Brickbat: Foul Call


baseball_1161x653

California’s John Burroughs High School has suspended the entire varsity baseball team from practice after a photo was shared on social media in which team members were shown not wearing masks and not observing social distancing. The school suspended seniors for two weeks and the other team members for one week. The photo shoot was organized by players’ mothers for the annual team photo for the yearbook. “The district and board members decided, or they tried to cancel the whole varsity season as a result of the pictures,” said Rory Freck, a senior on the team. “But our athletic director and coach fought for us, and they compromised on a two-week suspension instead.”

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21 Republican Attorneys General Ask Secretary Yellen About Constitutionality of American Rescue Plan Act

On Saturday, I blogged about Section 602(c)(2)(A) of the American Rescue Plan Act. I questioned whether this conditional spending program was constitutional. On Tuesday, twenty-one Republican Attorneys General wrote to Treasury Secretary Yellen. And they asked many of the questions I posed. The letter was spearheaded by the Attorneys General of Georgia, Arizona, and West Virginia.

Here is the introduction:

The undersigned State Attorneys General request that the Department of the Treasury take immediate action to confirm that certain provisions of the American Rescue Plan Act (the “Act”) do not attempt to strip States of their core sovereign authority to enact and implement basic tax policy. Those provisions, found in section 9901 of the Act,1 forbid States from using COVID-19 relief funds to “directly or indirectly offset a reduction in … net tax revenue” resulting from state laws or regulations that reduce tax burdens—whether by cutting rates or by giving rebates, deductions, credits, “or otherwise[.]”2 This language could be read to deny States the ability to cut taxes in any manner whatsoever—even if they would have provided such tax relief with or without the prospect of COVID-19 relief funds. Absent a more sensible interpretation from your department, this provision would amount to an unprecedented and unconstitutional intrusion on the separate sovereignty of the States through federal usurpation of essentially one half of the State’s fiscal ledgers (i.e., the revenue half). Indeed, such federal usurpation of state tax policy would represent the greatest attempted invasion of state sovereignty by Congress in the history of our Republic.

I think the easiest way for the states to win is under Pennhurst: there is no clear statement of what the condition requires:

First, if the Tax Cut Prohibition were interpreted to place any limits on how States could enact tax relief not directly connected to the relief funds provided by the Act, it would impose a hopelessly ambiguous condition on federal funding. The examples listed above make the point: how is a State to know, when accepting the relief funds, whether any of these kinds of commonplace and sensible tax relief measures are “indirectly” offset by COVID-19 relief funds? Is it enough that the funds help balance a state budget that also contains tax relief measures? What if the presence of relief funds in 2021’s budget effectively frees up funds to offer tax relief in 2022? Absent a clear and narrowing construction by Treasury regulation, States cannot possibly know the bargain they are striking in accepting the relief funds. Yet the “legitimacy of Congress’ power to legislate under the spending power … rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.'” Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981).

The letter asks the Secretary for clarification of how the policy will be interpreted.

Given the foregoing, we ask that you confirm that the American Rescue Plan Act does not prohibit States from generally providing tax relief through the kinds of measures listed and discussed above and other, similar measures, but at most precludes express use of the funds provided under the Act for direct tax cuts rather than for the purposes specified by the Act. In the absence of such an assurance by March 23, we will take appropriate additional action to ensure that our States have the clarity and assurance necessary to provide for our citizens’ welfare through enacting and implementing sensible tax policies, including tax relief.

The emphasized text means a lawsuit, probably in the 11th or 5th Circuit. The Biden administration should tread carefully here. If it takes a hardline position, the executive branch may suffer a huge defeat at the Court.

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Congress Uses COVID-19 As a Cover for an Epidemic of Fiscal Recklessness

Schumer-and-Pelosi-3-15-21

The “recovery rebates” that Americans began receiving this week supposedly have something to do with the economic damage caused by COVID-19 and the control measures it inspired. But like most of the so-called American Rescue Plan Act, these payments, which account for more than a fifth of the bill’s $1.9 trillion price tag, are only tenuously related to the pandemic.

The Democrats who championed the law hope those bribes will buy them votes in the midterm elections. But you really should be thanking your children and grandchildren, because they will ultimately pick up the tab for this package and the rest of the $5 trillion spending binge that Congress claimed was justified by a public health emergency.

