Virginia School Board Misleads Supreme Court To Defend Anti-Asian Admissions Plan

Fairfax Schools lawyer and former Obama administration official Donald Verrilli / Getty Images
April 20, 2022

A Virginia school board intentionally reduced the number of Asian students at its top high school. Now, its lawyers want to convince the Supreme Court otherwise.

A community group sued Fairfax County Public Schools in March 2021 to block a new admissions policy that reduced the number of Asian students admitted to Thomas Jefferson High School by 19 points. The plaintiffs obtained emails showing that district staff worked to racially engineer Thomas Jefferson's student body and texts between board members about anti-Asian bias. But the district's lawyers say they're lying.

"The plan did not disproportionately disadvantage Asian Americans in the application process. It gave them an equal opportunity to succeed—which they did," the board's brief reads. "Asian-American students were by far the largest racial group among the students offered admission; their share of offers exceeded their share of the applicant pool."

Asian representation at top schools is fast becoming a marquee issue in the courts. Later this year, the Supreme Court will hear arguments in a lawsuit alleging Harvard's admission practices are biased against Asian applicants. The lawsuit alleges that Asian students suffer from a "model minority" bias when admissions officers assign "personal ratings" to each applicant.

Like most magnet schools, Thomas Jefferson once admitted top students based on a combination of grades, standardized test scores, and teacher recommendations. But in the fall of 2020, the school board revised its admissions policies to guarantee each middle school 1.5 percent of the seats in each admitted class. Another 100 students would be admitted under a holistic review that includes "experience bonuses" that promote diversity.

Fairfax County Schools' legal team says the school board "never conducted any analysis 'to predict how the 1.5% plan would affect the racial makeup of students admitted to TJ.'" Led by Obama Justice Department bigwig Don Verrilli, the team contends that Asian students still punch above their weight in admissions under the new plan.

But the new plan particularly affected the six Fairfax County middle schools that send the most Asian students to Jefferson each year. Asian students from those schools received 204 offers under the old policy, but just 108 under the new policy. All told, the share of Asian students admitted to Thomas Jefferson fell by 19 points in the first cycle after the new system took effect.

It was precisely this outcome that Coalition for TJ, a group of parents, students, and community members, wanted to avoid. They sued in March 2021 to block the revised admissions policy.

A federal judge in Alexandria, Va., sided with the coalition. But the Fourth U.S. Circuit Court of Appeals reinstated the new policy for the time being, citing the need for an orderly admissions process. The coalition on April 8 filed an emergency appeal at the High Court.

Through the lawsuit, Coalition for TJ obtained texts in which Fairfax County School Board members expressed concern about racial bias on the part of Fairfax County Schools superintendent Scott Brabrand. Brabrand allegedly said Asian parents who enroll their kids in test prep are practicing "pay to play."

"I told him to stop it and never talk about 'pay to play, etc.,'" Abrar Omeish texted fellow board member Stella Pekarsky, referencing Brabrand. "It's very demeaning. And it's a cultural issue."

The board's brief counters that the texts demonstrate the board's good motives, given that two members chafed at Brabrand's obtuse statements.  And it flatly denies that the new policy amounts to racial balancing.

"It sets no racial quotas, goals, or targets. And it is administered in a race-blind manner," Verrilli's team wrote. "Board regulations forbid consideration of race in admissions decisions, and all applications are anonymized so evaluators do not know the race of any individual applicant."

But the board candidly stated that its goal is to balance Jefferson's student population with regional demographics and during an October 2020 work session passed a directive stating as much. That meant admitting more black, Hispanic, and white students, and fewer Asians.

"The Plan shall state that the goal is to have TJ's demographics represent the [Northern Virginia] region," the board directed according to meeting minutes.

To that end, the new policy's "experiential bonuses'' were crafted to achieve racial balance. Over email throughout the fall of 2020, Thomas Jefferson admissions director Jeremy Shughart and district research chief Lidi Hruda fine-tuned the plan to maximize preferred minority admits.

"Could you look specifically at the table for 'Experience Factors' and provide us a review of our current weighting and whether or not this would be enough to level the playing field for our historically underrepresented groups," Shughart wrote in one email to Hruda.

"My gut says that you may need to double all the points (and the total) so that applicants can receive up to 200 points overall for these experience factors," Hruda replied.

The messages plainly indicate the board's efforts to ensure the experience bonuses are effective at increasing preferred minority enrollment. The board's stated goal was to diversify the student body at Jefferson—not just the applicant pool—and the very existence of the emails shows their work was not merely aspirational.

The board's brief accused the plaintiffs of misrepresenting the Shughart-Hruda emails.

"In the very testimony that the [plaintiff] misleadingly highlights, TJ's admissions director emphasized that the Experience Factors were intended to 'level the playing field' for all historically underrepresented groups," the brief says.

A decision on the coalition's emergency appeal could come at any time.