The U.S. Supreme Court will take up a key issue arising in lawsuits that challenge school district efforts to use race-neutral methods to boost racial and socioeconomic diversity in selective programs.
In a case involving student selection to magnet schools in the Montgomery County, Md., school district, outside Washington, the court said it would consider whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an “aggregate disparate impact” relative to its share of the applicant pool.
That is a legally complex question arising in high-temperature suits that accuse some of the nation’s largest school systems of trying to circumvent restrictions on the explicit consideration of race in selective admissions by using proxies such as family income or a student’s neighborhood characteristics.
“School districts across the country have overhauled admissions criteria for competitive public schools after concluding that existing systems produced undesirable racial enrollment patterns,” says the Supreme Court appeal filed on behalf of an Asian-American parents group in Association for Education Fairness v. Montgomery County Board of Education.
That assertion may be overstating the scope of the use of such tactics, as many districts have not ever considered race-based or race-neutral methods to boost diversity in particular schools. Others have dropped such policies in the wake of the Supreme Court’s 2023 decision largely barring race in college admissions.
But it is true that some of the nation’s largest urban districts—such as New York City, Boston, Philadelphia, and large suburban districts such as Montgomery County, Md., and Fairfax County, Va.—have tried various race-neutral methods in recent years and have been met with legal challenges.
“These are some of the largest districts in America,” Christopher M. Kieser, a senior lawyer with Pacific Legal Foundation, which is behind challenges to four of those five districts, said in an interview.
Four appeals courts reach disparate conclusions
There is now a circuit split involving four different federal courts of appeals over the issue presented by the Montgomery County case.
“In the 1st and 4th circuits, a challenger does not even get off the ground without a showing that the admissions criteria suppressed the targeted group’s enrollment at least below the group’s share of the applicant pool,” the Montgomery County parents’ group argues in its appeal. “Challengers in the 2nd and 3rd circuits, on the other hand, can prove intentional discrimination without such a stark showing of aggregate ‘underrepresentation.’”
The 2nd Circuit, based in New York City, in 2024 revived a challenge brought by Asian-American families to that city’s middle school pathway to its selective high schools. That court rejected the need to meet an aggregate benchmark as a prerequisite to proving an intentional-discrimination claim. That case is now continuing at the federal district court level.
The 3rd Circuit, in Philadelphia, earlier this year revived a challenge to the admissions plan for that city’s selective “criteria-based” high schools, also holding that while aggregate disparate-impact data may prove a constitutional violation, it was not the only permissible form of proof to allow such a legal challenge to move forward, and that courts could look to the impact on individual students. The Philadelphia district settled that case soon after the adverse 3rd Circuit ruling.
By contrast, the 1st Circuit, in Boston, in 2023 upheld the dismissal of a challenge to race-neutral admissions criteria to that city’s selective “exam schools.” The court rejected a parent group’s challenge because it could not show aggregate disparate impact on Asian-American students compared with their level in the population.
And the 4th Circuit, based in Richmond, Va., in 2023 upheld the admissions plan for the selective Thomas Jefferson High School in the Fairfax County district, finding there was no aggregate disparate impact on Asian-American applicants to the science and technology magnet high school.
Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, dissented both times when the high court declined review of the Boston and Fairfax County cases.
In both cases, he wrote in his dissent in the Boston case, “the lower courts mistakenly treated evidence of disparate impact as a necessary element of an equal-protection claim.”
“We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions [v. President and Fellows of Harvard College],” Alito wrote, in reference to the court’s college admissions decision.
Pandemic upsets earlier middle school admissions policy
In the Montgomery County case, the 4th Circuit applied its own precedent from the Virginia case and upheld the Maryland district’s middle school admissions plan.
The case involves the 160,000-student district’s four selective middle schools. The district had been “field testing” the recommendations of a 2016 consultant’s report meant to boost Black and Hispanic student enrollment in the selective middle schools through race-neutral means that included broader screening of potential students and using an in-person test to compare students from schools with high poverty rates with other students from high-poverty schools instead of national norms.
But the onset of the COVID-19 pandemic in 2020 disrupted all of that, and the district switched to a lottery-based plan for the selective middle schools and for enrichment programs at other middle schools. The poverty level of a student’s school was still a factor at a threshold stage of the lottery. The challengers say the format still makes it “disproportionately much harder for Asian-American students clustered in high-performing, low-poverty elementary schools to access the lottery.”
The school district, in a brief urging the Supreme Court not to take up the case, said the “facts underlying the Pandemic Plan are unremarkable. This case would come out the same way in every circuit. And the decision below is correct. Indeed, it is difficult to even conceptualize how a lottery-based admissions policy—adopted in response to an unforeseeable global pandemic—could intentionally discriminate on the basis of race.”
Decision possible by next June
Kieser, of Pacific Legal, acknowledged in the interview that the question granted review in the case involves a fairly technical issue stemming from the Supreme Court’s test for evaluating whether a facially neutral government policy violates the 14th Amendment’s equal protection clause by masking racially discriminatory intent.
“I think the court wants to highlight the circuit split on this issue and what they are deciding,” he said. “It may signal they are interested in a more narrow decision that rejects the 4th Circuit’s rule.”
Kieser also noted the recent public attention to disparate impact under the Civil Rights Act of 1964, with the U.S. Department of Education telling schools in a recent Dear Colleague letter that the civil rights law prohibits only intentional discrimination, not unintentional disparate impact.
Here, the challengers to Montgomery County’s policy are seeking to prove intentional discrimination.
“We’re absolutely not arguing for disparate-impact liability,” Kieser said. “We would be against that.”
The case will likely be scheduled for argument early next year, with a decision expected by the end of June.
Mark Walsh covers education law and the U.S. Supreme Court for Education Week.