PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1280

FAIRFAX COUNTY SCHOOL BOARD,

Defendant – Appellant.

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NAACP LEGAL DEFENSE AND EDUCATION FUND, INC.; CASA

VIRGINIA; ASIAN AMERICAN YOUTH LEADERSHIP EMPOWERMENT

AND DEVELOPMENT; NATIONAL COALITION ON SCHOOL DIVERSITY;

POVERTY & RACE RESEARCH ACTION COUNSEL; AMERICAN CIVIL

POLICY; UNITED STATES OF AMERICA,

Amici Supporting Appellant.

LEADERS FOR ACCELERATED CURRICULUM AND EDUCATION NYC;

THE RICHMOND JEWISH COALITION; UNITED AGAINST

ANTISEMITISM-NOVA; LIBERTY JUSTICE CENTER; THE ASIAN

AMERICAN COALITION FOR EDUCATION; THE ASIAN AMERICAN

LEGAL FOUNDATION; COMMONWEALTH OF VIRGINIA AND 15 OTHER

STATES; FAIRFAX COUNTY PARENTS ASSOCIATION; FAIRFAX

COUNTY ASSOCIATION FOR THE GIFTED,

Amici Supporting Appellee.

Argued: September 16, 2022 Decided: May 23, 2023

Before KING, RUSHING, and HEYTENS, Circuit Judges.

Reversed and remanded by published opinion. Judge King wrote the majority opinion, in

which Judge Heytens joined. Judge Heytens wrote a concurring opinion. Judge Rushing

wrote a dissenting opinion.

Trevor S. Cox, HUNTON ANDREWS KURTH LLP, Richmond, Virginia; Ginger D.

Andrews, Xiaonan April Hu, Washington, D.C., Mica L. Moore, MUNGER, TOLLES &

OLSON LLP, Los Angeles, California, for Appellant. Glenn E. Roper, Highlands Ranch,

EDUCATIONAL FUND, INC., Washington, D.C.; Niyati Shah, Eri Andriola, ASIAN

AMERICANS ADVANCING JUSTICE-AAJC, Washington, D.C.; Francisca D. Fajana,

LATINOJUSTICE PRLDEF, New York, New York; Arthur Luk, Christine J. Choi,

Washington, D.C., for Amici TJ Alumni for Racial Justice; Virginia State Conference of

the NAACP; CASA Inc.; Hispanic Federation; Asian American Youth Leadership

Empowerment and Development; and Hamkae Center. Jason S. Miyares, Attorney

General, Charles H. Slemp, III, Chief Deputy Attorney General, Erika L. Maley, Principal

Deputy Solicitor General, Kevin M. Gallagher, Deputy Solicitor General, Annie Chiang,

Assistant Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,

Richmond, Virginia for Amicus Commonwealth of Virginia. Steve Marshall, Attorney

General, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery,

Alabama, for Amicus State of Alabama. Leslie Rutledge, Attorney General, OFFICE OF

OF TEXAS, Austin, Texas, for Amicus State of Texas. Patrick Morrisey, Attorney

General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston,

West Virginia, for Amicus State of West Virginia. Mark Brnovich, Attorney General,

KENTUCKY, Frankfort, Kentucky, for Amicus Commonwealth of Kentucky. Eric

ATTORNEY GENERAL OF UTAH, Salt Lake City, Utah, for Amicus State of Utah.

Maura Healey, Attorney General, Elizabeth N. Dewar, State Solicitor, Robert E. Toone,

Jr., Chief, Government Bureau, Ann E. Lynch, Assistant Attorney General, David Ureña,

Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

MASSACHUSETTS, Boston, Massachusetts, for Amicus Commonwealth of

Massachusetts. Robert Bonta, Attorney General, OFFICE OF THE ATTORNEY

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF DELAWARE,

Washington, D.C., for Amicus District of Columbia. Holly T. Shikada, Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF HAWAII, Honolulu, Hawaii, for Amicus

State of Hawaii. Kwame Raoul, Attorney General, OFFICE OF THE ATTORNEY

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MAINE, Augusta,

Maine, for Amicus State of Maine. Brian E. Frosh, Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Amicus State of

Maryland. Dana Nessel, Attorney General, OFFICE OF THE ATTORNEY GENERAL

OF MICHIGAN, Lansing, Michigan, for Amicus State of Michigan. Keith Ellison,

Donovan, Jr., Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

VERMONT, Montpelier, Vermont, for Amicus State of Vermont. Robert W. Ferguson,

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WASHINGTON,

Olympia, Washington, for Amicus State of Washington. Susan M. Pelletier, Washington,

Kaitlin Banner, Marja K. Plater, WASHINGTON LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS AND URBAN AFFAIRS, Washington, D.C., for Amici National

Coalition on School Diversity, Poverty & Race Research Action Council, American Civil

FOUNDATION, Roswell, Georgia, for Amicus Southeastern Legal Foundation. T.

