February 22, 2024

Munger, Tolles & Olson Secures Historic Supreme Court Victory in Fight for Diversity in Schools

Munger, Tolles & Olson secured a historic appellate victory on February 20, when the U.S. Supreme Court declined to review a challenge to race-neutral admissions policies intended to diversify the student body at a prestigious high school in Fairfax County, Virginia.

The ruling upholds new race-neutral, race-blind admission policies intended to increase socioeconomic, geographic, and racial diversity at Thomas Jefferson High School—a highly selective public high school, whose student body was previously drawn overwhelmingly from just eight of the county’s 26 middle schools and rarely included economically disadvantaged students.

Following the Fairfax County School Board’s 2020 decision to institute admission policies that admitted the top students from each middle school around the region, thereby addressing longstanding socioeconomic and racial disparities in the admitted class, a parents’ group sued, arguing that the policies discriminate against Asian Americans. After a federal district court blocked the policies, an MTO appellate team challenged the ruling on the School Board’s behalf in the U.S. Court of Appeals for the Fourth Circuit. Accepting all of MTO’s arguments, the Fourth Circuit ruled in the School Board’s favor, and reversed the district court’s invalidation of the high school’s race-neutral admissions policies. The parents’ group subsequently filed a petition for certiorari asking the Supreme Court to review and overturn the appellate ruling.

The petition garnered nationwide attention and was widely viewed as likely to be granted. In June 2023, the Supreme Court ruled in Students for Fair Admission v. Harvard that educational institutions may not consider race in admissions. The certiorari petition in the Thomas Jefferson High School case urged the Supreme Court to grant certiorari to take the next step and hold that race-neutral measures intended to increase diversity are unconstitutional. In response to the petition, MTO’s appellate team filed an opposition brief in October 2023. The brief demonstrated that the case did not provide the Supreme Court with an opportunity to address the constitutionality of race-neutral measures in the wake of SFFA, because the parents’ group had failed to provide any evidence showing that the School Board changed its admissions policy for the purpose of discriminating against Asian Americans. To the contrary, MTO showed that the new policy did exactly what it was designed to do: increase socioeconomic and geographic diversity. The positive effects of the policy included admitting increased numbers of Asian American students from poor families and less affluent areas of the county.

The Supreme Court denied review of the petition on February 20 over a vigorous dissent by Justice Alito, joined by Justice Thomas. This important ruling confirms the legality of race-neutral measures intended in part to increase racial diversity in schools—an issue that has taken on increased significance in light of the Supreme Court’s recent decision to curtail affirmative action in college admissions.

The MTO appellate team included partners Don Verrilli and Ginger Anders, and associates April Hu and Evan Mann.

The case has garnered national media coverage in publications such as the Washington Post, New York Times, The Wall Street Journal, Politico and many more.

About MTO’s Appellate Practice

Munger, Tolles & Olson’s appellate and Supreme Court practice is recognized as among the best in the nation and routinely handles the highest-stakes matters before the U.S. Supreme Court, U.S. courts of appeals, and state appellate courts. Our lawyers have secured victories in cases of historic importance and have won ground-breaking appeals around the country on a wide range of subjects, including antitrust, securities, intellectual property, cross-border disputes, and regulatory matters.

Learn more about our appellate practice.