Cite as: 601 U. S. ____ (2024) 1 

ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

COALITION FOR TJ v. FAIRFAX COUNTY SCHOOL 

BOARD 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 

No. 23–170. Decided February 20, 2024 

The petition for a writ of certiorari is denied. 

JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting from the denial of certiorari. 

The Court of Appeals’ decision in this case is based on a 

patently incorrect and dangerous understanding of what a 

plaintiff must show to prove intentional race discrimination. A group representing applicants for admission to a 

highly competitive public magnet school brought suit, 

claiming that changes in the school’s admissions requirements violated the Equal Protection Clause. They alleged

that the changes were made for the purpose of discriminating on the basis of race, to the detriment of Asian-American 

applicants. The District Court found that direct and circumstantial evidence supported that claim and issued an 

injunction against implementation of the changes. On appeal, however, a divided Fourth Circuit panel reversed and

held that the plaintiff ’s claim failed simply because the 

challenged changes did not reduce the percentage of AsianAmerican admittees below the percentage of AsianAmerican students in the schools in the jurisdictions served 

by the magnet school. What the Fourth Circuit majority

held, in essence, is that intentional racial discrimination is 

constitutional so long as it is not too severe. This reasoning

is indefensible, and it cries out for correction. 
 

2 COALITION FOR TJ v. FAIRFAX COUNTY 

 SCHOOL BOARD 

ALITO, J., dissenting 

I 

A 

Thomas Jefferson High School for Science and Technology (TJ), is a magnet school that draws students from Fairfax County and other jurisdictions in northern Virginia. 

Widely recognized as one of the best public high schools in 

the Nation,1 the school has exceptional resources, including

13 on-campus research laboratories and a student-produced scientific research journal, and it features a rigorous

curriculum. All students must study computer science and 

complete a science or technology research project, and the 

school offers 26 advanced placement and 20 “post-AP” 

courses.2 

The Fairfax County School Board (Board), an elected 12-

member body, sets the school’s admissions policy. Until 

2020, the school had a highly competitive race-blind admissions process that relied heavily on standardized tests. 

Eighth grade students were eligible to apply if they had at

least a 3.0 GPA and had taken a course in algebra. All applicants then took three standardized tests, and after that,

the highest ranked students took a fourth exam and submitted two teacher recommendations. The class was selected from that group based on a holistic review of these 

inputs. Admission to TJ has been very competitive. From 

2012 to 2020, the admissions rate varied between 14 and 20 

percent.3 

—————— 1U. S. News & World Report, Thomas Jefferson High School for Science and Technology, https://www.usnews.com/education/best-highschools/virginia/districts/fairfax-county-public-schools/thomas-jeffersonhigh-school-for-science-and-technology-20461. 2Thomas Jefferson High School for Science and Technology 2022–2023, 

https : / / tjhsst.fcps.edu / sites / default / files / media /inline-files/2022-23%

20TJHSST%20Profile_0.pdf; Fairfax County Public Schools, School 

Summary, https://schoolprofiles.fcps.edu/schlprfl/f?p=108%3A50%3A% 

3A%3A%3A%3AP0_CURRENT _SCHOOL_ID%3A300. 3See, e.g., TJHSST Admissions Statistics for Class of 2016, 

https://web.archive.org/web/20150404073947/ https://www.fcps.edu/cco/ 
 

 

 

Cite as: 601 U. S. ____ (2024) 3 

ALITO, J., dissenting 

In recent years, this race-neutral competitive process produced classes with a high percentage of Asian-American 

students. In 2019, Asian Americans constituted 71.5 percent of TJ’s class, and the 2020 entering class was similar, 

with a 73 percent Asian-American student body.

Asian-American students, many of whom are immigrants

or the children of immigrants,4 have often seen admission 

to TJ as a ticket to the American dream. In this respect,

their aspirations mirror those of young people from other 

immigrant groups. Public magnet schools with competitive

admissions based on standardized tests have served as engines of social mobility by providing unique opportunities 

for minorities and the children of immigrants, and these 

students’ subsequent careers have in turn richly contributed to our country’s success. For example, one such school

in New York City has produced no fewer than nine Nobel 

laureates.5 

While Asian Americans have striven to attend TJ, their 

strong representation in the student body attracted criticism from education officials. In June 2020, TJ students 

