Justice Alito's Hypocritical and Question-Begging Dissent in the Fairfax County Magnet School Case

On Monday, I noted that the Supreme Court had continually re-listed an important case involving a challenge to facially race-neutral admissions criteria for a Fairfax County, Virginia, magnet school. Yesterday, the Court finally denied certiorari. Justice Alito, joined by Justice Thomas, dissented from the cert denial in Coalition for TJ v. Fairfax County School Bd. The dissent makes a number of key points to which I anticipatorily responded in my forthcoming Texas Law Review article,  Race-Neutrality, Baselines, and Ideological Jujitsu After Students for Fair Admissions. Here I'll say a few words about what's wrong with the Alito/Thomas dissent in Coalition for TJ.

The starting point for my forthcoming article, for a recent article by Professor Sonja Starr in the Stanford Law Review, and for a large body of scholarship that she and I each cite, is that for many years the conservative Justices on the Supreme Court have pointed to facially race-neutral means of achieving racial diversity as the basis for saying that facially race-based means are not narrowly tailored. The most obvious class of examples, as I discussed on Monday and as I explain at greater length in the article, consists of so-called "percentage" plans by which various states guarantee admission to a state university to students graduating in a specified top percentage of their respective high school classes.

For example, in his dissent in Fisher v. University of Texas (2016), Justice Alito--joined by Chief Justice Roberts and Justice Thomas--pointed to the success of Texas's "lauded" percentage plan as a reason why Texas should not be permitted to layer on top of the facially race-neutral percentage plan an expressly race-based set of criteria. The Chief Justice seems to have recognized that, having previously endorsed such plans as race-neutral, there was no reason to disturb the Fourth Circuit's ruling in Coalition for TJ. He did not join Justices Alito and Thomas in their dissent.

So how did Justices Alito and Thomas reconcile their previous acceptance of (and arguably praise for) facially race-neutral programs that aim for racial diversity with their disapproval of the new facially race-neutral admissions criteria for the Fairfax County magnet school? They didn't.

By that, I don't mean that they didn't successfully distinguish or even repudiate their prior view. I mean they didn't even acknowledge it. Despite the fact that, as relevant, the new admissions program in Coalition for TJ is structured similarly to the percentage programs to which conservatives have long pointed as the lawful alternative to expressly race-based admissions criteria, Justice Alito's Coalition for TJ dissent does not even mention such programs, much less try to argue that his position now is consistent with his prior position.

To be sure, Justice Alito's primary target is the Fourth Circuit's contention that courts do not properly measure disparate impact against a baseline of whatever policy happened to come before. He gives a provocative hypothetical example that plays on racial stereotypes: a facially race-neutral approach to reducing the number of Black players on a high school basketball team, he says, would be subject to strict scrutiny and properly invalidated; therefore, so should a facially race-neutral effort to increase or maintain racial diversity in a magnet school.

There is a genuine issue here. That's why I gave a hypothetical example posing the same issue on this constitutional law exam two years ago. (It's question 2.) My example was less racially freighted than Justice Alito's, as it involved bias against Swiss students who were displacing U.S.-born students on the ski team. But I gave the question on the exam precisely because the answer under current doctrine is not fully determined: notwithstanding the seeming acceptance by various Justices (including Alito and Thomas) of facially race-neutral means of increasing or maintaining racial diversity, the Court has never actually fully faced the question.

It's one thing to spot an open question. It's quite another to say it's closed. But that's what Justice Alito does. He addresses the question posed in Coalition for TJ--a question with respect to which the authorities lean mostly against him--as though it were a slam-dunk for his (current) side of the matter.

What about the merits? In Justice Alito's basketball team example (as in my ski team example) the intuition that the school should not be able to use facially race-neutral means to deliberately disadvantage a group based on race (or nationality/ethnicity) is driven by the perception that the Black (or Swiss) students are relevantly differentially disadvantaged--not in virtue of their disadvantage relative to the status quo ante, but in virtue of the fact that they suffer stigmatic harm. Or at least so I argue in Part IV(C) of my article.

By contrast, Justice Alito simply asserts that the Fairfax County School Board was driven by anti-Asian animus. If the plaintiffs introduced persuasive evidence that this was in fact the motive, then I'd be sympathetic to the plaintiffs' claims. But under the extant precedents and the assumptions the conservative wing of the Court has long made, a purpose to increase racial diversity is not necessarily  a discriminatory purpose--at least with respect to facially race-neutral criteria.

If Justice Alito had written a dissent from the denial of cert arguing that the question he identified was open, I'd be inclined to agree--even though we would close it in opposite ways. But that's not what he did. The Alito/Thomas dissent in Coalition for TJ does not identify an open question. It simply begs the question.