Testing the Limits: Asian Americans and the Debate Over Standardized Entrance Exams
By
By
Vinay Harpalani[1]*
Asian Americans[2] are in a precarious position in America’s racial landscape. Within today’s most salient educational debates, they often find themselves positioned against other people of color.[3] Most notably, the U.S. Supreme Court has decided to hear the case of Students for Fair Admissions (SFFA) v. Harvard,[4] where Asian American plaintiffs are challenging race-conscious admissions policies that increase the admission of Black, Latinx, and Native American applicants. SFFA v. Harvard has marshaled Asian Americans’ racial positioning to attack such policies, building on a history of alleged discrimination against Asian Americans by elite universities. This case, along with its companion case of SFFA v. University of North Carolina at Chapel Hill,[5] threatens to end race-conscious admissions altogether.[6]
But while affirmative action is the immediate issue that is garnering national attention, another admissions policy may create an even greater divide between Asian Americans and other racial minority groups: the use of standardized entrance exams.[7] Standardized entrance exams are a key component of the pipeline to elite educational institutions.[8] Advocates for racial equity often view such tests as a barrier to the admission of the most historically oppressed groups.[9] But many Asian American families see them in an opposite light—as a means to overcome discrimination via objective measures of merit.[10] There have long been debates over the use of SAT and ACT in college admissions because of the disparate impact these tests have on admission of Black, Latinx, and Native American students.[11] Recently, many universities have decided to make these tests optional or discard consideration of them altogether,[12] and some Asian Americans believe this “test-blind” movement will augment discrimination against them.[13] Conflicts over standardized entrance exams to elite magnet high schools have also pitted Asian Americans against other people of color. In 2019, many Asian American families objected to New York City’s plan to phase out its Specialized High School Admissions Test (SHSAT), which led New York City Mayor at the time, Bill de Blasio, to backtrack on the plan.[14] And in Fairfax County, Virginia, there is a similar controversy over the entrance exam to Thomas Jefferson High School for Science and Technology (TJ).[15] Both of these controversies have led to lawsuits.[16]
Asian American civil rights organizations have long rejected positions that would pit them against other people of color. They have supported efforts to increase enrollment of underrepresented groups, including affirmative action and elimination of standardized entrance exams.[17] But a significant number of rank-and-file Asian American community organizations have taken the opposite positions on these issues.[18] This Article examines Asian Americans’ perspectives and positioning in these debates, situating these in context of historical animus and alleged discrimination against Asian Americans in elite educational realms. In Part II, the Article discusses the “model minority” stereotype, not only as a relative valorization of Asian Americans[19] but also as a threat to White dominance—a peril of the mind.[20] It notes how conservative activists have capitalized upon Asian Americans’ concerns about discrimination to attack race-conscious admissions policies. Then in Part III, it frames the NYC SHSAT and TJ controversies in light of this broader social, political, and historical context. The Article concludes in Part IV by arguing that advocates should assure that they understand this broader context and ensure that Asian American communities are properly involved in the conversation about replacing entrance exams. It is important to remove barriers to racial equity, including entrance exams if they form such a roadblock.[21] Nevertheless, when approaching divisive issues such as admissions reform, racial equity advocates must endeavor to include Asian Americans and consider the long-term implications for solidarity among people of color.
Professor Claire Jean Kim’s racial triangulation framework[22] provides an ideal lens from which to examine how Asian Americans are pitted against other people of color. Stereotypes of Asian Americans play a key role in this process, which has played out recently in controversies over race-conscious university admissions. This provides the backdrop for the positioning of Asian Americans in debates regarding standardized entrance exams.
The racial triangulation framework provides a nuanced analysis of racial dynamics, with a focus on Asian Americans. It depicts the racial positioning for different groups within American society. Professor Kim presents a “racial geometry,” defined by the various statuses accorded to these different groups: “superior/inferior” and “insider/foreigner.”[23] She also posits that racial groups are positioned relative to each other by processes of “relative valorization” and “civic ostracism.”[24] Relative valorization refers to the process of the dominant group (usually White Americans) exalting one minority group over another (e.g., valorizing Asian Americans over Black Americans).[25] This facilitates subordination of both groups (and especially Black Americans).[26] Civic ostracism refers to the process of defining the valorized group (Asian Americans) as foreign.[27] This gives the justification for limiting this group in the privileges of citizenship and political participation.[28]
In the racial triangulation framework, the model minority stereotype—the representation of Asian Americans as high academic achievers who are culturally superior to Black, Latinx, and Native Americans—is a form of relative valorization.[29] Conversely, the perpetual foreigner stereotype—the notion that Asian Americans are always tied to their ancestral homelands and not fully “American”—embodies civic ostracism. Relative valorization and civic ostracism come together with the peril of the mind stereotype—whereby Asian Americans are viewed as a foreign threat precisely because of their high achievement.[30] This process of racial triangulation is key to understanding Asian Americans’ perspectives and positioning in educational debates.