received an email from their principal lamenting that the

school did “‘not reflect the racial composition in [the Fairfax 

County Public Schools].’” App. to Pet. for Cert. 90a. A 

member of the Board wrote in an email that she was “‘angry 

—————— 

pr / tj / tjadmissions0412.pdf ; Fairfax County Public Schools, TJHSST 

Offers Admission to 486 Students, https : / /web.archive.org /web /

20220824023116/https://www.fcps.edu/news/tjhsst-offers-admission-486-

students. 4The percentage of foreign-born residents in the jurisdictions in question is well above the national average. For example, immigrants make

up approximately 30 percent of the population of Fairfax County, which 

is the most populous county in Virginia. And of the top five countries 

from which these immigrants came, four (India, Korea, Vietnam, and 

China) are in Asia. Fairfax County, Our Immigrant Neighbors, 

https://www.fairfaxcounty.gov/demographics/our-immigrant-neighbors. 5Bronx Science Foundation, Celebrating Bronx Science Luminaries,

https://alumni.bxscience.edu/hall-of-fame-2. 
 

 

4 COALITION FOR TJ v. FAIRFAX COUNTY 

 SCHOOL BOARD 

ALITO, J., dissenting 

and disappointed’” at TJ’s admissions results and that she

expected “‘intentful [sic] action forthcoming.’” Id., at 100a. 

That Board member also contacted Scott Braband, the superintendent of the Fairfax County Public Schools, demanding that the Board and the public school system “‘be 

explicit in how we are going to address the underrepresentation of [b]lack and Hispanic students.’” Ibid. 

The Board answered the call. In December 2020, it 

adopted the current admissions policy, which no longer relies on standardized tests. The policy fills around 450 of the

550 seats in each incoming class by allocating a specified

number of seats to each public middle school in the qualifying region.6 The remaining 100 seats are open to the entire 

applicant pool. Applicants for these seats are evaluated 

based on their grades, a “portrait sheet,” a problem-solving

essay, and “Experience Factors.” The portrait sheet is

meant to describe the applicant’s “soft” skills (such as the

ability to work with other students). The four “Experience

Factors” are (1) eligibility for free or reduced price meals;

(2) status as an English language learner; (3) eligibility for 

special education services; and (4) attendance at a public 

middle school that previously sent few students to TJ. 

This new policy had an immediate effect. The percentage

of white, Hispanic, and black students increased,7 while the 

percentage and number of Asian-American students 

sharply dropped. In prior years, the offer rate for AsianAmerican students had hovered between 65 and 75 percent 

of the school’s total offers. Under the new policy, Asian 

—————— 6Specifically, the number of seats given to each such school is equal to 

1.5 percent of the school’s eighth grade population. 

7White students received 22.36 percent of admission offers, up from 

17.7 percent. Hispanic students received 11.27 percent of offers, up from 

3.3 percent. Black students received 7.9 percent of offers, up from less 

than 3 percent. Parties’ Stipulation of Uncontested Facts in No. 1:21–

cv–296 (ED Va., Dec. 3, 2021), ECF Doc. 95, pp. 4–5; 2 App. in No. 22–

1280 (CA4, May 11, 2022), ECF Doc. 44–2, pp. 96–98. 
Cite as: 601 U. S. ____ (2024) 5 

ALITO, J., dissenting 

Americans received 54.36 percent of the offers. In fact, even 

though the entering class expanded by 64 seats, the number 

of seats offered to Asian Americans decreased by 56. Id., at 

89a. 

B 

The Coalition for TJ (Coalition), an organization that includes parents of children who have applied or will apply to 

TJ, filed suit in Federal District Court under 42 U. S. C. 

§1983, against the Board. The Coalition alleged that the

new admissions policy was based on intentional racial discrimination and therefore violates the Equal Protection 

Clause. 

After a careful review of the record, the District Court 

agreed. It found that both direct and circumstantial evidence clearly showed that the changes in the admissions

process were motivated by racial discrimination. The court 

found that the Board’s decision-making process was 

“rushed, not transparent, and more concerned with simply 

doing something to alter the racial balance at TJ than with

public engagement.” App. to Pet. for Cert. 106a. “The discussion of TJ admissions changes was infected with talk of 

racial balancing from its inception,” and “emails and text 

messages between Board members and high-ranking [Fairfax County Public School] officials leave no material dispute 

that, at least in part, the purpose of the Board's admissions 

overhaul was to change the racial makeup [of] TJ to the detriment of Asian-Americans.” Ibid. The court also found 

that “Asian-American students [were] disproportionately 

harmed by the Board’s decision to overhaul TJ admissions,” 

id., at 99a, and it viewed this disparate impact as circumstantial evidence of unlawful discrimination. Based on this 

view of the evidence, the court granted summary judgment 

for the Coalition and enjoined use of the new policy. 

