The Supreme Court has said that racial discrimination has no place in public school admissions. But when schools use policies that appear race-neutral, lower courts have sometimes allowed them to stand unless the impact on a particular racial group is especially severe.
On Oct. 19, the justices agreed to hear a challenge from parents in Montgomery County, Maryland. They argue that the county’s admissions system was designed to reduce Asian American enrollment at its magnet middle schools. The case raises a basic question: Are students’ constitutional rights protected individually, or can those rights depend on how other members of their racial group are doing?
The Supreme Court could use the case to overturn a Fourth Circuit Court of Appeals precedent that Justice Samuel Alito has called “flagrantly wrong” and a “virus” that could spread if left in place.
Montgomery County, a Washington, D.C., suburb that is home to at least 10 federal agencies, has one of the country’s largest school systems. Four of its middle schools are magnet programs for gifted students.
In 2015, the school system hired consultants to review the racial makeup of its gifted programs. Asian American students then accounted for nearly half the enrollment at the four magnet schools, where admissions were based on grades, a cognitive abilities test and teacher recommendations.
The consultants found what they described as “significant racial and socioeconomic disparities.” Black and Hispanic students were underrepresented compared with their share of the county’s student population. They recommended changing the selection process, including by adding “non-cognitive criteria” and “group-specific norms.”
The school board adopted a new approach. One member said the goal was not only to offer opportunity through a neutral process, but also to put controls in place so admissions would reflect the local community. “Privilege,” he said, “is not going to go away.”
The county now uses a lottery, but students must first qualify. They need to score at or above the 85th percentile on a Measures of Academic Progress test. Those percentiles are adjusted locally, meaning students are compared with peers in a particular cluster of schools.
As a result, students in some clusters, where Asian American enrollment is high, must score at the 93rd districtwide percentile to qualify for the lottery. At other schools, a score at the 60th percentile is enough.
The parents say the system was designed to change the schools’ racial makeup. Since 2016, Asian American enrollment has fallen substantially. At one school, it dropped from 58.2% to 30.3%. The parents sued, with Pacific Legal Foundation representing them.
The Fourth Circuit declined to let the case proceed to trial. It reasoned that Asian American enrollment had not fallen below the group’s share of applicants, and therefore the parents’ claims did not warrant judicial review.
In effect, the parents argue, the policy may disadvantage Asian American students because of their race, but the courts have treated the impact as insufficient because Asian American applicants continue to perform well as a group.
That approach, the parents contend, mistakes equality for a statistical calculation. The Constitution protects individuals, not racial groups as a whole, they argue, and a child’s rights should not hinge on the performance of other children who share their race.
In 2024, Pacific Legal Foundation brought a similar challenge over admissions at Thomas Jefferson High School for Science and Technology in Virginia. The Fourth Circuit also rejected the parents’ effort to pursue a discrimination claim in that case.
The Supreme Court declined to hear that challenge, but Alito, joined by Justice Clarence Thomas, dissented. He warned that the court would eventually have to address what he called the Fourth Circuit’s “dangerous” reasoning.
“What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe,” Alito wrote. “This reasoning is indefensible, and it cries out for correction.”
The justices will have another opportunity to consider that argument in AFEF v. Montgomery County.
