On the May 2 episode of the Bloomberg Law Podcast, Bass, Berry & Sims attorney Audrey Anderson spoke with host June Grasso about a recent U.S. Supreme Court ruling denying a request to vacate the stay of an injunction, allowing a Northern Virginia public school to move forward with an admissions policy intended to add more racial and socioeconomic diversity to its student body.

In an 6-3 split on April 25, the Supreme Court denied relief to plaintiffs challenging the year-old admissions policy of the selective Thomas Jefferson High School for Science and Technology.  This policy uses race neutral means, based on the middle school attended by the student, to promote greater diversity in the students admitted to the school. The school board was sued by Coalition for TJ, supported by the Pacific Legal Foundation, alleging the new admissions policy discriminated against Asian-American students in violation of the equal protection clause of the Constitution. The district court agreed, and enjoined use of the new plan, but the court of appeals stayed the injunction while it considers the school board’s appeal, emphasizing the disruption to the school at having to develop a different admissions plan so late in the admissions cycle.

In describing the race neutral approach to promoting diversity, Audrey explained that “when the applicants are being considered, there is no indication of their name, their gender or their race on the application.” Students are given an application number to identify them, and a certain percentage of students are chosen from each middle school within the area that the high school covers, which is also race neutral. The new admissions plan also eliminates the use of standardized tests which had previously been a large factor in admitting students to the school, relying more on GPA and rigor of courses taken in middle school.

“The reason the lower court found that the race neutral admissions program violated the Constitution was because the court found that, compared to the admissions program they had before, their new admissions program had a disparate impact on Asian-American students,” Audrey explained. “And the district court found that the school board’s whole process was ‘infected’ with ‘racial balancing,’ which the district court found is unconstitutional.”

In appealing the matter, the school board argued that the district court was wrong about the facts presented, stating that they show that there was no intent to harm any particular racial group. The school board argued it was trying to gain a more diverse student body in the school “measured by geography, measured by English language-learner status, measured by socioeconomic background and measured by race,” Audrey said. While the records clearly show the school was paying attention to race and how to promote greater racial diversity, the school board successfully argued that those records do not show the school board had any intent to harm any racial group or had an adverse impact on any racial group.

The timing of the case is compelling as the Supreme Court prepares to hear challenges to race-conscious admissions programs for higher education institutions in the next term, although Audrey explained that the Supreme Court has already staked out that the issue is different at K-12 schools compared to schools of higher education. “So where the Court has clearly held in the precedent that’s being challenged in the upcoming term – that colleges and universities do have a compelling interest in a diverse enrollment and may use race-conscious measures to forward those means as long as they’re narrowly tailored – there’s not really a holding from the Supreme Court for K-12 institutions in the same way.”

For Audrey’s full interview, you may stream and download the episode here.