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The Supreme Court has made clear that racial discrimination has no place in public school admissions. But when schools hide discrimination behind race-neutral policies, lower courts have let them get away with it — as long as the targeted racial group isn’t hurt too much.
On Oct. 19, the court agreed to hear a case brought by parents in Montgomery County, Md., challenging an admissions policy designed to reduce Asian-American enrollment at the county’s magnet middle schools. At stake is a fundamental question: Does the Constitution protect students as individuals, or do their rights depend on how others of their race perform?
With this case, the Supreme Court could reverse a Fourth Circuit Court of Appeals precedent that Justice Alito once called “flagrantly wrong” and “a virus that may spread if not promptly eliminated.”
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This isn’t a small procedural question. It’s fundamental. Does the Constitution protect us as individuals? Or do our rights depend on the outcomes of racial groups?
People walk past the Supreme Court on Thursday, June 27, 2024, in Washington, D.C. (AP Photo/Mark Schiefelbein)
Montgomery County is a suburb of Washington, D.C., straddling the Capital Beltway and home to at least 10 federal agencies. Its school system is one of the largest in the country and includes four magnet middle schools for gifted students.
In 2015, Montgomery County’s school system hired consultants to examine the racial makeup of its gifted programs, including its magnet schools. At the time, Asian-American students made up nearly half the enrollment at these four schools, which admitted students based on grades, a cognitive abilities test and teacher recommendations.
The consultants reported “significant racial and socioeconomic disparities” at the schools. Black and Hispanic students were underrepresented compared to their countywide enrollment numbers. Montgomery County should “revise the criteria and process used to select students,” the consultants urged. How? By introducing “non-cognitive criteria” and “group-specific norms” into the selection process.
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The Board of Education listened. One board member described his vision for the magnet program “not simply as a matter of creating opportunity and having that be blind and neutral but in fact ensuring there were controls so that in fact those choices could reflect the community that we live in.” Privilege, he warned, “is not going to go away.”
Now there is a lottery for Montgomery County magnet schools — but it’s not an open lottery. It has controls meant to produce a specific outcome. To be eligible, students must score in the 85th percentile on a Measures of Academic Progress (MAP) test, with percentiles “locally normed” so students are measured against a cluster of peers.
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The result: Students in certain school clusters — those with high Asian American enrollment — need to score in the 93rd district-wide percentile to be eligible for the magnet lottery. At other schools, a child only needs to score in the 60th district-wide percentile.
This new process certainly looks like a calculated act of discrimination to balance magnet schools racially. And it’s effective: Asian-American enrollment has sharply dropped since 2016. At one participating school, Asian-American participation dropped from 58.2% to 30.3%. My firm, Pacific Legal Foundation, promptly sued on behalf of the parents.
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But according to the Fourth Circuit Court of Appeals, Asian-American participation still hasn’t dropped enough to warrant judicial review.
With this case, the Supreme Court could reverse a Fourth Circuit Court of Appeals precedent that Justice Alito once called “flagrantly wrong” and “a virus that may spread if not promptly eliminated.”
The court refused to allow the parents’ case to go to trial, dismissing their argument because the share of Asian-American enrollment hadn’t yet dropped below the share of applications.
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In other words, Montgomery County’s new admissions policy may disadvantage Asian-American students because of their race. But because Asian-American applicants are still achieving at a high level as a group, the government’s discrimination doesn’t count.
This isn’t how the law works. Equality is not a numbers game. (Those are for consultants’ reports.) It is the opposite: an individual birthright. The Constitution protects human beings, not statistical groups. No child’s rights should be contingent on how well other children of the same race perform.
In 2024, Pacific Legal Foundation tried to bring a similar case to the Supreme Court, this one about admissions at Thomas Jefferson High School for Science and Technology in Virginia. The Fourth Circuit rejected parents’ right to argue discrimination.
The Supreme Court declined to take the case. But Justice Alito warned, in a dissent from denial joined by Justice Clarence Thomas, that the court would soon need to address the Fourth Circuit’s “dangerous” reasoning.
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“What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe,” Justice Alito wrote. “This reasoning is indefensible, and it cries out for correction.”
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That’s what the Supreme Court can do in AFEF v. Montgomery County.