Michigan Attorney General Dana Nessel is joining a coalition of 16 attorneys general in support of a local school board in Fairfax County, Virginia that was challenged in court for implementing a new race-neutral high school admissions policy that aimed to eliminate barriers to access and increase the likelihood that the school’s students would receive the educational benefits that flow from diversity of all kinds, including racial diversity.
The amicus brief—filed last Friday in the Fourth Circuit U.S. Court of Appeals in the case of Coalition for TJ v. Fairfax County School Board—rejects a claim that the Fairfax County School Board violated the Equal Protection Clause by intentionally discriminating against Asian-American applicants in revising its admissions plan for its nationally top-ranked Thomas Jefferson High School for Science and Technology. The revised plan eliminated the high school’s use of standardized admissions tests in favor of a holistic review process that uses students’
grades and other race-neutral criteria to promote geographic, socioeconomic, and racial diversity.
“The district court’s decision sets a dangerous precedent for achieving diversity of all kinds in our schools. If the precedent is followed, it could impact programs in Michigan that aim to promote diversity, such as the University of Michigan’s four-year scholarship program for Detroit Public Schools graduates,” Nessel said. “The Fairfax County School Board’s race-neutral policy to promote diversity is lawful and I join my colleagues in supporting its implementation.”
The attorneys general argued in support of the school board and against the district court’s broad decision to enjoin implementation of the revised admissions plan. The district court found that Asian-American applicants were disparately impacted by the changed plan, and that the school board purposefully disadvantaged such applicants because any success in increasing representation at the school for under-represented racial groups “by necessity” would decrease the representation of others. The district court’s decision required the school board to devise a new admissions policy to use in admitting students for this coming fall, and the court denied the school board’s motion for a stay of the decision pending appeal. The Fourth Circuit subsequently granted a stay of the district court’s order and, following an emergency application, the U.S. Supreme Court declined to vacate the stay. The School Board has since
appealed the district court’s decision.
The attorneys general argue in their brief that race-neutral policies are not subject to strict scrutiny simply because policymakers aimed in part to increase diversity. The brief describes how the district court’s reasoning—inferring racial animus from a race-neutral effort to break down barriers to access and thereby increase diversity of various kinds, including socioeconomic, geographic, and racial—would, if widely adopted, thwart future attempts by school leaders to secure important educational benefits for all students, and would also threaten effective state and local government policymakers’ efforts to break down barriers to access and decrease inequities in other policy realms.
According to the brief, there is precedent stretching back decades that refutes the district court’s conclusion that a race-neutral government policy is subject to strict scrutiny solely because, in devising the policy, policymakers aimed to increase racial and other forms of diversity. Such scrutiny would be “perverse,” state the attorneys general: “governments would be severely constrained in their ability to serve all of their communities—and therefore would fall short for many.”
Joining Nessel in the brief are the attorneys general of California, Colorado, Delaware, Hawai‘i, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New York, Oregon, Vermont, Washington, and the District of Columbia.
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