Immigrant families head to US Supreme Court

Brave Asian American families and kids fight for merit and equality

Case Name: Coalition for TJ v. Fairfax County School Board

Case Number:  22-1280

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Our first protest was in September 2020 outside TJ. I wore my most empowering kurta from India, a touchstone for me to my family’s journey. I’ll share images here from that protest so you can see how it has been three years of grit and determination that brought us to this place of success. Many of our children have graduated from TJ, but we stay in the fight for America and all of her children.

FAIRFAX COUNTY, Va. — At 10:18 a.m. on Tuesday, the path was cleared for the mostly immigrant parents in our grassroots group, Coalition for TJ, to go the U.S. Supreme Court in our pursuit of justice, equality and merit education — for all.

We had to lose to win.

At that moment, the Fourth Circuit Court of Appeals in Richmond electronically dispatched a 2-1 decision overturning a ruling in which U.S. federal judge Claude Hilton had concluded a new race-based admissions policy to Thomas Jefferson High School for Science and Technology is illegal, discriminatory and “patently unconstitutional.” The 12 members of the Fairfax County school had appealed the ruling, and the Fourth Circuit Court of Appeals decision won them the right to continue their racist admissions policy. The two judges voting to keep the racist admissions policy are Judge Robert King, born in 1940 and an alumnus of my alma mater, West Virginia University, nominated by former Democratic President Bill Clinton, and Judge Toby Heytens, born in 1975 and nominated by President Joe Biden. The lone dissent was Judge Allison Rushing, born in 1982 and nominated by former Republican President Donald Trump.

Moments after the ruling was issued, our lawyers at Pacific Legal Foundation posted an important statement, quoting attorney Erin Wilcox, saying these magical 17 words: “We look forward to asking the Supreme Court to end this illegal practice once and for all.”

My heart leapt reading the words. I took to Twitter to express my positive optimism. Our parents issued their statements of hope. We were heading to the U.S. Supreme Court. Erin said our petition for certiorari — or certification, so the Supreme Court can hear our case — is due on August 21, 2023. The school board will get 30 days to respond.

We have long expected the 2-1 decision. Last September, I was in the courtroom in Richmond when the two judges who ruled against us — King and Heytens — signaled their bias toward the school board’s position. Rushing was the only judge who treated the arguments of our minority families with respect. King shockingly accused our lawyer, Erin, of speaking with “forked tongue,” citing use of the term for alleged doublespeak by Indians during the “Indian Wars.” It was so bizarre but so typical of the cultural callousness that we’d already seen by the all-Democratic Fairfax County school board. In early 2021, for example, school board member Melanie Meren famously said that going to “Japanese hibachi” as a child instilled in her a deep appreciation of “Asian traditions and Asian American culture.” That was after she had months earlier called “toxic” the culture at TJ, a school with mostly Asian American students.

Our victory in the future will be not just for our families but for America, setting a precedent that will have a ripple effect in communities across the country, ending state-sanctioned racism in admissions, just like Brown v. Board of Education did in integrating schools in the 1950s.

And we will win. Last fall, I sat in the U.S. Supreme Court for the arguments in the case of anti-Asian discrimination in admissions to Harvard University and the University of North Carolina at Chapel Hill. I was so impressed by the empathy of the majority of the judges — they were the conservative judges — to the arguments on behalf of Asian American students and families by the lawyers for Students for Fair Admissions.

I have culled analysis from great legal minds for us to understand the intracacies of decision. They are Pacific Legal Foundation attorney Erin Wilcox; Coalition for TJ cofounder Glenn Miller, who studied at Harvard Law during the era of Derek Bell, the godfather of critical race theory, which provides the underpinnings for the new racism we’re seeing across the United States; Gary Lawkowski, counsel at Dhillon Law Group and a TJ Class of 2005 graduate; Mark Spooner, a father and lawyer in Fairfax County, Va.; an

Like many of you, I have to read the legal analysis carefully to understand it, but please try to do so because I have learned that if we going to fight injustice we must win in the court of public opinion and the court of law. You will see one fundamental theme in the analyses: that the majority opinion was logically flawed in believing the “success” of Asians in still getting into TJ somehow proved that their plummeting percentages aren’t racist. The majority opinion judges were clearly not STEM students, weaponizing math illogically to let the school system get away with racism.

Enjoy, and thank you to Erin, Glenn, and Mark for their quick analysis.

Suparna Dutta was one of the first six parents awakened to the war on TJ in June 2020.

Erin Wilcox, an attorney at Pacific Legal, representing Coalition for TJ:

The daughter of a teacher, Erin has been a gentle guardian of the families of Coalition for TJ, shepherding us through the halls of law with grace and strategy. We are lucky to have her on our side and, when we win, it will be in large part due to her emotional and intellectual intelligence.

