Court allows controversial school admissions policy in Virginia to continue pending appeal

A federal appeals court has granted a request from a northern Virginia school system to continue using a challenged admissions policy at a highly selective high school while it appeals a ruling that found the policy discriminates against Asian American students.

A three-judge panel of the 4th U.S. Circuit Court of Appeals said in a ruling Thursday that Fairfax County Public Schools can continue to use its new admissions policy at Thomas Jefferson High School for Science and Technology.

PREVIOUS COVERAGE: Judge denies FCPS request to delay ruling against new admissions policies at Thomas Jefferson High School

U.S. District Judge Claude Hilton rejected the new policy in a February ruling, saying that impermissible "racial balancing" was at its core. Commonly known as "TJ," the prestigious school near the nation’s capital is often ranked as one of the best public high schools in the country.

Earlier this month, Hilton also rejected a request from the school system to delay the implementation of his ruling. But the 4th Circuit, in a 2-1 ruling, said the school board had met the legal requirements for a suspension of Hilton’s order while its appeal is pending.

The 4th Circuit panel agreed with school officials who argued that because the selection process for the incoming freshman class is well underway, implementing Hilton’s ruling now would throw the process into chaos.

Judge Toby Heytens wrote that he has "grave doubts" about Hilton’s conclusions "regarding both disparate impact and discriminatory purpose" of the new admissions policy.

"In my view, appellant Fairfax County School Board is likely to succeed in its appeal," Heytens wrote.

In a dissenting opinion, Judge Allison Jones Rushing said putting Hilton’s ruling on hold while the school board appeals his decision is not in the public interest. Jones said any logistical difficulties or inconvenience associated with changing the admissions policy at this late date "simply do not outweigh the infringement of constitutional rights."

"And everyone — even temporarily frustrated applicants and their families — ultimately benefits from a public-school admissions process not tainted by unconstitutional discrimination," Rushing wrote.

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The case has been closely watched as courts continue to evaluate the role that racial considerations can play when deciding who should be admitted to a particular school. Earlier this year, the U.S. Supreme Court agreed to hear a similar case alleging that Harvard University discriminates against Asian Americans in its admissions process.

Fairfax County Public Schools said the order from the 4th Circuit allows the school board to continue with the current application process to select the Class of 2026 this spring.

"For the 2,500+ students in this application pool, this means the race blind process set out by the School Board in October 2020 will remain in place as an appeal challenging the February court decision plays out," the board said in a news release.

The parents’ group Coalition for TJ, which filed the lawsuit, said the 4th Circuit judges have made a "grave error" in allowing the school system to continue to use its new admissions process.

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"If the judges’ decision stands, we would see Fairfax County Public Schools usher in a second class of students to America’s No. 1 public high school through an unconstitutional race-based admissions process," the coalition said in a statement.

For decades, Black and Hispanic students have been woefully underrepresented in the student body. After criticism over its lack of diversity, the school board scrapped a standardized test that had been at the heart of the admissions process and opted instead for a process that sets aside slots at each of the county’s middle schools. It also includes "experience factors" like socioeconomic background.

The parents’ group argued in its lawsuit that Asian Americans, who constituted more than 70% of the student body, were unfairly targeted in the new policy.

The school’s current freshman class, which was admitted under the new policy, saw a significantly different racial makeup. Black students increased from 1% to 7%; Hispanic representation increased from 3% to 11%. Asian American representation decreased from 73% to 54%.


The school system has insisted that its new policies are race neutral, and the panel evaluating applicants is not even aware of applicants’ race as it conducts its reviews.