Supreme Court Takes Up Accusations of Race-Based Middle School Admissions

Three years after ending affirmative action in higher education, the Supreme Court will hear another case on race-based admissions, this time in middle schools.

On Monday, the Supreme Court agreed to hear Association for Education Fairness v. Montgomery County Board of Education. The case, which was originally brought forth in 2020 by the Association for Education Fairness (AFEF), a coalition of Montgomery County, Maryland, parents, alleges that Montgomery County’s selection process for magnet programs (gifted programs for STEM and humanities studies in middle schools) violates the Constitution’s Equal Protection Clause by discriminating against Asian American students. The county insists that the selection process is race-neutral.

Montgomery County changed its selection process in the 2021–22 school year. According to reporting from The New York Times, the county was facing pressure from community groups, including the NAACP and Citizens Assisting and Sheltering the Abused (CASA Inc.), over the underrepresentation of black and Latino students in its magnet programs. Previously, students were selected based on test scores and grades. The new process implemented a lottery system in which high-achieving students are placed in a selection pool and selected at random.

The AFEF’s central complaint is that the new system factors school poverty levels into the criteria for pool eligibility. This means students’ eligibility depends on their scores relative to students in similarly affluent or disadvantaged schools, rather than the general population. They argue that since Asian Americans are concentrated in high-performing, lower-poverty schools, they have to clear a higher bar to become eligible. The group alleges the new system has caused fewer Asian American students to be admitted into magnet schools, a claim that is backed up by admissions data (which also show that the share of Asian American applications has fallen). The AFEF also cites Montgomery County’s 2015 hiring of Metis, a national consulting firm, to recommend ways to make the system more “equitable” as an indication of the county’s effort to “racially balance” its magnet programs.

​The complaint was dismissed by U.S. District Judge Paula Xinis in 2022, who ruled that the parents hadn’t shown the policy disproportionately harmed Asian American students, citing the fact that they made up a larger share of admitted students than of the applicant pool. Xinis drew a distinction between accounting for economic disparities, which she called “wholly permissible,” and racial discrimination. “Alleged disparity in treatment based on socioeconomic status alone does not make plausible discrimination on account of race,” she wrote in the ruling. The tension raised by Xinis sits at the center of many debates regarding diversity, equity, and inclusion, as factors like poverty levels can often become a proxy for race; therefore, policies that are neutral on their face can still disparately impact a certain race.

In February, the 4th Circuit Court of Appeals upheld the dismissal, ruling that precedent from the Coalition for TJ v. Fairfax County School Board (2023) requires parents to show the policy disproportionately harmed Asian American applicants, which they hadn’t. However, there is a real legal question as to whether racial groups should have to prove they were harmed as a group, as opposed to the individual, and lower courts have given mixed answers.

The ​Pacific Legal Foundation (PLF), a public-interest law firm representing the AFEF, litigated a similar case in New York City, where the city implemented an economic need index in its admissions process for competitive high schools, aimed at increasing the number of black and Hispanic students. Again, parents alleged that the requirement discriminated against Asian American students. In 2024, the 2nd Circuit Court of Appeals found that if the city intended to discriminate, the parents don’t have to prove Asian Americans were harmed as a group and that harm to an individual was enough for the case to move forward. The case was sent back to the district court to determine whether the city intended to discriminate, where it remains pending.

​The Supreme Court will now settle the issue and determine “whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool,” according to SCOTUSBlog. 

In a statement on Monday, PLF Senior Attorney Chris Kieser said, “The Constitution protects students as individuals, not as members of a racial group. A school district should not be able to defeat a discrimination claim by showing that its policy did not harm enough Asian American children. Every family deserves admissions rules that judge their child on their own merit.”

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