The Fourth Circuit US Court of Appeals stayed yesterday’s trial court decision against the Thomas Jefferson High School of Science and Technology in Fairfax (now known as “TJ”), regarding the controversial new admissions policy. It was completely racially neutral. However, Claude Hilton, a federal judge, ruled that the policy was not constitutional because it was intended to encourage “racial balancing.” This was done in order to discriminate against Asian Americans. You can read my full article about this district court ruling (which I believe was right) here.
The trial decision was not stayed by yesterday’s divided Fourth Circuit panel ruling. Instead, the new admissions system will be in effect for at most one year. The Fourth Circuit could also signal that they might uphold this policy when it comes to deciding on the merits of the case (probably within the next few weeks or sooner).
The majority did not issue an official opinion of the court (which is not unusual in rulings on procedural issues, like this one). However, Judge Toby Heytens provided a concurring opinion which clarifies his reasoning. Below is a key portion:
I… am skeptical of the district court’s conclusion that there is no genuine Material fact Its conclusion implicated The Board approved the current admissions policy for a constitutionally impermissible purpose…. It is the centerpiece This is the analysis by the district court on this issue. It states that “the Board’s Policy was designed to increase Black and Hispanic enrollment, which would, by necessity, decrease the representation of Asian-Americans at TJ.”…. (emphasis added).
This approach is completely inconsistent with Supreme Court decision in
Massachusetts’ Personnel Administrator, v. Feeney, 442 U.S. 256, 279 (1979). Feeney
A constitutional challenge was brought up to a Massachusetts statute that required a categorical
employment preference for qualified veterans over qualified non-veterans. 442 U.S.A. 259. Id. at 270—and even though no one claimed that those who crafted and decided to maintain the law were unaware of that fact—the Supreme Court declined to apply heightened scrutiny. In language directly relevant to this case, the Court specifically held that “awareness of consequences” is not enough to show discriminatory intent and that a plaintiff challenging a facially neutral policy must show that a decisionmaker acted “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group….”The fact that some of the policies may be in place does not change the fact that they were adopted at all.
With the hope that this would increase Hispanic and Black enrollment, it was changed analysis…. Below FeeneyIt is now up to the question of whether or not the decisionmaker “attended”
Probably in large part, because [a race neutral policy’s] Afverse Effects on an identifiable group 442 U.S. at 279…, and the Coalition has never claimed The challenged policy had any kind of negative effect on Black people or was motivated by them. Hispanic applicants.
One of the most important flaws in this argument is Judge Heytens’ inability to accept extensive evidence that Fairfax school officials were motivated by a desire for fewer Asian-American students. This was more than an accidental side effect of new policies. Some of the evidence is summarized here.
[E]Vidence [shows] that some decision-makers were also motivated by bias against Asian-American students, such as claims that having too many of them would damage TJ’s “culture,” negative stereotypes about Asian-American parents and students, and state legislator Mark Keam’s fulminations about the “unethical ways” Asian-American parents “push their kids into [TJ]These parents may not be able to “stay in America” but they are using the country as a “useful resource.” [TJ]to be accepted into Ivy League universities and to return home to their country. Keam’s feelings are pertinent because Judge Hilton found that Fairfax County school officials were partly influenced by the state.
A long-standing Supreme Court precedent states that evidence of an unconstitutional motive for “facially neutr” policies transfers the burden to the government. They must prove that the policy would be enacted even if there were no illicit motives.
There is also a huge difference in the FeeneyTJ litigation and case. The Court found that there was no desire by the state to hurt women in the first case. The Court also concluded that the state’s policy (job preference for veterans) wasn’t motivated by any desire to harm women. Extensive evidence supports Fairfax County officials’ assertion that they are not motivated by a desire to help men. Were Motivated by the desire to encourage racial balance at TJ through increasing the number of students from certain racial group, especially African-Americans or Hispanics. It is obvious that discriminating against racial group A will disadvantage other groups even if there are no anti-Asian motivations. Judge Heytens could agree with a school that adopted a neutral facial policy to encourage white students and decrease black enrollment. Even though evidence only showed that the officials were trying to assist whites and had no special hatred towards blacks.
This is why Judge Allison Jones Rushing handled these matters much more convincingly in her dissent.
Facetically neutral policies, such as TJ’s admissions, can be used to discriminate.
Plan “are as hateful and unconstitutional as they sound” [policies]This is an express statement
Discriminate on the basis if you are of a different race N.C. State Conf. McCror v. NAACPYour Name, 831 F.3d 204,
220 (4th Cir. 2016); cf. Cf.ick Wo v. Hopkins, 118 U.S. 356, 373– 374 (1886) (prohibiting
It is discriminatory to enforce facially neutral laws. The “[c]hallenger[]You don’t have to do that Discriminatory purposes were the primary or sole motive behind this policy. This was an important motivating factor.”McCrory, 831 F.3d at 220….The undisputed The district court heard evidence and found the Board had pursued the policy shift “at the expense of the public”. Asians are most affected “because of” and not “in spite of”, their adverse effects. Americans.Pers. Adm.r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). The specifics of the The court ruled that the Board had an illegal racial purpose in seeking to seek racial equality TJ should reduce the “overrepresented” Asian American students to make it more affordable The surrounding environment should reflect the diversity of its racial makeup. The court stated that Board As were the stated goals and objectives of its organization, discussions among its members included racial equality. Use of race data to predict outcomes
Supreme Court has repeatedly stated that racial equality is important for its own sake.
is unconstitutional. Look!Fisher v. Univ. of Tex. Austin, 570 U.S. 297, 311 (2013);Parents Participated in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 729–730 (2007)…. Racial balancing can be just as harmful if it is done instead The government does not use a facial-quota. Instead, it uses a proxy who is facially neutral. Discriminatory intent. Even though the Supreme Court has supported certain races-based motivations—specifically To Remedy Vergangenheit Intention Discrimination or, In higher education, to obtain the benefits of diversity—neither motivation is at issue here.
The ruling does not resolve the case. The procedural decision is intended to suspend the trial court ruling. It is not known if Judge Robert Bruce King, the third panel member, agrees or disagrees with Judge Heytens.
It is possible, however, that one or both of the major judges will rule in favor of defendants on merits. An appellate court must have the chance to succeed on merits in order for it to stop a trial court’s ruling.
Even if it reverses the decision of the trial court in its final ruling, this case could end up at the Supreme Court. The Fourth Circuit’s opinion raises serious issues about facially neutral policies that achieve racial equality. These issues may become even more relevant if, as is likely, the Supreme Court decides to place tighter limitations on the explicit preference for race in education in the future. It could be in the Harvard or University of North Carolina case currently before the Supreme Court.
NOTE: Alison Somin (my wife) is one the Pacific Legal Foundation public-interest lawyers that represents plaintiffs in TJ. You can see in my earlier posts that I had written about this case. Alison Somin was not a lawyer at PLF when I started writing. However, my opinions are still the same.