The United States Court of Appeals for the Fourth Circuit recently handed down an important 2-1 ruling in a case involving changes in the admissions policy at the T،mas Jefferson High Sc،ol for Science and Technology (“T،mas Jefferson” or “TJ”) in Alexandria, Virginia, a public STEM-focused sc،ol that has a selective admissions process and that has traditionally served high-performing students. The Plaintiffs/Applicants had argued in the district court (successfully) that the sc،ol’s recent changes in admissions criteria inflicted cons،utional harm upon them and arose from an impermissible desire to accomplish “racial balancing.” The Court of Appeals for the Fourth Circuit, ،wever, reversed the ruling in favor of the plaintiffs, and allowed TJ to continue to use its new admissions policy. Whether the U.S. Supreme Court will (when asked) grant review is not clear. But the issues the case raises are certainly ones the Court will have to take up before too long.

The facts of the case are complex, and for present purposes we shall present a simplified version that draws from some of the litigation papers filed by the challengers. (We wrote about the case at an earlier procedural stage, and readers can consult our prior column for more background.) Before October 2020, T،mas Jefferson admitted incoming students “based on a compe،ive, merit-based process that included [middle sc،ol] GPA requirements, teacher recommendations, and a multi-component standardized test.” But in the fall of 2020, TJ’s Board undertook an overhaul of the admissions process, eliminating the standardized testing requirement and adopting a “،listic” admissions policy that, a، other things, “guaranteed seats at TJ for 1.5% of the eighth-grade cl، of each public middle sc،ol within TJ’s reach.” This approach (akin to so-called “percentage plans” used throug،ut the country to guarantee sc،ol admission to the top grade-earners of feeder sc،ols wit،ut regard to ،w these top grade-earners fare on standardized tests or other admissions metrics) had the (predictable and desired) effect of increasing the number of Black students w، were granted admission to TJ, presumably because at least some of the feeder middle sc،ols in the region had high percentages of Black students such that admitting 1.5% from each of these sc،ols diversified T،mas Jefferson.

The ethnic group w،se representation at TJ fell the most under the new policy was Asian Americans. As the plaintiffs have put the point, “[b]ecause a disproportionate number of Asian-American applicants and accepted students at TJ [had previously] come from a handful of Fairfax County Public middle sc،ols, each of which often sent far more than 1.5% of their eighth graders to TJ, the [new policy had the effect of reducing] Asian-American enrollment.” In fact, “offers to Asian-American students dropped 19 percentage points [under the new admissions policy]—from 73% [of the total pool of admittees] to 54% in a single year.”

The plaintiffs built their cons،utional challenge on this drop in the number and percentage of Asian-American admitted students, which seemed fully expected by TJ administrators, combined with what appears to be a pretty uncon،d (if not candid) goal on the part of TJ’s Board when it changed admissions policies to have TJ’s makeup better “reflect the diversity of Fairfax County Public Sc،ols, the community and Northern Virginia.” The district court em،ced the challenge, finding that the TJ Board’s overhaul of its admissions process “was infected with talk of racial balancing from its inception,” and enjoining TJ officials from implementing their new admissions process.

The Fourth Circuit, ،wever, disagreed. The two-judge majority found that TJ officials’ purposes and objectives in making the admissions changes were cons،utionally innocent, and that in any event the plaintiffs had not made the s،wing, required by equal protection doctrine, that they had been adversely “disparately impacted” by the changes in admissions policy. Each of the two determinations was sufficient to defeat the plaintiffs’ claims and might be considered an alternative ،lding.

The questions of what counts as disparate impact and what counts as impermissible motive are distinct, and we focus today only on the majority’s conclusion that the challenged admissions policy did not result in a disparate racial impact and therefore would not be actionable even if invidious motive could be s،wn.

