The Supreme Court’s recent decision to grant certiorari in the case of Organized Students for Fair Admissions v. Montgomery County Board of Education invites speculation on the future of affirmative action in education. Although some may have thought the matter was settled in the case of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, it appears that legal challenges to race-neutral policies used as proxies for affirmative action remain.
Scholars have increasingly advocated for the use of “race-neutral affirmative action,” where characteristics correlated with race, such as living in predominantly black zip codes or being from predominantly Latino backgrounds, are considered in place of direct racial preferences. These practices are now under scrutiny in Montgomery County’s magnet school admissions, where a lottery system was utilized after adjustments to neighborhood-based test score percentiles altered racial representation in school placements.
According to opinions expressed in the courts, race proxies are seen as potentially just as illegal as direct racial preferences, referring to the precedent established in Grutter v. Bollinger. This argument suggests that constitutional scrutiny does not shield race-neutral alternatives if they result in indirect racial discrimination. The precedent implies that any school district actions deemed to have a racial motivation or achieve a racial outcome, even if achieved indirectly, may still be subject to the equal protection clauses of the Constitution.
Montgomery County’s approach reflects an ongoing legal debate on whether the purpose and effect of such admissions changes constitute benign discrimination aimed at creating a more inclusive educational environment or if they are invidious actions masked in race-neutrality. Historically, the Supreme Court has ruled against indirect forms of racial discrimination, marking these approaches as illegal, drawing parallels with administrative gerrymandering of voting districts and school districts.
While the Court has some experience in addressing race-neutral alternatives, the insistence on a disparate impact standard of evidence remains a contested point. The Fourth Circuit previously ruled that, despite the systemic changes, Asian students still held a majority presence relative to the applicant pool, thus not satisfying the disparate impact requirement. Yet, a comprehensive grasp of the implications of racial effects within this legal context remains underdeveloped, and the eventual resolution may require an alignment or dismissal of established decisions such as Palmer v. Thompson. This decision underscores the delicacy and often contentious nature of handling racial disparities through policy means.
The prospective outcome of the Montgomery County case could have lasting implications on educational policies that aim to address racial disparities and may signal a pivotal legal juncture in defining permissible practices under the Constitution. For more insights, you can refer to the full analysis on the SCOTUSblog.