Individuals with adjusted gross incomes of up to $75,000 will get $1,400, while married couples earning up to $150,000 will get $2,800, plus $1,400 for each dependent. That amounts to $5,600 for a four-person family, on top of the $5,800 that such households received under the coronavirus relief packages that Congress approved in March and December.

Congress distributed that money without regard to whether the recipients had suffered pandemic-related economic distress. A Pew Research Center survey conducted last August suggests that most of them have not: Forty-two percent of respondents said they or someone in their households had lost jobs or income due to COVID-19, less than half the 85 percent of Americans who are expected to receive the latest round of payments.

Another survey found that just 15 percent of people who received the money distributed in April reported that they spent most of it; instead, they typically saved it or used it to pay down debts. Those findings cast doubt on the hope that such payments, even when they go to relatively well-off families, will stimulate the pandemic-battered economy by increasing consumer spending.

The package also includes an expanded, fully refundable child tax credit that will cost at least $89 billion—more if the temporary change becomes permanent. Like the recovery rebates, that provision applies fully to households earning up to $150,000.

Other major elements of the American Rescue Plan Act likewise have little or nothing to do with COVID-19.

The package includes nearly $129 billion for K–12 education, which ostensibly is aimed at helping students safely return to school. Yet most of the more than $100 billion in education funding authorized by earlier legislation remains unused, and the Congressional Budget Office projects that just 5 percent of the new money will be spent this fiscal year, which ends on September 30.

Congress allocated $350 billion to “coronavirus state and local relief funds” for governments that generally have emerged from the pandemic in much better financial condition than expected. California, for example, will benefit from this largesse even though it is running a surplus.

Another $86 billion will be used to bail out union-run pension funds that were already in dire straits before the pandemic. Obamacare premium subsidies for households earning as much as $350,000 annually will cost $34 billion.

Republicans, who last year supported massive, frequently ill-considered spending in the name of fighting COVID-19, have changed their tune now that Democrats control the executive and legislative branches. They uniformly opposed the latest bill in the House and the Senate, and they plan to make political hay by accusing Democrats of using the pandemic as an excuse for fiscally reckless spending aimed at achieving longstanding policy goals, rewarding their party’s most dedicated supporters, and enticing voters with found money.

Blatant hypocrisy aside, the Republicans have a point. The national debt—currently about $27.5 trillion, three-quarters of which is publicly held—already exceeds the size of the U.S. economy. The annual deficit was $3.1 trillion last fiscal year and will be more than $1 trillion this fiscal year.

Continuing on this path will slow economic growth, replace useful spending with interest payments, and force tax increases, benefit reductions, or both. Enjoy your debt-financed windfall while you can.

© Copyright 2021 by Creators Syndicate Inc.

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21 Republican Attorneys General Ask Secretary Yellen About Constitutionality of American Rescue Plan Act

On Saturday, I blogged about Section 602(c)(2)(A) of the American Rescue Plan Act. I questioned whether this conditional spending program was constitutional. On Tuesday, twenty-one Republican Attorneys General wrote to Treasury Secretary Yellen. And they asked many of the questions I posed. The letter was spearheaded by the Attorneys General of Georgia, Arizona, and West Virginia.

Here is the introduction:

The undersigned State Attorneys General request that the Department of the Treasury take immediate action to confirm that certain provisions of the American Rescue Plan Act (the “Act”) do not attempt to strip States of their core sovereign authority to enact and implement basic tax policy. Those provisions, found in section 9901 of the Act,1 forbid States from using COVID-19 relief funds to “directly or indirectly offset a reduction in … net tax revenue” resulting from state laws or regulations that reduce tax burdens—whether by cutting rates or by giving rebates, deductions, credits, “or otherwise[.]”2 This language could be read to deny States the ability to cut taxes in any manner whatsoever—even if they would have provided such tax relief with or without the prospect of COVID-19 relief funds. Absent a more sensible interpretation from your department, this provision would amount to an unprecedented and unconstitutional intrusion on the separate sovereignty of the States through federal usurpation of essentially one half of the State’s fiscal ledgers (i.e., the revenue half). Indeed, such federal usurpation of state tax policy would represent the greatest attempted invasion of state sovereignty by Congress in the history of our Republic.

