Justice of the Supreme Court Clarence Thomas and Samuel Alito attend a private ceremony Justice of the Supreme Court Sandra Day O’Connor before public repose in the Great Hall at the Supreme Court in Washington, Monday, Dec. 18, 2023.Pool Via Cnp/CNP via ZUMA

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The Supreme Court on Monday chose not to address a significant case challenging an admissions policy at a magnet high school in Virginia meant to enhance racial and economic diversity at the school. Nonetheless, Justices Samuel Alito and Clarence Thomas expressed a strong dissent, indicating their readiness to embrace a revolutionary perspective of racial blindness in school admissions. With more cases challenging admissions policies aimed at boosting diversity reaching the Supreme Court, the justices could still restrict efforts to enhance diversity in K-12 education in the future.

Thomas Jefferson High School for Science and Technology, one of the most esteemed public high schools in the country, adopted a new system for admissions in late 2020, transitioning from a reliance on standardized tests to a more comprehensive review of applicants with reserved spots at all the middle schools that feed into Thomas Jefferson. The new policy was disputed by a group of parents known as the Coalition for TJ, who argued that the new policy was a form of anti-Asian discrimination aimed at reducing the number of Asian-American students, who constituted a majority at the school. 

The new policy, similar to the old one, did not consider race. It was not only race-neutral but race-blind, meaning admissions officers are unaware of the race of the applicants. The group of parents was represented by the Pacific Legal Foundation, a libertarian non-profit law firm already representing Asian-American parents in two similar cases concerning public school admissions.

Last summer, the Supreme Court essentially prohibited affirmative action in university admissions, overturning decades of precedent. The Thomas Jefferson case would have taken the court’s opposition to policies promoting racial equality to a new, more radical level. “The goal of the Pacific Legal Foundation and others in this extreme colorblindness movement is to remove racial justice from consideration as an objective for policymaking at all levels of government,” says Sonja Starr, a law professor at the University of Chicago who has closely followed the foundation’s cases, informed Politics last year. If the Supreme Court adopts this perspective, she cautioned, “it would be a legal earthquake.”

As I reported last August:

This next phase targets admissions policies in K-12 schools, and is an effort to maintain the status quo, even as American public education grows increasingly segregated. Radically, the lawyers driving this test case have invited the Supreme Court to go beyond its rejection of affirmative action and prohibit admissions policies that do not actually take race into account.

“If the government is simply choosing a race neutral policy in order to achieve a racial result, we are going to object,” explains Joshua Thompson, who leads the Pacific Legal Foundation’s education litigation. “You cannot have a racial purpose consistent with the equal protection clause,” Thompson argues, except “to remedy past government discrimination.”

If the court accepts that argument, it would represent a fundamental change—not just in education, but in broader American life. For decades, public officials have considered racial disparities and segregation in areas as varied as education, pollution, and health policy to be problems government should address. Under PLF’s theory, even the desire to eliminate racial gaps could be successfully challenged in court.

Alito makes no secret of why he would have wanted to take this case. The Fourth Circuit Court of Appeals, which ruled in favor of the new admissions policy, he stated, “is egregiously wrong and should not be allowed to stand.” Justice Thomas signed onto this dissent.

It’s possible other justices are sympathetic to Alito and Thomas’ view but didn’t want to address a second case on race and admissions so soon after their major decision against affirmative action last year. If that’s the situation, similar cases in Maryland and New York working their way through the courts would allow justices to significantly restrict efforts to integrate K-12 schools and constrain the government’s effort to promote diversity and equality. When the Supreme Court permitted Thomas Jefferson’s new policy to take effect at the start of the litigation, Justice Neil Gorsuch displayed a willingness, alongside Alito and Thomas, to halt the new policy. Chief Justice John Roberts has written opinions opposing the idea of integrating K-12 schools—all signs that there may be enough justices eventually to address this issue. 

The dissent appears to support the argument that the new policy takes away spots from deserving Asian-American students and gives them to less-deserving non-Asian students—though there is no data to support that conclusion. In fact, in the first class admitted under the new admissions policy, the average GPA of the incoming class was higher than in recent years under the old plan. In one paragraph that is likely to draw attention, Alito uses a hypothetical about Black basketball players to illustrate his view that the policy is denying admission to those who deserve it most.

Suppose that white parents in a school district where 85 percent of the students are white and 15 percent are [B]lack complain because 10 of the 12 players (83 percent) on the public high school basketball team are [B]lack. Suppose that the principal emails the coach and says: “You have too many [B]lack players. You need to replace some of them with white players.” And suppose the coach emails back: “Ok. That will hurt the team, but if you insist, I’ll do it.” The coach then takes five of his [B]lack players aside and kicks them off the team for some contrived—but facially neutral—reason. For instance, as cover, he might institute a policy that reserves a set number of spots on the roster for each of the middle schools who feed to the high school.

Alito’s point here is that the school board implemented a policy that may appear to be neutral on its face but still contained the insidious purpose of targeting a specific racial group, and therefore amounted to unconstitutional discrimination. The court’s decision not to take up this case allows Thomas Jefferson High School’s policy to stand, and signals to other schools and colleges around the country that race-neutral alternatives to affirmative action are permissible—at least for now.