Amicus Brief: Association for Education Fairness v. Montgomery County Board of Education

A group of mostly Asian American parents challenged discriminatory changes to admissions policies at magnet middle schools in Montgomery County, Maryland. The school district had revised its admissions policies with the goal of lowering the numbers of Asian American students accepted to these schools. Although the new policies did not directly use racial criteria, they were crafted with an eye toward racial outcomes.

The U.S. Court of Appeals for the Fourth Circuit had earlier held that because Asian American students were overrepresented among admittees to Thomas Jefferson High School—an elite magnet school in Fairfax County, Virginia—TJ’s new admissions policy was not racially discriminatory. So too here with Montgomery County’s policy, which was also unsuccessfully appealed to the Fourth Circuit. But two other circuits disagree with that analysis.

Now on petition of Supreme Court review, the Manhattan Institute has joined the American Civil Rights Project, Hamilton Lincoln Law Institute, and Chinese American Citizens Alliance of New York on a supporting brief. The petition asks the Court to resolve a circuit split regarding proof of the disparate-impact element of a proxy-discrimination claim and to clarify that the Equal Protection Clause protects individuals, not groups, from race discrimination. Our brief highlights this split and the unconstitutional nature of determining whether discrimination has occurred to an individual by comparing group statistical baselines.

Dan Morenoff is an adjunct fellow at the Manhattan Institute and the executive director at the American Civil Rights Project.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.