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On Oct. 19, the Supreme Court granted certiorari in Association for Education Fairness v. Montgomery County Board of Education. The case is one of several in recent years dealing with magnet school admissions policies. While prior cases addressed the constitutional permissibility of changes to selection criteria at some of the nation’s most sought after public high schools like the Thomas Jefferson High School in northern Virginia and Stuyvesant High School and Bronx High School of Science in New York City, this case addresses whether changes to selection criteria for middle school magnet programs in Montgomery County, Maryland violates the equal protection clause of the 14th Amendment.
In all of these cases, including this one, the policies at issue are facially neutral, meaning that a student’s race is not considered in the admissions process. As a result, the Supreme Court’s decision in Students for Fair Admissions v. Harvard is not directly relevant. In that case, the court held that using race as an explicit factor in the admissions process was unconstitutional.
At issue in this case is a change from one facially neutral admissions policy to another. During the pandemic, the school adopted the so-called “Pandemic Plan.” Under the Pandemic Plan, all students are considered for admission to magnet schools if they meet minimum grade requirements and if their locally compared state assessment scores exceed a cut-off. Admission is then determined by a lottery from among those students who meet these requirements. Because schools in the region differ in their racial composition, basing admissions decisions on how well students score relative to other students in their same school ultimately affects the demographic composition of admitted students. AFEF claims that the Pandemic Plan violates equal protection because Montgomery County adopted it in order to change the racial demographics of the magnet schools and the plan had the effect of decreasing the share of Asian-American and white students.
According to the approach used by all of the courts evaluating magnet school admission practices, these facially neutral policies only violate equal protection if they are adopted for an impermissible reason (the intent element) and produce a discriminatory effect (the effect element). In AFEF v. Montgomery County, the district court found that the plaintiff had not alleged facts sufficient to satisfy either prong and so the school board’s motion to dismiss was granted. The U.S. Court of Appeals for the 4th Circuit affirmed on the grounds that the district court properly evaluated whether there was a discriminatory effect.
When and why facially neutral policies violate equal protection is a hotly contested issue. Consider first the intent element. While all agree that the intention to exclude members of a particular racial group is invidious, there is disagreement about whether the intent to increase racial diversity is also impermissible. The Supreme Court has not yet directly ruled on this important issue and will not do so in this case. The cert grant in AFEF v. Montgomery County focuses only on the second element: the discriminatory effect. In particular, the Supreme Court limited its grant of AFEF’s petition to the following question: “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.”
This framing of the question roughly tracks the debate in the circuits between two different ways of showing discriminatory effect. In order to illustrate, let’s set aside the intent prong and assume it has been satisfied, either because the policy was actually adopted in order to reduce the percentage of Asian or white students in the magnet schools (though this fact is in dispute) or because the intention to increase the racial diversity of the schools is an impermissible intention (though this legal claim is contested). According to the 4th Circuit in Coalition for TJ v. Fairfax County and the U.S. Court of Appeals for the 1st Circuit in Boston Parent Coalition for Academic Excellence Corp. v. School Committee for the City of Boston, the effect element would be satisfied if a lower percentage of Asian or white students are admitted than applied. For example, if Asian students represent 30% of the applicant pool but only 20% of the admitted class, this would constitute a discriminatory effect. However, if 40% of the admitted class are Asian, then no discriminatory effect would be found because Asian students would in this case constitute a higher percentage of the admitted class than their 30% share in the applicant pool. In AFEF v. Montgomery County, both the district court and the 4th Circuit followed this approach.
By contrast, the U.S. Court of Appeals for the 3rd Circuit in Sargent v. School District of Philadelphia, the dissenting judge in Coalition for TJ, and Justice Samuel Alito in his dissent from the denial of cert. in that case, assess discriminatory effect differently. Rather than compare the percentage of admitted students of the race alleged to be intentionally excluded to their percentage in the wider applicant pool, these jurists look to see if there has been a decrease in the percentage of admitted students of this race under the new policy as compared to the prior policy. When a meaningful decrease is present, this constitutes a discriminatory effect. For example, if 50% of the admitted class were Asian under the prior policy and 40% are Asian under the new policy, this would constitute a discriminatory effect. And this would be so even if Asian students are still “overrepresented” in the sense that the percentage admitted is higher than their percentage of the applicant pool (30% in this example). In an article evaluating each of these approaches, we call this second approach the “Before-After Comparison” or “BAC,” and we call the first approach the “Population Comparison” or “PC.”
Yet both the PC and the BAC, as means of assessing discriminatory effect, have significant flaws. Let’s begin with the PC – the test used by the 4th and 1st Circuits. Recall that because the doctrine requires both impermissible intent and a discriminatory effect, it requires something more than just the fact that a policy is chosen for an invidious reason. The PC would effectively allow deliberate attempts to exclude Asians so long as they do well enough overall and do not fall below their share of the applicant pool. That seems problematic.