The majority opinion, written by Judge King and joined by Judge Heytens, is what we expected based on the earlier opinion granting the Board’s motion to stay. The opinion has three key points: (1) disparate impact; (2) discriminatory intent; and (3) level of scrutiny. On disparate impact, the majority holds (as it did in its previous decision) that the right way to determine whether the admissions policy had a disproportionate impact on Asian American applicants is to compare the number Asian American applicants against the number of offers Asian American applicants received, and then compare that “success rate” to the success rates of other racial groups. In the majority’s view, as long as Asian American students as a group don’t fare worse than other racial groups, there is no disparate impact. 

On discriminatory intent, dissenting Judge Rushing says it best: the majority “refuses to look past the Policy’s neutral varnish.” The majority does not believe the statements from the Board and staff showed an intent to racially balance TJ. On level of scrutiny, the majority found that since there was no evidence of intentional discrimination, then the lowest level of scrutiny – rational basis – is appropriate. Rational basis scrutiny is an extremely low bar for the government, and unsurprisingly the majority found that it was met in this case.

Judge Heytens wrote a separate concurring opinion to say that in his view, our case is “unusual” because we are asking a court to apply strict scrutiny to an admissions policy that is race-neutral on its face.

The dissenting opinion, by Judge Rushing, also has three key points: (1) disparate impact; (2) discriminatory intent; and (3) level of scrutiny. On disparate impact, Judge Rushing points out the problem with the majority’s method for measuring whether Asian American students were disproportionately impacted by the new admissions policy. Under the majority’s theory, a school board could intentionally discriminate against students of one race (and even openly admit that it was discriminating), and admissions offers to those students could drop from 90% to 30%, as long as no other racial group got a higher percentage of offers.

Judge Rushing also agreed that the district court’s method for determining disparate impact – a simple before/after comparison – is relevant and in line with Fourth Circuit precedent. On discriminatory intent, Judge Rushing found that the Board clearly stated its intent to create an admissions policy that would make TJ’s racial demographics reflect those of the district and went into detail on four examples illustrating this intent (the Board’s unanimous resolution, requesting and receiving racial data and modeling, choosing attending school instead of zoned school, and the text messages). On level of scrutiny, Judge Rushing would have applied strict scrutiny – the highest level of scrutiny – because the Board engaged in intentional racial discrimination and went on to explain that new admissions policy could not survive strict scrutiny.

Glenn Miller (red jacket) understood immediately that the school board was acting illegally.

Glenn Miller, a cofounder of Coalition for TJ and an attorney:

In June 2020, Glenn told me there were three words that I had to research to understand the war on merit that TJ was suddenly facing. He said: “Critical race theory.” He had learned about it when its architect, Derrick Bell, was teaching at Harvard Law, just as Glenn was a student there. He and his wife, Helen Miller, are cofounders of Coalition for TJ.

Perhaps the most stunning statement by the Fourth Circuit was that the TJ admission changes had no disparate impact on Asian American applicants to TJ because “those students have had greater success in securing admission to TJ under the policy than students from any other racial or ethnic group.”

In essence, the Court treats people not as individuals dignified with individual Constitutional rights and who individually earned a right to attend TJ but instead as faceless members of a racial group who rise and fall with their group, and the Court allows intentional discrimination against a given individual provided the particular racial group of which they are a member was still “overrepresented” as compared to their percentage of the population.

The Court wrote as follows: “Against that backdrop, we are satisfied that the Board’s adoption of the challenged admissions policy fully comports with the Fourteenth Amendment’s demand of equal protection under the law. On this record, and with application of the proper legal standard, the policy visits no racially disparate impact on Asian American students. Indeed, those students have had greater success in securing admission to TJ under the policy than students from any other racial or ethnic group.”

Such a position abandons any pretense that affirmative action be inclusive (benefiting one underrepresented racial group versus all others) and justifies an exclusive model, allowing specific targeting of one racial group to the benefit of all others – a dramatic philosophical leap.  

This extraordinary position reintroduces quotas and would theoretically allow intentional discrimination against ANY racial group the Court deemed statistically “overrepresented” in a given field.  Such a position could theoretically be extended even so far as to justify caps on Jewish doctors (14.1% of doctors despite being 1.9% of the population in 1998), or Dominican professional baseball players (11.4% of baseball players despite coming from a country with less than 4% of the population of the United States).  

And of course, such a position would give carte blanche to Ivy League schools to further discriminate against Asian American students, even justifying the targeting of Asians to the benefit of all other racial groups. We look forward to Pacific Legal Foundation arguing this case before the U.S. Supreme Court and winning.

Elementary school children sat by the sculpture outside TJ. We fight against anti-Asian racism for them so they will have equal opportunities when it comes time for them to apply to TJ.

Gary Lawkowski, counsel at Dhillon Law Group:

A graduate of TJ, Gary led an amicus filing to support the Coalition for TJ, in an important and noteworthy contribution by a grateful alumnus of the school.

The Court of Appeals for the Fourth Circuit issued its opinion in the TJ case this morning.  As expected, the Court effectively upheld the Board’s admissions policy, reversing the lower court.

