Justice Alito’s Furious Dissent in a New Admissions Case Is a Good Sign for Student Body Diversity

In June, when the Supreme Court struck down racial preference admissions policies at Harvard University and the University of North Carolina, the justices seemed to leave elite colleges with two paths forward for continuing to promote racial diversity in new ways. Colleges could use what lawyers refer to as “race-neutral alternatives,” such as giving an admissions boost to socioeconomically disadvantaged students or admitting top students from every high school across a state. And universities were permitted, in a very limited way, to consider personal essays students wrote about how race affects their lives.

I’ve long been a champion of affirmative action based on economic disadvantage and a proponent of percentage plans as a fairer way of promoting racial diversity than racial preferences, which tend to benefit the most economically advantaged Black and Hispanic students. Although I’m progressive, I participated as an expert witness for the plaintiffs in the Harvard and UNC cases, testifying that that race-neutral strategies could produce the benefits of racial diversity while avoiding the downsides of racial preferences. Conservative justices had for decades pointed to preferences for economically disadvantaged students and percentage plans as a better way to achieve racial diversity, so these paths seemed to provide a legally sustainable approach in the long run.

Some of my progressive friends warned, however, that if racial preferences were struck down, the right wing would come after race-neutral strategies next. Sure enough, even before the justices ruled in the Harvard and UNC cases, some on the far right began an effort to challenge plans to race-neutral strategies, claiming that they constituted “proxy discrimination.” One target was Thomas Jefferson High School, known as “TJ,” a highly sought-after magnet school in Fairfax County Virginia, where officials sought to create racial and economic diversity in the student body—without using racial preferences—by admitting students from the top 1.5 percent of each of the area’s middle schools and giving an admissions boost to socioeconomically disadvantaged students. The Pacific Legal Foundation sued and, surprisingly, won in federal district court.

On appeal, the U.S. Court of Appeals for the 4th Circuit sided with TJ. One of the judges noted that after years of lauding race-neutral alternatives to racial preferences, it would constitute a “judicial bait-and-switch” for judges to now question the very approach they’d championed. But when the plaintiffs appealed the TJ case to the Supreme Court, some very thoughtful observers believed that the justices might take the case and strike down race-neutral plans. Adam Liptak at the New York Times wrote, “It is a decent bet that the Supreme Court will agree to hear an appeal” in the TJ case. Harvard Law professor Randall Kennedy wrote that it was “naïve” to believe that the courts would allow race-neutral strategies designed to promote diversity to survive.

I was therefore delighted that on Tuesday, the Supreme Court announced that it was declining to hear the TJ case and would let stand the 4th Circuit decision’s approval of race-neutral strategies. The move was not a ruling on the merits of the case, so it’s too early to break out the Champagne, but the furious 10-page dissent of two justices—Samuel Alito and Clarence Thomas—suggested that something important had just happened. Moreover, the fact that none of the other four conservatives—Chief Justice John Roberts, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett—joined Alito’s dissent may mean that the Supreme Court will ultimately land where the American public stands: in support of racial diversity, but in opposition to using racial preferences to get there.

TJ’s race-neutral strategies were motivated by a lack of diversity in its student population. TJ draws primarily from Fairfax County, whose public schools are 37 percent white, 27 percent Hispanic, 20 percent Asian, and 10 percent Black. During the 2020–21 school year, though, TJ’s student body was 72 percent Asian, 18 percent white, 3 percent Hispanic, and 2 percent Black. Low-income students constituted 30 percent of high school students in Fairfax County, but just 2 percent of TJ students came from low-income families. The Asian American students at TJ tended to come “from a handful of affluent neighborhoods.”

In order to boost the share of underrepresented minority and low-income students, TJ adopted its percentage plan for middle schools, modeled after George W. Bush’s “top 10 percent” plan at the University of Texas at Austin, and a socioeconomic boost to diversity of the type used by many universities. The plan worked to produce higher levels of socioeconomic and racial diversity. The Black student population rose to 7 percent, the Hispanic population to 11 percent, and the white population to 22 percent, while the Asian student population declined to 54 percent. The proportion of low-income students rose from 2 percent to 25 percent.

Although race was never used in the process, Alito faulted the plan for having what he called a “discriminatory purpose.” This was quite a shift for him. As recently as 2016, Alito had been a champion of Bush’s top 10 percent plan, which was designed, in part, to promote racial diversity. In Fisher v. University of Texas, Alito touted this strategy for achieving racial diversity “without injecting race into the process.”

In his dissent in the TJ case, Alito tried to strike a populist pose, pointing to the drop in Asian representation and suggesting that “Asian-American students, many of whom are immigrants or the children of immigrants, have often seen admissions to TJ as a ticket to the American Dream.” But the share of low-income Asian students who benefited from the new admissions system actually jumped significantly.

More broadly, that race-neutral plans were tainted as racially discriminatory if even part of the motive was to boost racial diversity was a concept that had never before been endorsed by the Supreme Court. The logic was astonishing. If a university decided to end legacy preferences in part because doing so would increase racial diversity, as professor Jonathan Feingold of Boston University law school has asked, would that move itself be illegal?

The Pacific Legal Foundation is not giving up. It has also sued Boston exam schools for using race-neutral strategies to promote diversity and says that it will be appealing to the Supreme Court an unfavorable decision by the U.S. Court of Appeals for the 1st Circuit. But my guess is that in enforcing Students for Fair Admissions v. Harvard, the justices are much more likely to be interested in stamping out efforts by universities to evade their ruling by actually using race in admissions, rather than in going after authentic race-neutral strategies. In theory, some universities might simply defy the Supreme Court, as Richard Rothstein has suggested. But I think it’s more likely that universities will try to stretch the use of statements about race in the personal essay in ways the Supreme Court clearly did not intend.

We will know more after universities release their racial and socioeconomic data this spring, but if some are able to achieve racial diversity without adopting race-neutral alternatives, that may suggest they are engaging in covert racial preferences. As I note in an article in the Journal of College and University Law, maintaining racial diversity without altering the economic composition of the student body could put a litigation target on the back on an institution. If my thinking is right, then announcing new race-neutral alternatives like TJ’s may actually be a shield against litigation.

Although preliminary, the Supreme Court’s action on Tuesday was a very positive sign for supporters of racial diversity and represented an important victory for poor and working-class students of all races.