I think the easiest way for the states to win is under Pennhurst: there is no clear statement of what the condition requires:

First, if the Tax Cut Prohibition were interpreted to place any limits on how States could enact tax relief not directly connected to the relief funds provided by the Act, it would impose a hopelessly ambiguous condition on federal funding. The examples listed above make the point: how is a State to know, when accepting the relief funds, whether any of these kinds of commonplace and sensible tax relief measures are “indirectly” offset by COVID-19 relief funds? Is it enough that the funds help balance a state budget that also contains tax relief measures? What if the presence of relief funds in 2021’s budget effectively frees up funds to offer tax relief in 2022? Absent a clear and narrowing construction by Treasury regulation, States cannot possibly know the bargain they are striking in accepting the relief funds. Yet the “legitimacy of Congress’ power to legislate under the spending power … rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.'” Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981).

The letter asks the Secretary for clarification of how the policy will be interpreted.

Given the foregoing, we ask that you confirm that the American Rescue Plan Act does not prohibit States from generally providing tax relief through the kinds of measures listed and discussed above and other, similar measures, but at most precludes express use of the funds provided under the Act for direct tax cuts rather than for the purposes specified by the Act. In the absence of such an assurance by March 23, we will take appropriate additional action to ensure that our States have the clarity and assurance necessary to provide for our citizens’ welfare through enacting and implementing sensible tax policies, including tax relief.

The emphasized text means a lawsuit, probably in the 11th or 5th Circuit. The Biden administration should tread carefully here. If it takes a hardline position, the executive branch may suffer a huge defeat at the Court.

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Congress Uses COVID-19 As a Cover for an Epidemic of Fiscal Recklessness

Schumer-and-Pelosi-3-15-21

The “recovery rebates” that Americans began receiving this week supposedly have something to do with the economic damage caused by COVID-19 and the control measures it inspired. But like most of the so-called American Rescue Plan Act, these payments, which account for more than a fifth of the bill’s $1.9 trillion price tag, are only tenuously related to the pandemic.

The Democrats who championed the law hope those bribes will buy them votes in the midterm elections. But you really should be thanking your children and grandchildren, because they will ultimately pick up the tab for this package and the rest of the $5 trillion spending binge that Congress claimed was justified by a public health emergency.

Individuals with adjusted gross incomes of up to $75,000 will get $1,400, while married couples earning up to $150,000 will get $2,800, plus $1,400 for each dependent. That amounts to $5,600 for a four-person family, on top of the $5,800 that such households received under the coronavirus relief packages that Congress approved in March and December.

Congress distributed that money without regard to whether the recipients had suffered pandemic-related economic distress. A Pew Research Center survey conducted last August suggests that most of them have not: Forty-two percent of respondents said they or someone in their households had lost jobs or income due to COVID-19, less than half the 85 percent of Americans who are expected to receive the latest round of payments.

Another survey found that just 15 percent of people who received the money distributed in April reported that they spent most of it; instead, they typically saved it or used it to pay down debts. Those findings cast doubt on the hope that such payments, even when they go to relatively well-off families, will stimulate the pandemic-battered economy by increasing consumer spending.

The package also includes an expanded, fully refundable child tax credit that will cost at least $89 billion—more if the temporary change becomes permanent. Like the recovery rebates, that provision applies fully to households earning up to $150,000.

Other major elements of the American Rescue Plan Act likewise have little or nothing to do with COVID-19.

The package includes nearly $129 billion for K–12 education, which ostensibly is aimed at helping students safely return to school. Yet most of the more than $100 billion in education funding authorized by earlier legislation remains unused, and the Congressional Budget Office projects that just 5 percent of the new money will be spent this fiscal year, which ends on September 30.

Congress allocated $350 billion to “coronavirus state and local relief funds” for governments that generally have emerged from the pandemic in much better financial condition than expected. California, for example, will benefit from this largesse even though it is running a surplus.

Another $86 billion will be used to bail out union-run pension funds that were already in dire straits before the pandemic. Obamacare premium subsidies for households earning as much as $350,000 annually will cost $34 billion.

