I have been writing (here and here and here) on the controversy over the decision of the Fairfax School Board to change the admissions requirements for Thomas Jefferson High School for Science and Technology to achieve diversity goals. Now, the United States Supreme Court has denied a request for emergency intervention in the case. However, the decision is not the end of the case. The Court may still review the admissions changes and three justices are already signaling that they would like to do so.
Last February, District Judge Claude Hilton issued an injunction ordering the Fairfax County School Board to stop using the policy immediately. In March, however, an appellate panel decided the board could temporarily continue to use the race-based admissions policy.
Yesterday, the Court rejected an emergency request to lift the stay of the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit is currently reviewing the case.
In an unsigned order, the Court merely declared “The application to vacate the stay presented to The Chief Justice and by him referred to the Court is denied.” However, it noted that Associate Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have granted the application. That is significant because it will only take four justices to accept the case when it comes back after a ruling by the Fourth Circuit.
The decision is not surprising. Other justices may share the concern of these three dissenters over the policy but want to read the Fourth Circuit’s opinion. There is a general preference for regular order in allowing lower courts to be heard. The Fourth Circuit could ultimately agree with Judge Hilton and restore his order.
Moreover, the school was objecting that the timing of a stay would have disrupted its admitting a new class in the interim.
Some justices may also believe that pending cases could help answer these questions. The Court is considering two major college admissions cases, which also allege racial discrimination against Asian students. The Court’s resolution of admissions challenges at Harvard and the University of North Carolina may bring greater clarity in the area.