TJ CASE UPDATE: Cert Petition Distributed for Conference

[Anonymous]

It appears that the Petition for Certiorari in the Coalition for TJ vs. Fairfax County School Board case has been distributed for conference on 12/1/2023. What this means is that on that Friday, the justices will meet to discuss the merits of that case as well as (presumably) many others and will vote on whether to hear the case. Cert decisions are usually announced on Monday mornings, so it's fair to guess that we may hear about whether or not

Four of the nine justices must vote in favor of hearing the case in order for it to go on the Supreme Court docket. The only opportunity SCOTUS has had to weigh in on the case was when the Coalition applied for the Fourth Circuit's stay to be vacated shortly after the District Court ruled in favor of the Coalition. Essentially, the Supreme Court voted 6-3 in that situation to allow the updated TJ Admissions process to continue for the Class of 2026, surprising many observers. Kavanaugh, Barrett, and (importantly) Chief Justice Roberts joined the liberals to grant the Coalition its first major defeat in this process.

https://www.supremecourt.gov/docket/docketfiles/html/public/23-170.html

Coalition-aligned observers will want to see more than four votes to grant cert, obviously. I think it's 50-50.

[Anonymous]

Anonymous wrote:It appears that the Petition for Certiorari in the Coalition for TJ vs. Fairfax County School Board case has been distributed for conference on 12/1/2023. What this means is that on that Friday, the justices will meet to discuss the merits of that case as well as (presumably) many others and will vote on whether to hear the case. Cert decisions are usually announced on Monday mornings, so it's fair to guess that we may hear about whether or not

Four of the nine justices must vote in favor of hearing the case in order for it to go on the Supreme Court docket. The only opportunity SCOTUS has had to weigh in on the case was when the Coalition applied for the Fourth Circuit's stay to be vacated shortly after the District Court ruled in favor of the Coalition. Essentially, the Supreme Court voted 6-3 in that situation to allow the updated TJ Admissions process to continue for the Class of 2026, surprising many observers. Kavanaugh, Barrett, and (importantly) Chief Justice Roberts joined the liberals to grant the Coalition its first major defeat in this process.

https://www.supremecourt.gov/docket/docketfiles/html/public/23-170.html

Coalition-aligned observers will want to see more than four votes to grant cert, obviously. I think it's 50-50.

With all the dirty tricks used to get them appointed and the long list of ethical violations, their legitimacy is in doubt.

[Anonymous]

I’m not up to speed on this case, but wow, Fairfax County hired Don Verrilli. And on a 2 minute glance through the cert opp and reply, it’s seems that the Fairfax County brief is a strong one. (I haven’t spent enough time to have an opinion as to whether the Court will grant cert… I happen to be Asian American and deeply skeptical of Fairfax County shenanigans re TJ, so would love to see cert granted, but I have no knowledge of whether this case is truly a good vehicle of S. Ct. Review or not). I guess we’ll find out very soon.

[Anonymous]

Is Asra Nomani's nonsense still continuing !!! Surprising it lasted this long.

[Anonymous]

Anonymous wrote:I’m not up to speed on this case, but wow, Fairfax County hired Don Verrilli. And on a 2 minute glance through the cert opp and reply, it’s seems that the Fairfax County brief is a strong one. (I haven’t spent enough time to have an opinion as to whether the Court will grant cert… I happen to be Asian American and deeply skeptical of Fairfax County shenanigans re TJ, so would love to see cert granted, but I have no knowledge of whether this case is truly a good vehicle of S. Ct. Review or not). I guess we’ll find out very soon.

OP. You sound reasonable, intelligent, and well-informed. Reading the competing briefs for detail when you have a free hour would be of value. I agree with your assessment that the Verrilli brief is very strong and my strong opinion is that this case is too narrow and the appellant’s argument is too dependent on specific communications to have broad-reaching implications for admissions policy.

Would love to hear more thoughts if/when you dive deeper.

[Anonymous]

So this case hinges on perceived discrimination against Asians from a race-blind process that mostly admits Asians? I don't think even this wacky court would touch this nonsense.