Russell Nobile, Gulfport, Mississippi, Robert D. Popper, Eric Lee, JUDICIAL WATCH,

INC., Washington, D.C., for Amici Judicial Watch, Inc. and Allied Educational

Foundation. Ilya Shapiro, THE MANHATTAN INSTITUTE, Falls Church, Virginia;

Amici The American Civil Rights Project and The Manhattan Institute. Gary M.

Lawkowski, DHILLON LAW GROUP, INC., Alexandria, Virginia; Sue Ghosh Stricklett,

Foundation, No Left Turn in Education, Parent Leaders for Accelerated Curriculum and

Education NYC, The Richmond Jewish Coalition, and United Against Antisemitism –

NOVA. Steve Marshall, Attorney General, OFFICE OF THE ATTORNEY GENERAL

OF ALABAMA, Montgomery, Alabama, for Amicus State of Alabama. Leslie Rutledge,

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARKANSAS, Little

Rock, Arkansas, for Amicus State of Arkansas. Derek Schmidt, Attorney General,

Oklahoma, for Amicus State of Oklahoma. Ken Paxton, Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF TEXAS, Austin, Texas, for Amicus State of Texas.

Patrick Morrisey, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia. Mark

Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA,

Phoenix, Arizona, for Amicus State of Arizona. Christopher M. Carr, Attorney General,

Kentucky. Eric Schmitt, Attorney General, OFFICE OF THE ATTORNEY GENERAL

Utah. Daniel R. Suhr, Jeffrey D. Jennings, LIBERTY JUSTICE CENTER, Chicago,

Illinois, for Amicus Liberty Justice Center. Lee C. Cheng, ASIAN AMERICAN LEGAL

FOUNDATION, San Francisco, California; Gordon M. Fauth, Jr., LITIGATION LAW

GROUP, Berkeley, California, for Amici The Asian American Coalition for Education and

The Asian American Legal Foundation. Shawnna M. Yashar, Dunn Loring, Virginia, for

Amici Fairfax County Parents Association and Fairfax County Association for the Gifted.

Thomas Jefferson High School for Science & Technology (“TJ”) purposefully

discriminates against Asian American students, in contravention of the Fourteenth

Amendment’s Equal Protection Clause. In March 2021, the Coalition for TJ (the

“Coalition”) — an advocacy organization of Fairfax County public school parents —

commenced this litigation against the Board in the Eastern District of Virginia, seeking to

have the challenged admissions policy invalidated as unconstitutional.

summary judgment, the district court ruled that the challenged admissions policy violates

the Fourteenth Amendment’s guarantee of equal protection. More specifically, the court

concluded that the policy exacts a disparate impact on Asian American applicants to TJ,

that it was adopted by the Board with invidious discriminatory intent, and that it fails to

disparately impact Asian American students and that the Coalition cannot establish that the

the district court and remand for entry of summary judgment in favor of the Board.

selective magnet school located in Alexandria, Virginia. TJ is one of Virginia’s 19 so-

called “Academic-Year Governor’s Schools” — specialized schools that focus on

advanced studies and require students to apply for admission — and it is operated by

Fairfax County Public Schools (“FCPS”). See J.A. 30.

Arlington, Loudoun, and Prince William counties, and from the City of Falls Church.

member elected body that oversees the public schools of Fairfax County. Prior to the

Board’s 2020 adoption of the challenged admissions policy, applicants seeking to enroll at

rankings on the standardized tests would proceed to a “semi-finalist” selection round,

and a problem-solving essay. See J.A. 41. The semi-finalists were also to submit two

teacher recommendations. At the conclusion of the process, students were selected from

the semi-finalist group based on an “holistic review” of their application materials. Id. at

42.

were drawn principally from a limited group of “feeder” middle schools in Fairfax County.

