Coalition for TJ v. Fairfax County School Board: The Shape of Things to Come?

In the last few years, academia has utterly embraced the concept of “equity” as articulated by Ibram X. Kendi; i.e., that if a particular identity group is statistically under- or over-represented in anything, the reason for the imbalance is indisputably systemic discrimination, and thus positive discrimination to correct the imbalance is not only proper but mandatory. Indeed, many universities now require students and faculty to undergo indoctrination in this fallacious tripe and to pledge allegiance to it as a condition of admission/employment. Questioning the wisdom, effectiveness, or legality of “equity” usually results in the cancel culture mobs coming after you, as my friends Dorian Abbot and Gordon Klein can attest.

As a lawyer and longtime student of constitutional law, one of the most disturbing things about academia’s adoption of the Kendian “equity” concept as official policy is that it is so clearly illegal. As Judge James Ho of the United States Court of Appeals for the Fifth Circuit has pointed out, decades of settled Supreme Court law establish that discrimination for the “right” reasons is still illegal, especially in the employment context. State law often goes further, such as by prohibiting political discrimination in employment matters. Even where the law allows universities some flexibility (such as in admissions), it does not countenance deliberate discrimination against protected classes, which is what DEI supporters typically demand. Nevertheless, as exemplified by the University of Texas’ feckless President Jay Hartzell, universities are openly adopting DEI programs despite the fact that their stated reasons for doing so squarely violate the law.

Why do they do it? In many cases (such as, in my opinion, that of President Hartzell), it is due to cowardice: administrators are simply afraid of offending the wokesters on campus and would rather meekly surrender to their demands than risk being branded a racist/white supremacist/bigot/etc. In other cases (e.g., adoption of such policies by law schools), those involved know that their actions are illegal (or at least very questionable), but they disagree with the current state of the law and hope to change the law by defying it. And, of course, there is the inherent problem in academia of “whaddaya gonna do about it?” Administrators know that their actions can only be challenged through litigation, which is very expensive and lengthy, and which any potential plaintiff knows will likely result in them being blackballed in academia.

Nevertheless, just as fundamental economic realities exist regardless of contrary wishful thinking, those who have adopted the Kendian concept of “equity” as official policy are learning that the law is not so easily ignored. An excellent example of this occurred last week in the case of Coalition for TJ v. Fairfax County School Board, where a federal court entered a summary judgment declaring such a Kendian program flatly illegal.

The case arose out of a new admissions program for Thomas Jefferson High School for Science and Technology (“TJ”), a highly regarded public high school in affluent Northern Virginia, a suburb of Washington, D.C.. Historically, admission to TJ has been extremely competitive, with applicants having to satisfy certain minimum requirements (such as a minimum core GPA of 3.0 and scores above certain thresholds on three standardized tests) to be eligible to apply for admission. As with many other STEM-focused programs, this merit-based admission process resulted in large numbers of Asian-American students at TJ: the 2020-21 class was 71.79% Asian-American, 18.34% white, 3.05% Hispanic, and 1.77% Black, whereas the overall student population of the area was 36.8% white, 27.1% Hispanic, 19.8% Asian-American, and 10% Black.

[Related: “Anti-Asian Discrimination at the Heart of the Progressive Education Agenda”]

In the wake of the George Floyd riots, the Fairfax County School Board scrapped the minimum objective standards in favor of a single-stage “holistic” admissions process, in which certain “experience factors” were given heavy weight. As the record in the case made abundantly clear, the Board’s stated intent was to increase the number of Black and Hispanic students and to reduce the number of Asian-American students. The Court observed:

Throughout this process, Board members and high-level FCPS officials expressed their desire to remake TJ admissions because they were dissatisfied with the racial composition of the school. A means to accomplish their goal of achieving racial balance was to decrease enrollment of the only racial group “overrepresented” at TJ – Asian Americans. The Board employed proxies that disproportionately burden Asian-American students. Asian Americans received far fewer offers to TJ after the Board’s admissions policy overhaul. (p. 12)

Tellingly, there does not appear to have been any evidence of historic discrimination against Blacks or Hispanics in admissions at TJ. As is exhaustively shown in the opinion, the Board’s rationale and statements show that they simply bought into the Kendian concept that over- or under-representation of any particular identity group is a sufficient justification for racial “balancing,” even if that requires discriminating against another group.

A coalition of local parents (including many parents of Asian-American students) sued, claiming the Board’s actions constituted illegal racial discrimination. The Court found that the evidence was uncontroverted that the Board did in fact act with racially discriminatory intent, and thus the Court was required to examine the policy under strict scrutiny analysis. As typically occurs once strict scrutiny is invoked, the Court found that the Board did not meet the exceedingly high bar that the law requires for intentional racial discrimination (i.e., existence of a compelling interest and means that are narrowly tailored to achieve that interest). The Court notably rejected the typical word game of recasting discrimination as “pursuing diversity”:

The Board’s main problem is its focus on the goal to have TJ reflect the demographics of the surrounding area, described primarily in racial terms. Far from a compelling interest, racial balancing for its own sake is “patently unconstitutional” [quoting the Supreme Court’s Fisher and Grutter decisions]. The board cannot transform racial balancing into a compelling interest “simply by relabeling it ‘racial diversity’’’ [quoting from the Supreme Court’s Parents Involved decision]. The school districts in Parents Involved tried various formulations to deflect from their intent to racially balance schools through race-based transfers. The Board here did not even bother with such “verbal formulations.” Board members and high-level FCPS actors did not disguise their desire for TJ to represent the racial demographics of Fairfax County or Northern Virginia as a whole. Whether accomplished overtly or via proxies, racial balancing is not a compelling interest. (p. 29)

The Court thus recognized what Judge Ho and many other commentators have been saying for years: the Kendian concept of viewing every racial “imbalance” as sufficient justification for positive discrimination to achieve “balance” or “equity” is illegal under very well settled law. To me, the Court’s decision in this case was easy, and I hope it will inspire others to file similar challenges against DEI programs.

[Related: “Harvard, UNC Cases Give SCOTUS Chance to End Racial Preferences for Good”]

The conflict between foundational DEI principles and clearly settled law is, I suspect, about to become even more pronounced. The Supreme Court is now poised to curtail or even overrule the Grutter/Fisher framework that allowed for some use of racial preferences in university admissions. When the Supreme Court last addressed this issue (Fisher), it authorized these allowances by the narrowest of margins. Since then, two of the members of the Fisher majority (Kennedy and Ginsburg) have been replaced by Justices Kavanaugh and Barrett.

If the Supreme Court overturns Grutter/Fisher and reaffirms that the law is colorblind, will university administrators persist in ignoring the law in favor of preserving the woke narrative of the faculty lounge? Probably, and they will cite suits against their institutions as just another example of the “systemic racism” in society. But in the case of state employees (such as UT’s Jay Hartzell), the clear nature of the law will keep them from enjoying their usual qualified immunity and open them up to being held personally liable for directing and approving such unlawful behavior. Hopefully, future litigants will use this tactic to make administrators bear an economic cost for their lawless virtue signaling.

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