Republicans, who last year supported massive, frequently ill-considered spending in the name of fighting COVID-19, have changed their tune now that Democrats control the executive and legislative branches. They uniformly opposed the latest bill in the House and the Senate, and they plan to make political hay by accusing Democrats of using the pandemic as an excuse for fiscally reckless spending aimed at achieving longstanding policy goals, rewarding their party’s most dedicated supporters, and enticing voters with found money.

Blatant hypocrisy aside, the Republicans have a point. The national debt—currently about $27.5 trillion, three-quarters of which is publicly held—already exceeds the size of the U.S. economy. The annual deficit was $3.1 trillion last fiscal year and will be more than $1 trillion this fiscal year.

Continuing on this path will slow economic growth, replace useful spending with interest payments, and force tax increases, benefit reductions, or both. Enjoy your debt-financed windfall while you can.

© Copyright 2021 by Creators Syndicate Inc.

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Pennsylvania Bar Dismisses 3rd Circuit Appeal in Rule 8.4(g) Challenge

In December, a federal district court declared unconstitutional Pennsylvania’s version of ABA Model Rule 8.4(g). The judge reiterated points that Eugene Volokh and I have been making for years: this rule may be well intentioned, but it violates the Free Speech Clause of the First Amendment.

In January, the Pennsylvania Bar field a notice of appeal to the Third Circuit. But yesterday, the Bar surrendered. It voluntarily dismissed the appeal. Congratulations to Adam Schulman, Ted Frank, and the other lawyers at the Hamilton Lincoln Law Institute for their victory.

Going forward, the Pennsylvania Bar will presumably try to draft a constitutional version of the rule. Other states considering ABA Model Rule 8.4(g) should take note, and proceed in a different direction.

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Pennsylvania Bar Dismisses 3rd Circuit Appeal in Rule 8.4(g) Challenge

In December, a federal district court declared unconstitutional Pennsylvania’s version of ABA Model Rule 8.4(g). The judge reiterated points that Eugene Volokh and I have been making for years: this rule may be well intentioned, but it violates the Free Speech Clause of the First Amendment.

In January, the Pennsylvania Bar field a notice of appeal to the Third Circuit. But yesterday, the Bar surrendered. It voluntarily dismissed the appeal. Congratulations to Adam Schulman, Ted Frank, and the other lawyers at the Hamilton Lincoln Law Institute for their victory.

Going forward, the Pennsylvania Bar will presumably try to draft a constitutional version of the rule. Other states considering ABA Model Rule 8.4(g) should take note, and proceed in a different direction.

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Plaintiff “Must Have Known That the Embarrassing Events During His Previous Employment Would Be Central to … the Case”

From Cicvara v. Gillette Co., decided in 2015 but just posted on Westlaw:

The court granted Gillette’s Motion for Summary Judgment in its Ruling dated November 22, 2011. The court need not go into detail, but it suffices to say that facts of this case are such that they present Cicvara in an unflattering light, and those facts were recounted in the court’s Ruling.

We interrupt the regularly scheduled opinion to cut to the Second Circuit’s opinion upholding that 2011 ruling (in an employment case), which gives more details:

Despite Cicvara’s attempts to characterize his alleged activity as a mere “pass,” a “sexual overture,” or an “inappropriate” and “awkward event,” the Company reasonably determined that he engaged in “gross misconduct which is materially and demonstrably injurious to the company.” Here, appellant stripped down to his underwear, massaged Ms. Liu’s body, disregarded her protests, and then proceeded to tell her “one could rape you” at a time when the Company’s relationship with Ms. Liu’s organization was already strained. These facts speak for themselves. The district court was therefore correct to find, “[o]n the basis of the evidence presented, no rational trier of fact could find that Gillette failed to exercise its discretion reasonably and in good faith.”

Returning to the district court opinion:

Presumably, for that reason, Cicvara filed a Letter requesting that the court seal documents related to this case. He further requests that the court order a number of companies providing Internet search engines to remove links that lead to this case’s documents from their search engines’ results.

The court denies Cicvara’s requests. Common law provides the public with a right of access to judicial documents. See Lugosch v. Pyramid Co. of Onondaga (2d Cir. 2006). A “judicial document” is one that is “relevant to the performance of the judicial function and useful in the judicial process.”