The phenomenon of Asian American high academic achievement is well known. It is invoked as the basis for the “model minority” stereotype: the idea that Asian Americans have a superior work ethic and cultural values, which should be a “model” for other racial minority groups.[31] While it valorizes Asian Americans, this stereotype has often been employed to justify racial inequality, as conservatives ignore different histories and structural barriers faced by various groups and posit that all of them should follow the path of Asian Americans.[32] It also obscures the vast diversity among Asian Americans, many of whom still face various challenges and rampant discrimination.[33]
To the extent that it reflects observed differences in achievement, the model minority myth itself is rooted in structural inequalities. The Immigration Act of 1965[34] was designed to facilitate immigration of educated professionals from Asian countries.[35] This Act was a response to the Cold War, as the U.S. needed more scientists and engineers to compete technologically with the Soviet Union.[36] The children of these educated immigrants grew up with resources and social capital not accessible to other groups, and consequently, they became successful students and garnered admission to elite institutions.[37]
By the early 1980s, Asian Americans were becoming quite a visible presence on elite college campuses.[38] This caused backlash and resentment from some White students, who used racial epithets to label campuses with large numbers of Asian American students.[39] Massachusetts Institute of Technology (“MIT”) became “Made in Taiwan,” the University of California, Los Angeles (“UCLA”) became the “University of Caucasians Living Among Asians,” and elevators in buildings used by many Asian American students were labeled “[t]he Orient Express.”[40] White students also viewed Asian American students as “damn curve raisers”[41] and “‘hordes’ of ‘unfair competition.’”[42] They advised each other to avoid classes with high Asian American enrollment.[43] Ostracism of Asian Americans in the realm of elite education was underway.[44]
Asian Americans thus became a “peril of the mind”—a threat to White dominance in elite academic and educational settings precisely because of their academic success.[45] The peril of the mind trope is analogous to the resentment faced by Asian immigrant laborers who competed with White Americans for jobs in the late nineteenth and early twentieth centuries. At that time, immigrants from Japan, China, and Korea were dubbed the Yellow Peril, and immigrants from the Indian subcontinent were labeled as the Dusky Peril.[46] But while the Yellow Peril and Dusky Peril were generally threats to uneducated White laborers, peril of the mind has involved a perceived invasion of elite educational spaces designated for rich and powerful White Americans.
The peril of the mind trope has also become visible in K–12 education. Many White families leave public school districts that have large numbers of Asian American students, fearing that their own children will be academically outcompeted.[47] In 2005, the Wall Street Journal reported that a “New White Flight” was happening in the Silicon Valley suburbs of California.[48]The percentage of White students dropped significantly at both Lynbrook High School and Monte Vista High School,[49] but this was not due to any failure on the part of the schools—both were considered to be among the top public schools.[50]Rather, White parents thought that the schools were too academically competitive because of the growing numbers of Asian American students.[51]
A similar phenomenon is occurring in Johns Creek, Georgia, a relatively affluent suburb of Atlanta. Since the mid-2000s, the White student population in Johns Creek public schools has dropped by more than 50%.[52] White parents have blamed this exodus on the rigorous academic environment created by Asian American students’ success. For example, White parents have commented that:
Asian parents take their kids for extra tutoring. It’s not fair for the ‘regular’ kids. The high school is too competitive. My kids won’t get into a good college because of all of the Asians.[53]
Several others have also studied and documented the new “White flight” phenomenon in affluent public-school districts and other places.[54] The White parents involved seemingly feel entitled to having their children be high achievers and view Asian American children as unfair, “foreign” competition rather than hardworking immigrants who benefit American society.[55]
Asian Americans soon began to feel this ostracism. They sensed resentment to their increasing presence on elite college campuses, and as a result, they became suspicious that universities wanted to limit their numbers.[56]
Allegations of discrimination against Asian Americans in admissions emerged at several elite universities, including Harvard, Brown, Princeton, Stanford, University of California Berkeley, and UCLA.[57] Admissions data indicated Asian American applicants who were admitted had higher grades and test scores but were rated lower on non-academic components of the application, such as personal characteristics.[58] This reflected another stereotype of Asian Americans: that they are one-dimensional, “passive nerds.”[59]
The U.S. Department of Education, Office of Civil Rights (OCR), investigated several of these institutions, and it found that UCLA had discriminated against five Asian American applicants who had been rejected: OCR ordered that they be admitted.[60] And although the other universities were cleared of discrimination, Brown and Berkeley did acknowledge that they should be more transparent about their admissions processes and involve Asian Americans in conversations about admissions reform.[61] Asian Americans began to see that “objective” criteria such as standardized exams may work in their favor, while subjective ratings of personal characteristics could be used to discriminate against them.
