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SCOTUS Deflects Latest Challenge to Diversity Efforts

In a case of great significance to affirmative action efforts, the U.S. Supreme Court in Coalition for TJ v. Fairfax County School Board let stand a lower court decision allowing Fairfax County schools to maintain race-neutral changes to its admissions policies.

School Board policies challenged: In 2020, the Fairfax County school board revised the admissions policies for science and technology magnet school Thomas Jefferson to advance the diversity of its student body, which was 71.5% Asian American and 19.5% white. 

  • Instead of standardized tests, the new approach relies on a “holistic review” of applicants that includes grade point average, a description of the applicant’s skills, a problem-solving essay, and four “experience factors,” such as attendance at a historically under-represented middle school. 

  • Meanwhile, the Board resolved that “[t]he admission process must use only race-neutral methods that do not seek to achieve any specific racial or ethnic mix, balance or targets.”

  • Offers to Asian-American students declined to 54% in the first year of the new policies, while offers to all other groups increased.

Why is this significant for large companies? Even before Harvard, companies recognized it was illegal to give hiring preferences to individuals based on race, gender, or other protected classes. But companies continue to pursue their diversity goals through other mechanisms, such as ensuring a diverse slate of candidates, expanding recruitment efforts, and identifying barriers to diverse hiring. 

  • Opponents of DEI contend such alternatives are mere “proxies” for making diversity determinative in an admissions or hiring decision, with the effect of depriving non-diverse individuals of opportunities. Dissenting Justice Alito (joined by Justice Thomas) supported this view, agreeing that the changes by the School Board were made “for the purpose of discriminating on the basis of race, to the detriment of Asian-American applicants.”

A hopeful sign? Opponents of affirmative action will continue to attack race-neutral approaches to diversity which could lead to another case making its way to the Supreme Court. However, the Court’s decision not to hear the Fairfax County School Board case, accompanied by a strong dissent from two of the conservatives, suggests the Court may show greater flexibility following the Harvard decision.

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Authors: Daniel V. Yager

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