This right of access is not an unqualified one; rather, judicial documents are presumed accessible by the public, and that presumption may be overcome. The weight of the presumption is determined by “the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.”

Documents used by parties moving for, or opposing, summary judgment are entitled to the strongest presumption: they “should not remain under seal absent the most compelling reasons.” After determining the weight of the presumption of access, the court balances that presumption against competing considerations, such as the danger of impairing law enforcement, judicial efficiency, and the privacy interest of those resisting disclosure.

Cicvara seeks to seal the entire case, including all documents at the trial court and appellate level. As an initial matter, “[c]ase law and local rules within this district expressly disfavor the blanket sealing of an entire case.” Morgan v. Dzurenda (D. Conn. Nov. 4, 2014). The court denies this blanket request.

To the extent that Cicvara requests to seal only those documents containing unappealing information about himself, granting such a request would require the court to seal the parties’ Motions for Summary Judgment and the related Memoranda. If it were to grant such a request, the court would have to seal its Ruling disposing of those Motions. These documents are all clearly “judicial documents.” Indeed, they are at the core of Article III judicial power, so the presumption of access is at its strongest.

No competing considerations present in this case overcome the presumption of access. The court understands that Cicvara’s situation is an unpleasant one that involves concerns about his privacy. However, Cicvara brought the lawsuit, and he must have known that the embarrassing events during his previous employment would be central to the disposition of the case. Thus, this is not a case where an innocent third party’s privacy interests are at stake. Aside from Cicvara’s interest in his own privacy, no other competing considerations are present, and Cicvara’s interest itself is insufficient to overcome the strong presumption of access.

As to Cicvara’s second request, because sealing documents in this case would be inappropriate, the court has no basis to order companies that provide Internet search engines to remove links leading to such documents.

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Plaintiff “Must Have Known That the Embarrassing Events During His Previous Employment Would Be Central to … the Case”

From Cicvara v. Gillette Co., decided in 2015 but just posted on Westlaw:

The court granted Gillette’s Motion for Summary Judgment in its Ruling dated November 22, 2011. The court need not go into detail, but it suffices to say that facts of this case are such that they present Cicvara in an unflattering light, and those facts were recounted in the court’s Ruling.

We interrupt the regularly scheduled opinion to cut to the Second Circuit’s opinion upholding that 2011 ruling (in an employment case), which gives more details:

Despite Cicvara’s attempts to characterize his alleged activity as a mere “pass,” a “sexual overture,” or an “inappropriate” and “awkward event,” the Company reasonably determined that he engaged in “gross misconduct which is materially and demonstrably injurious to the company.” Here, appellant stripped down to his underwear, massaged Ms. Liu’s body, disregarded her protests, and then proceeded to tell her “one could rape you” at a time when the Company’s relationship with Ms. Liu’s organization was already strained. These facts speak for themselves. The district court was therefore correct to find, “[o]n the basis of the evidence presented, no rational trier of fact could find that Gillette failed to exercise its discretion reasonably and in good faith.”

Returning to the district court opinion:

Presumably, for that reason, Cicvara filed a Letter requesting that the court seal documents related to this case. He further requests that the court order a number of companies providing Internet search engines to remove links that lead to this case’s documents from their search engines’ results.

The court denies Cicvara’s requests. Common law provides the public with a right of access to judicial documents. See Lugosch v. Pyramid Co. of Onondaga (2d Cir. 2006). A “judicial document” is one that is “relevant to the performance of the judicial function and useful in the judicial process.”

This right of access is not an unqualified one; rather, judicial documents are presumed accessible by the public, and that presumption may be overcome. The weight of the presumption is determined by “the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.”

Documents used by parties moving for, or opposing, summary judgment are entitled to the strongest presumption: they “should not remain under seal absent the most compelling reasons.” After determining the weight of the presumption of access, the court balances that presumption against competing considerations, such as the danger of impairing law enforcement, judicial efficiency, and the privacy interest of those resisting disclosure.

Cicvara seeks to seal the entire case, including all documents at the trial court and appellate level. As an initial matter, “[c]ase law and local rules within this district expressly disfavor the blanket sealing of an entire case.” Morgan v. Dzurenda (D. Conn. Nov. 4, 2014). The court denies this blanket request.

