Posted on November 28, 2020

Virginia Attorney General’s Office: Selective Admissions Are Racist

Hans Bader, Liberty Unyielding, November 25, 2020

The Virginia attorney general’s office has ruled that the Loudoun County school system committed illegal racial discrimination by admitting fairly few black and Hispanic students to its selective schools, the Academies of Loudoun. {snip}

The finding of discrimination doesn’t claim that individual black and Hispanic students were treated differently in admissions than white or Asian students, or that the admissions process was motivated by racism. Rather, it claims that the school district unintentionally “discriminated” by using racially “neutral,” colorblind selection processes that admitted disproportionately fewer blacks and Hispanics than their share of the school district’s overall population.

Such “disproportionality” is deemed discrimination by the Virginia attorney general’s office, when it thinks the school policy producing it either (1) isn’t necessary to achieve an “important educational goal” or (2) when “alternative policies” would supposedly achieve the goal with less “disproportionate” impact on minority groups. The AG’s office concluded that while the schools’ admission policies had a “reasonable relationship to an important educational goal” — enabling students to excel in STEM — there were “alternative policies and practices to meet LCPS’s educational goals” because the County could have admitted more blacks and Hispanics by diluting the rigor of its admission criteria or taking more steps to recruit blacks and Hispanics. (Ironically, the AG’s office cited the progressive school system’s own words against it: It cited the school system’s own confessions of insufficient diversity and past “cultural” insensitivity and its policy revisions over time to attract more minorities as proof that the school system’s selective-admissions policies were not really needed and thus should have been changed sooner).

It thus issued a “reasonable cause” finding of discrimination based on “disparate impact” over the admissions process for the Academies of Loudoun.


It is a mystery what state or federal law is supposedly violated by colorblind, “facially-neutral,” selective admissions. The only discrimination statute cited by the AG’s office is the federal Title VI statute. In 2001, the U.S. Supreme Court ruled that the Title VI statute itself does not prohibit disparate impact — like exams that more minorities than whites flunk — but rather only “intentional discrimination.” {snip}


It’s puzzling that the attorney general’s office cites the Constitution in support of its ruling. Colorblind admissions tests don’t violate the Constitution’s ban on racial discrimination. The U.S. Supreme Court has ruled over and over again that that the Constitution does not ban racially disparate impact. For example, the Supreme Court ruled that a written personnel test that more blacks than whites flunked didn’t violate the ban on racial discrimination found in the Constitution. {snip}

So logically, the only conceivable basis for the ruling against the Loudoun Schools, if there is any, is the Title VI regulation — a regulation of dubious validity insofar as it bans “disparate impact,” according to a footnote in a 2001 Supreme Court decision. {snip}


Many students are neither interested in nor qualified by any stretch of the imagination to study STEM at a selective academy. The purpose of “disparate impact” discrimination findings is to weed out “arbitrary and unnecessary barriers” to qualified members of minority groups, not require a racial quota — as the Virginia attorney general’s office is effectively encouraging.