Johnny loves to eat sweets, and his favorite is cookies. He eats them as often as he can. It is becoming a problem, so in order to curb his sugar-intake, his mother says, “Johnny, no more cookies before dinner, or you’ll spoil your supper.”
Johnny, however, is a mischievous boy. He only heard, “No more cookies.” Mother said nothing about cookie dough, and that’s almost as good as cookies!
So, the next day, after sneaking into the refrigerator, he spies the cookie dough and proceeds to eat an entire tube of it. His tummy, of course, becomes upset.
After learning what happened, if you were the boy’s mother, what would be your reaction? Would you have said, “Oh, Johnny, what a clever boy you are for getting around my clear instructions not to spoil your dinner.” Or, like most rational adults, would you promptly discipline Johnny and say, “You know exactly what I meant!”
Case Background
In 2023, the Supreme Court issued a major ruling in the joint landmark cases of Students for Fair Admissions (SFFA) v. Harvard and SFFA v. University of North Carolina. Mountain States strongly supported the students in its brief in those cases. And in its decision, the Supreme Court held that using racial preferences in admissions violated the Constitution and federal civil rights laws.
But even before SFFA, the Fairfax County School Board was already anticipating the end of direct racial preferences. Yet, Fairfax County thought that one of its schools, Thomas Jefferson High School for Science and Technology (TJ), needed to be more “racially balanced” in its student body. TJ is one of the top performing public schools in the country.
Before, TJ used merit-based and race-blind admissions, relying on tests, GPA, course completion, and teacher recommendations—not racial demographics. Though all students from the district’s 23 middle schools can apply, three schools have typically accounted for the most admissions. It was these three schools that the Fairfax County School Board targeted when it instituted a cap on the number of students that TJ could enroll from any one middle school.
Why? Why would they artificially cut out highly qualified students in such a manner? Simply put, it is because the three schools that outperform the others happen to have higher numbers of Asian-American students than most other middle schools in the district.
School district officials have not been coy about their real purpose: they are trying to reduce the number of Asian-Americans at TJ. There is zero evidence that the school had any other motive in mind.
The result, unfortunately, was major: TJ’s Class of 2025 is projected to have 42 percent fewer Asian-American students, whereas no other racial group has lost seats.
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What’s at Stake
A group of students, alumni, staff, and community members are suing the Fairfax County School Board over the policy. The case has already made its way to the federal Fourth Circuit Court of Appeals. There, the court—like a parent who thinks Johnny is clever for evading clear instructions—ruled in favor of the school district, holding that there was nothing wrong with the admissions policy. The court said that since Asian-Americans are still “over-represented” at TJ, the plan can’t really be discriminatory. Such “proxy discrimination” is constitutional, they say.
Johnny ate cookie dough before dinner because his mother only said he couldn’t eat cookies, despite her clear point to prevent him from spoiling his dinner. Fairfax County capped the schools that Asian-Americans come from because it knew that the Supreme Court would say that they couldn’t cap Asian-Americans directly.
Mountain States stands with the Coalition for TJ. We represent former officials from the US Department of Education in the Office for Civil Rights. The Office is charged with ensuring that schools follow the law, including Title VI of the 1964 Civil Rights Act, which prohibits race discrimination. Our clients—including MSLF’s general counsel Will Trachman, a former DOEd official—are in this fight because they believe the Department of Education has helped create this scenario.
In the wake of the Supreme Court’s decision in SFFA v. Harvard and UNC, the Office for Civil Rights issued public guidance to schools that they can still target certain racial demographics despite the Supreme Court’s decision in SFFA, in order to achieve so-called racial diversity. Such guidance from the federal government flies in the face of both the law and the Constitution.
Mountain States believes that if the Fourth Circuit’s decision stands, then schools across the country will follow suit, trying to get around the affirmative action decision by using legal acrobatics to really get at racial preferences. This is the next frontier of fighting against race discrimination. Unless the Supreme Court takes up the Coalition for TJ’s case, schools across the nation will know exactly how to discriminate. All you have to do is make your race-based policies “neutral” on the surface, and you can eat all the cookie dough you want.
Case Timeline
- May 2020: Virginia’s General Assembly enacted a requirement that schools like TJ develop diversity goals
- Fall 2020: Fairfax County Public Schools adopts its policies capping admissions from middle schools
- March 2021: Coalition for TJ sues the school district
- Feb 2022: The federal district court rules in favor of Coalition for TJ
- March 2022: Fairfax County appeals to the US Court of Appeals for the Fourth Circuit
- May 2023: The Fourth Circuit rules in favor of the school district
- June 2023: The Supreme Court ends race-based admissions in its dual SFFA decisions
- August 2023: Coalition for TJ appeals to the Supreme Court
- September 2023: Mountain States, representing former federal Department of Education officials, files an amicus curiae brief in support of Coalition for TJ
- February 2024: The Supreme Court of the United States declined to hear the case, allowing the school district’s policy to remain in effect.
Statement on Supreme Court’s February 2024 Decision:
Mountain States is disappointed that the Supreme Court has chosen not to hear the case of Coalition for TJ v. Fairfax County School District. Race discrimination by proxy is still discrimination. And Fairfax County can’t hide behind new admissions policies when the clear intent is to reduce the number of Asian Americans in school. As Justice Alito wrote in dissent, the lower court opinion is “based on a theory that is flagrantly wrong and should not be allowed to stand.” We hope that the Supreme Court takes up a similar case in the future, to set the record straight.
