Pacific Legal Foundation attorney Erin Wilcox speaks at a news conference outside the federal courthouse on March 10, 2021, in Alexandria, Va., where her organization filed a lawsuit against Fairfax County’s school board, alleging discrimination against Asian Americans over its revised admissions process for the elite Thomas Jefferson High School for Science and Technology. A divided federal appeals court on Tuesday, May 23, 2023, upheld the constitutionality of a new admissions policy at the elite public high school in Virginia that critics say discriminates against highly qualified Asian Americans. (AP Photo/Matthew Barakat)
A legal activist group is asking the Supreme Court to take up a new challenge to the role of race in school admissions, this time in one of the nation’s top high schools.
The libertarian Pacific Legal Foundation on Monday asked the high court to hear a case on how Thomas Jefferson High School for Science and Technology selects its students. At the case’s core is the school board’s use of what it called race-neutral criteria to achieve a diverse student body, the group said in a statement.
In May, a three-judge panel from the 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled 2-1 to uphold the constitutionality of the new admissions policy, which critics said discriminates against highly qualified Asian Americans.
“Having spent decades telling school officials they must consider race neutral methods for ensuring a diverse student body before turning to race-conscious ones, it would be quite the judicial bait-and-switch to say such race-neutral efforts are also presumptively unconstitutional,” Judge Toby Heytens wrote in a concurring opinion.
The first freshman class under the school’s new policy saw the share of Black students increase from 1 percent to 7 percent and Hispanic students from 3 percent to 11 percent, according to The Associated Press. But Asian American representation decreased from 73 percent to 54 percent.
In her dissenting opinion, Judge Allison Jones Rushing wrote that the decrease “was no accident.”
“The Board intended to alter the racial composition of the school in exactly this way,” she wrote.
Joshua Thompson, an attorney at Pacific Legal Foundation, said in a statement that Thomas Jefferson high school’s admissions overhaul “tried to hide its discriminatory purpose behind a patina of race-neutrality,” but was really “proxy discrimination.”
He also pointed to the Supreme Court’s June ruling severely limiting the use of race as a factor in college admissions as a reason for the high court to take up the case. The legal group’s Monday filing heavily cites that case as a reason the Thomas Jefferson case should be considered.
“The Supreme Court made clear in Students for Fair Admission that the Constitution bans discrimination based on race, full stop,” Thompson said.
If the high court agrees to hear the case, narrower rules around using race as a factor for school admissions could be put in place.
The Thomas Jefferson case emerged in November 2020, after a summer of protests against police brutality and unequal treatment of Black Americans. The Fairfax County School Board eliminated its standardized testing requirement among other changes to its rigorous admissions process, leading a group of parents to create the Coalition for T.J. and sue the school board.
The Supreme Court previously denied an emergency request from the parents to stop the new admissions criteria from going into effect while the case progressed, though conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted the request.
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