To the extent that Cicvara requests to seal only those documents containing unappealing information about himself, granting such a request would require the court to seal the parties’ Motions for Summary Judgment and the related Memoranda. If it were to grant such a request, the court would have to seal its Ruling disposing of those Motions. These documents are all clearly “judicial documents.” Indeed, they are at the core of Article III judicial power, so the presumption of access is at its strongest.

No competing considerations present in this case overcome the presumption of access. The court understands that Cicvara’s situation is an unpleasant one that involves concerns about his privacy. However, Cicvara brought the lawsuit, and he must have known that the embarrassing events during his previous employment would be central to the disposition of the case. Thus, this is not a case where an innocent third party’s privacy interests are at stake. Aside from Cicvara’s interest in his own privacy, no other competing considerations are present, and Cicvara’s interest itself is insufficient to overcome the strong presumption of access.

As to Cicvara’s second request, because sealing documents in this case would be inappropriate, the court has no basis to order companies that provide Internet search engines to remove links leading to such documents.

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Important New Lawsuit Challenges Attempted Racial Balancing at Prominent Selective Virginia Public High School

Thomas Jefferson School
The Thomas Jefferson High School for Science and Technology. Fairfax, Virginia.

 

Last week, a group of primarily Asian-American parents filed a lawsuit challenging the constitutionality of new admissions policies at the Thomas Jefferson High School for Science and Technology, in Fairfax, Virginia. The case could end up setting an important precedent:

Fairfax County Public Schools is facing a second lawsuit over changes officials made last year to the admissions process at Thomas Jefferson High School for Science and Technology, its flagship STEM magnet school.

The suit, filed in federal court Wednesday, alleges the changes are discriminatory against Asian Americans and therefore violate the equal protection clause of the U.S. Constitution. Some of the plaintiffs are also part of the initial lawsuit.

Thomas Jefferson High, known as TJ, often ranks as the best public high school in the nation — but is also nationally known for struggling to admit Black and Hispanic students, who have comprised single-digit percentages of the student body for decades. By contrast, Asian American students made up 70 percent of the student body in 2019-2020, although Asian families accounted for 30 percent of Fairfax County’s population in 2019…

In late December, the board approved a “holistic review” process that invites qualified eighth-graders — those with a grade-point average of at least 3.5 and enrolled in various honors courses — to apply by completing an essay and a “Student Portrait Sheet…”

That overhaul is the focus of the new lawsuit. It was filed by members of the Coalition of TJ, a group formed by parents and school alumni last year to fight the proposed admissions changes…..

The 25-page suit, filed Wednesday in the U.S. District Court for the Eastern District of Virginia against Brabrand and the Fairfax school board, charges that the revisions to TJ’s admissions process were specifically meant to drive down the number of Asian American students enrolled at the school and cites presentations and comments made by the superintendent and school board members to try to prove that point.

As described in the complaint filed by the plaintiffs, the key to the new admissions system is a system under which the previous admissions test (on which Asian-American applicants tended to score well) is eliminated, and replaced with a “holistic” evaluation system under which there are caps on the number of students who can be admitted from any given middle school in Fairfax County. The latter would have the effect of greatly reducing the number of Asian-American students accepted, because Asian students are disproportionately concentrated in some middle schools, relative to others.

The TJ case could sent important precedents on two major issues: how to deal with cases where racial affirmative action policies are pursued by policies that are facially neutral, and how to address situations where a major goal of the policy is to reduce the number of Asian-American students.

The mere fact the new admissions system would result in fewer Asian-American students does not make the policy unconstitutional. Neither does the possibility that the new policy might reduce the quality of education at TJ overall. Rather, the problem is that extensive evidence indicates that the change in admissions policy is motivated by policymakers’ desire to reduce the percentage of Asian-American students, so that the TJ student body will more closely reflect the demographics of the region. The plaintiffs’ complaint gives many examples, such as this one:

At the school board work session on October 6, 2020, when the Board voted to eliminate the TJ admissions test, the discussion between the Board and Brabrand make it clear that racial balancing was the goal….

