Samuel Alito and Clarence Thomas on Fire
Cite as: 601 U. S. ____ (2024)
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
COALITION FOR TJ v. FAIRFAX COUNTY SCHOOL
BOARD
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23–170. Decided February 20, 2024
The petition for a writ of certiorari is denied.
JUSTICE ALITO, with whom JUSTICE THOMAS joins, dis-
senting from the denial of certiorari.
The Court of Appeals’ decision in this case is based on a
patently incorrect and dangerous understanding of what a
plaintiff must show to prove intentional race discrimina-
tion. A group representing applicants for admission to a
highly competitive public magnet school brought suit,
claiming that changes in the school’s admissions require-
ments violated the Equal Protection Clause. They alleged
that the changes were made for the purpose of discriminat-
ing on the basis of race, to the detriment of Asian-American
applicants. The District Court found that direct and cir-
cumstantial evidence supported that claim and issued an
injunction against implementation of the changes. On ap-
peal, however, a divided Fourth Circuit panel reversed and
held that the plaintiff ’s claim failed simply because the
challenged changes did not reduce the percentage of Asian-
American admittees below the percentage of Asian-
American students in the schools in the jurisdictions served
by the magnet school. What the Fourth Circuit majority
held, in essence, is that intentional racial discrimination is
constitutional so long as it is not too severe. This reasoning
is indefensible, and it cries out for correction.
2 COALITION FOR TJ v. FAIRFAX COUNTY
SCHOOL BOARD
ALITO, J., dissenting
I A
Thomas Jefferson High School for Science and Technol-
ogy (TJ), is a magnet school that draws students from Fair-
fax County and other jurisdictions in northern Virginia.
Widely recognized as one of the best public high schools in
the Nation,1 the school has exceptional resources, including
13 on-campus research laboratories and a student-pro-
duced scientific research journal, and it features a rigorous
curriculum. All students must study computer science and
complete a science or technology research project, and the
school offers 26 advanced placement and 20 “post-AP”
courses.2
The Fairfax County School Board (Board), an elected 12-
member body, sets the school’s admissions policy. Until
2020, the school had a highly competitive race-blind admis-
sions process that relied heavily on standardized tests.
Eighth grade students were eligible to apply if they had at
least a 3.0 GPA and had taken a course in algebra. All ap-
plicants then took three standardized tests, and after that,
the highest ranked students took a fourth exam and sub-
mitted two teacher recommendations. The class was se-
lected from that group based on a holistic review of these
inputs. Admission to TJ has been very competitive. From
2012 to 2020, the admissions rate varied between 14 and 20
percent.3
——————
1 U. S. News & World Report, Thomas Jefferson High School for Sci-
ence and Technology, https://www.usnews.com/education/best-high-
schools/virginia/districts/fairfax-county-public-schools/thomas-jefferson-
high-school-for-science-and-technology-20461.
2 Thomas Jefferson High School for Science and Technology 2022–2023,
https : / / tjhsst.fcps.edu / sites / default / files / media /inline-files/2022-23%
20TJHSST%20Profile_0.pdf; Fairfax County Public Schools, School
Summary, https://schoolprofiles.fcps.edu/schlprfl/f?p=108%3A50%3A%
3A%3A%3A%3AP0_CURRENT _SCHOOL_ID%3A300.
3 See, e.g., TJHSST Admissions Statistics for Class of 2016,
https://web.archive.org/web/20150404073947/ https://www.fcps.edu/cco/
3 Cite as: 601 U. S. ____ (2024)
ALITO, J., dissenting
In recent years, this race-neutral competitive process pro-
duced classes with a high percentage of Asian-American
students. In 2019, Asian Americans constituted 71.5 per-
cent of TJ’s class, and the 2020 entering class was similar,
with a 73 percent Asian-American student body.
Asian-American students, many of whom are immigrants
or the children of immigrants,4 have often seen admission
to TJ as a ticket to the American dream. In this respect,
their aspirations mirror those of young people from other
immigrant groups. Public magnet schools with competitive
admissions based on standardized tests have served as en-
gines of social mobility by providing unique opportunities
for minorities and the children of immigrants, and these
students’ subsequent careers have in turn richly contrib-
uted to our country’s success. For example, one such school
in New York City has produced no fewer than nine Nobel
laureates.5
While Asian Americans have striven to attend TJ, their
strong representation in the student body attracted criti-
cism from education officials. In June 2020, TJ students
received an email from their principal lamenting that the
school did “‘not reflect the racial composition in [the Fairfax
County Public Schools].’” App. to Pet. for Cert. 90a. A
member of the Board wrote in an email that she was “‘angry
——————
pr / tj / tjadmissions0412.pdf ; Fairfax County Public Schools, TJHSST
Offers Admission to 486 Students, https : / / web.archive.org / web /
20220824023116/https://www.fcps.edu/news/tjhsst-offers-admission-486-
students.