Those TJ classes also included very few low-income students, few English-language

learners, few students receiving free or reduced-price meals, few special education

students, and just a few Black, Hispanic, or multiracial students. In an effort to advance

rigor” in the application process while also “providing fair and equitable access to all

offers extended to students at middle schools that were historically poorly represented at

TJ; to low-income and special education students; and to students engaged in community

service and in school leadership activities. Id. at 780-84.

pathways,” FCPS published the admissions statistics for TJ’s incoming class of 2024.

We observe that the “class of 2024” refers to those students who are expected to

this civil action against the Board in the Eastern District of Virginia. See Coal. for TJ v.

Fairfax Cnty. Sch. Bd., No. 1:21-cv-00296 (E.D. Va. Mar. 25, 2022), ECF No. 1 (the

“Complaint”).

In its Complaint, the Coalition named Dr. Braband as a defendant, in his official

filed cross-motions for summary judgment. For its part, the Coalition maintained that the

applicants to TJ, principally because a “before-and-after admissions data comparison”

reveals that the proportion of Asian American students offered admission to TJ

Bd., No. 1:21-cv-00296, at 14 (E.D. Va. Dec. 3, 2021), ECF No. 98. The Coalition further

purpose,” identifying as support alleged procedural irregularities in the Board’s process

and comments made by individual Board members. Id. at 19. Finally, the Coalition

reiterated its position that the policy cannot survive strict scrutiny review, rendering

summary judgment on its behalf appropriate.

for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21-cv-00296 (E.D. Va. Feb. 25, 2022), ECF Nos.

143 & 144 (the “Summary Judgment Opinion” and the “Summary Judgment Order,”

respectively). The court first ruled that the policy “has had, and will have, a substantial

disparate impact on Asian-American applicants.” See Summary Judgment Opinion 14.

Citing our decision in North Carolina State Conference of the NAACP v. McCrory, 831

F.3d 204 (4th Cir. 2016), the court related that “[t]he proper method for determining the

concluded that the proportional decline in offers extended to Asian American students after

the policy’s adoption “tells much of the story.” Id. at 14. Additionally, the court decided

that the policy’s 1.5% seat set-aside for each middle school’s eighth grade class, plus the

revealed an invidious discriminatory intent. See Summary Judgment Opinion 24. The

“unreasonably hurried” process and a “lack of public engagement” during its consideration

of the various admissions proposals. Id. at 19. And the court concluded that the Board’s

“requests for and consideration of racial data” — in the form of Dr. Braband’s September

2020 presentation of the rejected merit lottery proposal and its projections of that

proposal’s effects on TJ’s racial and economic demographics — demonstrated that

“diversity primarily meant racial diversity.” Id. at 25, 27. Ultimately, the court based its

Asian American students on its separate conclusion that “the Board’s policy was designed

to increase Black and Hispanic enrollment, which would, by necessity, decrease the

representation of Asian-Americans at TJ.” Id. at 27-28.

racially disparate impact on Asian American students and the Board possessed no intent to

strike a “racial balance” — or to otherwise target Asian American students — in its

adoption of the policy. Accordingly, the Board maintains that we should reverse the district

court’s judgment and remand for judgment to be entered in the Board’s favor.

F.3d 145, 148 (4th Cir. 2003). Where, as here, “cross-motions for summary judgment are

under Rule 56 of the Federal Rules of Civil Procedure.” See Fusaro v. Howard, 19 F.4th

357, 366 (4th Cir. 2021) (internal quotation marks omitted). Pursuant to that standard,

the nonmoving party’s case,” summary judgment will serve to “isolate and dispose of

sovereign,” see United States v. Lopez, 514 U.S. 549, 564 (1995), and “[n]o single tradition

see Milliken v. Bradley, 418 U.S. 717, 741 (1974). Indeed, “[j]udicial interposition in the

operation of the public school system of the Nation raises problems requiring care and

restraint.” See Epperson v. Arkansas, 393 U.S. 97, 104 (1968). Nevertheless, the actions

of public school boards and administrators may still be subject to constitutional inquiry.

laws.” See U.S. Const. amend. XIV, § 1. The Supreme Court has explained that the

“central purpose” of the Equal Protection Clause is to “prevent the States from purposefully

expressly classifies individuals on the basis of their race, see Grutter v. Bollinger, 539 U.S.

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977); see also Washington v.