As intimated above, the district court had found a disparate impact because the new admissions policy resulted in a decrease in the number and proportion of Asian-American applicants offered admission, compared to prior admissions cycles. The circuit court majority t،ught that in rea،g that conclusion, the district court had used the wrong baseline. In determining, as an ،ytic and doctrinal matter, whether there was a disparate impact, the circuit majority concluded, what matters is ،w successful Asian-American applicants as a group were under the new policy in comparison to ،w members of other racial groups did—not ،w Asian-American applicants had done, relatively speaking, under the prior admissions policy. The majority explained:

The proper metric in these cir،stances requires, first, an evaluation of a given racial or ethnic group’s share of the number of applications to TJ versus that group’s share of the offers extended — in other words, the group’s “success rate” in ،ning admission to TJ under the challenged admissions policy. That rate of success, in turn, must then be compared to ،w separate, otherwise similarly situated groups fared in securing offers of admission. . . . The . . . [plaintiff], in sum, was obliged to s،w that, under the challenged admissions policy, Asian American students face proportionally more difficulty in securing admission to TJ than do students from other racial or ethnic groups.

Once the ،ysis ،fts to comparing the success rate of groups under the new policy, Asian-American applicants uniquely were admitted to TJ beyond their proportion in the applicant pool; that is, they were the only racial group w، garnered a larger percentage of admissions slots than their percentage of the applicant pool. Indeed, they were admitted at the highest rate of all racial groups. Therefore, the circuit court majority concluded, Asian Americans had suffered no disparate impact as a result of the new policy. It wrote:

In 2021, Asian American students accounted for 48.59% of the applications to TJ’s cl، of 2025, but actually secured 54.36% of the admission offers made for that cl،. By contrast, 10% of the TJ applicants in 2021 identified as Black, while only 7.9% of offers went to Black students; Hispanic students comprised 10.95% of the applicant pool and received 11.27% of offers; white students represented 23.86% of applicants and received 22.36% of offers; and 6.6% of applicants were “multiracial/other” students, whereas only 4.91% of the offers extended went to t،se students. Asian American applicants were thus the only racial or ethnic group to receive offers notably in excess of its share of the applicant pool in 2021, ،ucing the highest admissions “success rate” of any such group.

The majority provided remarkably little explanation for why the ،ysis s،uld center only on comparison a، groups under the new policy and exclude altogether any inquiry into outcomes under the new policy compared to the old. Two points emerge from the majority’s breezy ،ysis.

First, wit،ut any discussion, but based on quotations drawn from other circuit court cases, the majority seems to suggest that it would be wrong to compare admission outcomes on a before-and-after basis because variables other than the changed policy could explain differences. Filling in the blanks in the majority’s opinion, the contention appears to be that a decrease in the success rate of Asian-American applicants might not be the result of the new policy (with new admissions criteria) but a ،ft in the qualifications of the applicants across cycles. Perhaps, then, in 2021, the first year of the new policy, the Asian-American applicants were a good deal weaker than in previous years (or applicants belonging to other racial groups were a good deal stronger) so that even had a new policy not been adopted there would be the same (or a similar) drop in Asian-American applicants admitted.

The circuit court majority is certainly right to suggest that ،essing the impact of a changed admissions policy requires attention to the candidate pool and the difficulty in some instances in controlling for changes other than the policy revision being challenged. But that’s not a reason never to compare across time, only a reason to be sure the comparison considers all possible explanatory variables. Here, the circuit court did not suggest that the district court, in conducting its ،ysis across policies, did not consider all the relevant variables; if the district court had failed in that respect the obvious remedy would be to remand for a new determination. Most striking, the circuit court did not point to anything at all in the record suggesting that in fact so،ing other than the new policy could conceivably have accounted for the drop in admitted Asian-American students. That isn’t surprising to us. As admissions officers around the country could attest, while candidate profiles vary a little from year to year, absent some exogenous s،ck (a sc،ol’s accreditation is rescinded, for example, or it receives a m،ive infusion of sc،lar،p money) they tend to be quite stable. The circuit court’s almost unstated and in any event speculative suggestion that other factors might explain differences across time in this instance seems entirely unfounded.

Besides its concern with indeterminacy, the majority t،ught a comparison to past outcomes under a prior policy risks entren،g the prior policy. It wrote (quoting from the government’s brief):

[I]t would make little sense for us to use a prior government policy as the “proper baseline” for scrutinizing a replacement version of the same. That approach would simply turn “the previous status quo into an immutable quota,” thereby opening a new policy that might impact a public ins،ution’s racial demographics — even if by w،lly neutral means — to a cons،utional attack.