[Anonymous]

Anonymous wrote:

Anonymous wrote:I’m not up to speed on this case, but wow, Fairfax County hired Don Verrilli. And on a 2 minute glance through the cert opp and reply, it’s seems that the Fairfax County brief is a strong one. (I haven’t spent enough time to have an opinion as to whether the Court will grant cert… I happen to be Asian American and deeply skeptical of Fairfax County shenanigans re TJ, so would love to see cert granted, but I have no knowledge of whether this case is truly a good vehicle of S. Ct. Review or not). I guess we’ll find out very soon.

OP. You sound reasonable, intelligent, and well-informed. Reading the competing briefs for detail when you have a free hour would be of value. I agree with your assessment that the Verrilli brief is very strong and my strong opinion is that this case is too narrow and the appellant’s argument is too dependent on specific communications to have broad-reaching implications for admissions policy.

Would love to hear more thoughts if/when you dive deeper.

Thanks, it really is an interesting - and significant - case. I’m skeptical of FCPS’s intentions and read some of the news articles a while back. It certainly sounds like they knew that they were altering their policies in a manner that would have specific impacts relating to race. (As an aside, it does sound like the new policy is possibly beneficial for purposes of socioeconomic diversity…)

But what I read a while back in the news doesn’t seem to match what I’m reading in the briefs... as you pointed out, the factual record re discriminatory intent seems pretty thin. In particular, it doesn’t look like the Coalition made the kind of showing that the Students for Fair Admissions group made in the Harvard/UNC case that the S. Ct. took up.

On top of that, the Coalition’s briefs seem to rest on assumptions and loose assertions — the Verrilli brief (rightly) calls them out on that. All this supports the Board’s position that the case doesn’t present a good vehicle for Supreme Court review. If I had to place bets, despite the political composition of this Court, I would put my money on a cert denial.

[Anonymous]

Anonymous wrote:I’m not up to speed on this case, but wow, Fairfax County hired Don Verrilli. And on a 2 minute glance through the cert opp and reply, it’s seems that the Fairfax County brief is a strong one. (I haven’t spent enough time to have an opinion as to whether the Court will grant cert… I happen to be Asian American and deeply skeptical of Fairfax County shenanigans re TJ, so would love to see cert granted, but I have no knowledge of whether this case is truly a good vehicle of S. Ct. Review or not). I guess we’ll find out very soon.

I’m pretty sure he is doing this pro bono.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I’m not up to speed on this case, but wow, Fairfax County hired Don Verrilli. And on a 2 minute glance through the cert opp and reply, it’s seems that the Fairfax County brief is a strong one. (I haven’t spent enough time to have an opinion as to whether the Court will grant cert… I happen to be Asian American and deeply skeptical of Fairfax County shenanigans re TJ, so would love to see cert granted, but I have no knowledge of whether this case is truly a good vehicle of S. Ct. Review or not). I guess we’ll find out very soon.

OP. You sound reasonable, intelligent, and well-informed. Reading the competing briefs for detail when you have a free hour would be of value. I agree with your assessment that the Verrilli brief is very strong and my strong opinion is that this case is too narrow and the appellant’s argument is too dependent on specific communications to have broad-reaching implications for admissions policy.

Would love to hear more thoughts if/when you dive deeper.

Thanks, it really is an interesting - and significant - case. I’m skeptical of FCPS’s intentions and read some of the news articles a while back. It certainly sounds like they knew that they were altering their policies in a manner that would have specific impacts relating to race. (As an aside, it does sound like the new policy is possibly beneficial for purposes of socioeconomic diversity…)

But what I read a while back in the news doesn’t seem to match what I’m reading in the briefs... as you pointed out, the factual record re discriminatory intent seems pretty thin. In particular, it doesn’t look like the Coalition made the kind of showing that the Students for Fair Admissions group made in the Harvard/UNC case that the S. Ct. took up.

On top of that, the Coalition’s briefs seem to rest on assumptions and loose assertions — the Verrilli brief (rightly) calls them out on that. All this supports the Board’s position that the case doesn’t present a good vehicle for Supreme Court review. If I had to place bets, despite the political composition of this Court, I would put my money on a cert denial.

