“There is no evidence of any animus against Asian Americans,” said Don Verrilli, a former U.S. solicitor general representing the school district.

In the wake of the pandemic and George Floyd’s murder in 2020, the district amended the admission criteria for Thomas Jefferson High School for Science and Technology — T.J., for short — to increase equity and build a student body better reflected the diversity of northern Virginia. The district removed a rigorous admissions test and a $100 application fee, and reserved seats at T.J. for the top 1.5% of 8th graders in each middle school. 

As a result, the makeup of the Asian student population declined from 73% to 54% last year, a drop that amounted to what plaintiffs, Coalition for T.J., called illegal “racial balancing.”

But Verrilli told a three-judge panel for the 4th Circuit Court of Appeals that the policy “benefited all races.” In fact, the number of low-income Asian students admitted last year — the first year the policy was implemented — increased from one to 51, Verrilli said.

The coalition’s only evidence, he said, is an “expression by the board that it [wanted] to increase opportunities for African American and Latino students.”

As school districts nationally seek to increase educational opportunities for historically underrepresented minorities, they’ve faced pushback from those who say they discriminate against Asians and rely on racial stereotypes that portray them as high achievers. A similar debate in higher education challenging race-conscious admission policies at Harvard University and the University of North Carolina will take place next month before a conservative U.S. Supreme Court.

Since 2007, the court has given K-12 districts less leeway to consider race in admissions to special programs or schools. But Erin Wilcox, an attorney with the Pacific Legal Foundation, a libertarian firm representing Coalition for T.J., said the board members’ stated intent was enough to qualify as “racial balancing.” 

She described admissions for a competitive school like T.J as a zero-sum game that “disproportionately burdens” one group of students because of their race. 

Even though the board adopted a resolution calling its policy race-neutral, board members, she argued, made statements in text messages suggesting “Asian American students were in the way. They needed to clear out room to increase the numbers of black and Hispanic students.”

Court documents showed that Board Member Abrar Omeish told Board Member Stella Pekarsky in a text that the had an “anti asian [sic] feel.” She added “lol.”

In March, U.S. District Judge Claude Hilton sided with Coalition for T.J. and The plaintiffs and want the three-judge panel to uphold Hilton’s decision, while the school district, and the want the appellate court to overturn the district court.

“It’s safe to say the country’s split on the issue,” said Andrew Ferguson, solicitor general for Virginia, one of the 15 states that filed a brief supporting the plaintiffs.

‘Contrary to Supreme Court precedent’

Stefan Lallinger, a senior fellow at The Century Foundation, who teaches about desegregation at American University, said it’s a mistake to consider the T.J. case a K-12 version of the Harvard and North Carolina cases. 

The Supreme Court has allowed colleges and universities to consider race on a narrow basis. But the precedent in K-12 hinges on a in a case against the Seattle Public Schools and the Jefferson County Public Schools in Kentucky. In that case, the court said school districts couldn’t explicitly use race in their efforts to create more diverse schools. 

But in a separate opinion, Justice Anthony Kennedy wrote that districts still had a “compelling interest” to seek racial integration. Since then, districts have largely moved toward based on students’ socioeconomic status.

In arguing that Fairfax’s policy is discriminatory, Hilton and the Coalition for T.J. are “essentially asking the court to make a decision that is contrary to a Supreme Court precedent that has been upheld many times,” Lallinger said. 

While he thinks the Fairfax district will prevail at the appellate level, he said the plaintiffs are making a “play to a Supreme Court that is a radical Supreme Court.” 

In addition to the Fairfax County case, Pacific Legal also represents plaintiffs in similar federal cases involving three other school districts — New York, Boston and Montgomery County, Maryland.

In each district, the application process for specialized schools was changed to “deemphasize or just completely eliminate” an objective test for admission in order to achieve racial balancing, said Wen Fa, a senior attorney at the firm. He said those districts also lack test prep and mentorship opportunities that would help students improve their chances of earning a spot in those schools.

Strategies that districts have adopted in the wake of the Seattle case are “covert forms of discrimination,” he said. “The Constitution requires the government to treat individuals as individuals and not on the basis of their membership in any racial group.”

In , 10 of the 16 judges on the U.S. Court of Appeals for the 4th Circuit ruled that Charter Day School in Leland, North Carolina — just like any other public school — was acting on behalf of the state when it adopted a dress code requiring girls to wear skirts, and, therefore, violated their constitutional rights. 

The school’s board in Peltier v. Charter Day School Inc., maintained that because it’s a nonprofit organization, it should have flexibility over its educational approach, which includes strict expectations on student behavior and appearance.

“Were we to adopt [Charter Day School’s] position, North Carolina could outsource its educational obligation to charter school operators, and later ignore blatant, unconstitutional discrimination committed by those schools,” wrote Judge Barbara Milano Keenan, an Obama appointee. “We need look no further than the shameful history of state-sponsored racial discrimination in this country to reject an application of the Equal Protection Clause that would allow North Carolina to abdicate its duty to treat public schoolchildren equally.”

The case is the first time a federal appeals court has considered whether charter school students deserve the same constitutional rights as their peers in traditional schools. The American Civil Liberties Union sued the school on behalf of three families who argued the skirt rule was discriminatory. But the school’s argument threw the status of charters into question. Charter advocates and authorizers argued that their existence as public schools was never a matter of debate, while some school choice supporters suggested they operate more like private schools and could even be run by religious organizations.

Derek Black, a law professor at the University of South Carolina, said the ruling should come as no surprise because states created charters to be part of the public education system. 

“The court held that the Constitution applies to schools that operate under the state’s name and with the public’s money,” he said. “Yet, this obvious point has escaped several other courts. Hopefully, this case will go a long way in setting an example for others.”

In a joint statement, Nina Rees, president and CEO of the National Alliance for Public Charter Schools — which filed a brief in support of the plaintiffs — and Rhonda Dillingham, executive director of the North Carolina Association for Public Charter Schools, said the ruling gives charter schools clarity over their status and obligations to protect students’ civil rights.

“The North Carolina charter statute not only compels this outcome but the statute mirrors the substantive provisions in charter statutes around the country,” they said, adding that the “decision crosses state lines — inside and beyond the 4th Circuit.” 

Judge Keenan wrote that charter schools are not merely alternative models like private schools or homeschooling, and putting them in the same category “ignores both the ‘free, universal’ nature of this education and the statutory framework chosen by North Carolina in establishing this type of public school.”

But in the minority’s dissent, Judge A. Marvin Quattlebaum Jr., a Trump appointee, said the majority “breaks new ground” and ignores Supreme Court precedent. 

Quattlebaum’s earlier opinion — which the new ruling overturns — leaned on a 1982 case, , in which the Supreme Court ruled that a private school receiving state funds for educating “maladjusted” high school students was not acting under the “color of state law” when it fired a counselor and five teachers. 

The implications of Tuesday’s opinion go far beyond whether a charter school can require girls to wear skirts, he wrote in his dissent Tuesday.

“The majority significantly broadens the scope of what it means for the actions of a private party to be attributed to the state,” he wrote.

Aaron Streett, an attorney representing the nonprofit organization that founded the school and its board members, said the decision restricts parents’ ability to choose the kind of education they want for their children.

“[Charter Day School] will continue to provide an excellent education to its students,” he said, “even as it evaluates the next steps in challenging this mistaken and harmful ruling.”