There have been precious few decisions from the United States Supreme Court where the opinion of Justice Sam Alito didn’t cause me paroxysms of pain. It’s almost a truism that the worst opinions begin, “Justice Alito delivered the opinion of the Court.” And yet, in his five-page dissent from the denial of cert in Coalition for TJ v. Fairfax County School Board, joined by Justice Clarence Thomas, Alito was right. Justice Sam Alito is right.

The case involved a change in the admissions policy of Thomas Jefferson High School for Science and Technology in Alexandria, Virginia explicitly designed to reduce the number of  Asian students admitted by competitive exam in order to create a more diverse student body. It would reduce the percentage of Asians from 73% to about 54%, which was still more than the percentage of Asian students in the general population.

In 2020, TJ adopted a new admissions policy that, while  neutral on its face, was actually intended to reduce the percentage of Asian-American applicants accepted at the school, in order to increase the percentage of other groups, and get a student body closer to the population demographics of Fairfax County (which is about 19% Asian).

The complaint, in the aftermath of the George Floyd protests, was that the complexion of TJ failed to match the demographics of the school district in general. Principals called for change.

The Board answered the call. In December 2020, it adopted the current admissions policy, which no longer relies on standardized tests. The policy fills around 450 of the 550 seats in each incoming class by allocating a specified number of seats to each public middle school in the qualifying region. The remaining 100 seats are open to the entire applicant pool. Applicants for these seats are evaluated based on their grades, a “portrait sheet,” a problem-solving essay, and “Experience Factors.” The portrait sheet is meant to describe the applicant’s “soft” skills (such as the ability to work with other students). The four “Experience Factors” are (1) eligibility for free or reduced price meals; (2) status as an English language learner; (3) eligibility for special education services; and (4) attendance at a public middle school that previously sent few students to TJ.

After prevailing in the district court, the Fourth Circuit reversed.

On appeal, however, a divided Fourth Circuit panel reversed and held that the plaintiff ‘s claim failed simply because the challenged changes did not reduce the percentage of Asian-American admittees below the percentage of Asian-American students in the schools in the jurisdictions served by the magnet school. What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe.

The panel majority held that the Coalition could not prevail because, as the majority saw things, the new policy “visit[ed] no racially disparate impact on Asian American students” since, even after use of the new policy began, Asian Americans still received 54.36 percent of the admissions offers [compared to the previous 73%]….This percentage exceeded the percentage of Asian- American students in the applicant pool, and therefore, according to the panel majority’s reasoning, Asian-American students had no cause to complain. As the panel majority put it, “an application of elementary arithmetic shows that Asian American students, as a class, experience no material disadvantage under the policy’s functioning” and in fact perform “better in securing admission to TJ than students from any other racial or ethnic group….”

Aside from sophistic nonsense, there is no serious doubt that the change in admissions procedure was intended to lower the percentage of Asian students so as to be able to increase the percentage of students of other races who were either unable or unwilling to brave the gauntlet of admissions based on merit. It wasn’t easy to gain admission to TJ, and it wasn’t meant to be.

David French suggested that an admissions process, openly crafted to effectuate intentional racial discrimination, was “race neutral” and constitutional might reflect the Supreme Court’s effort after Students for Fair Admission v. Harvard to allow schools some latitude in coming up with new ways to increase diversity without running afoul of the Equal Protection Clause.

While I generally support race-neutral policies that are designed to increase diversity, race-neutrality cannot be a cover for racial discrimination. If the policy is targeted at one ethnic group, then it rightly raises equal protection concerns. The lesson of the Harvard case can’t be that only the most explicit targeting of Asian applicants is unlawful.

Stay tuned. As colleges and universities seek creative ways to achieve diversity without race-based affirmative action, expect them to try more policies that are race-neutral on their face but would have a race-disproportionate effect. For example, increasing socio-economic diversity can increase racial diversity, so expect to see more class-based affirmative action in higher education.

There are two flaws with this view, and they were largely obvious in the Court’s Harvard opinion as well. The first is that “race neutral” proxies for racial discrimination have long been used to circumvent the law. Remember when Harvard decided there were too many Jews?

[A]nti-Asian policies at TJ and many other elite educational institutions are reminiscent of efforts to reduce the number of Jewish students at many elite colleges in the early 20th century. Those policies, too, were often facially neutral, and in many cases the number of Jewish students admitted was still higher than the percentage of Jews in the applicant pool or in the general population. Yet, today, few doubt these policies qualify as anti-Semitic discrimination. The same reasoning should apply to the TJ case and others like it.

The second is that the procedures designed to increase diversity came at the direct expense of merit, the only reason why admission to TJ mattered to begin with. Without merit, we are left to wallow in mediocrity, which serves neither student nor society. All so the government can engage is open racial discrimination as long as the numbers don’t dip too low. I really hate it when Alito is right, but this time, Alito was right.