The Fourth Circuit reversed the District Court in a star-
6 COALITION FOR TJ v. FAIRFAX COUNTY 

 SCHOOL BOARD 

ALITO, J., dissenting 

tling 2 to 1 decision. 68 F. 4th 864 (2023). The panel majority held that the Coalition could not prevail because, as 

the majority saw things, the new policy “visit[ed] no racially

disparate impact on Asian American students” since, even 

after use of the new policy began, Asian Americans still received 54.36 percent of the admissions offers. Id., at 879– 

881. This percentage exceeded the percentage of AsianAmerican students in the applicant pool, and therefore, according to the panel majority’s reasoning, Asian-American

students had no cause to complain. As the panel majority

put it, “an application of elementary arithmetic shows that 

Asian American students, as a class, experience no material

disadvantage under the policy’s functioning” and in fact 

perform “better in securing admission to TJ than students

from any other racial or ethnic group.” Id., at 882. Although the panel also went on to discuss the Coalition’s 

other evidence, the panel majority concluded that it “could 

end [its] analysis of the Coalition’s Equal Protection Claim

at th[at] juncture.” Id., at 879–880, 882. As I will explain

below, the panel’s “elementary arithmetic” was elementary 

error. 

II 

The “central purpose” of the Equal Protection Clause is

to prohibit “official conduct discriminating on the basis of 

race.” Washington v. Davis, 426 U. S. 229, 239 (1976); see 

also, e.g., Students for Fair Admissions, Inc. v. President 

and Fellows of Harvard College, 600 U. S. 181, 206 (2023) 

(SFFA) (the “core purpose” of the Equal Protection Clause

is “doing away with all governmentally imposed discrimination based on race” (internal quotation marks and alterations omitted)). When a party claims that a law or policy 

is racially discriminatory, that party must show that it was 

adopted for “a racially discriminatory purpose.” Davis, 426 

U. S., at 240. A facially discriminatory policy is automatically subject to heightened review. Even a policy that is 
 

 

Cite as: 601 U. S. ____ (2024) 7 

ALITO, J., dissenting 

race neutral on its face may be unconstitutional if it is 

adopted for a “racially discriminatory intent or purpose.” 

Arlington Heights v. Metropolitan Housing Development 

Corp., 429 U. S. 252, 265–266 (1977). A party who challenges such a policy on equal protection grounds can show

intentional discrimination by proffering a combination of 

direct and circumstantial evidence. 

In Arlington Heights, we listed four factors that, among

others, have a bearing on the assessment of circumstantial

evidence: (1) the law’s historical background, (2) the sequence of events leading to the law’s enactment, including

any departures from the normal legislative process, (3) the 

law’s legislative history, and (4) whether the law “‘bears 

more heavily on one race than another.’” Id., at 265–269. 

We have emphasized that disparate impact, by itself, does 

not establish intentional discrimination. Davis, 426 U. S., 

at 239–240. 

The District Court faithfully employed this framework. 

In addition to noting that the record contains direct evidence of racial intent, the court noted the stark change effected by the new policy, the unusual decisionmaking process that led to the change, and the fact that the change

bore “more heavily on” Asian Americans than members of

other groups.

The Fourth Circuit panel majority, by contrast, completely distorted the meaning of disparate impact. Even 

though the new policy bore “more heavily” on AsianAmerican applicants (because it diminished their chances

of admission while improving the chances of every other 

racial group), the panel majority held that there was no disparate impact because they were still overrepresented in 

the TJ student body.

That is a clearly mistaken understanding of what it 

means for a law or policy to have a disparate effect on the 

members of a particular racial or ethnic group. Under the 

old policy, each Asian-American applicant had a certain 
 

8 COALITION FOR TJ v. FAIRFAX COUNTY 

 SCHOOL BOARD 

ALITO, J., dissenting 

chance of admission. Under the new policy, that chance has 

been significantly reduced, while the chance of admission

for members of other racial and ethnic groups has increased. Accordingly, the new admissions policy bore more 

heavily on Asian-American applicants.

