Today is the 70th anniversary of Brown v. Board of Education. That ruling is one of the most famous decisions in the history of the Supreme Court, and probably the most widely praised. But many aspects of the ruling remain controversial, including elements of the Court's reasoning, and how the decision fits in with various types of constitutional theory.

In honor of the anniversary, the American Journal of Law and Equality is publishing a symposium on Brown. I am honored to be invited to contribute. A draft of my aricle, entitled "Brown, Democracy, and Foot Voting," is available on SSRN. Here is the abstract:

Traditional assessments of Brown's relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens' ability to "vote with their feet" as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.

Part I of the article summarizes the relationship between foot voting and ballot box voting, and how the former has important advantages over the latter as a mechanism of political choice. Relative to ballot box voting, foot voting offers individuals and families greater opportunities to make decisive, well-informed choices. It also has special advantages for minority groups, including Blacks.

Part II considers traditional attempts to reconcile Brown and democracy, through arguments that the decision was actually "representation-reinforcing." While each has its merits, they also have significant limitations. Among other flaws, they often do not apply well to the Brown case itself, which famously originated in a challenge to segregation in Topeka, Kansas, a state in which – unlike most of the South – Blacks had long had the right to vote.

Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice. Among other advantages, the foot-voting rationale for Brown applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others, or not.

In Part IV, I discuss the implications of the foot-voting justification of Brown for judicial review of other policies that inhibit foot voting, particularly in cases where those policies have a history of illicit racial motivations. The most significant of these is exclusionary zoning.

As I note in the article, it is difficult to produce a thesis on Brown that is both original and useful. More has been written about this decision than almost any other Supreme Court case. Readers will have to judge whether I managed to succeed.

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Today the Supreme Court refused to review Coalition for TJ v. Fairfax County School Board,  a case in which the Thomas Jefferson High School for Science and Technology ("TJ")—a selective high public school in Fairfax County, Virginia —used facially neutral means to to reduce the percentage of Asian students it admitted. In 2020, TJ adopted a new admissions policy that, while  neutral on its face, was actually intended to reduce the percentage of Asian-American applicants accepted at the school, in order to increase the percentage of other groups, and get a student body closer to the population demographics of Fairfax County (which is about 19% Asian).

I criticized the Fourth Circuit appellate court opinion in this case here, analyzed the district ruling in favor of the plaintiffs here.

Before proceeding, I should note that my wife, Alison Somin, is one of the Pacific Legal Foundation attorneys representing the plaintiffs in this case (a group of parents of Asian-American applicants to TJ), on a pro bono basis. If you want to discount what I say because of this connection, you are free to do so. But my interest in both anti-Asian discrimination in education and the more general issue of the use of "facially neutral" policies for discriminatory purposes long predates Alison's work on the TJ case. Anyone who cares to check will, I think, find that my take on the case is completely consistent with my previously expressed views on these two interconnected topics.

Justice Samuel Alito (joined by Justice Thomas) wrote a forceful dissent to denial of certiorari, warning that the lower court ruling sets a dangerous precedent (I raised similar concerns myself, as did Judge Allison Jones Rushing in her dissent to the Fourth Circuit ruling):

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 aninjunction 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 Asian-American admittees below the percentage of Asian-American 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….

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 [compared to the previous 73%]….This percentage exceeded the percentage of Asian- American 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…."

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…."  "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…. " 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  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. 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.

As the district court found, the record in this case is full of statements indicating that race was the primary motivation for for the change in admissions policies, and that the School Board specifically sought to reduce the number of Asian students in order to increase the percentage of blacks and Hispanics, and also to—as the TJ principal put it—ensure the TJ student body better  "reflect[s] the racial composition in [the Fairfax County Public Schools].'" Other officials claimed that having too many Asian students was in itself harmful because it would damage TJ's "culture." State legislator Mark Keam fulminated about 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."

The Fourth Circuit could have limited themselves to holding (wrongly, in my view) that the School Board would have adopted the new policy even in spite of illicit racial motivation; this is the relevant legal standard under longstanding Supreme Court precedent. But they went beyon that and made a much worse decision, holding that evidence of racist motivation is simply irrelevant so long as the group discriminated against is still represented at a higher rate than its percentage of the applicant pool. That's a dangerous precedent that can easily be abused in many circumstances, by both right and left-wing policy makers.

As I have previously noted, anti-Asian policies at TJ and many other elite educational institutions are reminiscent of efforts to reduce the number of Jewish students at many elite colleges in the early 20th century. Those policies, too, were often facially neutral, and in many cases the number of Jewish students admitted was still higher than the percentage of Jews in the applicant pool or in the general population. Yet, today, few doubt these policies qualify as anti-Semitic discrimination. The same reasoning should apply to the TJ case and others like it.

While the Court has refused to take the TJ case, the issues it raises are likely to recur. In the wake of the Supreme Court's decision in SFFA v. Harvard severely restricting open use of racial preferences in admissions, many schools are likely to use facially neutral means to achieve the same ends, by deliberately using admissions criteria that correlated with race. The problem of efforts to reduce the number of Asian students at elite institutions is also far from unique to this case. Indeed, it arose in the Harvard case itself.

The Supreme Court can run from these questions. But it can't hide from them for very long. If the justices try to do so, more and more institutions are likely to find "race neutral" ways to circumvent the Court's decision, and to target Asian students.

