School admissions rules can discriminate on the basis of race without mentioning it. But what proof is required to show it? That’s the core question in a pending legal case called Association for Education Fairness v. Montgomery County Board of Education.
Originating in Maryland and brought by Asian American parents challenging admissions to selective middle school programs, the U.S. Supreme Court recently agreed to hear the case. The justices will consider whether challengers must show that their racial group’s share of admissions fell below its share of the applicant pool
How It All Began
Montgomery County Public Schools operates four selective middle school magnet programs offering advanced instruction in math, science, and the humanities. Historically, parents applied on their children’s behalf, and the district evaluated applicants using test scores, grades, and teacher recommendations.
District officials grew concerned about disparities in access. In the 2013–2014 school year, Black and Hispanic students accounted for nearly half of district enrollment but less than 15% of magnet enrollment; conversely, Asian American students represented about 15% of district enrollment and nearly half of magnet enrollment. A district-commissioned study released in 2016 recommended revising admissions, including by evaluating students against peers with comparable backgrounds.
In response, for the 2018–2019 school year, the district introduced the “Field Test.” It replaced parent-initiated applications with automatic academic screening to identify students invited to take an aptitude test. It also eliminated teacher recommendations and considered whether students had academic peers at their local schools. Later changes compared test scores among students attending schools in similar poverty categories.
The Association for Education Fairness, an Asian American parents’ organization, sued in September 2020, alleging that the criteria intentionally disadvantaged their children because Asian American students were concentrated in particular schools. It cited officials’ statements about changing the programs’ racial composition as evidence of discriminatory purpose.
New Lottery and ‘Local Norming’
Before the challenge was resolved, COVID-19 complicated the district’s ability to administer its in-person aptitude test. For the 2021–2022 school year, officials replaced the Field Test with the “Pandemic Plan,” which screened fifth graders for eligibility and awarded seats through a lottery.
Screening considered grades, reading performance, assessment scores, and services such as meal assistance and special education. Academic requirements included A grades in relevant subjects and a minimum “locally normed” 85th-percentile score on the applicable reading or math assessment.
“Local norming” changes the comparison group used to rank a student’s test performance. According to the district’s Supreme Court brief, students were compared with others attending elementary schools with similar poverty levels, measured by the proportion receiving free or reduced-price meals.
As a result, identical scores could produce different percentile rankings. Hypothetically, the same score might rank at the 90th percentile in one comparison group but the 80th in another, which would allow one student to clear the 85th-percentile requirement while the other did not. These are illustrative figures, not the district’s actual cutoffs; the district court noted that the materials before it did not fully explain the calculation.
Students who met the eligibility criteria entered the lottery. According to the district, test scores affected eligibility, not the lottery’s outcome.
Can ‘Neutral’ Rules Still Discriminate?
The policy is “facially race-neutral” because its stated criteria do not expressly classify students by race or award racial preferences. But the parents allege that local norming functions as a racial proxy, intentionally making lottery eligibility harder for Asian American students, who disproportionately attend schools in less impoverished communities. Their challenge concerns who gets into the lottery, not how winners are drawn.
When the district announced that it would retain the Pandemic Plan for the foreseeable future, the association amended its lawsuit to challenge that replacement policy. The parents continued relying on the Field Test’s history to support their allegations. The district responded that the Pandemic Plan was a different policy, developed for different reasons.
But the federal district court dismissed their complaint in 2022, concluding that the association hadn’t plausibly alleged either discriminatory effects or discriminatory intent behind the Pandemic Plan. The court pointed out that the Fourteenth Amendment’s Equal Protection Clause prohibits intentional racial discrimination by public school districts. Neutral wording doesn’t shield a discriminatory policy, but changing racial admissions numbers alone doesn’t establish a constitutional violation.
Comparing Applicants With Admitted Students
The court first had to decide how to measure whether the policy harmed Asian American students disproportionately more. Because the district automatically screened fifth graders, it counted all fifth graders in the relevant region as the applicant pool (not just those who qualified for the lottery).
It then compared two percentages: how many applicants were Asian American, and how many admitted students were Asian American. In the first Pandemic Plan admissions cycle, Asian American students accounted for 13.2% or 16.5% of applicants, depending on the region, but between 20.8% and 32.0% of admitted students. At all four programs, their percentage of admitted students exceeded their percentage of applicants.
The court therefore rejected the argument that a decline in Asian American representation from earlier admissions cycles was enough to show discriminatory effects. It focused instead on how Asian American students fared relative to their presence in the applicant pool.
Examining the District’s Purpose
The district court also considered whether officials adopted the Pandemic Plan in order (at least partly) to disadvantage Asian American students, rather than simply knowing it might have that effect. Per SCOTUS’s 1977 decision of Arlington Heights, that inquiry considers the policy’s history and effects, decisionmakers’ statements, and any departures from ordinary procedures.
The district court emphasized that the Pandemic Plan arose in response to COVID-19 and differed from the Field Test in both its criteria and its decisionmakers. The earlier policy’s history therefore did not establish a plausible discriminatory motive behind its replacement, and so the court concluded that the association hadn’t plausibly alleged a discriminatory purpose.
The Fourth Circuit upheld that dismissal because the association hadn’t sufficiently alleged discriminatory effects under its statistical standard. That alone was enough to defeat the claim, so the appeals court did not separately decide whether the parents had adequately alleged discriminatory intent.
Ties to the 2023 Decision
The dispute also comes against the backdrop of the Supreme Court’s 2023 decision in Students for Fair Admissions, which struck down Harvard’s and UNC’s race-conscious admissions programs. The distinction is important: Those universities expressly considered applicants’ race; Montgomery County’s policy does not.
Although the policy and lawsuit predate that ruling, the association invokes its emphasis on individual treatment and rejection of racial balancing. It argues that a group’s comparatively strong admissions results shouldn’t shield discrimination against particular students (or allow schools to pursue racial preferences through indirect criteria). The district disputes that characterization and maintains that the parents haven’t plausibly alleged discriminatory intent.
What SCOTUS Will Decide
The case now turns on what the admissions numbers can (and cannot) establish. Must students show that their racial group made up a smaller percentage of those offered admission than of applicants, or can they establish discriminatory harm another way?
A ruling for the parents on that question would not establish that the policy is unconstitutional. Their challenge would still face the district court’s separate conclusion that they had not plausibly alleged discriminatory intent, an issue the Fourth Circuit did not reach.
For schools and families, the significance lies in the standard the Court sets: how students can challenge neutral-looking admissions rules, and when a group’s overall success is enough to defeat a claim of individual discrimination.
