High School’s Admissions Process Deemed Non-Discriminatory

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Jun 22, 2023

Thomas Jefferson High School for Science & Technology (TJ) is a magnet school located in Alexandria, Virginia, and operated by Fairfax County Public Schools (FCPS). TJ is a specialized public school that is focused on advanced studies and requires students to apply for admission.  The majority of TJ’s students reside in Fairfax County, but TJ also accepts applications from students in four other nearby counties.

The admission process standards are established by the Fairfax County School Board, a 12-member elected body that oversees the public schools of Fairfax County. Prior to 2020, applicants seeking to enroll at TJ in the ninth grade were required to reside in one of the five participating school divisions; to possess a minimum GPA of 3.0; and to have taken a course in algebra. After paying a $100 application fee, applicants had to take three standardized tests. Those applicants who achieved certain rankings on the standardized tests would proceed to a semi-finalist selection round where they would sit for an additional examination comprised of various writing prompts and a problem-solving essay. The semi-finalists also had to submit two teacher recommendations. At the conclusion of the process, students were selected from the semi-finalist group based on a “holistic review” of their application materials.

Under this process, students were typically from a limited group of middle schools and included very few low-income students, a few English-language learners, a few special education students, and a few Black, Hispanic, or multiracial students.

To address student body diversity, the Board made changes to the admission system. Under the new holistic review standard, each public middle school within TJ’s participating school divisions is allocated a number of seats in the incoming freshman class equal to 1.5% of the school’s eighth-grade student population. Within each middle school, prospective students are evaluated on the basis of GPA, the student “portrait sheet” (i.e., description of applicant’s skills), a problem-solving essay, and four “Experience Factors” (i.e., special education status, eligibility for free or reduced-price meals, status as an English-language learner, and attendance at a historically underrepresented public middle school). After each middle school’s allocated seats are filled, all remaining applicants — regardless of their attending middle school, and including private-and home-school students — compete under the same criteria for the roughly 100 remaining seats. In adopting this new policy, the Board resolved that the process must only use race-neutral methods that do not seek to achieve any specific racial or ethnic max, balance, or targets. The applications, therefore, do not include the candidate’s name, race, ethnicity, or sex.

In the Spring of 2021, the number of applications for TJ’s class of 2025 increased by nearly 1,000 students, with a mean GPA higher than had been in five years, and in terms of demographics, the class of 2025 included markedly more low-income students, English-language learners, and girls. All 28 middle schools in Fairfax County sent students to TJ in 2021, whereas in 2020, eight of the County’s middle schools had received zero offers.  Slightly less than half of TJ’s applicants in 2021 identified as Asian American (48.59%) and 54.36% of the offers extended went to those students, far outpacing the proportion of seats awarded to other racial and ethnic groups.

The Coalition for TJ, an advocacy organization of Fairfax County public school parents, filed suit against the Board alleging that the new admissions policy runs afoul of the Equal Protection Clause. The Coalition argued that, although the policy is facially race-neutral, the Board adopted the policy with a racially discriminatory purpose in that it intended to reduce the percentage of Asian American students who enroll at TJ and intended for the policy to act as a proxy in order to racially balance TJ.

The Board argued that there is no evidence of intentional discrimination against Asian American applicants because comparing the data before and after the new admissions program does not indicate a “disparate impact” to Asian American applicants.  The Board also argued that there is no evidence that the Board adopted the policy in order to intentionally reduce the number of Asian American students enrolled at TJ.

The trial court agreed with the Coalition and ruled that the new admissions policy had a disparate impact on Asian American applicants because, when comparing the before and after data, there was a significant proportional decline in offers extended to Asian American students. The trial court also ruled that the Board sought to racially balance the class of 2025, increasing the school’s representation of Black and Hispanic students at the expense of Asian American students, which revealed a discriminatory intent.

To succeed on an Equal Protection challenge, the plaintiff must show that (1) the policy exacts a disproportionate impact on a certain racial group, and (2) that impact is traceable to an “invidious” discriminatory intent.  The Court of Appeals ruled that the “before and after” comparison of Asian American admissions was not the proper measure for disparate impact. Rather, the proper comparison is how Asian American applicants fared in obtaining admission compared to other racial or ethnic groups.  Here, Asian American students accounted for 48.59% of the applications and 54.36% of the admission offers for the class of 2025.  By contrast, 10% of TJ applicants in 2021 identified as Black, while only 7.9% of offers went to black students; Hispanic students compromised 10.95% of the applicant pool and received 11.27% of offers; white students represented 23.86% of applicants and received 22.36% of offers; and 6.6% of applicants were “multiracial/other,” whereas only 4.91% of the offers extended went to those students.  Asian Americans produced the highest admissions “success rate” of any group.

The Court of Appeals also ruled that there was no “invidious” discriminatory intent. The Board was not motivated by disadvantaging Asian American students and the policy itself is not only race-neutral, it is fully race-blind. Applicant’s name, race, ethnicity, and sex are all excluded from the applications. The Court of Appeals reversed the trial court’s judgment and ruled for summary judgment for the Board.

Coalition for TJ v. Fairfax County School Board (4th Cir. 2023) __ F.4th__ [2023 WL 3590055].

Note: The U.S. Supreme Court is expected to issue its ruling sometime this month as to whether the affirmative action programs at Harvard and the University of North Carolina run afoul of the U.S. Constitution. That decision will likely be limited to higher education and schools that receive federal funding. This Thomas Jefferson case deals with a public school, but it provides relevant guidance at the K-12 level, and we anticipate that admissions programs will continue to be a topic ripe for litigation in the coming years.

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