These admissions controversies in the 1980s involved “negative action”—discrimination against Asian American applicants specifically in favor of White applicants.[62] But conservatives capitalized on Asian Americans’ concerns about negative action to mount an attack on affirmative action—by creating policies designed to boost representation of Black, Latinx, and Native American students.[63] Although the U.S. Supreme Court’s 1978 decision in Regents of the University of California v. Bakke allowed universities to use race as an admissions factor,[64] race-conscious admissions policies were challenged and curbed in various ways during the next several decades. In 1996, California voters passed Proposition 209,[65] which amended the state constitution to ban race-conscious government policies. Although a majority of Asian Americans opposed Proposition 209, it was a divisive issue.[66] Other states passed similar bans.[67] Conservative advocacy organizations such as the Pacific Legal Foundation[68] and the Center for Individual Rights[69] also brought legal challenges to race-conscious university admissions.[70] In 2003, the U.S. Supreme Court affirmed in Grutter v. Bollinger that universities could use race as a flexible, individualized admissions factor to achieve a diverse student body.[71] The Court reaffirmed that ruling in 2016, with its decision in Fisher v. University of Texas at Austin (Fisher II).[72] However, the Court was deeply divided in both cases; Grutter was decided by a 5–4 vote, while Fisher II was a 4–3 decision.[73] The U.S. Departments of Education and Justice also conducted further investigations of whether universities were discriminating against Asian Americans, particularly during the Donald Trump Administration.[74]
These events set the context for SFFA v. Harvard. SFFA[75] is led by well-known anti-affirmative action activist Edward Blum,[76] founder of the Project on Fair Representation.[77] Blum was the architect of the Fisher v. University of Texas at Austin litigation.[78] But while Plaintiff Abigail Fisher was the public face of that litigation,[79] the plaintiffs in SFFA v. Harvard are anonymous.[80] It is known that they include rejected Asian American applicants to Harvard, including one who was a high school valedictorian with a perfect ACT score in addition to many other extracurricular activities and accomplishments.[81] SFFA’s membership also includes Asian American high school students who intend to apply to Harvard,[82] along with parents of such students.[83]
Although it has lost its case against Harvard at the district court[84] and First Circuit Court of Appeals,[85] the U.S. Supreme Court could reverse those rulings and may well do so.[86] The Harvard case has brought much scrutiny to the admissions process at elite universities, and SFFA has drawn upon Asian Americans’ concerns about being racially stereotyped. It is undisputed that Asian American applicants to Harvard are scored lower on the “personal rating,” which assesses leadership, humor, grit, sensitivity, and other personal characteristics.[87] SFFA has tried to attribute this to the passive nerd stereotype,[88] contending that Harvard’s admissions officers are biased.[89] SFFA also draws on the peril of the mind trope, arguing that Harvard and other elite institutions do not want their campuses to look too “foreign” and thus have put in place “Asian” quotas, similar to Harvard’s previous quotas for Jewish applicants.[90] It alleges that these quotas are hidden by Harvard’s holistic admissions process. SFFA highlighted one disturbing statement from a Harvard alum who explicitly asked the University to limit the number of “orientals” on campus.[91] It showed that the Harvard Administration was lax in its response to this incident.[92] Moreover, SFFA used this lax response to create divisions, as it posited that Harvard would have been more vigilant in responding to similar comments against Black students.[93]
In its litigation, SFFA has strategically combined notions and perceptions of relative valorization and civic ostracism, creating a narrative that Asian Americans are victimized by both negative action and affirmative action. The remedy it seeks—removal of all references to race from college applications—would eliminate both.[94]
In light of this history of real and perceived discrimination, Asian Americans may legitimately view standardized entrance exams as “objective” criteria, which allow them to overcome discrimination. Professor Julie Park describes how “[t]est prep is a rite of passage” for many Asian American families and students.[95] A larger percentage of Asian American high school students—particularly Korean Americans—take test prep courses than other groups.[96] Professor Park also notes how test prep companies market specifically to Asian Americans.[97] Immigrant families are familiar with intense exam preparation and high-stakes testing, which is the norm in countries such as China and South Korea.[98] They see college entrance exams in a similar light, and Asian American children often “get frequent messages from an early age about the importance of doing well on tests.”[99] All of these phenomena influence Asian American views on entrance exams.
