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Lawmakers look to courts to “work out” governor’s school admissions

school building with art deco features
The Maggie Walker Governor's School in Richmond. (Photo: Crixell Matthews/VPM News)

Legislation aimed at undoing recent admissions changes at governor’s schools in Virginia is being considered by the full state Senate this week – but with significant updates.

A prior draft of the bill tried to ban geographic-based admissions practices; that language has since been taken out. Now, the bill just states governor’s schools can’t discriminate based on race, sex, ethnicity or national origin.

“And I’m going to let the courts kind of work out what that means, and they’re doing that right now,” said Sen. Chap Peterson (D-Fairfax), who suggested the updated bill language in a Senate Education Committee meeting last week.

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State Sen. Chap Peterson at a recent education subcommittee meeting. (Photo: Crixell Matthews/VPM News)

A federal judge recently found changes to the admissions process at a Northern Virginia school – the Thomas Jefferson High School for Science and Technology – discriminated against Asian American students. The Fairfax County School Board told VPM News the judge's decision is not supported by law and that it is “considering all options around an appeal.” 

Legal experts VPM spoke with – including from groups that filed legal briefs in support of Fairfax County’s policy changes like Asian Americans Advancing Justice – AAJC, Latino Justice PRLDEF and the NAACP Legal Defense and Educational Fund – also took issue with the opinion. Below are some of the key aspects of the legal arguments they found problematic.

Racial balancing

The ruling in the TJ case largely hinged on the judge’s argument that the new admissions practices were tantamount to racial balancing, which the U.S. Supreme Court has previously ruled to be unconstitutional.

“Racial balancing is used to mean: you have classified individual students by race, you have admitted individual students by race and that you have done it in such a way to produce a desired specific racial outcome,” said Derek Black, a law professor at the University of South Carolina.

Francisca Fajana, Director of Racial Justice Strategy at Latino Justice PRLDEF, says the term racial balancing is a throwback to the 1950s and ‘60s.

“After Brown v. Board of Education was decided, a lot of school districts struggled with equalizing not only access to education, but making sure that there was better representation of African American students in particular in schools,” Fajana said.

“Along the way, this whole notion of racial balance in schools sort of came up. And at some point, the court decided that racial balancing just for the sake of racial balancing is unconstitutional. You can’t just consider the race of students in making certain transfers and assigning students to different schools.”

In the TJ opinion, Judge Claude Hilton wrote that “the discussion of TJ admissions changes was infected with talk of racial balancing from its inception,” citing school board members’ desire to see “TJ’s demographics represent the NOVA region.” 

Hilton cited a message from principal Ann Bonitatibus to the TJ community following the murder of George Floyd. Around the same time, admissions statistics showed the number of Black students admitted to TJ for the class of 2024 was too small to report.

“Recent events in our nation with black citizens facing death and continued injustices remind us that we each have a responsibility to our community to speak up and take actions that counter racism and discrimination in our society,” Bonitatibus wrote.

The Pacific Legal Foundation, representing a group of Asian American families in the lawsuit against the school and the school district, penned an op-ed last year connecting Bonitatibus’ message to racial balancing.   

But Black says this isn’t enough to prove racial balancing.

“The fact that you have this racial goal in the back of your mind, or even in the forefront of your mind, does not make the situation racial balancing. In fact, these are the exact types of things that courts have encouraged for decades…race-neutral approaches to achieving more racial equity,” Black said.

He says the U.S. Supreme Court distinguished between racial balancing and other race-conscious policy decisions, like targeted recruitment to increase student diversity, which are allowable.

“These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race,” U.S. Supreme Court Justice Kennedy wrote in the precedent-setting 2007 opinion.

Basically, “there is a difference between taking race into account and trying to hurt people, and just being aware of race so that you do things that you think are fair,” Black said.

The Pacific Legal Foundation disagrees. They cheered the February decision in a press release.

“Until last year, admission to TJ was race-blind and merit-based; requirements included a standardized test, grade-point average, completion of certain math classes, and teacher recommendations,” the release said. “Last year, the Fairfax County Public Schools’ board and superintendent adopted an admissions policy aimed at balancing the racial groups at TJ by eliminating the admissions test, guaranteeing seats for 1.5 percent of each middle school’s eighth grade class, and awarding bonus points for various factors such as attendance at a middle school previously underrepresented at TJ. The intended result: dramatically reducing the number of Asian-American students admitted to TJ.”

