attract a wider range of students into its highly selective programs, as long as it is not overtly seeking particular quotas of students by race. We shall see.

It's Coalition for TJ v. Fairfax County School Board, decided by the 4th Circuit on May 23, 2023. It’s published at 68 F.4th 864.


Got a question or comment for the Dawg? Let me hear from you at

Tomorrow: accommodating employees with religious beliefs…