Davis, 426 U.S. 229, 242 (1976).

group, and (2) that such impact is traceable to an “invidious” discriminatory intent. See

Arlington Heights, 429 U.S. at 264-65; N.C. State Conf. of the NAACP v. Raymond, 981

F.3d 295, 302 (4th Cir. 2020); Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524,

543-44 (3d Cir. 2011). Only then will such a policy be subject to strict scrutiny review, in

which event the state entity defending the challenged policy bears the burden of showing

no showing of discriminatory intent by the Board. See Feeney, 442 U.S. at 277, 279.

and so the Coalition has failed to meet its burden with respect to an Equal Protection claim.

In these circumstances, we are constrained to reverse the district court’s judgment and

remand for entry of summary judgment in favor of the Board.

any “racially disproportionate” or “disparate” impact on Asian American students. See

Arlington Heights, 429 U.S. at 265. To establish such an effect — which serves as an

between the old and the new in searching for a disparate impact. See Br. of Appellee 25.

Arlington Heights, however, mandates nothing of the sort. Nor does our 2016 decision in

North Carolina State Conference of the NAACP v. McCrory, which the district court

erroneously relied on as sanctioning its chosen before-and-after evaluation.

Carolina election law provisions — declined to apply an election-to-election voter turnout

comparison in assessing alleged disproportionate impacts on Black voters. See 831 F.3d

204, 230-32 (4th Cir. 2016) (concluding that the district court “erred in suggesting that

Plaintiffs had to prove that the challenged provisions prevented African Americans from

the projected admissions under the Plan to prior admissions under the predecessor plan”

particular racial or ethnic group’s performance under a prior policy is “the proper baseline

27 (Heytens, J., concurring). And that should come as no surprise, because an assessment

of the attainments of one group in isolation will not answer the question of whether a

challenged policy “bears more heavily on one race than another.” See Arlington Heights,

429 U.S. at 266 (emphasis added). Moreover, as the Board convincingly explains, it would

make little sense for us to use a prior government policy as the “proper baseline” for

scrutinizing a replacement version of the same. That approach would simply turn “the

rate” in gaining admission to TJ under the challenged admissions policy. That rate of

actually did submit such a report on October 9, 2020, and the Board then continued to study

TJ’s admissions standards for another two months.

considered at public meetings, at which public comments were received, and the Board’s

proposals were presented to community members through “targeted outreach” methods.

See J.A. 535. The comments of individual Board members that are used by the district

court and the Coalition as evidence of an intent to strike a “racial balance” at TJ,

challenged admissions policy “because of” a desire to “racially balance” TJ and to shrink

ultimate, “Hail-Mary” line of reasoning: that the Board must have discriminated against

12. Specifically, that proposition maintains that the Board sought to increase the number

admissions where the number of available seats is finite, that effort naturally led to fewer

overall Asian American students enrolling at TJ — thus exposing a discriminatory intent

admissions policy “was designed to increase Black and Hispanic enrollment, which would,

challenge to Massachusetts’ civil service hiring preference for qualified veterans — a

“a person intends the natural and foreseeable consequences of his voluntary actions” does

Feeney Court explained, the Massachusetts statute’s adverse impact on women seeking

civil service positions was, at most, a secondary impact of the State’s legitimate and

gender-neutral aim to assist veterans in securing employment. The Feeney plaintiffs

therefore failed to prove that state action was taken “at least in part ‘because of,’ not merely

‘in spite of,’ its adverse effects upon” women in the Massachusetts workforce. Id. at 279.

a desire to increase the rates of Black and Hispanic student enrollment at TJ — that is, to

improve racial diversity and inclusion by way of race-neutral measures — it was utilizing

American students (or students of another racial group) is, under Feeney, wholly

likely promote diversity does not automatically require strict scrutiny of a school system’s

purposeful racial discrimination must show at least some specific intent to target a certain

facts show only that the Board intended to improve the overall socioeconomic and

it would accomplish the collateral goal” of excluding Asian American students from TJ.

See 442 U.S. at 279.