Consequently, efforts to eliminate standardized entrance exams can also strike Asian Americans as discriminatory. The peril of the mind trope looms in the background of such concerns, as eliminating the standardized tests may reduce the number of Asian Americans admitted to elite educational institutions. And civic ostracism of Asian Americans is apparent in the SHSAT and Thomas Jefferson High School controversies.
A growing number of higher education institutions are making college entrance exams optional or discarding them altogether. [100] In recent years, over 1,200 colleges and universities have begun to offer admission without requiring college entrance exams.[101] Many institutions suspended testing requirements because of the COVID-19 pandemic.[102] Harvard did so and will continue to make the tests optional through at least 2026.[103] In light of the SFFA v. Harvard case, this has led some to contend that Harvard’s admissions process will further discriminate against Asian Americans as it becomes more subjective.[104] More broadly, all of this situates Asian Americans against the movement to eliminate standardized tests such as the SAT and ACT, which colleges and universities have used for decades.
Some universities were making test scores optional on a permanent basis even before the pandemic.[105] In 2021, the University of California system (UC) determined that it will not consider college entrance exam scores even in an optional manner.[106] The Asian American Coalition for Education (AACE) has sharply criticized this policy, arguing that the elimination of college entrance exams “will particularly harm Asian-American students who are inappropriately labeled as ‘overrepresented’ at UC, in spite of tremendous within-group socioeconomic and cultural diversities.”[107] AACE also echoed some of claims brought out in SFFA v. Harvard, applying them to the “test-blind movement”:
With standardized tests being dropped, Asian-American children become easy victims of various radical acts of racial balancing, through which some colleges use opaque and subjective admission criteria including racial stereotypes to limit Asian-American admissions.[108]
There is no consensus among Asian Americans on college entrance testing and its effects on enrollment. Some studies have indicated that the use of college entrance exams does not significantly affect Asian American enrollment at elite universities[109] and that exams may actually limit the admission of low-income Asian Americans.[110] Studies have also indicated that tests may be biased against certain Asian American groups,[111] and eliminating such tests may lead to an increase in enrollment of Southeast Asian Americans in particular.[112]
Nevertheless, in conjunction with their precarious positioning in the affirmative action debate, Asian Americans’ concerns about elimination of college entrance exams are understandable. The salience of the peril of the mind trope should not be dismissed by advocates of the “test-blind” movement.
Asian Americans have become intricately involved in the ongoing debate about eliminating New York City’s Specialized High School Admissions Test (“SHSAT”).[113] SHSAT is a 150-minute test with English Language Arts and Mathematics sections.[114] It has been the sole factor in admission to eight of the nine selective New York City public high schools for the past fifty years.[115] Over the past few decades, there has been a stark underrepresentation of Black and Latinx students admitted to these schools.[116] For example, in 2019, of the 895 students admitted to Stuyvesant High School’s Class of 2023, 65.6% were Asian or Asian American, 21.7% were White, and only 0.8% were Black.[117] Black students were also highly underrepresented at other selective high schools.[118]
These racial disparities raised concerns for those interested in educational equity. In June 2018, then New York City Mayor Bill de Blasio proposed to eliminate the SHSAT.[119] Under his proposal, the SHSAT would gradually be phased out over three years.[120] The proposed new policy would be based on eighth-grade class rank, offering admission to the top 7% of the class in each middle school.[121]
Additionally, Mayor de Blasio and Department of Education Chancellor Richard Carranza, Chancellor of New York City’s Department of Education, made changes to the Discovery Program, which is intended to assist low-income students in gaining admission to the specialized high schools.[122] These changes dictated that Discovery Program participants would be allotted 20% of seats at each specialized high school, and that the program would be limited to particular intermediate schools based on an Economic Need Index (ENI)—a measure of the percentage of students in a school who face economic hardship.[123]
Asian American families objected to De Blasio’s proposal and felt they had not been involved in the conversation.[124] One report found that elimination of the SHSAT would reduce the percentage of Asian American students at the specialized high schools from 60.9% to 31.3%, while enrollment of Black students would increase from 3.7% to 18.7%.[125] The proposed changes to the Discovery Program also allegedly had an adverse effect on Asian American children.[126]
