The U.S. Fourth Circuit Court of Appeals issued a temporary stay in the lawsuit against Thomas Jefferson High School for Science and Technology (TJ) on Thursday, with two of the three judges on the panel concurring. The decision allows the school to use its controversial admissions policy for the class of 2026 while the case proceeds.
“I have grave doubts about the district court’s conclusions regarding both disparate impact and discriminatory purpose, as well as its decision to grant summary judgment in favor of a plaintiff that would bear the burden of proof on those issues at trial,” Judge Toby Heytens wrote in the concurring opinion.
In 2020, officials at the school instituted a merit lottery to try to expand the largely Asian-American student base to underrepresented groups while still maintaining a high standard. Parent group Coalition for TJ protested the decision, and launched a lawsuit against the school. At the end of February, a district court judge ruled that practices at TJ discriminated against Asian students, leading the Fairfax County School Board (FCSB) to appeal and ask for a temporary stay of the lower court’s decision.
“The Fourth Circuit Court of Appeals order now allows FCSB to continue with the current TJ application process to select the Class of 2026 this spring. For the 2,500-plus students in this application pool, this means the race-blind process set out by the School Board in October 2020 will remain in place as an appeal challenging the February court decision plays out,” Fairfax County Public Schools (FCPS) said in a press release.
In the opinion, Heytens argued that FCSB met the requirements for a temporary stay to be granted: they were likely to succeed on appeal, will be harmed without a stay, and that a stay is in the public interest. He said the district court relied on comparing the percentage of Asian-American applicants offered admission under the new policy versus the number of Asian-American applicants offered admission under the old policy, but argued that was the wrong comparator.
“To me, the more obviously relevant comparator for determining whether this race–neutral admissions policy has an outsized impact on a particular racial group is the percentage of applicants versus the percentage of offers,” Heytens said. “Such a metric targets more directly the core question for assessing disparate impact: whether members of one group have, proportionally, more difficulty securing admission than others. And, by that metric, there does not seem to be any disparate impact whatsoever. Indeed, during the one previous year under the challenged policy, Asian-American applicants made up a higher percentage of students offered a spot at TJ (54.36 percent) than of total applicants (48.69 percent).”
Judge Allison Jones Rushing wrote the dissenting opinion, arguing that FCSB hadn’t met the required standards for a stay, including that FCSB is unlikely to succeed on appeal.
“When motivated by discrimination, facially neutral policies like TJ’s admissions plan ‘are just as abhorrent, and just as unconstitutional, as [policies] that expressly discriminate on the basis of race,'” Rushing wrote, citing precedent.
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Eric Burk is a reporter at The Virginia Star and The Star News Network. Email tips to [email protected].
Photo “Thomas Jefferson High School” by Thomas Jefferson High School.