The opinion of the court made three primary claims:

• First, it found that the new admissions policy did not result in any disproportionate impact on Asian students.  In doing so, the court measured “disproportionate impact” relative the overall community: “The Coalition, in sum, was obliged to show that, under the challenged admission policy, Asian American students face proportionately more difficulty in securing admission to TJ than do students from other racial or ethnic groups. . . . Put most simply, searching for a racially ‘disproportionate’ impact necessitates a relative inquiry among racial groups, not a simple appraisal of one group’s performance over time.” Op. at 26.

• Second, it concluded that the admissions policy was not adopted with discriminatory intent.

• Third, it concluded in that, in light of the first two determinations, the proper standard for evaluating the admissions policy was rational basis review, and the Board had a rational basis for adopting the admissions policy.

The court also noted at the end: “Doubtlessly, there are some unequal results at play here.  Under the challenged admissions policy, Asian American applicants to TJ enjoy far greater success in securing offers of admission than do prospective students from any other racial or ethnic group.  Thus, the Coalition’s remarkable efforts to twist TJ’s admission’s statistics and to prove a disproportionate, adverse impact on Asian American students should fall flat.”  Op. at 37.

Judge Heytens wrote a concurring opinion, focused primarily on the facially race-neutral nature of the admissions policy.

Judge Rushing dissented.  First, Judge Rushing took issue with the majority’s conclusion that the admissions policy was not motivated by racial animus.  Second, Judge Rushing criticized the majority’s approach to disproportionate impact, stating: “According to the majority, the Board could not have discriminated against Asian students by reducing their success rate—even intentionally and with a discriminatory purpose—so long as Asian students remained no less successful than students of other races. . . . If a State enacts a policy with the purpose and effect of trimming down the success of one particular racial group to a level the State finds more appropriate, it has discriminated against that racial group.  To hold otherwise misses the point of discriminatory-intent claims under the Equal Protection Clause.” Op. at 70.

Our parents filled the sidewalks outside TJ. Many of them have lived under oppressive regimes and had to overcome their personal fears to protest for America’s children.

Mark Spooner, editor of Fairfax Schools Monitor and retired attorney:

Excerpted from Fairfax Schools Monitor. Please subscribe to Mark’s investigative reports about Fairfax County Public Schools. He raises important questions about contracts, policy decisions and controversies and digs until he finds answers.

First, it seems odd that the 4th Circuit issued its decision at this time.  It was not under a prescribed timetable.  With the Supreme Court’s opinion in the Harvard and UNC cases due in less than two months, it would have been logical for the court of appeals to wait for those rulings, and then apply the legal rules established by them to the TJ case.  If the Supreme Court strikes down the universities’ admissions policies, the TJ decision is likely to be thrown into doubt.  What typically happens in situations like this is that the Supreme Court will “remand” the case to the court of appeals “for further review in light of today’s rulings.”  If that were to occur here, the validity of TJ’s revised admissions standards would remain in limbo for at least several months, and maybe more.

Second, the 4th Circuit’s rationale for finding that the new TJ admissions criteria didn’t adversely affect Asian American applicants is baffling.  The majority opinion points out that 48% of TJ’s applicants in 2021 identified as Asian American, while 54% of the 2021 admissions went to that group.  Thus, the court concludes, the admissions process benefited Asian American students!  End of story.  I’ve read this portion of the majority opinion several times, and still can’t understand it.   The fact is that the group’s representation in the freshman class plummeted from 73% to 54% under the new rules.  The mere fact that the admission ratio for Asian Americans exceeded the application ratio by a few percentage points (54 vs. 48 percent) might simply mean that the qualifications of this group — even under the watered-down academic requirements — significantly exceeded the qualifications of other racial/ethnic groups who applied.   The before-after effect on Asian American admissions (73%, reduced to 54%) tells the true story about the effect of the new policy.

Third, the majority relied heavily on the fact that the final admissions rules adopted by the School Board didn’t mention racial goals or racial admissions criteria.  Given the heavy body of evidence indicating that racial rebalancing was at the heart of what the Board was trying to do, it strikes me that the court is saying that a government body can avoid scrutiny of its true intent by careful, race-neutral wording of its policies.  The dissenting judge’s rationale makes more sense to me; she explained her decision by stating: “The majority … refuses to look beyond the Policy’s neutral varnish.  Because the evidence shows an undisputed racial motivation and an undeniable racial result, I respectfully dissent.”

Finally, whatever the final result may be, it’s sad that in a county with 28 highly rated high schools, the School Board couldn’t allow outstanding academic qualifications to be the primary criterion for admission at even one of them.  TJ had previously admitted the most academically gifted students from around the county, without regard to race, ethnicity, or family background.  Was this “inequitable”?  Apparently so, in the eyes of the School Board, which decided that “diversity” was more important than academic excellence.

Endnote

Stay tuned for more updates and subscribe so you don’t miss a moment of this journey with us. I started my Substack to write about our battled in Fairfax County and am so grateful to my readers and subscribers for hearing our voices.

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