Attorney Discusses Lawsuits Against New ‘Unconstitutional’ K-12 School Admissions Processes

Pacific Legal Foundation is challenging school admissions systems around the country where K-12 schools are upending their admissions policies and putting in place new criteria altering how students are able to attend selective schools.

The foundation has three ongoing lawsuits with another soon to follow. The cases are based in New York City, Fairfax county, Virginia, and Montgomery county, Maryland, and all are challenges to admissions policies in K-12 selective schools that offer advanced curriculum. Students must apply and be chosen to attend the schools.

One of the schools involved is Thomas Jefferson High School for Science and Technology in Fairfax county. The group filing the lawsuit is called Coalition for TJ.

On their website, they state the concerns of the group made up of parents, students, alumni, staff, and community members of the school. They note, “School district leaders eliminated the merit-based, race-blind admissions test to the school and replaced it with a race-based admissions process that targeted Asian students with discrimination.”

They add, “The percentage of Asian students offered admissions to TJ plummeted from 73 percent last year to 54 percent this year. Asians were the only demographic group whose numbers decreased from last year to this year, while the number of white students in this TJ class increased a whopping 43 percent to 123 students accepted this year from 86 last year.”

As The New York Times reported, “[t]he percentage of Black students increased to 7 percent from no more than 2 percent. Hispanic students increased to 11 percent from 3 percent. White students increased to 22 percent from 18 percent.”

“Overall in the Fairfax County school system, about 37 percent of students are white, 27 percent are Hispanic, 20 percent are Asian and 10 percent are Black,” the outlet added.

Erin Wilcox, an attorney at Pacific Legal Foundation, and lead attorney for the Thomas Jefferson case and additional merit-based admissions cases, spoke to The Daily Wire about the challenges.

Wilcox explained, “School administrators have decided that they don’t like the racial makeup of these schools, and so they’ve set about changing their admissions policies to figure out ways to change the racial makeup of the school.”

She added, “That is unconstitutional. Public school officials can’t pick students who can get into public schools based on their race in the K-12 sphere.”

Wilcox said that K-12 school administrators are aware that they can’t have an overt racial quota. “So what they’ve done instead are … using these racial proxies, so using something else that will achieve the same effect as having a racial quota, but that doesn’t say race … on the face of the policy,” she noted.

Thomas Jefferson has put a 1.5% “cap” on every middle school in the feeder pattern to TJ and said that only the top 1.5% of each middle school can get into Thomas Jefferson.

She added, “The problem with that is Fairfax County Public Schools operate several middle schools that have advanced programming for kids who are very likely to go to TJ,” meaning that a middle school might have previously had 80 kids get into TJ, but now not as many kids are allowed to attend.

She added, “A lot of Asian American kids go to these gifted middle schools. A lot of them apply to TJ and that cap just completely cut off many of their opportunities to get into TJ.”

She said that if the Coalition for TJ parents win, it will be the first lawsuit of its kind where parents have challenged these racial proxies and where a judge would decide it is unconstitutional. She said that would be a “massive win,” especially because a lot of school districts around the nation are watching the case as they consider enacting these types of policies.

If they don’t win, Wilcox said they will appeal and believe it is an issue that the Supreme Court will ultimately need to rule on. Wilcox said that they want to see a judge make a definitive ruling saying the new process is unconstitutional; and generally in the cases, they want the schools to be made to go back to the previous systems they had in place before they took unconstitutional action.

“It’s incredible how parents are making their voices heard. It’s really amazing to watch, ” she said.

The lawsuits come as three members of the San Francisco School Board were recently recalled in an election led by parents who were in part frustrated by the school board’s vote to permanently change the admissions process at a high school from a merit-based to a lottery-based system. A court changed the board’s decision, but the board voted again to continue the lottery-based policy for 2022-2023 school year admissions because of timing. The recall was fueled by many Asian American voters as the admissions policy change negatively impacted Asian American students.

As The San Francisco Chronicle reported in December, “Students hoping to get into San Francisco’s prestigious Lowell High School next fall will face a lottery system again, after the city’s school board voted Thursday to extend the mostly random admission process for another year.”

“With the upcoming admission season already started, Superintendent Vince Matthews asked the board for a one-year extension of the temporary lottery process. The board must go through another public process to make the change permanent at the school, which serves nearly 3,000 students,” the outlet added.

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