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The U.S. Supreme Court on Tuesday denied a request to hear a lawsuit that could have interrupted districts鈥� efforts to increase diversity at elite K-12 schools.

Following last year鈥檚 decision ending race-conscious admissions in higher education, the move suggests the court is satisfied for now with the selection process at magnets, STEM schools and other K-12 schools that require students to apply.

In 2020, the Fairfax district in northern Virginia changed its admissions criteria to better reflect the racial makeup of students in the county. Last May, the U.S. Court of Appeals for the Fourth Circuit .

The Supreme Court offered no explanation for its refusal to hear the case. But from Justice Samuel Alito, backed by Justice Clarence Thomas, called the lower court鈥檚 ruling in Coalition for TJ v. Fairfax County School Board, 鈥渁 virus that may spread if not promptly eliminated.鈥� 

鈥淲hat the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe,鈥� Alito wrote. 鈥淭his reasoning is indefensible, and it cries out for correction.鈥�

The Supreme Court鈥檚 earlier ruling against Harvard and the University of North Carolina over affirmative action-based admissions left some districts in limbo over whether K-12 integration efforts based on family income, rather than race, could pass legal muster. Echoing arguments similar to those that Students for Fair Admissions made against affirmative action in higher education, the Fairfax parents said admissions changes at Thomas Jefferson High School for Science and Technology make it more difficult for Asian-American students to be accepted. 

Before Fairfax changed its admissions rules, about three-fourths of the school鈥檚 students were Asian Americans. District leaders eliminated a rigorous test for applicants and a $100 fee. And they reserved seats at the school for the top 1.5% of 8th graders in each middle school. Coalition for TJ said the new rules were racially biased because the proportion of Asian American students accepted dropped to 54%.

鈥淭he Supreme Court missed an important opportunity to end race-based discrimination in K-12 admissions,鈥� Joshua Thompson, a senior attorney with the conservative Pacific Legal Foundation, said in a statement Tuesday. The firm represents the Fairfax parents who sued. 鈥淪chools should evaluate students as individuals, not as groups based on racial identity.鈥� 

But some integration experts say the court鈥檚 decision not to hear the case confirms that using socioeconomic status in admissions is constitutional. Richard Kahlenberg, a fellow at the Progressive Policy Institute, called the court鈥檚 denial 鈥渁 victory for poor and working class students of all races.鈥� On behalf of the plaintiffs in the cases against Harvard and UNC, he testified in favor of socioeconomic integration, but said Tuesday that both that earlier opinion and the court鈥檚 denial of the TJ case fit with an ongoing public consensus in 鈥渟upport of racial diversity, but in opposition to using racial preferences to get there.鈥�

鈥淭he decision of seven justices not to hear the case makes good sense because for three decades, even the most conservative justices have been urging educational institutions to use precisely the kind of race-neutral strategies that Thomas Jefferson High School employed,鈥� he said. 

Supporters of the admissions changes note the current , 3.9, is higher than it was under the previous policy.

鈥淲e have long believed that the new admissions process is both constitutional and in the best interest of all of our students,鈥� Karl Frisch, chair of the district鈥檚 board, said in a statement. 鈥淚t guarantees that all qualified students from all neighborhoods in Fairfax County have a fair shot at attending this exceptional high school.鈥�

The 鈥榖est public schools鈥�

The Supreme Court鈥檚 denial of the TJ appeal is the second blow in three months to Pacific Legal鈥檚 efforts to curb what it sees as discrimination against white and Asian American students in K-12. In December, the U.S. Court of Appeals for the First Circuit ruled against the firm鈥檚 clients in a similar case over selective schools in .听

Following the opinion鈥檚 release, Erin Wilcox, another Pacific Legal attorney, said it was disappointing that just six months after the court鈥檚 affirmative action ruling, 鈥渢he First Circuit held 鈥� that it’s perfectly legal for Boston to use racial proxies to determine who is admitted to some of its best public schools.鈥�

Pacific Legal plans to go back to the High Court in the next few weeks to ask the justices to examine many of the same issues it objected to in the TJ case. 

But Stefan Lallinger, executive director at Next100, a progressive think tank affiliated with The Century Foundation, called the First Circuit鈥檚 decision 鈥渁 shot in the arm to districts that understand the value of diversity,鈥� but were left 鈥渃onfused or worse, afraid, to take bold and affirmative steps鈥� after the Supreme Court鈥檚 opinion on Harvard and UNC.

The Boston Public Schools made changes similar to those in Fairfax. The district replaced a merit-based admissions policy for its exclusive 鈥渆xam鈥� schools with one that drew students with high GPAs from all ZIP codes. (The system was later changed to reflect 鈥� small geographic areas within a county.) 

The Boston Parent Coalition for Academic Excellence Corp., a nonprofit, sued last year over the policy change, which has led to more Black and Hispanic students attending the schools.

Pacific Legal is also representing plaintiffs suing over criteria for entrance to highly competitive schools in , and . And in January, the firm filed on behalf of a group of New York parents over a statewide that prepares students to study STEM fields in college. The plaintiffs argue that the criteria favors Black, Hispanic, Alaskan Native and American Indian students regardless of their family鈥檚 income.

In Philadelphia, the American First Legal Foundation, another conservative law firm, after the district dropped merit-based application requirements, such as recommendation letters, attendance and test scores, for competitive schools. District leaders moved to in which students from certain ZIP codes receive preference. The system targets neighborhoods with the lowest representation of students who previously accepted offers to attend those schools.听

The case is currently pending in federal district court.

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