Yesterday, the US Court of Appeals for the Fourth Circuit stayed a trial court ruling against the new admissions policy at the Thomas Jefferson High School for Science and Technology, in Fairfax, Virginia (known as “TJ”). The new admissions policy was racially neutral on its face. But the federal district Judge Claude Hilton ruled that it was unconstitutional because it was adopted for the purpose of promoting “racial balancing” and, in the process, discriminating against Asian Americans. I wrote about the district court decision (which I think was correct) in greater detail here.
Yesterday’s 2-1 ruling by a divided Fourth Circuit panel stays the trial decision, with the result that the new admissions system will go into effect for at least one year. It also signals that the Fourth Circuit might well uphold the policy when they get around to deciding the case on the merits (probably sometime in the next few months, 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). But Judge Toby Heytens did put out a concurring opinion, which explains his reasoning. Here’s a key excerpt:
I… am skeptical of the district court’s conclusion that there is no genuine issue of material fact implicated by its conclusion that the Board adopted the current admissions policy for a constitutionally impermissible purpose…. The centerpiece of the district court’s analysis on this point is its statement 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).
That approach seems flatly inconsistent with the Supreme Court’s decision in
Personnel Administrator of Massachusetts v. Feeney442 US 256, 279 (1979). Feeney
involved a constitutional challenge to a Massachusetts statute mandating a categorical
employment preference for qualified veterans over qualified non-veterans. 442 US at 259. Even though “over 98% of the veterans in Massachusetts were male,” 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 simply ‘in spite of,’ its adverse effects upon an identifiable group….”
Nor does the fact that the current policy may have been adopted, at least in part,
with the expectation that it would “increase Black and Hispanic enrollment” change this analysis…. Under Feeneythe question is whether the decisionmaker acted “at
least in part because of [a race neutral policy’s] adverse effects upon an identifiable group,” 442 US at 279…, and the coalition has never claimed that the challenged policy was motivated by or has any sort of adverse effect on Black or Hispanic applications.
The most significant flaw in this argument is that Judge Heytens ignores extensive evidence that Fairfax school officials were in fact motivated by a desire to reduce the number of Asian-American students admitted. That reduction was not merely an incidental side effect of the new policy. I summarized some of that evidence here:
[E]video [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],” when those parents are “not even going to stay in America,” but instead are “using [TJ] to get into Ivy League schools and then go back to their home country.” Keam’s sentiments are relevant because, as Judge Hilton found, Fairfax County school officials were influenced in part by pressure from the state government.
Longstanding Supreme Court precedent holds that such evidence of unconstitutional motivation for “facially neutral” policies shifts the burden of proof to the government to show that they would have enacted the same policy even in the absence of illicit motives.
In addition, there is a big difference between the Feeney case and the TJ litigation. In the former, not only did the Court conclude that the state was not motivated by any desire to harm women. It also reasoned that the policy in question (job preferences for veterans) was not motivated by a desire to help men, as such. By contrast, extensive evidence shows that Fairfax County officials were Motivated by a desire to promote racial balancing at TJ by increasing the percentage of students from some racial groups, particularly African-Americans and Hispanics. Even if you set aside specific anti-Asian motives, it is inevitably the case that discriminating in favor of a racial group A disadvantages other groups, and does so deliberately. If a public school adopted a facially neutral policy deliberately intended to increase the number of white students, thereby reducing the number of blacks, Judge Heytens would surely have to agree that it is presumptively unconstitutional – even if the evidence showed only that officials wanted to help whites and did not display any special hostility towards blacks.
I think Judge Allison Jones Rushing dealt with these issues much more persuasively in her dissent:
When motivated by discrimination, facially neutral policies like TJ’s admissions
plan “are just as abhorrent, and just as unconstitutional, as [policies] that expressly
discriminate on the basis of race.” NC State Conf. of NAACP v. McCorry831 F.3d 204,
220 (4th Cir. 2016); cf. Yick Wo v. Hopkins118 US 356, 373– 374 (1886) (prohibiting
discriminatory enforcement of facially neutral laws). A “[c]hallenger need not show that discriminatory purpose was the sole or even a primary motive” behind the policy, “just that it was a motivating factor.”McCrory831 F.3d at 220….
Based on the undisputed evidence before it, the district court found that the Board pursued the policy change “at least in part ‘because of,’ and not merely ‘in spite of,’ its adverse effects” upon Asian Americans.Pers. Adm’r of Mass. v. Feeney, 442 US 256, 279 (1979). Specifically, the court determined that the Board acted with an impermissible racial purpose when it was sought to enroll in “overrepresented” Asian-American students at TJ to better “reflect the racial composition” of the surrounding area. As the court explained, Board member discussions were permeated with racial balancing, as its stated aims and its use of racial data to model proposed outcomes.
The Supreme Court has repeatedly emphasized that racial balancing for its own sake
is unconstitutional. SeeFisher v. Univ. of tex. at Austin570 US 297, 311 (2013); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1551 US 701, 729–730 (2007)…. Racial balancing is no less pernicious if, instead of using a facial quota, the government uses a facially neutral proxy motivated by discriminatory intent. And while the Supreme Court has endorsed certain race-based motivations—specifically to remedy past intentional discrimination or, in higher Education, to obtain the benefits of diversity—neither motivation is at issue here.
This ruling is not a definitive resolution of the case. It is just a procedural decision staying the trial court decision. We do not know for sure whether the third member of the panel – Judge Robert Bruce King – agrees with all of Judge Heytens’ reasoning.
That said, it seems very possible that the two judges in the majority will ultimately rule n favor of the defendants on the merits. Likelihood of success on the merits is in fact one of the key criteria for an appellate court to stay a trial court judgment.
If the Fourth Circuit does ultimately reverse the trial court, the case could potentially end up in the Supreme Court, because it raises important issues about the use of facially neutral policies to achieve discrimination balancing that may be even more significant if – as expected – the Supreme Court issues a decision putting tighter constraints on explicit racial preferences in education, in the near future. That could well happen in the Harvard and University of North Carolina cases currently before the Supreme Court.
NOTE: My wife, Alison Somin, is one of the Pacific Legal Foundation public interest lawyers representing the plaintiffs in the TJ case. As links in one of my previous posts about this case demonstrate, I have been writing about these sorts of issues since long before Alison began working at PLF, and my views are much the same as they were before she did so.