A group of Asian American community activists mobilized against the elimination of the SHSAT.[127] They led protests against the new admissions policy outside of New York City Hall.[128] In April 2019, New York State Senator John Liu, who is the Chair of the State Senate Committee on New York City Education, stated that when the specialized high school admissions reforms were being devised, “the Asian community . . . was completely excluded, not inadvertently, but intentionally and deliberately.”[129] With public pressure and the threat of legal action, Mayor de Blasio discarded his initial proposal, but he still advocated for eliminating the SHSAT.[130] He also faced criticism for suggesting that those who opposed elimination of the SHSAT were “opponents of ‘justice and progress.”[131]
Reforms to the Discovery Program continued to move forward.[132] The Pacific Legal Foundation (PLF) filed a lawsuit against New York City on the behalf of concerned Asian American parents, moving to enjoin the changes to the Discovery Program.[133] PLF argued that these changes were intended to discriminate against Asian Americans.[134] It pointed to statistics which purportedly showed the disparate impact of the changes on Asian American applicants.[135] It also referenced statements by Mayor DeBlasio about the low representation of Black and Latinx students at the specialized high schools,[136] along with a remark by Chancellor Carranza that no “one ethnic group owns admission to the[] [specialized] schools.”[137] In March 2019, the U.S. District Court for the Southern District of New York denied the Plaintiffs’ motion for a preliminary injunction.[138] The case continues to be litigated.[139]
Unlike debates over elite university admissions, students affected by SHSAT reforms are generally not from privileged backgrounds. For the 2012–2013 academic year, 46.8% of students accepted to specialized high schools received free or reduced price lunches.[140] More recent data indicated that 61% of Asian American students offered admission to the specialized high schools lived in poverty—the same percentage as Black students receiving offers, and greater than the 53% of Latinx students who received offers.[141] Also, according to data from 2014, 29% of Asian Americans in New York City lived below the poverty line: the highest percentage of any group.[142] Most Asian American students in New York City’s specialized high schools come from low-income families,[143] and all groups have long viewed these schools as a means to upward mobility.[144] New York City has itself contended that the proposed new admissions policy would benefit all low-income students, including those who are Asian American.[145]
Various other social, historical, and political factors affect Asian Americans’ views of the SHSAT controversy. Wai Wah Chin, former President of the Chinese American Citizens Alliance Greater New York (CACAGNY), invoked the peril of the mind trope by comparing the proposed elimination of the SHSAT to the Chinese Exclusion Act of 1882. He noted that “[Chinese immigrants] ‘were excluded because we did better than others[] … [d]oes that sound familiar?’”[146] Chinese American proponents of the SHSAT have also noted that Chairman Mao Zedong suspended college entrance exams during China’s Cultural Revolution—a development they saw as counterproductive.[147] And in parallel debates over educational curriculum, CACAGNY has referred to “critical race theory” as a “hateful fraud” and a “common source of anti-Asian racism.”[148] This signals another potential divide among people of color, as conservative activists try to link various issues that can pit Asian Americans against other groups.
The controversy over the SHSAT is ongoing. For now, the test remains. In 2021, 28% of Asian American students who took the SHSAT received admissions offers for specialized high schools, compared to 27.4% of White students, 7.1% of Native American students, 4.3% of Latinx students, and 3.5% of Black students.[149] The SHSAT also became an issue in the 2021 New York City mayoral election. In majority Asian American precincts, there were English and Chinese language signs noting Republican Curtis Sliwa’s support for the “merit-based SHSAT.”[150] Although he lost the election to Democrat Eric Adams, Sliwa won a higher percentage of votes in precincts that were majority Asian American than he did for other precincts.[151] He won 44% of votes in majority-Asian American precincts, compared to 40% in majority-White precincts, 20% in majority-Latinx precincts, and 6% in majority-Black precincts.[152] While a majority of Asian Americans still voted for Adams, U.S. Representative Grace Meng, a Democrat from Queens, cautioned in the wake of the election that:
When our Democratic leaders talk about issues facing minority communities, oftentimes they are only talking about Black and Spanish communities. . . . But [the Asian American] community is the fastest growing community. And we are also minorities.[153]
Representative Meng’s message should ring true not only for Democratic leaders but also for all advocates for racial and educational equity. Referencing Professor Claire Jean Kim’s racial triangulation framework, Professor Osamudia James notes that Asian Americans “status as unassimilable left them excluded from consultation during policy development meant to address racial inequality, even though Asian Americans have and continue to experience economic and racial marginalization in New York City.”[154] The exclusion of Asian Americans from conversations on SHSAT reform represents the civic ostracism that Professor Kim describes,[155] and it threatens to pit Asian Americans against other people of color.
