Supreme Court Will Hear Case on "Facially Neutral" Discrimination Against Asian Students in Admissions to Public Magnet Schools

The U.S. Supreme Court has agreed to hear a case involving the role of race in admissions to selective middle schools in Montgomery County, Maryland. The decision comes three years after the high court struck down affirmative action in college admissions. The case centers on four magnet schools in the county, known for their rigorous academic programs, and involves a group of parents who claim the admissions policy disadvantages Asian American students. The Supreme Court will determine whether the parent group, the Association for Education Fairness, has presented sufficient evidence of discrimination for the case to proceed. The initial dismissal of the lawsuit stemmed from the finding that Asian American students were not underrepresented compared to their share of the applicant pool. The justices will now assess whether a group alleging harm from a race-neutral policy must demonstrate disproportionate harm to prove intentional discrimination. The controversy began a decade ago when the county school system hired a consulting firm to evaluate its admissions processes for magnet schools. Following this evaluation, the district revised its policies to factor in the poverty levels of the schools students attended. As a result, the proportion of Asian American students, who were predominantly enrolled in more affluent, high-performing schools, declined. The lawsuit was filed in 2020. Subsequently, the school system altered its admissions procedures by removing an additional in-person examination. Currently, students qualify for a lottery based on their performance on standardized tests. However, students from more affluent schools, where Asian American students are concentrated, must achieve higher scores on these exams to participate in the lottery. The Fourth Circuit Court of Appeals upheld a lower court's decision to dismiss the case, stating that the parent group had not demonstrated that Asian American students were harmed, as they continued to be admitted at higher rates than their share of the applicant pool. This ruling relied on a previous decision in another school admissions case, where parents challenged admissions practices at a magnet high school in Virginia. In that instance, the parents' claims were rejected partly because Asian American students remained overrepresented relative to the applicant pool. The attorneys representing the Montgomery County parents argue that comparing the representation of a targeted racial group to the applicant pool alone is insufficient. They contend that other forms of evidence indicating discrimination should also be taken into account. "The applicant pool benchmark allows the government to set specific racial targets, meet them, and avoid any inquiry into discriminatory intent," the attorneys wrote in their appeal to the Supreme Court, "so long as it has not explicitly referenced race in its process." The school system maintains that the new admissions policy, referred to as the Pandemic Plan, is race-neutral. In a brief submitted to the Supreme Court, the school system's attorneys stated that the plan is a "colorblind lottery" and that nothing about it, its history, or its purpose violates the Constitution. The Supreme Court is anticipated to hear arguments regarding the case in the coming months. The case, titled Association for Education Fairness v. Montgomery County Board of Education, challenges what is described as "facially neutral" discrimination against Asian applicants seeking admission to selective public magnet schools in Montgomery County, Maryland. The admissions criteria appear racially neutral on the surface but are alleged to have been implemented with the intention of reducing the percentage of Asian students in incoming classes. The central question before the Supreme Court is whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool. This issue has gained significance following the Supreme Court's ban on most explicit racial discrimination in college admissions, as outlined in the SFFA v. Harvard (2023) ruling. A lower court ruled that even if there is evidence suggesting a facially neutral admissions policy was created to reduce the number of students from a particular racial or ethnic group, the policy must still be upheld as long as the percentage of admitted students from that group is equal to or higher than the percentage of applicants from that group. This case shares similarities with the Fourth Circuit decision in Coalition for TJ v. Fairfax County School Board, which the Supreme Court declined to take in 2024, although three conservative justices expressed interest in hearing it. The present case also originates from the Fourth Circuit. Critics argue that the Fourth Circuit's decision in the TJ case is flawed and could potentially justify various forms of unconstitutional discrimination against Asians and other minorities. Long-standing Supreme Court precedent suggests that evidence of unconstitutional motivation behind "facially neutral" policies shifts the burden of proof onto the government to demonstrate that they would have enacted the same policy even in the absence of illicit motives. If the government fails to provide such proof, the policy must undergo strict scrutiny, which it would likely not pass. In the TJ case, the Fourth Circuit majority opinion by Judge Robert Bruce King held that even the most apparent discriminatory motivations do not trigger strict scrutiny so long as the group being targeted for discrimination through "facially neutral" means is still represented in proportion to its percentage of the relevant population (or more). Under the new admissions policy, Asians constituted 54% of accepted applicants, compared to 73% under the old policy. Since this is still higher than the Asian percentage of the applicant pool, evidence of discriminatory intent becomes irrelevant. The Supreme Court's decision to hear this case follows its rejection of affirmative action in higher education. The court has been divided over admissions rules for highly selective high schools in Boston, New York, and Fairfax County, Virginia, as well as magnet programs for gifted middle school students. In most cases, judges have permitted school officials to use "race-neutral" policies to achieve racial diversity, such as automatically admitting the top 5% of students in all of a large city's high schools or middle schools to promote greater racial and ethnic diversity. However, the court's conservative justices, led by Justices Clarence Thomas and Samuel A. Alito, have criticized such policies as thinly veiled racial discrimination. Magnet programs, existing nationwide, including in California and Los Angeles, were initially conceived as a form of voluntary integration, aiming to attract white students to attend the same schools as non-white students without resorting to forced busing. These programs were intended to create a beneficial environment for non-white students by having white students share the experience of attending the same schools. Asian students were typically included in this category alongside Black or Latino students, despite often performing similarly to or exceeding white students academically. Selective admissions processes for certain magnet schools are at the heart of the current dispute. The Supreme Court has agreed to hear an appeal from parents in Montgomery County, Maryland, who are concerned about the sharp decline in the number of Asian students at its four magnet schools for gifted students. For a decade, the school board had been troubled by the low representation of Black or Latino students, who comprised less than 15% of the student body at its magnet schools, despite making up about half of the overall student population. In contrast, Asian students were frequently part of the original equation on the non-white side of the ledger and were often grouped with other non-white students, such as Black or Latino students. However, in terms of student achievement, Asian students have performed more like white students, frequently surpassing white students academically.