4 The percentage of foreign-born residents in the jurisdictions in ques-
tion is well above the national average. For example, immigrants make
up approximately 30 percent of the population of Fairfax County, which
is the most populous county in Virginia. And of the top five countries
from which these immigrants came, four (India, Korea, Vietnam, and
China) are in Asia. Fairfax County, Our Immigrant Neighbors,
https://www.fairfaxcounty.gov/demographics/our-immigrant-neighbors.
5 Bronx Science Foundation, Celebrating Bronx Science Luminaries,
https://alumni.bxscience.edu/hall-of-fame-2.
4 COALITION FOR TJ v. FAIRFAX COUNTY
SCHOOL BOARD
ALITO, J., dissenting
and disappointed’” at TJ’s admissions results and that she
expected “‘intentful [sic] action forthcoming.’” Id., at 100a.
That Board member also contacted Scott Braband, the su-
perintendent of the Fairfax County Public Schools, de-
manding that the Board and the public school system “‘be
explicit in how we are going to address the under-
representation of [b]lack and Hispanic students.’” Ibid.
The Board answered the call. In December 2020, it
adopted the current admissions policy, which no longer re-
lies on standardized tests. The policy fills around 450 of the
550 seats in each incoming class by allocating a specified
number of seats to each public middle school in the qualify-
ing region.6 The remaining 100 seats are open to the entire
applicant pool. Applicants for these seats are evaluated
based on their grades, a “portrait sheet,” a problem-solving
essay, and “Experience Factors.” The portrait sheet is
meant to describe the applicant’s “soft” skills (such as the
ability to work with other students). The four “Experience
Factors” are (1) eligibility for free or reduced price meals;
(2) status as an English language learner; (3) eligibility for
special education services; and (4) attendance at a public
middle school that previously sent few students to TJ.
This new policy had an immediate effect. The percentage
of white, Hispanic, and black students increased,7 while the
percentage and number of Asian-American students
sharply dropped. In prior years, the offer rate for Asian-
American students had hovered between 65 and 75 percent
of the school’s total offers. Under the new policy, Asian
——————
6 Specifically, the number of seats given to each such school is equal to
1.5 percent of the school’s eighth grade population.
7 White students received 22.36 percent of admission offers, up from
17.7 percent. Hispanic students received 11.27 percent of offers, up from
3.3 percent. Black students received 7.9 percent of offers, up from less
than 3 percent. Parties’ Stipulation of Uncontested Facts in No. 1:21–
cv–296 (ED Va., Dec. 3, 2021), ECF Doc. 95, pp. 4–5; 2 App. in No. 22–
1280 (CA4, May 11, 2022), ECF Doc. 44–2, pp. 96–98.
5
Cite as: 601 U. S. ____ (2024)
ALITO, J., dissenting
Americans received 54.36 percent of the offers. In fact, even
though the entering class expanded by 64 seats, the number
of seats offered to Asian Americans decreased by 56. Id., at
89a.
B
The Coalition for TJ (Coalition), an organization that in-
cludes parents of children who have applied or will apply to
TJ, filed suit in Federal District Court under 42 U. S. C.
§1983, against the Board. The Coalition alleged that the
new admissions policy was based on intentional racial dis-
crimination and therefore violates the Equal Protection
Clause.
After a careful review of the record, the District Court
agreed. It found that both direct and circumstantial evi-
dence clearly showed that the changes in the admissions
process were motivated by racial discrimination. The court
found that the Board’s decision-making process was
“rushed, not transparent, and more concerned with simply
doing something to alter the racial balance at TJ than with
public engagement.” App. to Pet. for Cert. 106a. “The dis-
cussion of TJ admissions changes was infected with talk of
racial balancing from its inception,” and “emails and text
messages between Board members and high-ranking [Fair-
fax County Public School] officials leave no material dispute
that, at least in part, the purpose of the Board's admissions
overhaul was to change the racial makeup [of] TJ to the det-
riment of Asian-Americans.” Ibid. The court also found
that “Asian-American students [were] disproportionately
harmed by the Board’s decision to overhaul TJ admissions,”
id., at 99a, and it viewed this disparate impact as circum-
stantial evidence of unlawful discrimination. Based on this
view of the evidence, the court granted summary judgment
for the Coalition and enjoined use of the new policy.
