The Supreme Court declined to intervene in an affirmative action case involving an elite high school in Virginia.

Thomas Jefferson High School for Science and Technology is one of the most prestigious and selective public high schools in the nation.

After the death of George Floyd in 2020, the school adopted new admissions criteria that led to a sharp increase in black and Hispanic students at the expense of Asian applicants.

In a 7-2 decision, the Supreme Court rejected the appeal of a group of parents who sued the school.  Justice Alito wrote a scathing dissent, joined by Justice Thomas.

Affirmative action upheld...

The court's decision could encourage elite institutions seeking ways to circumvent the Supreme Court's ruling in Students For Fair Admissions, which banned affirmative action in higher education.

In his dissent, Alito pointed out that universities have cited Thomas Jefferson High as a "blueprint" for perpetuating affirmative action by proxy.

While the school's policies are "racially neutral" in name, a federal judge who previously struck them down said the school adopted them with a racial intent and that discussions among school officials were "infected with talk of racial balancing."

The school dropped standardized testing for more subjective criteria, such as learning English as a second language or attending a "historically underrepresented" school.

When the new policies were adopted, the country had been shaken by riots and calls for sweeping change following the death of George Floyd.

Racial discrimination by proxy?

The new policies achieved their apparent goal: the percentage of black students accepted rose from 2% to 8%, and Hispanic went from 3% to 11%. Asians saw a stark drop from 73% to 54%.

The group Coalition for TJ, which sued the school, argues the policies discriminate against Asians indirectly.

But a three-judge panel of the Fourth Circuit appeals court sided with the school, overturning the district court's finding that the "purpose of the Board's admissions overhaul was to change the racial makeup" of the school.

Describing the Fourth Circuit's "mistaken" reasoning in his dissent, Alito said the court decided that Asians did not suffer discrimination because they were still overrepresented in the student population, even though their chances of admission went down compared to other groups.

This "indefensible" logic gives schools free rein to "discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups," Alito said.

"The Fourth Circuit’s reasoning is a virus that may spread if not promptly eliminated," he warned.