Next consider the BAC, the test adopted by the 3rd Circuit, on which the discriminatory effect prong is satisfied only if the percentage of Asian students declines under the new policy. This test puts a strong thumb on the scale in favor of existing policies, whatever their merits, since sticking with the same policy is unlikely to result in major changes in the demographics of who is admitted. Thus a decision to keep things the same will evade scrutiny. And this is so even when maintaining a policy is done for uncontroversially bad reasons (say, because the existing policy is known to admit fewer Asian students, for example). In addition, the test is oversensitive to any changes in policy, since such changes are likely to lead to demographic shifts among the admitted students and thereby trigger a decrease for some group. While it is true that there will only be an equal protection violation if the school board at issue intended this decrease, it remains the case that any change at all is risky because the effect element will likely always be satisfied for some group. For both these reasons, the BAC privileges the status quo and makes change difficult by making the status quo policy the normative baseline.
The use of the term “aggregate” in the question on which certiorari was granted suggests that the court might think that the PC approach is flawed because it looks at how groups are treated rather than at how individuals are treated. And indeed it does. In AFEF v. Montgomery County, the discriminatory effect element would be satisfied (using the PC) if the percentage of Asian and white students admitted was lower than the percentage of these groups among the fifth-grade students in the county. But the BAC is no different in this respect. It too looks at how a racial group fares under the Pandemic Plan. The BAC would find discriminatory effect if the percentage of Asian students admitted under the Pandemic Plan is less than the percentage admitted under the approach that preceded it. In other words, both tests for discriminatory effect focus on how the racial groups who are alleged to be the target of the invidious intentions fare as groups.
Can either of these tests be reframed in ways that focus on how an individual is treated, rather than how members of her racial group are treated? After all, equal protection doctrine has long emphasized that the clause protects individuals rather than groups. Unfortunately, this is not easy to do. If a school uses race to decide which students to admit, it makes sense to say that a student’s race played a role in how she was treated. Facially neutral policies are different, however. Consider a simple and familiar facially neutral policy. Suppose a school board decides to admit the top 2% of each middle school to its coveted magnet high school. Suppose also that it does so, at least in part, to increase the racial diversity of the magnet school. Because there are more black and Latino students in some middle schools and more Asian and white students in others, this policy then produces a magnet school class that has a significant number of students of all races, let us suppose. Now consider an Asian student who is denied admissions because she is not in the top 2% of her middle school class. Has she been denied admission “because of her race?”
One answer to this question could be simply “no.” Any student rejected by the admissions policy suffers a harm. It is this harm that gives the student standing to sue. But this rejection is not based on the student’s race when the school’s admissions policy is facially neutral. If this is correct (and if aggregate tests are out), then the court’s only option is to jettison the effect prong of the claim altogether. Were the court to take this route, facially neutral laws or policies would violate equal protection solely on the grounds that they were adopted with invidious intent.
The U.S. Court of Appeal for the 2nd Circuit attempts a different approach. It uses the BAC to explain how individual students have suffered a discriminatory effect under a facially neutral policy. In Chinese American Citizens Alliance of Greater New York v. Adams, the percentage of Asian students admitted under the challenged admissions policy remained higher than their percentage in the applicant pool (thus failing to satisfy the PC in its aggregate form) and also did not decrease as compared to the prior admissions policy (thus failing to satisfy the BAC in its aggregate form). Yet the 2nd Circuit held that the effect element “can be satisfied by proof of an adverse harm to one or more individuals based on their race that has resulted from that discriminatory law or policy” (emphasis added). But the crucial question remains: in what way were the rejected Asian students rejected “because of their race” when race did not affect these decisions since the policy is facially neutral? The 2nd Circuit answers that question by referring to the fact that these students were “qualified for admission on an individual basis under the previous criteria" (emphasis added). In other words, in the view of the 2nd Circuit, if a new policy is adopted to exclude Asian students, then those Asian students who would have been admitted under the previous policy are denied admission because of their race.
This approach can be understood as an attempt to make the BAC individualized: the court here is determining whether a student’s rejection constitutes a distinctively discriminatory harm by drawing a comparison with how she would have fared under the previous policy. If this approach works (which we are agnostic about) for the BAC, a similar approach can be tailored for the PC as well. Here is how that would go. If a facially neutral policy was adopted in order to exclude Asian students and that policy is one under which Asian students are admitted at lower rates than students of other races, then each Asian student subject to that policy is subject to a policy that makes it harder for them to be admitted than it is for students of other races. On this view, each Asian student denied admission using this policy is then denied admission based on their race.
Thus, both tests can be articulated such that they capture a way that individual students are rejected based on their race. For this reason, the court should not choose one approach over the other on the grounds that one frames the injury in individual terms and the other looks at how groups are treated.
This leaves the court with two options. First, as mentioned earlier, it could jettison the effect prong of the claim entirely and conclude that bad intentions alone render a facially neutral admissions policy impermissible. Doing so would put more pressure on the importance of answering the question of what intentions are invidious and, in particular, whether the intent to increase racial diversity is itself unconstitutional. Alternatively, the court must confront the question of discriminatory harm head-on and assess whether the BAC or PC provides the better account of it.
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[ H/T SCOTUSblog ]
