Reply to Counsel for School Board Submits Brief to SCOTUS Requesting Denial of Certiorari

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[quote=Anonymous]https://www.supremecourt.gov/DocketPDF/23/23-170/285825/20231023143317385_23-170%20-%20Brief%20in%20Opposition.pdf

This is the School Board's legal team asserting that the Supreme Court should not grant certiorari (review) in the Coalition for TJ case.

I had forgotten - and I imagine most others have as well - that the Coalition submitted its own policy proposal that [i]explicitly[/i] provided boosts to Black and Hispanic students during the comment period. That fact alone undercuts a large portion of their case and motivations.

Key quotes:
"Varying outcomes for middle schools known as Advanced Academic Program (AAP) Level IV Centers provide a particularly stark illustration of the admissions skew. AAP Centers are magnet programs that offer advanced coursework to highly qualified students. JA839. Eight of the AAP Centers are “feeder schools.” [b]But five other AAP Centers, which generally served lower-income areas, sent very few students (one or two per year) to TJ—even though their students also were high-performing and had benefited from advanced coursework.[/b]"

"In lieu of a lottery, [b]petitioner (the Coalition - clarification mine) proposed a race-conscious plan that awarded an automatic preference to Black and Hispanic applicants based solely on their race.[/b] Pet. App. 17a n.3; 7 JA895. Petitioner’s proposal also would have addressed the geographic skew of the prior system by allowing each middle school to choose its top students, and it had provisions addressing socioeconomic barriers as well."

"An FCPS employee noted that the previous policy’s teacher-recommendation and testing requirements—[i]whose elimination petitioner never challenged in this litigation[/i]—favored more affluent candidates (who tended to be white or Asian), and then explained that the proposed Experience Factors would ameliorate [b]socioeconomic[/b] obstacles to admission."

"Petitioner also asserts (Pet. 9) that the Board designed the Experience Factors with the assistance of demographic data that allowed them to predict how the factors would change TJ’s racial demographics. [b]But the Board never received any modeling on how the Experience Factors or holistic plan would affect TJ’s demographics.[/b] JA624, JA1140; Pet. App. 49a (Heytens, J., concurring). No such data existed, and neither the Board nor admissions officials ever attempted to investigate the question. JA2919, JA145. Indeed, petitioner conceded below that “it was very difficult to project the outcome of what would happen” under the new admissions plan."

"Of particular note, [b]Asian-American students from disadvantaged backgrounds benefited substantially from the Policy: the number of low-income (FRM) Asian-American admittees increased from just one student in 2020 to fifty-one in 2021[/b] (more than the total number of Black students admitted under the Policy). Pet. App. 20a. The number of admissions offers to Asian-American students attending nonfeeder middle schools historically underrepresented at TJ increased six-fold."

"The court of appeals’ conclusion on that point [b]is entirely consistent with this Court’s decision in Students for Fair Admissions[/b] (the "Harvard" case - clarification mine). There, the Court held that in light of the “zero-sum” nature of admissions, conferring express advantages based on race to applicants in certain racial groups necessarily means that “an individual’s race is * * * a negative factor” for the individuals who did not receive the preference. 143 S. Ct. at 2169. [b]That conclusion about race-conscious measures has no application to race-neutral measures like the Policy: here, despite the “zero-sum” nature of admissions, no applicant’s race is ever a negative (or positive) factor in admissions decisions, because the policy is race neutral and race blind.[/b]"

[b]"And at oral argument before the Fourth Circuit, petitioner reaffirmed that an intent to increase Black and Hispanic representation would not itself render a race-neutral admissions policy unconstitutional. Petitioner should not be heard to challenge race-neutral measures under the Fourteenth Amendment when petitioner itself urged the Board to adopt race-conscious admissions criteria for TJ and embraced the legitimacy of seeking to increase Black and Hispanic admissions."[/b]
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There can be no doubt that we currently have an activist conservative Supreme Court that is unafraid to break new ground in order to protect the privileges of in-groups. But the facts of this particular case are so weak and the means of redress so minimal (FCPS will simply design a new admissions process that achieves the same goal under a new Board that will be elected before the petition for cert is even reviewed - or will overturn it if enough conservatives pull major upsets) that I think it's increasingly a longshot that the case gets reviewed at all.
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