The Supreme Court agreed Oct. 19 to decide what parents must show to claim a race-neutral school admissions policy is racially discriminatory. The case, No. 26-12, involves a lottery for magnet middle schools in Montgomery County, Maryland. The Court narrowed the case to one question: must a plaintiff show that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool, according to the Court’s order The school board says the answer would not change the result, which makes this a ruling about how to plead a case more than about who wins this one.
What the Court Will Decide in Association for Education Fairness
The petitioner is the Association for Education Fairness, a group of parents. The respondent is the Montgomery County Board of Education. The parents challenge a 2021-22 admissions policy the board calls the Pandemic Plan, which they say was meant to reduce Asian American enrollment even though it does not mention race. A district court dismissed the suit and the Fourth Circuit affirmed.
Christopher Kieser of Pacific Legal Foundation, the parents’ lawyer, wrote in the petition that evidence enough to establish an Equal Protection claim in some circuits is “legally irrelevant in others.” The petition cites the First and Fourth Circuits as requiring an aggregate showing and the Second and Third as not requiring one. The Court granted review 112 days after the petition was filed on June 29, a calculation from the two dates.
The Numbers Behind the Magnet School Lottery
By 2013-14, Asian American students made up nearly half of enrollment in the four magnet middle school programs, the petition says. Under an earlier selection method, the Asian American share of invitees to the Takoma Park STEM program fell from 45.6% in the three years before it to 31.5% during it.
The Pandemic Plan that followed admitted students at or above the 85th percentile on a reading and math assessment by lottery. Percentiles were normalized locally, the petition says, so students in the lowest-poverty band needed the 93rd percentile in math for the STEM lottery while students in the highest-poverty band needed the 60th.
The board says the policy is race-neutral by design. “The Pandemic Plan came about because of COVID-19,” it wrote in its brief opposing review, which calls the plan “a colorblind lottery.” The board says Asian American students made up a larger share of admitted students than of applicants at each magnet school, and that the share of admitted students fell at two of the four schools and rose at the other two between the earlier method’s last year and the plan’s first year.
Why the Board Says the Question Will Not Matter
Lawyers for the board at Hogan Lovells argue the plaintiffs conceded they could not prevail on disparate impact under the Fourth Circuit’s test, and that the complaint alleges no discriminatory statements by officials. They also say every circuit would reach the same outcome on these facts.
The parents answer that the 2023 Harvard admissions decision requires courts to eliminate “all of it,” meaning all racial discrimination. The grant therefore puts a pleading rule in front of the justices in a case where the board says the rule cannot change the outcome. Whatever the Court writes will govern lawsuits well beyond Maryland. Briefs from both sides come next.