PP. We agree on basically everything here. It is an unfortunate reality that in Northern Virginia (and in many other parts of America) race and socioeconomic status track together more neatly than is desirable, enough so that impacting one pretty necessarily will impact the other.

I just don't see where this particular case is going to break significant new ground in the relevant area of the law. And it's much easier to show that the prior admissions process had a statistically significant disparate racial impact than it is that the new one does.

On some level, if you want to make policy through a ruling in a case like this, you have to evaluate the new admissions process in a vacuum. And when you transition from evaluating the two processes against one another to looking at just the new one, I think the case for review gets even thinner.

Would love to hear more from you.

[Anonymous]

Anonymous wrote:

Anonymous wrote:I’m not up to speed on this case, but wow, Fairfax County hired Don Verrilli. And on a 2 minute glance through the cert opp and reply, it’s seems that the Fairfax County brief is a strong one. (I haven’t spent enough time to have an opinion as to whether the Court will grant cert… I happen to be Asian American and deeply skeptical of Fairfax County shenanigans re TJ, so would love to see cert granted, but I have no knowledge of whether this case is truly a good vehicle of S. Ct. Review or not). I guess we’ll find out very soon.

I’m pretty sure he is doing this pro bono.

It has been publicly reported that he is. I believe that PLF is doing the same for the Coalition.

[Anonymous]

Anonymous wrote:So this case hinges on perceived discrimination against Asians from a race-blind process that mostly admits Asians? I don't think even this wacky court would touch this nonsense.

Nonsense. This is a really dumb argument. You're saying the NBA because the draft mostly has Black athletes cannot discriminate against Black athletes because of that?

[Anonymous]

Anonymous wrote:So this case hinges on perceived discrimination against Asians from a race-blind process that mostly admits Asians? I don't think even this wacky court would touch this nonsense

Nonsense. This is a really dumb argument. You're saying the NBA because the draft mostly has Black athletes cannot discriminate against Black athletes because of that?

How can you discriminate against a group without knowing their race? Also if you're mostly selecting that group it seems more like favoring.

[Anonymous]

Anonymous wrote:

Anonymous wrote:So this case hinges on perceived discrimination against Asians from a race-blind process that mostly admits Asians? I don't think even this wacky court would touch this nonsense

Nonsense. This is a really dumb argument. You're saying the NBA because the draft mostly has Black athletes cannot discriminate against Black athletes because of that?

How can you discriminate against a group without knowing their race? Also if you're mostly selecting that group it seems more like favoring.

A hypothetical and facetious example that addresses your question would be a qualifying question on the NBA draft questionnaire: "What is the definition of regatta?" Those who answer it correctly would be given preferential draft status. If the NBA adopts this qualifying question, then the percent of black athletes would decline a bit. The question is facially race-blind, but studies have shown that "what is a regatta" is a race-biased question.

[Anonymous]

Anonymous wrote:So this case hinges on perceived discrimination against Asians from a race-blind process that mostly admits Asians? I don't think even this wacky court would touch this nonsense

How can you discriminate against a group without knowing their race? Also if you're mostly selecting that group it seems more like favoring.

I know! This case can't stand up to even the most basic level of scrutiny.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:So this case hinges on perceived discrimination against Asians from a race-blind process that mostly admits Asians? I don't think even this wacky court would touch this nonsense

Nonsense. This is a really dumb argument. You're saying the NBA because the draft mostly has Black athletes cannot discriminate against Black athletes because of that?

How can you discriminate against a group without knowing their race? Also if you're mostly selecting that group it seems more like favoring.

A hypothetical and facetious example that addresses your question would be a qualifying question on the NBA draft questionnaire: "What is the definition of regatta?" Those who answer it correctly would be given preferential draft status. If the NBA adopts this qualifying question, then the percent of black athletes would decline a bit. The question is facially race-blind, but studies have shown that "what is a regatta" is a race-biased question.

Irrelevance of your argument aside, I would invite you to please submit the piece of this admissions process that discriminates against Asian students in the same way that a question like that would discriminate against Black athletes.

And please be reminded, before you answer, that the greatest beneficiaries of the new admissions process were low-income Asian students, who were admitted in greater numbers than Black students of all socioeconomic backgrounds combined.