We again emphasize that, if the challenged admissions policy had indeed been

The Feeney ruling thus bars the district court’s discriminatory intent analysis in

this case. And that makes good sense, insofar as — much like the court’s before-and-after

approach to the disparate impact inquiry — the court’s method of reasoning would open a

Washington v. Davis, 426 U.S. 229, 242 (1976) (recognizing that “[a] rule that a statute

designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in

practice it benefits or burdens one race more than another would be far-reaching and would

(Continued)

Coalition has failed to marshal any evidence that the Board adopted the policy in order to

disadvantage Asian American students — let alone the quantity of evidence that would

entitle it to judgment as a matter of law on that question. Instead, we have “a complete

failure of proof concerning” the second “essential element” of the Coalition’s claim, and

the Board is entitled to summary judgment twice over. See Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986).

equal laws, not equal results.” See Feeney, 442 U.S. at 273. Doubtlessly, there are some

unequal results at play here. Under the challenged admissions policy, Asian American

applicants to TJ enjoy far greater success in securing offers of admission than do

review. See Lewis v. Ascension Par. Sch. Bd., 806 F.3d 344, 361-62 (5th Cir. 2015)

(“[W]here there is no proof of either discriminatory purpose or discriminatory effect, the

government action is subject to rational basis review.”). The policy therefore comes to us

“bearing a strong presumption of validity,” and we have no difficulty in concluding that it

is rationally related to a legitimate state interest — indeed, the parties do not dispute that

fact. See Giarratano v. Johnson, 521 F.3d 298, 303 (4th Cir. 2008). Moreover, we have

recognized that the “federal courts should not lightly interfere with the day-to-day

operation of schools,” given that “school officials are far more intimately involved with

running schools” than are judges. See Hardwick ex rel. Hardwick v. Heyward, 711 F.3d

to “intervene in the resolution of conflicts which arise in the daily operation of school

recognized that — in the context of higher education — promoting a broad spectrum of

depending on its meaning and definition, is a compelling educational goal a school district

minimum, as a legitimate interest in the context of public primary and secondary schools.

Accordingly, the policy is rationally based, and the challenge interposed against it by the

Coalition must be rejected.

IV.

for entry of summary judgment in favor of the Board.

It is a “fundamental principle that racial discrimination in public education” violates

the Constitution. Brown v. Board of Educ., 349 U.S. 294, 298 (1955). In the decisions

1

Since Regents of the University of California v. Bakke, 438 U.S.

racial diversity.

Austin, 579 U.S. 365 (2016).

See Students for Fair Admissions, Inc. v. University of N.C., No. 21–707 (argued

No. 20–1199 (argued Oct. 31, 2022).

on race, see Gratz v. Bollinger, 539 U.S. 244, 271 (2003), nor do evaluators consider race

375 (2016); see Grutter v. Bollinger, 539 U.S. 306, 312–16 (2003). Instead, this case

policy with another. Cf. Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960) (challenged

policy replaced previously square-shaped city with “an uncouth twenty-eight-sided

figure”). When it did so, the Board also adopted—by supermajority vote—a rule saying

“[t]he admission process must use only race-neutral methods that do not seek to achieve

merely because of its race or ethnic origin,” Fisher, 570 U.S. at 311 (quotation marks

omitted). Nor are the Coalition’s allegations substantiated by reference to broad

statements—only one of which was uttered by the Board or its members—suggesting TJ

(same), JA 517 (same), JA 808 (same); see also JA 909 (Board resolution stating “TJ’s

demographics [should] represent the NOVA region” with no mention of race or ethnicity.).

are subject to the highest level of judicial scrutiny if they are passed with discriminatory

intent and disproportionately impact a particular racial group. The Fairfax County School

while increasing enrollment of every other racial group.

under strict scrutiny.

the evidence shows an undisputed racial motivation and an undeniable racial result, I

respectfully dissent.

The Equal Protection Clause prohibits a State from denying “any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “Its central

This opinion uses the racial terms the Board used when designing the Policy.

(2013) (Fisher I) (Thomas, J., concurring) (internal quotation marks omitted); see also

Miller, 515 U.S. at 911.

specified percentage of a particular group merely because of its race or ethnic origin.”

objective of “racial balance” as “illegitimate.” Parents Involved in Cmty. Schs. v. Seattle

have many times over reaffirmed that ‘[r]acial balance is not to be achieved for its own

sake.’” (brackets in original) (quoting Freeman v. Pitts, 503 U.S. 467, 494 (1992))).

“cannot be the goal, whether labeled ‘racial diversity’ or anything else.” Id. at 733; see

Fisher I, 570 U.S. at 311 (“Racial balancing is not transformed from patently

unconstitutional to a compelling state interest simply by relabeling it racial diversity.”