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From Magistrate Judge J. Boone Baxter's Report and Recommendation in Greig v. Texas A&M Univ. Texarkana, adopted Thursday by District Judge Rodney Gilstrap (E.D. Tex.):

Plaintiff Carl Greig … alleges he is a fifty-eight year old white male who worked for TAMUT as the Assistant Vice President of Student Affairs for approximately twenty-five years. According to Plaintiff, part of his job duties included investigating student complaints about other students' violations of TAMUT's Code of Conduct and other offensive behavior. Plaintiff alleges he received favorable reviews until July 2022 and had never been discipled or told that his job performance fell below acceptable standards prior to July 2022. Plaintiff alleges he was discriminated against on the basis of race based on a single incident where he investigated, but did not discipline, a student who used a negative racial epithet. Specifically, Plaintiff alleges as follows:

In August of 2021, a student ("Student 1") filed a written complaint with [Plaintiff's] office complaining that another student ("Student 2") had used the word "Nigga" in her presence while on a trip to the mall several months earlier (Spring 2021). At the time the offensive word was used, the students were good friends and Student 1 did not complain that she was offended by Student 2's statement. The students' friendship deteriorated after the Spring of 2021 and then had a series of interpersonal problems including, but not limited to, Student 1 complaining to [Plaintiff] about Student 2's offensive statement and Student 2 claiming that Student 1 had threatened to "beat her ass."

[Plaintiff] knew of the students' long history of interpersonal conflict. [Plaintiff] conducted a thorough investigation into Student 1's complaint. [Plaintiff] conducted research regarding Student 2's First Amendment rights and sought guidance from the System General Counsel and the TAMU System Title IX Coordinator on how to respond to Student 1's complaint. Based on advice he received from both legal counsel and the TAMU System Title IX Coordinator and [Plaintiff's] own research, [Plaintiff] decided that punishing Student 2 would violate her First Amendment rights and that she had not violated the Student Code of Conduct in effect at that time. [Plaintiff] counselled Student 2 on three separate occasions about how offensive the word she used was and advised her not to use the word again.

Student 1 was dissatisfied that [Plaintiff] had not removed Student 2 from her position on Student Government and in a sorority and elevated her complaint to the President who assigned the investigation to the Human Resources Department that had no authority over or involvement with student complaints. The Human Resources Director conducted her own investigation into Student 2's statement and ultimately did not punish Student 2.

Plaintiff alleges TAMUT began reducing his job duties following the Human Resource Director's investigation; removed Plaintiff from investigating any student complaint that involved race and from any involvement in any Title IX case; and cancelled, without explanation, an open position for which Plaintiff had selected a candidate. Plaintiff further alleges as follows:

In the aftermath of [Plaintiff's] decision not to discipline Student 2, Defendant held a "Town Meeting," open to students and faculty. At the Town Meeting, a faculty member demanded that [Plaintiff] be replaced by a person of color. Defendant's President attended the Town Hall and did not reject the faculty member's demand. In November 2021, [Plaintiff's] supervisor, the Vice President of Student Affairs, advised him that he should consider looking for a new job because Defendant intended to blame [Plaintiff] for all race-related issues after his failure to punish Student 2. [Plaintiff's] supervisor also said [Plaintiff] made the right decision not to punish Student 2.

According to Plaintiff, shortly thereafter, Plaintiff's supervisor resigned, and TAMUT replaced Plaintiff's supervisor with an interim Vice President. Plaintiff alleges that in March of 2022, the interim Vice President began to criticize Plaintiff's job performance and alleged performance deficiencies, including incidents from several years prior and a list of complaints from students and employees; Plaintiff responded to the interim Vice President's allegations, after which time TAMUT never addressed the allegations with Plaintiff.

According to Plaintiff, in July of 2022, for the first time in his twenty-five years' of employment, Plaintiff received a "not meeting expectations" rating on his yearly evaluation and was told by the interim Vice President that the students wanted someone younger in Plaintiff's position and that he felt Plaintiff could not relate to people of color. Plaintiff alleges he was given no guidance or goals to follow to improve his allegedly deficient performance and instead was told in August of 2022 that he must resign or be terminated. Upon information and belief, Plaintiff was replaced by an African-American female who is several years younger than Plaintiff.

Plaintiff sued for race discrimination, and the court concluded the case could go forward:

Plaintiff has sufficiently alleged that an adverse employment action was taken against him because of his race. Plaintiff has provided dates and details leading to his termination. Specifically, Plaintiff has alleged two times when either a supervisor or a faculty member suggested Plaintiff should be replaced by a person of color or could not relate to students of color.

TAMUT argues Plaintiff's allegations are purely conclusory and inadequate to "raise a right to relief above the speculative level." According to TAMUT, the alleged statements from Plaintiff's prior supervisor, while "suggestively conspiratorial," provide "no support for Plaintiff's claim that an adverse employment action was taken against him on the basis of race." TAMUT Motion at 5 (stating the supervisor is both unidentified and "by Plaintiff's own admission had left university employment months before Plaintiff's termination, which occurred in August 2022"). Regarding the alleged statement from the Interim Vice President of Student Affairs informing Plaintiff that students at TAMUT felt Plaintiff could not connect to people of color, TAMUT argues this "statement alone would readily be understood as a communication of a serious performance issue, given Plaintiff was responsible for investigating student complaints relating to race and such investigations necessarily involve a degree of interpersonal skill." TAMUT argues generalized feedback regarding Plaintiff's interpersonal skills from the student body or employees cannot be said to provide support for Plaintiff's claim that he was subject to adverse employment actions because of his race but rather shows the opposite: that the student body, and apparently one faculty member, felt Plaintiff's job performance was unsatisfactory, and communicated that to Plaintiff's interim supervisor….

At this stage of the proceeding, a plaintiff need only plausibly allege facts going to the ultimate elements of the claim to survive a motion to dismiss. The Court finds Plaintiff has alleged sufficient facts, interpreted in the light most favorable to him, regarding whether an adverse employment action was taken against him because of his protected status and "nudged [his] claims across the line from conceivable to plausible." …

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