Supreme Court Agrees to Resolve Circuit Split on the Evidence Needed to Challenge Facially Neutral Admissions Policies

By Bill Ojile, Carrie Schaffer, and Hannah Wolf

On October 19, 2026, the U.S. Supreme Court granted certiorari to decide what evidence a plaintiff must present to demonstrate that a facially race-neutral admissions policy is intentionally discriminatory.¹ The federal courts of appeals are evenly divided, two circuits to two, on how a plaintiff must show harm. The First and Fourth circuits require proof that the racial group allegedly targeted was disadvantaged as a whole, measured against that group’s share of the applicants.² The Second and Third circuits allow a claim to go forward on evidence of how the policy affected individual applicants, using a more individualized approach.³

The grant is significant because the Court previously turned away a similar petition following its decision to strike down affirmative action and bar race-conscious admissions in higher education.⁴

Background

A. The Legal Framework for Racially Neutral Policies

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the U.S. Supreme Court held that the race-conscious admissions programs at Harvard College and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment.⁵ That decision left open a separate and increasingly contested question: When does an admissions policy that is facially neutral violate the Equal Protection Clause? Under Village of Arlington Heights v. Metropolitan Housing Development Corp., a facially neutral policy violates the Equal Protection Clause only if it was adopted with a discriminatory purpose; disparate impact alone is not enough, although impact is a starting point in the Arlington Heights intent inquiry.⁶ Courts also consider the historical background of the decision, the specific sequence of events leading up to it, departures from normal procedures or substantive criteria, and contemporaneous statements by decision makers.⁷

B. How the Circuit Split Arose

The circuit split began with Coalition for TJ, in which the Fourth Circuit concluded that a policy was race-neutral and imposed no unconstitutional disparate impact because Asian American students received offers “notably in excess of” their share of the applicant pool.⁸ The Supreme Court declined review, with Justice Alito, joined by Justice Thomas, warning that the rule “effectively licenses official actors to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups.” In the years since, the First Circuit has adopted the Fourth Circuit’s approach, while the Second and Third Circuits have rejected it, opting instead to allow racial discrimination challenges to school admissions policies based on individualized evidence, producing the split now before the Court.

C. The Montgomery County Litigation

The Association for Education Fairness (AFEF), a parent-led coalition, sued the Montgomery County Board of Education in September 2020, after the Board adopted a new admissions policy for the county’s four magnet schools.⁹ The policy screened every student in the county for possible admission rather than only applicants and changed how student potential was assessed.¹⁰ AFEF alleged that under the policy, the share of Black and Hispanic students admitted increased while the share of Asian American students decreased, amounting to unconstitutional discrimination against Asian American students in violation of the Equal Protection Clause of the Fourteenth Amendment.¹¹

A Maryland federal district court initially allowed the case to proceed, finding that AFEF had plausibly alleged discriminatory intent.¹² However, after the case was allowed to proceed, the county adopted a new policy because of COVID-19 restrictions.¹³ Under this new policy, all students who met certain criteria, such as grades and standardized test scores, were placed in a pool and selected at random by lottery.¹⁴ The district court dismissed the case because Asian American admissions did not fall below their share of the applicant pool under this new policy, and the Fourth Circuit affirmed.¹⁵

What the Supreme Court Will Consider

The Court has not agreed to consider whether Montgomery County’s specific policy is constitutional. Instead, it will address the threshold legal question of what plaintiffs who challenge facially race-neutral admissions criteria must establish to demonstrate discrimination — specifically, whether aggregate, group-wide disparate impact measured against the applicant pool is required.

The stakes are considerable. If the Court adopts the applicant-pool benchmark, plaintiffs will face a higher threshold showing, and some claims may be dismissed before courts examine evidence of intent. If the Court endorses a more individualized approach, more challenges to race-neutral criteria are likely to survive early motions and proceed to discovery on intent.  

Practical Implications

Until the Court rules, institutions should assume their race-neutral admissions criteria may be challenged, and should plan for either result. As a first step, institutions should identify and document the reasons behind each race-neutral measure they use. A clear record of non-racial rationales is a strong defense against a claim of discriminatory intent.

An applicant-pool benchmark would not end the need for careful recordkeeping. Groups admitted below their share of the applicant pool could still bring claims, so institutions should continue to keep thorough records of how and why their admissions criteria were adopted. If the Court instead adopts an individualized approach, institutions should expect more claims to survive early motions and be ready to defend the merits of intent through discovery.

Finally, a ruling for AFEF would remove the applicant pool barrier, but plaintiffs would still have to prove discriminatory intent under Arlington Heights. However, more challenges would likely reach discovery, and the institution’s internal records and documents would become central to the defense. Institutions should be ready to show that their policies are neutral on their face and that their adoption reflects legitimate, non-racial objectives.

The Court will hear oral argument early next year, with a decision expected by the end of the Court’s current term in mid-2027.