Asian American groups have also organized in opposition to the new admissions policy at Thomas Jefferson High School for Science and Technology (“TJ”) in Fairfax County, Virginia.[156] TJ was established in 1985 and has been ranked by U.S. News and World Report as the top public high school in the U.S.[157] In 2019, the population of Fairfax County, numbering over one million in total, was 61.1% White, 9.2% Black, 19.3% Asian American/Pacific Islander, 0.2% Native American/Alaskan, and 9.7% Other, with 16.4% also identifying as Hispanic/Latinx.[158] But there was a huge racial skew among the 486 students admitted to TJ in the class of 2024: 17.1% White, 73.0% Asian American/Pacific Islander, 3.3% Hispanic/Latinx, 6.0% Multiracial/Other, and less than 1.0% Black.[159]
At that time, admission to TJ was determined through a two-part process. The first part involved an application fee and a standardized exam with math, reading, and science components.[160] Students who scored high enough on the test advanced to the second stage of the process, which involved an application with essays and teacher recommendations.[161] In December 2020, the Fairfax County School Board voted to change the process of admission to TJ for the class of 2025 in order “to improve diversity at the school.”[162] The proposed new process eliminated the application fee, standardized entrance exam, and teacher recommendations.[163] It dictated that “[t]he top 1.5 percent of the eighth grade class at each public middle school meeting the minimum standards will be eligible for admission.”[164] Admission for the eligible applicants would be determined by a holistic review process based on GPA; a “problem-solving essay”; various attributes and experiences factors, including economic disadvantage; English speaking status; and representation from the schools attended by the applicants.[165]
Many Asian American families felt that the new proposed admissions plan discriminated against their children and would lead to a substantial drop in the number of Asian American students at TJ.[166] The Pacific Legal Foundation also filed a lawsuit against the Fairfax County School Board (the “School Board”) on behalf of the Coalition for TJ (“the Coalition”) which included “primarily Asian American parents.”[167] As with the SHSAT controversy in New York City, Asian American families in Fairfax County felt excluded from the process. The timing of the decision gave little opportunity for these families to voice their concerns.[168] The Coalition noted that the vote to repeal the admissions test occurred only a month before the exam was scheduled,[169] and that it happened at one of the “work sessions”—meetings that often do not involve voting on such matters.[170] The Coalition further alleged that such “work sessions” are not open to the public[171] and that the School Board disallowed further public comment or involvement on the TJ admissions processes.[172] Coalition for TJ contended that TJ’s new admissions policy violated the Equal Protection Clause because it has a discriminatory purpose: it is intended to boost enrollment of Black and Latinx students at TJ,[173] which “’necess[arily] decrease[s] the representation’ of Asian Americans at TJ.”[174] It thus asserted that the School Board’s actions meet the “because of, not merely in spite of” standard for intentional discrimination set in Personnel Administrator of Massachusetts v. Feeney.[175]
On May 21, 2021, Judge Claude Hilton of the U.S. District Court for the Eastern District of Virginia denied the School Board’s motion to dismiss the lawsuit, but he also denied the Coalition’s request to enjoin the new TJHSST admissions policy for the fall incoming class, stating that it was late in the admissions cycle and such an injunction would be too disruptive.[176] The racial composition of students offered admission for TJHSST’s class of 2025 was markedly different from the prior year.[177] The admitted class saw increases in the percentage of Black students (>1.0% to 7.1%), Hispanic/Latinx students (6.0% to 11.3%), and White students (17.1% to 22.4%).[178] Conversely, the percentage of admissions offers to Asian American students dropped from 73.0% to 54.4%—a decline of almost 20%.[179]
However, on February 25, 2022, Judge Hilton issued a ruling for the Coalition for TJ.[180] Judge Hilton agreed with the Coalition that the Fairfax County School Board “acted at least in part because of, not merely in spite of, the policy’s adverse effects” on Asian Americans.[181] He applied the Arlington Heights factors for determining racial purpose: “(1) the impact of the official action; (2) the historical background of the decision; (3) the specific sequence of events leading up to the challenged decision; and (4) the legislative or administrative history.”[182] Judge Hilton found that the process for changing TJ’s admissions policy was “unreasonably hurried and [] there was a noticeable lack of public engagement and transparency.”[183] He noted that the voting took place during work sessions, which deviated from normal procedure.[184] In particular, he cited that the vote to eliminate the “longstanding admissions exam” took place “without any public notice[,]”[185] and that the School Board rejected a motion to allow more input from the community.[186] Judge Hilton also charged that “[t]he discussion of TJ admissions was infected with talk of racial balancing from its inception[,]”[187] which made the policy change “patently unconstitutional.”[188] And he agreed with the Coalition that “[i]mpermissible racial intent need only be a motivating factor . . . not . . . the dominant or primary one . . . [and] [t]he Board members need not harbor racial animus to act with discriminatory intent.”[189]