[TJ] Principal Bonitatibus again highlighted the desire for a “student body that more closely aligns with the representation in FCPS” and “Northern Virginia…” Board Member Abrar Omeish stated that a key point was to “make sure there’s representation” that “should be proportional to the population numbers” of Fairfax County.

The complaint also details how state and county officials involved in discussions that led to the reforms voiced various negative stereotypes about Asian-American parents and students, including that they put too much emphasis on test preparation, and that having too many of them damages TJ’s “culture.” In one particularly egregious example, state legislator Mark Keam denounced the “unethical ways” Asian-American parents “push their kids into [TJ],” when those parents are “not even going to stay in America,” but instead are “using [TJ] to get into Ivy League schools and then go back to their home country.”

If the board’s new policy is implemented, the principal effect will be to greatly reduce the percentage of Asian-American students at TJ, while greatly increasing the percentage of whites. The complaint notes that population of Fairfax county is currently about 61% white, 10% Black, 16% Hispanic, and 19% Asian and Pacific Islander (numbers add up to more than 100% because “Hispanic” residents in the survey can be members of any racial group; thus, many are also listed as “black” or “white”).

The student body at TJ is currently 73% Asian-American, 1% Black, 3.3% Hispanic or Latino, 6% other, and 17.7% white. If, as County school officials indicated, the goal of the new policy is to get a student body that is “proportional” to Fairfax’s population demographics, the biggest change would be an increase in the percentage of non-Hispanic whites from the current 17.7% to somewhere between 50 and 60%, though the percentage of blacks and Latinos would also increase. The plaintiffs’ analysis estimates that the new admission system would, in fact, result in a student body that is roughly 31% Asian-American, 5% Black, 8% Hispanic or Latino, 48% white, and 8% other.

The Supreme Court has long held that seemingly neutral government policies whose real goal is to discriminate on the basis of race or ethnicity are presumptively unconstitutional and subject to “strict scrutiny” in much the same way as policies that openly discriminate. Under Village of Arlington Heights v. Metropolitan Housing Development Corporation (1977), the leading precedent in this field, once the plaintiffs provide any significant evidence that the policy was motivated by racial or ethnic discrimination, the burden shifts to the government to prove they would have enacted the same policy even in the absence of racial motives. If they cannot do so, the policy is subject to searching strict scrutiny, and is likely to be struck down. In this case, it will be very difficult for Fairfax County to show that they would have adopted the same policy even in the absence of the racial balancing goals that key officials openly said were their main objectives.

While there are many such “pretextual discrimination” rulings in cases involving traditional racial discrimination against minorities, we have not yet had a significant decision in a case where the challenged pretextual policy is an “affirmative action” seeking to promote “diversity” or racial balancing. The TJ case might fill that gap. And it could open the door to challenges to similar pretextually motivated policies, such as the Texas “Top Ten Percent Plan.” 

The other big reason why this case might set an important precedent is that it involves a “diversity” or “affirmative action” plan where the principal victims are Asian-Americans. Disproportionate effects on Asian-Americans have come up in other cases, most notably the currently ongoing litigation against Harvard’s affirmative action policies. But none of them involve targeting of Asian-Americans as blatant or as large-scale as in this case. And none involve a situation where it is so clear that the primary beneficiaries of the new policy will be whites, even though officials clearly also want to increase the percentage of African-Americans and Hispanics.

For reasons I have expounded on several times previously (e.g. here, here, and here), racial preferences that disadvantage Asian-Americans are at odds with both the compensatory justice and “diversity” rationales for affirmative action:

The Asian-American case… highlights the contradiction between the compensatory justice and diversity rationales for affirmative action in admissions… If the goal of affirmative action is to compensate minority groups who have been victimized by discrimination for the injustices they have suffered, many Asian-American groups deserve not only equal treatment but racial preferences. Chinese and Japanese-Americans, for example, were victimized by extensive state-sponsored discrimination – culminating in the internment of some 100,000 Japanese-Americans during World War II… It’s true, of course, that these groups are relatively affluent today. But that fact has little relevance to issues of compensatory justice. If you steal from someone and they later strike it rich, that does not diminish the validity of their claims for compensation….