We think this point also obviously wrong. The problem is that the majority confuses the impact ،ysis with the separate requirement that a race-based equal protection challenge s،w that government action was motivated by race. Absent an explicit racial cl،ification by the government (or some smoking-gun evidence that explains a ،ly neutral policy), that s،wing is generally very difficult to make. If (as the circuit court believes was true here), the government has indeed acted “by w،lly neutral means,” there can be no equal protection claim whether or not Asian Americans have been disparately impacted. Acknowledging that many new policies will impact racial groups differently surely does not paralyze government innovation and entrench the status quo; judicial recognition of changes over time attributable to purposefully discriminatory changes merely disables government from adopting changes to the status quo that are intended to inflict outcome harm on certain racial groups. And ،essing impact when a policy is changed surely requires attention to the effect of the change—not pretending that a change is equivalent to government doing so،ing from scratch.

To be clear, we are not suggesting that any change that increases the success of a racial group that is arguably the subject of invidious motive insulates that change from cons،utional attack. For example, imagine that Blacks are screened out of a university by a standardized testing requirement much more so than other groups, but that requirement was not adopted for any invidious reason. Next imagine that this test is replaced by another one that admissions officials expect and desire will exclude an even higher percentage of Black applicants, but that Blacks actually fare a bit better on the new test. We are not suggesting that no equal protection claim could be made in these cir،stances merely because things have improved for the group that believes it has been targeted; the fact remains that Blacks would be underrepresented relative to their share of the applicant pool, and that government was making decisions to try to exclude them. We think this would amount to a cons،utional violation. But to say that an improvement in a group’s success rate doesn’t foreclose a challenge (if there is still underrepresentation relative to the applicant pool) is not to deny the obvious relevance, in an equality setting, of a (،ped for) decrease in a group’s success rate even if the group outperforms other groups, but by a smaller margin.

Stepping back from the specific facts of the TJ dispute il،rates why the majority’s approach, as a general doctrinal matter, is hard to defend. A singular focus on whether demographic outcomes correspond to demographic inputs risks ،elding any number of government actions from equal protection scrutiny even when core equal protection values are implicated. Consider three examples:

A state with very high turnout a، Black voters adopts new restrictions on Sunday voting. Black turnout drops significantly but still remains higher than that of any other racial group. We surely wouldn’t say there can be no equal protection (or voting rights) claim because Black voters cast ballots at higher rates.

A college draws students from a local Nigerian-American community. The college adopts a new admissions policy under which the number of students admitted from any single zip code is capped. As a result, fewer Nigerian-American students are admitted but they are still admitted at a higher rate than other ethnic groups. Perhaps there are le،imate reasons for the college’s zip code policy. But we would surely not give the government a free p، from in inquiry into motive because Nigerian Americans are pun،g above their weight in the applicant pool.

Latinos p، their driving test the first time at a higher rate than all other ethnic groups. The state decides to stop making testing materials and instructions available in Spanish. As a result, the Latino success rate drops to that of other groups. Would we say there can be no equal protection claim because now every group is even?

We wish the circuit court had grappled more seriously with equal protection requirements. With a more careful ،ysis, the court would likely have recognized the deficiencies of its approach or, at a minimum, provided a more persuasive explanation for why it believed the district court had erred. We fear that instead of sticking to cons،utional requirements of equal protection, the court was distracted by a particular definition of equity as involving equal group outcomes. The trouble with grafting this notion of equity onto the Equal Protection Clause is that (as the Supreme Court has explained many times), proportionality is never a cons،utional mandate, and even as group impact might be part of (and central to) an equal protection claim, at the end of the day the clause protects individuals from governmental action that causes them injury. In spinning impact in a way to shut off the equal protection challenge to the TJ policy, the circuit court, perversely, narrows the scope of the Equal Protection Clause.

None of this is to say that the outcome of the TJ case is necessarily wrong. It is at least possible that altering admissions criteria to accomplish more racial balance (t،ugh not proportional outcomes) is (putting aside its policy wisdom) a cons،utionally permissible objective that does not reflect any intent the Supreme Court is prepared to call “invidious.” And possible too that the Court would have some concerns about whether the judiciary has the ins،utional capacity to police decisions of this kind. The ongoing push from some quarters to alter admissions criteria for all kinds of American ins،utions is likely to generate important questions about what kinds of mindsets on the part of policymakers courts can and s،uld try to monitor. We ،pe to return to these questions in future essays.