Fairfax County School Board is appealing the district court ruling to the U.S. Court of Appeals for the Fourth Circuit.[190] Meanwhile, on Friday, March 11, 2022, Judge Hilton denied the School Board’s request to stay his order striking down TJ’s admissions policy.[191] The School Board appealed that denial and the Fourth Circuit granted the stay on March 31, 2022.[192] On April 8, 2022, the Coalition filed an emergency application to the U.S. Supreme Court to vacate the stay pending appeal.[193] The case thus went to the Court’s “shadow docket”—where the Court issues orders without explanation or its “normal procedural regularity.”[194] On April 25, 2022, the Supreme Court denied the Coalition’s application to lift the stay, with Justices Alito, Gorsuch, and Thomas dissenting from that order.[195] TJ’s new admissions policy remains in place pending review by the Fourth Circuit, and the Supreme Court may still eventually hear the case if the Fourth Circuit ruling is appealed.
Regardless of the merits of the Coalition’s legal claim, Asian American families in Fairfax County are stakeholders in the TJ admissions policy and have legitimate concerns about the process by which it was changed.[196] Similar to the SHSAT controversy in New York City, the exclusion of Asian American families in Fairfax County from the decision-making process reflects civic ostracism that has often been used to define Asian Americans as “foreign” and deny them the privileges of citizenship and political participation.[197] Like Edward Blum and the Project on Fair Representation in SFFA v. Harvard, PLF has exploited these concerns and employed the peril of the mind trope as part of its litigation and political strategy. In the Coalition for Thomas Jefferson complaint, PLF pointed to several instances where it alleged that Asian American students and families were described in similar fashion—as “ravenous” and “unethical,” with parents “push[ing] their kids into [TJ].”[198] It noted one instance where a retired Fairfax County Public School teacher referred specifically to immigrant families from India in this manner and allegedly suggested that some of these families came to the U.S. illegally.[199] Aside from that remark, however, it is not clear that other comments were directed specifically at Asian Americans families.
Nevertheless, PLF also highlighted criticism of test preparation courses, which are commonly taken by Asian American students.[200] It noted that at an NAACP Town Hall meeting, Superintendent Scott Brabrand lamented that “thousands upon thousands” of dollars are spent on such courses.[201] And at a later listening session for students of TJ, Virginia Secretary of Education Atif Carney allegedly compared such test prep to illegal “performance enhancement drugs.”[202]
Similar to SFFA, Coalition for TJ has created a narrative of discrimination against Asian Americans. But while SFFA’s Asian American Plaintiffs are anonymous, many children of Coalition parents are named in its Complaint.[203] These include East and South Asian Americans in grades 4 to 8, some of whom were applying to TJ as eighth-graders, and others in lower grades who are enrolled in gifted programs.[204] If the TJ case continues to advance through the federal courts and gains more attention, it will have a tangible human face—innocent children who will be portrayed as victims of an allegedly discriminatory admissions policy.[205]
PLF also aims to position Asian American families against #BlackLivesMatter and the Movement for Racial Justice.[206] It references protests after the killing of George Floyd in May 2020 as the impetus for changing TJ’s admissions policy.[207] Coalition for TJ’s Motion for Summary Judgment quotes Fairfax County School Board member Karen Keys’Gamarra from a June 2020 school board meeting:
[I]n looking at what has happened to George Floyd, we now know that our shortcomings are far too great[,] . . . so we must recognize the unacceptable numbers of things as unacceptable numbers of African Americans that have been accepted to T.J.[208]
The Coalition’s Motion for Summary Judgment provides similar statements from Ann Bonitatibus, another Fairfax County School Board Member.[209] This framing by PLF expands the juxtaposition of Asian Americans and Black Americans beyond elite admissions. It situates Asian Americans not only against affirmative action and educational equity but against a broader range of initiatives to address racism.