The panel majority, however, thought that this did not 

matter. The simple fact that Asian Americans were still 

overrepresented in the TJ student body was enough to

doom the Coalition’s equal protection claim. As far as the 

Fourth Circuit was concerned, the Board could have 

adopted a policy designed solely to reduce the AsianAmerican offer rate and still evaded liability. The holding 

below effectively licenses official actors to discriminate 

against any racial group with impunity as long as that 

group continues to perform at a higher rate than other 

groups.

That is indefensible. As Judge Rushing explained in

dissent, under the Fourth Circuit’s view, the Constitution 

permits “facially neutral laws explicitly motivated by racial 

discrimination, as long as the law’s negative effect on the

targeted racial group pushes it no lower than other racial

groups.” 68 F. 4th, at 904. “It would not matter, for example, if a new law cut a racial group’s success rate from 90% 

to 30% and the legislature was open about its discriminatory purpose, as long as no other racial group succeeded at

a higher rate.” Ibid. This rule defies law and logic. 

Consider the following hypothetical case. Suppose that

white parents in a school district where 85 percent of the

students are white and 15 percent are black complain because 10 of the 12 players (83 percent) on the public high

school basketball team are black. Suppose that the principal emails the coach and says: “You have too many black 

players. You need to replace some of them with white players.” And suppose the coach emails back: “Ok. That will 

hurt the team, but if you insist, I’ll do it.” The coach then 

takes five of his black players aside and kicks them off the 
 

Cite as: 601 U. S. ____ (2024) 9 

ALITO, J., dissenting 

team for some contrived—but facially neutral—reason. For 

instance, as cover, he might institute a policy that reserves

a set number of spots on the roster for each of the middle

schools who feed to the high school. According to the reasoning of the Fourth Circuit majority, this action would not

violate equal protection because the percentage of black 

players left on the team (approximately 42 percent) would 

exceed the percentage of black students in the school.8 I 

cannot imagine this Court’s sustaining such discrimination,

but in principle there is no difference between that imaginary case and one now before us. 

III 

The Fourth Circuit’s decision is based on a theory that is 

flagrantly wrong and should not be allowed to stand. I 

would not reach the question whether the District Court 

correctly analyzed all the evidence in this case, but I would

summarily reject the holding discussed above. If the District Court’s evaluation of the evidence is correct, the panel 

majority’s fallacious reasoning works a grave injustice on 

diligent young people who yearn to make a better future for

themselves, their families, and our society. In addition, the 

Fourth Circuit’s reasoning is a virus that may spread if not

promptly eliminated. Indeed, the First Circuit has already

favorably cited the Fourth Circuit’s analysis to disparage

the use of a before-and-after comparison in a similar equal 

protection challenge to a facially neutral admissions policy. 

See Boston Parent Coalition for Academic Excellence Corp. 

v. School Comm. for Boston, 89 F. 4th 46, 57–58 (2023). And 

—————— 8Should the Fourth Circuit’s reasoning be adopted elsewhere, the

same would also hold true in other circuits where the court of appeals 

considers disparate impact to be a necessary element of a successful challenge to a facially neutral policy. See Lewis v. Ascension Parish School 

Bd., 806 F. 3d 344, 358–359 (CA5 2015); Doe v. Lower Merion School 

Dist., 665 F. 3d 524, 549 (CA3 2011); Anderson v. Boston, 375 F. 3d 71, 

89 (CA1 2004). 
10 COALITION FOR TJ v. FAIRFAX COUNTY 

 SCHOOL BOARD 

ALITO, J., dissenting 

TJ’s model itself has been trumpeted to potential replicators as a blueprint for evading SFFA.9 

* * * 

The Court’s willingness to swallow the aberrant decision 

below is hard to understand. We should wipe the decision

off the books, and because the Court refuses to do so, I must 

respectfully dissent. 

—————— 9Less than two weeks after SFFA was decided, the dean of UC Berkeley School of Law and the general counsel for the University of Michigan, 

to name just a couple of examples, openly advocated for schools to emulate TJ’s new admissions model. See Brief for Cato Institute as Amicus 

Curiae 4–7. Just as TJ offers a roadmap for other selective schools to 

skirt the Equal Protection Clause, so too does the Fourth Circuit’s reasoning offer a roadmap for other federal courts to provide cover.