In early 2024, the Supreme Court declined to hear a lawsuit over a northern Virginia district’s efforts to create more diversity at its top-ranked, selective high school.
Justices Samuel Alito and Clarence Thomas dissented. They called the lower court’s decision to uphold the admissions system at Thomas Jefferson High School for Science and Technology in Fairfax County “a virus that may spread if not promptly eliminated.”
Families, most of them Asian Americans, sued the district after it changed rigorous admissions criteria to open up more seats for Black and Hispanic students.
Alito and Thomas objected again 10 months later when the court rejected a similar case from Boston. Now, with last week’s announcement that the justices will hear a lawsuit over a Maryland district’s four magnet middle schools, they’ll finally get the chance to put such admission policies on trial. The outcome could affect other districts’ efforts to integrate competitive schools.
“We allege that the board members did this for racial-balancing purposes,” said Chris Kieser, a senior attorney with the Pacific Legal Foundation. The conservative firm represents the Asian American parents who sued the Montgomery County Public Schools in 2020 after the district revised a mostly merit-based admissions process for the humanities- and STEM-focused schools.
The change came after a 2016 consultant’s report found that Black and Hispanic students were underrepresented in district programs for high-achievers. Districts have been prohibited from explicitly using race to achieve greater diversity since 2007. But Kieser said the parent group, the Association for Education Fairness, was never able to prove discrimination against Asian students because they couldn’t first produce the statistical evidence the court wanted.
That’s why the question before the court is narrow: Do parents challenging a neutral admissions policy have to prove that the proportion of students from a specific racial group fell below a certain benchmark before the court can consider whether district leaders intended to discriminate?
That standard, known as disparate impact, is one that the Trump administration no longer considers when examining civil rights complaints over issues like racial disparities in school discipline or special education. In this case, the legal theory was standing in the way of getting to the “meat of the case,” Kieser said.
The families want the court to send the case back to the U.S. Court of Appeals for the Fourth Circuit, which dismissed it, and then to the district court for a full hearing.
The district urged the court to reject it.
“Montgomery County Public Schools remains committed to providing equitable access to rigorous opportunities for all students,” spokeswoman Liliana López said in a statement. “This commitment will continue uninterrupted as the judicial process proceeds.”
The court is expected to hear the case early next year and issue a ruling in late June.
‘Lost seats’
Following the consultant’s report, the diverse suburban district outside Washington, D.C., held a series of community forums in which board members discussed equity goals for the competitive magnet schools and Asian American parents voiced concern that their children would have fewer opportunities to attend.
The new system favored students who didn’t attend elementary school with a lot of gifted peers. Unlike Black and Hispanic students who are spread across the district, Asian-American students are concentrated in a small handful of elementary schools.
The process also included a cognitive ability test in which students’ scores were compared to those from schools with similar poverty levels. The fact that most Asian students attend low-poverty, high-achieving schools in the district worked against them because they had to score much higher on the test to earn a spot, according to the 2020 complaint.
“While white, Black and Hispanic students have all benefited from the changes,
Asian Americans have lost seats,” the parents’ attorneys wrote. “Overwhelming public evidence exists that the new criteria were adopted with the purpose to disadvantage Asian American students and reduce Asian American enrollment at these schools. As such, the changes violate the Equal Protection Clause.”
During pandemic school closures, when students were unable to take the test in person, the district switched to a lottery for admissions, using existing standardized test scores. The parent group argued that the change still harmed their children and was made without any public hearings.
The district said officials followed ordinary procedures, and during the first year of the “pandemic plan,” the proportion of Asian American students actually increased at two of the schools.
Ary Amerikaner has watched the changes play out both professionally and personally. She runs Brown’s Promise, a nonprofit focused on school integration. She also has two daughters in Montgomery County elementary schools. Identifying talented students faced with significant obstacles, she said, is progress.
“If MCPS has chosen to recognize the giftedness of students who are achieving academically, despite being classrooms with poverty, and give them a boost in the admissions process, that’s excellent,” she said. “That’s exactly what public education should be — a path out of poverty.”
Circuit split
Scrutiny of selective admissions at competitive K-12 schools increased as the Supreme Court was considering racial preferences in higher education.
After the court sided with Students for Fair Admissions in cases against Harvard College and the University of North Carolina in 2023, experts wondered whether the justices would take the Fairfax County case.
At the time, Richard Kahlenberg, an expert on integration and the director of housing policy at the Progressive Policy Institute, said the court didn’t have “an appetite” for eliminating integration programs based on socioeconomic status or geography. That seemed even more clear when the court turned down both the Fairfax County and Boston cases.
But Kieser explained that the court likely didn’t agree to hear the earlier complaints because the legal questions needed “more time to percolate in the lower courts.” Now there’s a clear split.
“In the First and Fourth circuits, a challenger does not even get off the ground without a showing that the admissions criteria suppressed the targeted group’s enrollment at least below the group’s share of the applicant pool,” the Pacific Legal Foundation team wrote in their petition. The Second and Third circuits don’t require those alleging discrimination to meet that threshold.
“I think one reason the court liked it is because the facts are not complicated,” he said.
Michael Petrilli, president of the conservative Thomas B. Fordham Institute, also a Montgomery County parent, said it was “particularly interesting that the Supreme Court is wading into the question of intent at a time when the Trump folks have argued, in other contexts, that we should move away from ‘disparate impact analysis.’ “
In December, the Justice Department rescinded a 50-year-old rule that said schools could be held responsible if a neutral policy or action, according to data, negatively affected students of a specific race or nationality. People should only be treated as individuals, not part of a particular group, officials said.
But Joshua Dunn, executive director of the Institute of American Civics at the University of Tennessee, Knoxville, said he could see how the Montgomery County case would appeal to both conservatives and liberals on the court.
“Conservatives in general don’t like disparate impact, and liberals would not like expanding disparate impact beyond historically underrepresented minority groups,” he said. “You could see a coalition of conservative and liberal justices agreeing that it needed to be remanded.”
The court’s decision in the case could also affect a newer challenge to the admissions policy for Boston’s highly selective exam schools. In addition to considering students’ academic performance, the process awards additional points for factors such as having unstable housing or living in a single-parent household.
Civil rights groups who intervened in the Boston case hope the system remains in place.
“As participants in this lawsuit, we will work to hold the line against further rollbacks of equitable admissions policies in Boston and across the nation,” they said in an August statement.
Kahlenberg, who advocates for integration policies based on socioeconomic status — and testified on behalf of Students for Fair Admissions in the higher education case — doesn’t want to see Montgomery County’s system reversed either.
“This is a good policy,” he wrote on social media. “There are no racial preferences involved, and hard working students who do well despite attending a high-poverty school deserve extra consideration.”