For more than 40 years, Montgomery County Public Schools (MCPS) operated some of the most competitive magnet programs in the country. Admission was straightforward: students were evaluated based on their grades, standardized test scores, and teacher recommendations.
Then the district decided that too many students from one racial group were getting in.
By 2013–14, Asian-American students earned nearly half of the seats in MCPS’s competitive magnet programs. Rather than simply allow the admissions process to produce those results, the school district began looking for ways to change them.
In 2016, MCPS commissioned a report that described Asian-American students as “overrepresented” and recommended changing the admissions system. School board members openly discussed the need for “controls” so that admissions would better “reflect the community.”
The district then introduced new, supposedly race-neutral admissions criteria.
The results were anything but neutral.
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Under the new system, students were compared against other students in their local schools rather than evaluated using the same standards across the district. The Asian-American students share of invitations dropped by roughly half at two Upcounty magnet programs. At the prestigious Takoma Park STEM program, Asian-American representation fell from 45.6% to 31.5%.
A group of Montgomery County parents, organized as the Association for Education Fairness (AFEF), sued in 2020. They argued that the district had deliberately changed its admissions system to achieve a particular racial outcome.
The district court initially found that the parents had plausibly alleged discriminatory intent.
But MCPS changed course.
The district quietly replaced its admissions test with a lottery—while keeping the local-norming system that had disadvantaged students from certain schools.
The new system created an extraordinary disparity. Students attending the lowest-poverty schools, where Asian-American students were disproportionately represented, needed a score in the 93rd percentile to enter the STEM lottery.
Students attending the highest-poverty schools needed only a 60th-percentile score.
AFEF challenged that system, too.
But this time AFEF’s evidence of intent to discriminate never got a hearing on appeal—the Fourth Circuit affirmed solely because the numbers didn’t fall below its aggregate benchmark, without ever examining the district’s motives.
Why? Because of a legal rule adopted by the Fourth Circuit.
A Race-Based Policy Can Escape Review
The Fourth Circuit held that before a court can even consider evidence that a facially neutral policy was adopted with discriminatory intent, the plaintiff must first show that the policy reduced the overall representation of the targeted racial group below its share of the applicant pool.
That means a school district could intentionally treat individual students differently because of their race—and potentially avoid constitutional scrutiny—as long as the racial group as a whole continues to perform well enough.
That is the problem MSLF and The Buckeye Institute are asking the Supreme Court to address.
The Constitution protects people as individuals. It does not permit the government to treat a student differently because of race simply because other members of that same racial group are doing well.
This question is especially important after the Supreme Court’s landmark 2023 decision in Students for Fair Admissions v. Harvard.
There, the Court made clear that racial discrimination in admissions is unconstitutional. Schools cannot simply pursue racial balancing indirectly after being prohibited from doing it directly.
But the Fourth Circuit’s rule creates a potential path around that protection.
A school district could adopt a facially neutral policy because it wants to change the racial makeup of its student body. Then, if the targeted racial group remains successful enough overall, the district could argue that the courts are not even allowed to examine evidence of discriminatory intent.
What cannot be done directly should not become permissible simply because it is done through a proxy.
A Constitutional Right Shouldn’t Depend on Where You Live
There is another reason this case matters.
Federal courts are deeply divided over this issue. Some courts treat disparate impact as one piece of evidence that may help establish discriminatory intent. Others, including the Fourth Circuit, have effectively made disparate impact a threshold requirement before evidence of intent can even be considered.
As a result, the constitutional protection a student receives can depend on where that student lives.
That is not how constitutional rights are supposed to work.
And the stakes are enormous.
Selective K–12 programs can determine which students receive access to advanced coursework, specialized educational opportunities, college preparation and other advantages that can shape the rest of their lives.
A child who loses an opportunity because of a racially motivated admissions policy does not get that year of education back.
Why MSLF Stepped In
For decades, Mountain States Legal Foundation has fought to ensure that Americans are treated equally under the law. This case is a natural continuation of that work.
MSLF has previously defended the principle that government institutions cannot use race to treat individuals differently. Now, we are asking the Court to make sure that principle cannot be weakened by a lower court rule that protects intentional discrimination whenever a racial group continues to “perform” well enough in the aggregate.
Our brief also highlights a broader problem: lower courts should not be permitted to narrow Supreme Court decisions until their constitutional protections become meaningless.
The history of Brown v. Board of Education offers a warning. After the Supreme Court declared government-mandated racial segregation unconstitutional, resistance from lower courts and government officials delayed meaningful enforcement for years. It ultimately took additional Supreme Court intervention to make clear that Brown meant what it said. The same should not happen with Students for Fair Admissions.
Equal Protection Means Equal Protection
AFEF is asking the Supreme Court to hear the case and correct the Fourth Circuit’s rule.
MSLF and The Buckeye Institute are supporting that effort because the fundamental question is bigger than one school district or one admissions policy: Can the government intentionally treat individual students differently because of their race as long as the racial group they belong to continues to succeed overall?
The answer should be no.
Every student deserves to be evaluated as an individual, not as a number in a racial balancing equation.
The Equal Protection Clause does not promise equality only when the numbers work out a certain way. It promises that the government will not discriminate against people because of their race.
MSLF is standing up to protect that promise for the students in Montgomery County and for every American who deserves to be treated equally under the law.