The TJ case became an issue in the 2021 Virginia gubernatorial election,[210] as SHSAT controversy did in the New York City mayoral race.[211] Republican Glenn Youngkin sided with the Coalition and also articulated his concern for the recent wave of discrimination and bias against Asian Americans more generally.[212] In the same speech, Youngkin denounced critical race theory, tying the TJ entrance exam controversy to broader “culture wars” over teaching about racism.[213] Asian Americans still voted overwhelmingly for Democrat Terry McCauliffe, by more than a 2-to-1 margin.[214] But Youngkin narrowly defeated McCauliffe, in part by emphasizing parental control over public education.[215]
The legal implications of the TJ case could be enormous. Unlike the lawsuit in New York City, which focused on the Discovery Program for disadvantaged students, Coalition for TJ v. Fairfax County School Board challenges the changes to TJ’s admissions policy for all students.[216] And while SFFA v. Harvard has mounted a direct challenge to the Grutter framework for race-conscious admissions, the NYC Discovery Program and TJ controversies go one step further. Both parties agree that the Discovery Program and TJ’s new admissions policy are race-neutral because they do not directly consider any individual applicant’s race.[217] If the TJ case eventually reaches the U.S. Supreme Court on the merits, it could implicate race-neutral measures that are intended to increase racial diversity in selective institutions. Such measures include Texas’s Top Ten Percent Law, which is race-neutral because it automatically admits students to the University of Texas at Austin based solely on class rank.[218] Commentators including the late Justice Ruth Bader Ginsburg and retired Justice David Souter have contended that the Top Ten Percent Law and similar percentage plans are not really “race-neutral” because they were intended to increase representation of underrepresented minority groups.[219] The U.S. Supreme Court has not directly considered this argument, but TJ’s new admissions policy is “race-neutral” and uses class rank as an initial step.[220] Thus, the TJ case could essentially bring the same issue to the Court.[221] And with a ruling adverse to the Fairfax County School Board, the Court could strike down a plethora of facially neutral measures that are intended to increase racial diversity. It will have done so with Asian American Plaintiffs as the face of the case.
Asian Americans are caught in the midst of a significant and complex battle over educational equity in America. As the U.S. Supreme Court prepares to hear SFFA v. Harvard, affirmative action in university admissions will be the most visible issue in that battle. However, in the longer term, debates over standardized entrance exams may have an even greater impact on both educational equity and the racial positioning of Asian Americans. Such debates could pit Asian Americans against other people of color even more than affirmative action.
It is important for everyone, including Asian Americans, to support efforts at racial equity in education. Given this nation’s history of denying educational opportunity to Black Americans, Latinx, and Native Americans, there is a moral imperative to remedy the inequities that exist. Nevertheless, advocates for racial and educational equity should recognize the difficult challenges that can arise in the process, given the history of animus and civic ostracism that Asian Americans have faced. Asian American families need to be fully included in conversations about admissions reforms and other changes where they are stakeholders. Incidents of bias and animus towards Asian Americans, which have increased in the wake of the COVID-19 pandemic,[222] should always be taken seriously and met with the same vigilance as they would for any other group.[223] Asian Americans should also be included in diversity initiatives when appropriate, and they should be a larger part of conversations about racism in America. Stereotypes of Asian Americans are a powerful aspect of American racial ideology, and Asian Americans’ perspectives and positioning are essential for understanding the racial dynamics of U.S. society—particularly the educational stratification that exists in this nation.
Although it will be challenging, all of these measures can help to preserve coalitions between people of color as they confront admissions reforms and other divisive issues. If standardized entrance exams themselves are a barrier to educational access for Black, Latinx, and Native American students, they should be eliminated, or at least used in a manner that does not reinforce racial inequities in education. But given the perceived value of elite education in America, those who are able and motivated will adapt to any new admissions policy. Ultimately, educational inequities cannot be remedied by admissions reforms: they must be alleviated at their roots, through vigorous advocacy by robust progressive coalitions. The divisions created by controversies over elite school entrance exams and related issues could lead to broad political realignments that position Asian Americans against other people of color.[224] Such realignments would be unfortunate and would outlast the effects of any specific educational reforms. If such reforms are not approached carefully and inclusively, there may be dire long-term consequences for racial equity and justice in America.[225]
Va. Code Ann. § 2.2-3711(B) (West, Westlaw through the 2022 Reg. Sess.). ↑