(The Center Square) — The Libertarian law group, the Pacific Legal Foundation, is deep into two court cases involving a Virginia high school and several Maryland middle schools and what it calls “race neutral proxies” in their admissions policies.
In an effort to have more students of all backgrounds, the schools have developed policies that put Asian American students at a disadvantage, the foundation claims.
The Virginia case, appealed to the Supreme Court, concerns the school that U.S. News and World Report has named the best high school in the country, Thomas Jefferson High School for Science and Technology, a Governor’s school in Fairfax County. School officials amended the admissions criteria in late 2020 to enhance diversity at “T.J.,” as the school is often called.
While applicants still have to complete an essay, the entrance exam has been eliminated. The school also determined that the top students from each of the district’s middle schools would be among future incoming classes instead of simply the best applicants from any school. The admissions team is also to consider “experience factors” among applicants – whether they are “economically disadvantaged,” “English language learners,” or have received “special education.”
A similar case against four highly competitive middle schools in Maryland’s Montgomery County Public Schools is also in process. The admissions process for these magnet middle schools was “historically race-blind,” according to PLF, until 2015 when school officials attempted to make the schools more “equitable.”
Under the new admissions policies, students from high-performing schools are looked at unfavorably, according to PLF. The case summary claims, “students with just 20 similarly high-achieving peers in their schools are disadvantaged in magnet admissions.”
In addition, admissions tests are “locally normed,” meaning that assessors take into account the socioeconomic status of the student’s elementary school and curve those tests based on the highest score among students falling within the same socioeconomic range.
Once again, PLF argues, Asian American students suffer as a direct result. In the Virginia and Maryland cases, the Asian American student population has decreased by as much as 20%.
Affirmative action was allowed at the college level until the recent Supreme Court decision, but not at the primary or secondary level. As a result, Joshua Thompson from PLF told The Center Square, many schools have exercised “race neutral proxies” in their admissions, meaning they’ve created criteria that aren’t explicitly race-based but have the same effect.
PLF’s case against T.J. has been going on for about two-and-a-half years; the Mongtomery magnet schools, longer than that. The argument, Johnson says, hinges on the definition of “race neutral.”
“To be fair to the other side, there has been ambiguity in the law over what is termed ‘race neutral’ measures,” Thompson said.
“If you think of, say, the South in the sixties after Brown v. Board of Education, there was some forced busing that was required to integrate schools,” Thompson said. “Over time, the Supreme Court said, ‘Well, we really should try not to use race to bus kids around; we should try to use the least restrictive means of accomplishing this goal, so see if you can figure out how to integrate the schools without classifying people and busing them around town.’”
“So this idea arose that using race neutral alternatives was better than using race conscious means.”
Thompson would argue, however, that the Supreme Court’s guidance was intended to continue a legal precedent of avoiding race-based decision-making as much as possible – not to create opportunities for non-racial language to achieve race-based ends.
“The idea of racial proxies being a violation of equal protection is not new, and in that respect, we think that our petition is just trying to get the court to rule in the way that it has ruled in the past – that if the government has a racial purpose in mind, that that is unconstitutional and the government shouldn’t be treating people differently with respect to race, whether it be expressly or implicitly.”
