Supreme Court Signals It’s Done With Affirmative Action for Now
Linda Wheeler, Bloomberg Law, February 22, 2024

*Groups want court to enforce its blockbuster ruling
*Justices may be waiting for better cases before wading in

The US Supreme Court has signaled it isn’t ready to say anything more on affirmative action right now, frustrating conservatives who want the court to enforce and expand its blockbuster college admissions decision from last term.

The justices on Tuesday declined to hear an appeal challenging the admissions policy at a competitive Virginia public high school that uses socio-economic factors to diversify its student body. That announcement came just weeks after the court refused to stop West Point from using race as a factor in deciding who to admit to the military academy.

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Both cases were seen as initial tests of what’s permissible following the court’s 2023 decision that effectively ended the use of race in public and private university admissions. Legal scholars say the court is indicating it’s not yet ready to say what race-neutral tools schools can or can’t use to make their student bodies more inclusive or extend its decision to other educational settings.

Combined, the cases involving West Point and the Virginia magnet school “demonstrate that the court is going to step a little bit more carefully than some people may have thought,” said Justin Hansford, founder and executive director of the Thurgood Marshall Civil Rights Center at Howard University School of Law.

It’s not uncommon for the court to see cases that test the bounds of its biggest decisions in relative short order and in some recently, the justices have seemed unable to hold off on hearing them.

The court this term will decide the fate of a federal law that prohibits people subject to domestic violence restraining orders from owning a gun. The law was struck down by a federal appeals court after the justices set a historical standard for gun laws in its 2022 decisions in New York State Rifle & Pistol Assn., Inc. v. Bruen, which established a constitutional right to carry a handgun in public.

Missed Opportunity

In the case against the policy at the Thomas Jefferson High School for Science and Technology (TJ) in Virginia that the court refused to hear, a coalition of parents were arguing changes to the school’s admission requirements were made with discriminatory intent to limit the number of Asian American students enrolled at the school in violation of the Constitution’s Equal Protection Clause.

Justin Driver, who teaches constitutional law and the law of racial inequality at Yale, said racial minorities have been bringing claims of discriminatory intent for decades that the court has consistently turned away.

It would be a dramatic turnabout in constitutional doctrine if the court were all of a sudden to become sympathetic to those claims when white litigants are bringing them, and “that tension may explain some of the court’s desire to move slowly in this area,” he said.

But some conservative-leaning legal groups say the TJ case was a missed opportunity for the court to stop schools from evading its 2023 ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College.

Southeastern Legal Foundation shares the concern of Justices Samuel Alito and Clarence Thomas that the court’s refusal to review TJ’s case “will open the door to evading our Constitution’s clear prohibition on racial discrimination,” its executive director, Kimberly Hermann, said in an email, citing Alito’s dissent, which Thomas joined.

In the Harvard case, “the Supreme Court already unequivocally explained that our Constitution is colorblind and leaves no room for basing admissions on race,” she said.

The US Court of Appeals for the Fourth Circuit upheld TJ ‘s policy in a ruling weeks before the court issued it’s decision in the Harvard case. Driver said it’s notable the Supreme Court chose not to toss out the Fourth Circuit’s decision and send it back to the appeals court to reconsider in light of its ruling.

Historical Analogue

Some public-interest law firms that support conservative causes say the TJ case and others like it making their way to the court are similar to the lawsuits that came after states refused to desegregate schools following the 1954 Brown v. Board of Education decision.

“Again the court has made a clear, sweeping pronouncement about what educational institutions are not allowed to do in terms of deciding who to educate where based on race,” said Dan Morenoff, executive director of the American Civil Rights Project.

“Again they are faced by the many people running those institutions being deeply committed to a racialist project and not wanting to listen,” he said.

Though the court was asked a year later in Brown v. Board of Education II how its earlier decision should be implemented, the court said only that states should come into compliance “with all deliberate speed.” Morenoff said it’s disappointing to have to again wait for an indeterminate amount of time for the court to enforce a decision.

Driver pushed back on the comparison to the Brown follow-on case.

Thomas Jefferson and other school boards “are admirably pursuing meaningful amounts of racial integration without using racial classifications and the current law in this area makes clear that the schools have acted in a permissible fashion,” he said.

Driver said the court’s decision not to hear the TJ case is a setback for constitutional conservatives who want to immediately wage the next battle over race-neutral admission policies. The group that brought the case agreed it’s a blow but said it’s not one that will kill its efforts.

Pacific Legal Foundation, which represented the coalition challenging the policy, said it plans to ask the Supreme Court this spring to hear a separate challenge to the admissions policies at three selective public schools in Boston that the group says discriminate against Asian American and White applicants.

The case against West Point could also come back to the court.

When the justices declined to grant an emergency request to halt the school’s admissions policy, the court explicitly said it was not expressing any view on the merits of the constitutional question, said Reilly Stephens counsel at the Liberty Justice Center, a libertarian-leaning public-interest litigation firm.

Unlike TJ, West Point’s policy isn’t race neutral. Military academies weren’t addressed in the court’s affirmative action decision. Chief Justice John Roberts specifically said in a footnote that was due to the “potentially distinct interests” they may present.

“They might well think that they’ll take the West Point case when it comes up in regular order,” or they might think there’s a better case than the one against TJ’s policy, Reilly said.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com