The Fourth Circuit reversed the District Court in a star-
6 COALITION FOR TJ v. FAIRFAX COUNTY
SCHOOL BOARD
ALITO, J., dissenting
tling 2 to 1 decision. 68 F. 4th 864 (2023). The panel ma-
jority held that the Coalition could not prevail because, as
the majority saw things, the new policy “visit[ed] no racially
disparate impact on Asian American students” since, even
after use of the new policy began, Asian Americans still re-
ceived 54.36 percent of the admissions offers. Id., at 879–
881. This percentage exceeded the percentage of Asian-
American students in the applicant pool, and therefore, ac-
cording to the panel majority’s reasoning, Asian-American
students had no cause to complain. As the panel majority
put it, “an application of elementary arithmetic shows that
Asian American students, as a class, experience no material
disadvantage under the policy’s functioning” and in fact
perform “better in securing admission to TJ than students
from any other racial or ethnic group.” Id., at 882. Alt-
hough the panel also went on to discuss the Coalition’s
other evidence, the panel majority concluded that it “could
end [its] analysis of the Coalition’s Equal Protection Claim
at th[at] juncture.” Id., at 879–880, 882. As I will explain
below, the panel’s “elementary arithmetic” was elementary
error.
II
The “central purpose” of the Equal Protection Clause is
to prohibit “official conduct discriminating on the basis of
race.” Washington v. Davis, 426 U. S. 229, 239 (1976); see
also, e.g., Students for Fair Admissions, Inc. v. President
and Fellows of Harvard College, 600 U. S. 181, 206 (2023)
(SFFA) (the “core purpose” of the Equal Protection Clause
is “doing away with all governmentally imposed discrimi-
nation based on race” (internal quotation marks and alter-
ations omitted)). When a party claims that a law or policy
is racially discriminatory, that party must show that it was
adopted for “a racially discriminatory purpose.” Davis, 426
U. S., at 240. A facially discriminatory policy is automati-
cally subject to heightened review. Even a policy that is
7
Cite as: 601 U. S. ____ (2024)
ALITO, J., dissenting
race neutral on its face may be unconstitutional if it is
adopted for a “racially discriminatory intent or purpose.”
Arlington Heights v. Metropolitan Housing Development
Corp., 429 U. S. 252, 265–266 (1977). A party who chal-
lenges such a policy on equal protection grounds can show
intentional discrimination by proffering a combination of
direct and circumstantial evidence.
In Arlington Heights, we listed four factors that, among
others, have a bearing on the assessment of circumstantial
evidence: (1) the law’s historical background, (2) the se-
quence of events leading to the law’s enactment, including
any departures from the normal legislative process, (3) the
law’s legislative history, and (4) whether the law “‘bears
more heavily on one race than another.’” Id., at 265–269.
We have emphasized that disparate impact, by itself, does
not establish intentional discrimination. Davis, 426 U. S.,
at 239–240.
The District Court faithfully employed this framework.
In addition to noting that the record contains direct evi-
dence of racial intent, the court noted the stark change ef-
fected by the new policy, the unusual decisionmaking pro-
cess that led to the change, and the fact that the change
bore “more heavily on” Asian Americans than members of
other groups.
The Fourth Circuit panel majority, by contrast, com-
pletely distorted the meaning of disparate impact. Even
though the new policy bore “more heavily” on Asian-
American applicants (because it diminished their chances
of admission while improving the chances of every other
racial group), the panel majority held that there was no dis-
parate impact because they were still overrepresented in
the TJ student body.
That is a clearly mistaken understanding of what it
means for a law or policy to have a disparate effect on the
members of a particular racial or ethnic group. Under the
old policy, each Asian-American applicant had a certain
8 COALITION FOR TJ v. FAIRFAX COUNTY
SCHOOL BOARD
ALITO, J., dissenting
chance of admission. Under the new policy, that chance has
been significantly reduced, while the chance of admission
for members of other racial and ethnic groups has in-
creased. Accordingly, the new admissions policy bore more
heavily on Asian-American applicants.