(internal quotation marks omitted)). For example, the Supreme Court has condemned as

within the schools that approximates the district’s overall demographics.” Parents

nothing more than ‘outright racial balancing[.]’” (quoting Fisher I, 570 U.S. at 311)). Our

Court has similarly identified as racial balancing a policy that sought “to achieve racial and

ethnic diversity in . . . classes in proportions that approximate the distribution of students

from racial groups in the district’s overall student population.” Tuttle v. Arlington Cnty.

Sch. Bd., 195 F.3d 698, 707 (4th Cir. 1999) (internal quotation marks and brackets omitted).

We found that policy unconstitutional even though it did not “explicitly set aside spots

solely for certain minorities,” because it worked toward “the same result by skewing the

odds of selection” in favor of certain racial groups. Id. As these cases illustrate, even

Involved, 551 U.S. at 741–742; cf. N.C. State Conference of NAACP v. McCrory, 831 F.3d

require proof that any government actor “harbored racial hatred or animosity toward any

minority group”).

a facially neutral policy, must be tested under exacting judicial scrutiny. See, e.g., Lewis

After all, “[i]f discriminatorily motivated, such [facially neutral] laws are just as abhorrent,

enough, however, to show that the school board was “aware of racial considerations”—it

must have been “motivated by them.” Miller, 515 U.S. at 916. In other words, we ask if

the school board acted “at least in part ‘because of,’ not merely ‘in spite of,’” the expected

v. Feeney, 442 U.S. 256, 279 (1979).

making the “sensitive inquiry” into whether discriminatory intent motivated a facially

neutral law. Arlington Heights, 429 U.S. at 266; see Washington v. Davis, 426 U.S. 229,

of the relevant facts . . . .”). These include “(1) historical background; (2) the specific

normal legislative process; (3) the law’s legislative history; and (4) whether the law ‘bears

more heavily on one race than another.’” N.C. State Conference of NAACP v. Raymond,

981 F.3d 295, 303 (4th Cir. 2020) (quoting Arlington Heights, 429 U.S. at 266).

of the law, then the law’s defenders may attempt to prove that “the law would have been

enacted without this factor.” Hunter v. Underwood, 471 U.S. 222, 228 (1985); see

Arlington Heights, 429 U.S. at 270 n.21. At this step, the court “must scrutinize the

strict judicial scrutiny. Hunt v. Cromartie, 526 U.S. 541, 546 (1999) (quoting Miller, 515

U.S. at 913). Only laws that are “narrowly tailored to achieve a compelling interest”

survive this “most rigorous and exacting standard of constitutional review.” Miller, 515

U.S. at 920.

summary judgment compels the conclusion that the Board adopted the Policy with an

impermissible purpose of racially balancing TJ to reduce Asian student enrollment. With

in the Board’s discriminatory purpose for revising TJ’s admissions policy. Feeney, 442

U.S. at 275.

evidence about the purposes of a multimember deliberative body often cuts both ways.

Hunter, 471 U.S. at 228. But here, the twelve-member Board plainly stated its intention to

craft an admissions policy for TJ that would reform the racial composition of the student

middle school—specifically, the school applicants attend, not the school to which they are

zoned—knowing that choice would significantly reduce the number of students admitted

from “feeder” schools, which historically sent large percentages of Asian students to TJ.

And finally, Board members’ private messages reveal their understanding that the process

leaves no doubt about the Board’s discriminatory purpose. Arlington Heights, 429 U.S. at

“there are contemporary statements by members of the decisionmaking body, minutes of

either “Asian,” “Black,” “Hispanic,” “White,” or “2 or More Races,” sometimes also using

a catch-all labeled “Multiracial/Other” to account for other ethnicities. When admissions

students made up 73% of the class, while White students were 17.7%, Hispanic students

were 3.3%, Multiracial/Other students were 6%, and the percentage of Black students was

Board Chair Karen Corbett Sanders called the admissions data “unacceptable” and vowed

Scott Brabrand that the Board “needed to be explicit in how [it was] going to address the

under-representation.” J.A. 426. Board member Karen Keys-Gamarra similarly urged her

colleagues to “recognize the unacceptable numbers . . . of African Americans that have

been accepted to T.J.” and take action. J.A. 259.

Brabrand began with a slide presentation stating that the purpose of changing TJ’s

Board’s] discussion for the remainder of the day.” J.A. 808. It showed the racial