Commentary: Coalition For TJ v. Fairfax County School Board

Via NCSD’s February 2022 newsletter.

As the Supreme Court prepares to consider challenges to the holistic affirmative action programs at Harvard and UNC, the Pacific Legal Foundation continues to wage an aggressive attack on school integration in the lower courts, including challenging efforts to promote racial diversity at selective high schools.

As described recently in the New York Times, the most well-known of these cases challenge admissions changes at the competitive Thomas Jefferson High School in Alexandria, VA. The case claims that non-race-based criteria (such as reducing reliance on test scores) intended to achieve greater racial diversity in the student body are subject to strict scrutiny under the 14th Amendment, because of a foreseeable reduction in the percentage of students in one or more racial/ethnic groups (in this case, Asian-American students).

Last week, a federal judge in the Eastern District of Virginia agreed with the plaintiffs, finding that the Fairfax County School Board acted with discriminatory intent in its efforts to increase the representation of Black and Latino students at Thomas Jefferson.

The decision is very troubling since the school district was following the Supreme Court’s 2007 majority opinion from the Parents Involved case in its efforts to increase racial diversity at the school (for example, allocating a significant number of seats to the highest-ranking students at each feeder middle school in the region and eliminating test scores as the deciding factor in awarding seats to the remaining applicants).


The recently-elected governor of Virginia has also supported proposed legislation that would potentially prevent VA school districts from using the measures specifically endorsed by Justice Kennedy in the Parents Involved decision (zoning, recruitment, school construction, etc.) if they can be shown to be pretextual for considerations of race. Read the bill here.


NCSD member organization NAACP LDF joined Asian Americans Advancing Justice (AAJC), LatinoJustice PRLDEF, the Virginia NAACP, Hamkae Center, Asian American LEAD (AALEAD), CASA Virginia, Hispanic Federation, and the TJ Alumni for Racial Justice to release a statement in reaction to the recent developments in the case (excerpt below):

“Contrary to binding precedent, today’s erroneous decision by the Court uses the Equal Protection clause to cement pre-existing inequalities and hinder school districts from removing unfair barriers to opportunity for many Black, Latinx, and underserved Asian American students in direct conflict with the very purpose of the Equal Protection Clause. Such measures are not anti-Asian, and, in fact, benefit Asian American students. Indeed, all students benefit from a system that promotes fair opportunities for all. The court’s decision will harm underprivileged students of color. It also essentially stymies school districts from addressing known problems of equal educational access with race-neutral efforts. As racial justice advocates, we will continue to support race-neutral policies that better ensure equal educational opportunities consistent with the Equal Protection Clause.”

We will be watching these developments closely.

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