The Supreme Court will hear oral argument early next year in Association for Education Fairness v. Montgomery County Board of Education, a challenge to the process that a Maryland county uses to determine who will be admitted to a group of highly selective public magnet schools. The challengers, a group of mostly Asian-American parents in Montgomery County, Maryland, which is located just outside Washington, D.C., argue that although the policy does not on its face take race into account, it is nonetheless unconstitutional because it was intended to reduce the number of Asian-American students in those schools. The announcement came on a list of orders from the justices’ Oct. 16 conference and two years after the court turned down similar challenges, one involving Thomas Jefferson High School for Science and Technology in northern Virginia, which is regarded as one of the country’s top high schools, and another involving three of Boston’s elite public high schools.
The lawsuit was first filed in 2020 by the Association for Education Fairness, an organization of “concerned Asian-American parents in Montgomery County.” It alleged that the admissions process recently put into place, which was intended in part to increase enrollment of Black and Hispanic students at four highly selected magnet middle schools, violated the constitutional rights of Asian-American students. That policy, among other things, involved screening all fifth graders for possible admission (rather than only those whose parents asked for them to be included), eliminating teacher recommendations, and comparing students with their peers at their local schools.
Beginning in 2021-22, the county adopted a new policy. All fifth graders who met a series of criteria – including grades, reading level, and standardized test scores – were placed in a pool, from which students were selected by lottery for admission to magnet programs. The parent association then amended its complaint to argue that the new policy, sometimes nicknamed the Pandemic Plan because of when it was adopted, intentionally discriminates against Asian-American students.
The school board filed a motion to dismiss the case, which U.S. District Judge Paula Xinis granted. The parent association and the school board, she said, agree that, on its face, the Pandemic Plan is a “neutral admissions process that MCPS has applied evenhandedly.” Moreover, she continued, the parent association “does not meaningfully contest that the Pandemic Plan is rationally related to MCPS’ legitimate purposes.” The parent group’s claim can only go forward, she wrote, if the facts of its complaint “make plausible that the Pandemic Plan both” had a disproportionate effect on Asian-American students and “was motivated by discriminatory intent.” But she could not, she concluded, “see how the Pandemic Plan visited a disproportionate burden on Asian American students when the percentage of admitted Asian American students so substantially outpaces the percentage representation among all applicants.”
In a brief opinion in February, the U.S. Court of Appeals for the 4th Circuit upheld Xinis’ ruling. The parent association then came to the Supreme Court, asking the justices to weigh in. It contended that the courts of appeals are divided (a key factor that the justices consider in deciding whether to grant review) over whether a case, like theirs, alleging intentional discrimination in violation of the Constitution’s guarantee of fair treatment can go forward without allegations that the admissions policy has a disproportionate effect on students of a particular race. Citing the Supreme Court’s 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College, in which the majority held the use of affirmative action in college admissions to be unconstitutional, the parent group argued that “[i]f ‘[e]liminating racial discrimination means eliminating all of it,’ this cannot stand.”
The school board urged the Supreme Court to deny review. It portrayed the dispute as “unremarkable and of little significance,” emphasizing that it “involves a race-neutral lottery adopted in response to a global pandemic” and that “the proportion of Asian Americans among selected students actually increased at the two other magnet schools in the same year, under the same policy.”
In a brief order on Monday morning, the justices agreed to take up the case and to decide “[w]hether 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.”