The panel majority, however, thought that this did not
matter. The simple fact that Asian Americans were still
overrepresented in the TJ student body was enough to
doom the Coalition’s equal protection claim. As far as the
Fourth Circuit was concerned, the Board could have
adopted a policy designed solely to reduce the Asian-
American offer rate and still evaded liability. The holding
below effectively licenses official actors to discriminate
against any racial group with impunity as long as that
group continues to perform at a higher rate than other
groups.
That is indefensible. As Judge Rushing explained in dis-
sent, under the Fourth Circuit’s view, the Constitution per-
mits “facially neutral laws explicitly motivated by racial
discrimination, as long as the law’s negative effect on the
targeted racial group pushes it no lower than other racial
groups.” 68 F. 4th, at 904. “It would not matter, for exam-
ple, if a new law cut a racial group’s success rate from 90%
to 30% and the legislature was open about its discrimina-
tory purpose, as long as no other racial group succeeded at
a higher rate.” Ibid. This rule defies law and logic.
Consider the following hypothetical case. Suppose that
white parents in a school district where 85 percent of the
students are white and 15 percent are black complain be-
cause 10 of the 12 players (83 percent) on the public high
school basketball team are black. Suppose that the princi-
pal emails the coach and says: “You have too many black
players. You need to replace some of them with white play-
ers.” And suppose the coach emails back: “Ok. That will
hurt the team, but if you insist, I’ll do it.” The coach then
takes five of his black players aside and kicks them off the
9
Cite as: 601 U. S. ____ (2024)
ALITO, J., dissenting
team for some contrived—but facially neutral—reason. For
instance, as cover, he might institute a policy that reserves
a set number of spots on the roster for each of the middle
schools who feed to the high school. According to the rea-
soning of the Fourth Circuit majority, this action would not
violate equal protection because the percentage of black
players left on the team (approximately 42 percent) would
exceed the percentage of black students in the school.8 I
cannot imagine this Court’s sustaining such discrimination,
but in principle there is no difference between that imagi-
nary case and one now before us.
III
The Fourth Circuit’s decision is based on a theory that is
flagrantly wrong and should not be allowed to stand. I
would not reach the question whether the District Court
correctly analyzed all the evidence in this case, but I would
summarily reject the holding discussed above. If the Dis-
trict Court’s evaluation of the evidence is correct, the panel
majority’s fallacious reasoning works a grave injustice on
diligent young people who yearn to make a better future for
themselves, their families, and our society. In addition, the
Fourth Circuit’s reasoning is a virus that may spread if not
promptly eliminated. Indeed, the First Circuit has already
favorably cited the Fourth Circuit’s analysis to disparage
the use of a before-and-after comparison in a similar equal
protection challenge to a facially neutral admissions policy.
See Boston Parent Coalition for Academic Excellence Corp.
v. School Comm. for Boston, 89 F. 4th 46, 57–58 (2023). And
——————
8 Should the Fourth Circuit’s reasoning be adopted elsewhere, the
same would also hold true in other circuits where the court of appeals
considers disparate impact to be a necessary element of a successful chal-
lenge to a facially neutral policy. See Lewis v. Ascension Parish School
Bd., 806 F. 3d 344, 358–359 (CA5 2015); Doe v. Lower Merion School
Dist., 665 F. 3d 524, 549 (CA3 2011); Anderson v. Boston, 375 F. 3d 71,
89 (CA1 2004).
10 COALITION FOR TJ v. FAIRFAX COUNTY
SCHOOL BOARD
ALITO, J., dissenting
TJ’s model itself has been trumpeted to potential replica-
tors as a blueprint for evading SFFA.9
* * *
The Court’s willingness to swallow the aberrant decision
below is hard to understand. We should wipe the decision
off the books, and because the Court refuses to do so, I must
respectfully dissent.
——————
9 Less than two weeks after SFFA was decided, the dean of UC Berke-
ley School of Law and the general counsel for the University of Michigan,
to name just a couple of examples, openly advocated for schools to emu-
late TJ’s new admissions model. See Brief for Cato Institute as Amicus
Curiae 4–7. Just as TJ offers a roadmap for other selective schools to
skirt the Equal Protection Clause, so too does the Fourth Circuit’s rea-
soning offer a roadmap for other federal courts to provide cover.