Person speaks into microphone with others around
In this March 10, 2021 file photo, Pacific Legal Foundation attorney Erin Wilcox speaks at a news conference outside the federal courthouse, in Alexandria. (Photo: Matthew Barakat/AP)

Fajana says that the school board’s awareness of race-based data – informed by Fairfax County’s history of engaging in race-based discrimination both before and while resisting the implementation of Brown v. Board of Education – should not constitute racial balancing or discriminatory intent.

“There's no dispute that the school board looked at racial data and then acted to remediate some of the disparities that they observed,” Fajana said. “This has been an ongoing, perennial problem. And there a number of school districts that are struggling with how to offer equal opportunity and spread access to opportunity for all students.”

David Hinojosa, director of the educational opportunities project for the Lawyers’ Committee for Civil Rights Under Law, agrees that the context of the emails combined with data analyzed don’t constitute racial balancing or discriminatory intent.

“It’s astounding to suggest that the school district – just because it's sending emails back and forth about wanting to open up access for starkly excluded students in a fair and race-neutral manner – that that somehow constitutes discrimination against Asian American students,” Hinojosa said. “That just has never been enough to prove intentional discrimination. It shouldn't have been proven in this case. And it certainly hasn't been proven in other cases on such soft facts.”

Disparate impact

In order to prove disparate impact, harm has to be established. In this case, Judge Hilton argued that the admissions policy changes harmed Asian American applicants.

He wrote that “the Board’s overhaul of TJ admissions has had, and will have, a substantial disparate impact on Asian-American applicants to TJ.”

In making that determination, Hilton looked at the percentage of Asian American students admitted to the school before and after the policy changes. The percentage dropped from Asian American students comprising 73% of those admitted for the class of 2024 to 54% for the class of 2025.

But legal experts say this framing is incorrect and fraught with errors.

Michaele Turnage Young, senior counsel for the NAACP Legal Defense and Educational Fund, pointed to a Boston case that she says got it right, which was later vacated due to a failure to disclose disparaging texts sent by school officials.

“The court said you can't look at that [year-over-year comparisons]. Because if you do a year-over-year comparison, you're assuming that the representation of the student group in the admitted class from the year before…was the result of an objective program,” Young said.

“You can't just presume that last year was an objective scenario, if you will. It's more about looking at: are the admissions criteria neutral and objective? Or are there things about those admissions criteria that would make it harder for a certain group to get in?”

Fajana says courts still need to decide what the proper yardstick is for determining disparate impact in cases related to specialty schools’ admissions, as these cases continue to bubble up. She pointed to recent litigation in Montgomery County, Maryland and New York.

“Is it a percentage of students who are applying versus a percentage of students who are admitted?” Fajana questioned. “Or do you just look at the general population and say, you know, African American students are 40% of this particular school district, and there's 0% [African American students] at a particular school, and therefore, there's a disparate impact? What is the proper barometer?”

Fajana, Young and others argue that in TJ’s case, the old admissions policy was not objective because it unfairly disadvantaged – and disparately impacted – low-income students, including low-income Asian American students.

“For well over a decade TJ’s admissions policies failed to identify all qualified Black and Latinx students with an aptitude to excel at TJ. And they also failed to identify low-income Asian American students and Asian American students who are English language learners,” said Eri Andriola, litigation staff attorney with Asian Americans Advancing Justice – AAJC.

“It's very important to remember that the Asian American community is incredibly diverse in Fairfax County, representing students from a multitude of ethnic backgrounds, immigration and refugee backgrounds in their families, students of different socio-economic statuses and languages spoken at home. And so many of these students and families traditionally had limited access to these programs due to the pre-existing barriers to access.”

Young points out one of the Fairfax County policy updates removed a financial barrier to access: a previously-required $100 application fee. Following that, the number of economically disadvantaged students admitted to the school increased significantly.

“If you looked at each racial group, and you determined that Black students are two times less likely to be able to come up with that $100 application fee, then the application fee would be something that is having a disparate impact on those students’ ability to apply at the same rate as other students,” Young said.

“What you have here is the judge using the Equal Protection Clause to entrench pre-existing inequalities and to prevent school districts from removing known barriers to equal opportunity.”

And while Young and others point out that this decision is not in line with Supreme Court precedent, they worry about the chilling effect the case could have on school districts in Virginia and across the country.

“This is one case in one district court, it hasn't made it to the Fourth Circuit. And so it's not going to be binding precedent, but it's still worrisome,” Young said. ”You have school districts across the country who are trying to make sure that they're in compliance with laws requiring them to provide equal educational opportunities to students. And when they see that another school district was sued because they did something like remove a $100 application fee…I'm sure it gives educators pause.”