Plaintiffs challenging race-based admissions at Thomas Jefferson High School and free-speech codes at Virginia Tech are seeking Supreme Court. intervention in pair of Virginia education lawsuits.
Coalition for TJ, a group of students, parents, staff, and alumni of the Alexandria-based Thomas Jefferson High School for Science and Technology, is asking the high court to review its anti-discrimination case against Fairfax County Public Schools.
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Coming off a win in the Harvard University and the University of North Carolina race-based admissions cases earlier this year, the group believes it can rectify lower court losses, including a May appeals decision from a three-judge panel in the 4th U.S. Circuit Court of Appeals.
“The Supreme Court made clear in Students for Fair Admission that the Constitution bans discrimination based on race, full stop," attorney Joshua Thompson of the Pacific Legal Foundation, which is representing the coalition, said. "TJ's admission overhaul tried to hide its discriminatory purpose behind a patina of race-neutrality. But the school's proxy discrimination clearly violated Chief Justice Roberts' warning against indirect discrimination.”
At issue in the case is TJ's admissions policy that PLF says harms Asian applicants, where a merit-based system was replaced by a lottery system. The goal of the change was to increase the proportion of black and Hispanic students at the prestigious public high school.
A Supreme Court ruling against the school district has the potential to reach beyond K-12 schools and into college admissions, as universities are changing their admissions policies in response to the Harvard and UNC decisions, which outlawed overtly race-based admissions.
The TJ case is less explicit, but PLF's Supreme Court filing says the high school's admissions scheme was "intentionally designed to achieve the same results as overt racial discrimination."
"Guarantees of [Students for Fair Admissions v. Harvard] might mean little if schools could accomplish the same discriminatory result through race-neutral proxies," the petition continues.
While the Coalition found success in a February 2022 decision at the district court level, the appeals court overturned the decision in May of this year.
Education advocacy groups are cheering the move to appeal to the high court.
"Fairfax County School Board members admitted that the admissions changes made in 2020 had an 'anti-Asian feel.' In February 2022, a Federal judge agreed, calling the changes 'discriminatory,'" Parents Defending Education Investigative Fellow Alex Nester told the Washington Examiner. "Eliminating merit was an easy way for Fairfax County to rig Thomas Jefferson's demographic data to appear more ‘equitable.'
"If Fairfax County Public Schools wants to see more diversity at Thomas Jefferson, the district should put in the work on the front end to prepare students for rigorous math and science programming at Thomas Jefferson — not lower the bar and claim victory," Nester added.
The Supreme Court already blocked an emergency petition from the Coalition in April of last year, but that was prior to its Harvard and UNC decisions. However, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch said they would have granted the request.
The second case seeking review at the Supreme Court is against Virginia Tech for its campus speech policies that advocates claim have a chilling effect and are an affront to the First Amendment.
The case was brought by the advocacy group Speech First in April 2021, challenging the school's bias reporting system policy which the group says threatens students and silences their abilities to speak without threat of disciplinary action.
The system was created for students to report each other for what they consider to be incidents of "bias," which, as Speech First maintains, is extremely broad and therefore dangerous to free speech. Those incidents are assessed by "bias response teams," which have the ability to enforce disciplinary action on the offending student.
"Overly broad or vague definitions of bias put all kinds of speech at risk of being reported- even unpopular speech which is protected by the First Amendment," the group's definition states. "Political speech and satire are particularly vulnerable because the system favors students who easily take offense."
“Hundreds of universities have bias response teams, chilling the speech of millions of college students," Speech First executive director Cherise Trump told the Washington Examiner. "We hope the Supreme Court agrees that this issue is deeply important and grants certiorari to resolve the split that this issue has created in the lower courts."
Speech First has also had defeats at the lower court levels, with both district and appeals courts deciding that the organization does not have standing to sue.
However, the organization is asking the high court to review the case in part because several judicial circuits have ruled in different ways on cases it describes as "materially indistinguishable" from the one in the 4th Circuit.
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“The circuits are split, three to two, on whether bias-response teams objectively chill speech,” the filing said. “The Fifth, Sixth, and Eleventh Circuits are on one side, while the Fourth and Seventh are on the other.”
Neither FCPS nor Virginia Tech responded to requests for comment from the Washington Examiner.