Abstract

Excerpted From: Janel A. George, The Myth of Merit: The Fight of the Fairfax County School Board and the New Front of Massive Resistance, 49 Fordham Urban Law Journal 1091 (October, 2022) (170 Footnotes) (Full Document)

Following the killing of George Floyd in 2020 and the seismic racial reckoning that followed, the Fairfax County School Board (FCSB) revised the admissions protocols of its local magnet school and the nation's top-ranked public high school, Thomas Jefferson High School for Science and Technology (known to the locals as “TJ”). The FCSB pursued an ambitious effort to transform TJ's admissions protocols to attract students from diverse backgrounds. In response, primarily white and South Asian parents, supported by conservative policymakers and litigators, mobilized in opposition. They waged public demonstrations decrying the admissions changes and held signs with slogans reading: “School board's lottery fails TJ cancels merit,” and “To have only merit-based admissions saves TJ.”

“Merit” is a recurring theme found not only on these protest signs, but also in the rhetoric and legal arguments of mostly white and conservative policymakers, litigators, and parents nationwide who oppose admissions policies like TJ's and claim that such efforts threaten the elite status of the nation's most competitive schools. This Article posits that this kind of opposition to diversity efforts perpetuates a myth of meritocracy rooted in white supremacy that has fueled the historic exclusion of students of color (particularly Black students) from access to quality public education opportunities.

The tactics used by white supremacists seeking to preserve segregated education have evolved and persist in newly constituted forms. Instead of promoting de jure JimCrow segregation, white supremacists now claim that diversity efforts discriminate against white or Asian American students. The images of mobs of angry white parents protesting outside of school houses that signified the era known as “massive resistance,” during which white parents and policymakers resisted school desegregation, have been replaced by the faces of mostly Asian American parents who are enlisted as litigants in cases seeking to eviscerate affirmative action and school diversity programs.

This Article discusses how the group that brought a legal challenge against the FCSB (the “Coalition for TJ”) exemplifies the new front of massive resistance to school integration. Part I of this Article examines some of the shortcomings of the historic 1954 Brown v. Board of Education ruling that invalidated segregated education-- namely flaws in the ruling's implementation--and how those shortcomings left the door open for segregated education to persist in new forms. It also explores how Brown has been significantly undermined, including by two subsequent United States Supreme Court school desegregation decisions, Milliken v. Bradley and Parents Involved in Community Schools v. Seattle School District No. 1, both of which effectively limited strategies that districts could use to reduce racial isolation. This Part also exposes the harmful consequences of the Court's contemporary “colorblind” rhetoric, which asserts that race should not be considered in school admissions, even to remedy past racial discrimination. This Article argues that this “colorblind approach” disregards the ways that laws and policies contribute to the exclusion of Black students and other students of color from high-quality educational opportunities.

Part II analyzes the battle over TJ's admissions changes as an exemplar of how this colorblind rhetoric, as well as the co-option of language used by civil rights litigators to challenge discrimination, is being deployed by opponents of school integration and affirmative action to undermine school diversity efforts and maintain segregated schools.

Part III further discusses how the Coalition for TJ's claims distort legal precedent related to discrimination and support the effort to eliminate even race-neutral school diversity efforts like TJ's. The Supreme Court recently denied the Coalition for TJ's application to vacate a stay issued by the Fourth Circuit that permits TJ's updated admissions protocols to remain in place ... for now.

The challenge to TJ's admissions changes illustrates why it is imperative to expose the new front of massive resistance to school integration. Even the legacy of Brown is precarious as federal courts continue to issue rulings that eviscerate previously recognized rights. The nation remains torn between past and present, between the outrage following the killing of George Floyd and the subversive tactics of a popular political agenda seeking to erase the historical and current reality of white supremacy and inequality that enabled Floyd's killing. This analysis concludes by raising central questions: What kind of nation will we be if we allow segregation to persist? What kind of nation will we be if we give up on integrated education?

[. . .]

The battle over TJ exemplifies the distance this nation has traveled from the progress made to foster school integration after the resistance waged against the Brown ruling. Massive resistance to Brown never really disappeared, it just evolved. Its latest iteration manifests in the faces of mostly Asian American plaintiffs who are enlisted to challenge school diversity. Using the racist trope of the Myth, opponents of integration pit Asian Americans against Black Americans in their ongoing efforts to eviscerate school diversity. TJ is among the institutions caught in the crosshairs of this latest front of massive resistance. The challenge against TJ exemplifies how the opponents of integration must mischaracterize precedent to advance their campaign. TJ's race-neutral admissions changes are consistent with the diversity strategies recommended by the Court, including in Parents Involved, yet conservative courts are disregarding this precedent.

This leaves the nation at a moral crossroads--either we expose these attacks as efforts to maintain white supremacy and racial subordination in public education, or we continue to espouse an unsustainable status quo of “performative desegregation” and allow separate and unequal education to persist at the cost of our public education system and the educational futures of too many of our nation's children. Which option do we choose? What kind of country do we want to be?

Associate Professor of law, founder and Director of the Racial Equity in Education Law & Policy Clinic at Georgetown University Law Cent