If, on the other hand, the goal of affirmative action is to promote “diversity” for the sake of ensuring that each ethnic group is represented by a “critical mass” in the student body sufficient to educate other students about their culture, then the lack of affirmative action for Asian-Americans becomes more understandable. Because of their impressive academic credentials, a critical mass of Asian students can be achieved even without affirmative action preferences. However, this conclusion may be overstated. “Asians” are not a monolithic group. Japanese, Chinese, Indians, Filipinos, Vietnamese, and Cambodians all have very different cultures. Indeed, immigrants from one part of India or China often have different cultures and speak different languages from those hailing from other parts of the same nation. Treating them all as an undifferentiated mass of “Asian-Americans” is a bit like saying that Norwegians, Italians, and Bulgarians are basically the same because they are “Europeans.” If diversity is really the goal,… administrators should do away with the artificial “Asian-American” category altogether and start considering each group separately. They should do the same for the many groups usually lumped together as “white” or “Hispanic.” A university that already has a critical mass of native-born-WASPS might well not have a critical mass of Utah Mormons or Eastern European immigrants.

Defenders of programs intended to reduce the percentage of Asian-American students in elite high schools and universities often point out that these policies do not completely exclude Asians, in the way that Jim Crow-era segregation policies totally excluded blacks from white schools. In the TJ case, the new policy would result in a school where some 30% of the students are Asian-American—which is higher than their percentage of the Fairfax County population.

It is indeed true that the TJ policy and others like it are not as bad as Jim Crow, despite attempts to equate the two by some conservatives. But they still deliberately disadvantage Asian students based on their race. That is a grave injustice even if it is less awful than Jim Crow was.

And while comparisons to Jim Crow are overstated, there is a closer historical parallel to early-twentieth century policies intended to limit the number of Jewish students at elite educational institutions. As in the case of Asian-Americans today, education administrators back then argued that having too many Jews would undermine desirable diversity, and damage the school’s “culture.” Much like Asian students today, Jewish students in that era were stereotyped as overly focused on grades and test scores, and not interested enough in sports and social activities.

And, as with the TJ policy of using middle school caps and “holistic” policies to keep down the number of Asian students, administrators at Ivy League universities used geographic preferences and  “character” evaluations, as a seemingly neutral proxy for keeping down the number of Jews. These types of policies fell far short of completely excluding Jews from the elite institutions that adopted them. But they did significantly reduce the number of Jewish students who were able to attend them.

Today, almost everyone regards these anti-Jewish policies as a shameful episode in the history of American education. But today’s very similar efforts to reduce the number of Asian-American students suggests we haven’t learned the lessons of history as well as we should have.

Defenders of affirmative action sometimes argue that Asian-American opponents are being used or exploited by white conservatives. That may well be what some white politicians and activists are trying to do.

But Asian-American concern about racial preference policies that target them long predates most white conservatives’ interest in the issue. Some thirty years ago, I attended a public high school with a large Asian-American population. Even back then, racial preferences were a major focus of conversation and concern among my Asian-American classmates applying to elite colleges. The key role of Asian-Americans in the recent defeat of California Proposition 16 (which would have restored racial preferences in education in that state), also cannot easily be ascribed to conservative manipulation. Asian-Americans in that state are overwhelmingly liberal Democrats, and unlikely to take their cues from white conservatives. If there is an opportunity here for conservatives to exploit, it is in large part because of preexisting Asian-American opposition to policies intended to reduce their access to elite educational institutions.

There is much that Virginia policymakers can do to improve educational opportunities for disadvantaged students of all races, without targeting Asian-American students, or engaging in racial preferences of any kind. For example, they could back initiatives to abolish the exclusionary zoning that prices many poorer families out of living in parts of the region with strong school systems.

If instead they choose to promote racial balancing at selective institutions by targeting Asian-American students, they can expect more challenges like this one. Hopefully, the TJ case will set a valuable precedent curbing such practices.

NOTE: My wife, Alison Somin, works for the Pacific Legal Foundation, the public interest law firm representing the plaintiffs in the TJ case. She is also one of the lawyers working on this case, specifically. As the links in the above post demonstrate, I have written about these sorts of issues since long before Alison accepted a position at PLF last year, and my views are much the same as they were before she did so.

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