THE MYTH OF MERIT: THE FIGHT OF THE FAIRFAX COUNTY SCHOOL BOARD AND THE NEW FRONT OF MASSIVE RESISTANCE.

• Author: George, Janel A.

Introduction 1091 I. The Consequences of Colorblindness 1095 A. Retreat and Resegregation: The Gradual Erosion of Brown 1095 B. Parents Involved and Race-Neutral Policies 1100 II. The Battle for TJ 1103 A. The Nation's Top Public High School Struggles to Diversify 1103 B. George Floyd and Thomas Jefferson: Past and Present Collide 1109 III. The New Front of Massive Resistance 1114 A. The Coalition for TJ's Challenge 1114 B. Rewriting Precedent, Erasing History 1116 Conclusion 1119 INTRODUCTION

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, (1) Thomas Jefferson High School for Science and Technology (known to the locals as "TJ"). (2) The FCSB pursued an ambitious effort to transform TJ's admissions protocols to attract students from diverse backgrounds. (3) In response, primarily white and South Asian parents, supported by conservative policymakers and litigators, mobilized in opposition. (4) They waged public demonstrations decrying the admissions changes and held signs with slogans reading: "School board's lottery fails TJ cancels merit," (5) and "To have only merit-based admissions saves TJ." (6)

"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. (7)

The tactics used by white supremacists seeking to preserve segregated education have evolved and persist in newly constituted forms. Instead of promoting de jure Jim Crow segregation, (8) white supremacists now claim that diversity efforts discriminate against white or Asian American students. (9) The images of mobs of angry white parents protesting outside of school houses that signified the era known as "massive resistance," (10) 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. (11)

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. (12) Part I of this Article examines some of the shortcomings of the historic 1954 Brown v. Board of Education (13,) 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 (14) and Parents Involved in Community Schools v. Seattle School District No. I, (15) 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, (16) 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, (17) 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. (18)

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. (19) 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?

1. THE CONSEQUENCES OF COLORBLINDNESS

   1. Retreat and Resegregation: The Gradual Erosion of Brown

      Before analyzing the state of contemporary school segregation, it is vital to recognize how courts have gradually undermined, misinterpreted, and mischaracterized Brown's condemnation of the consideration of race in admissions. The Brown ruling invalidated the "separate but equal" doctrine of Plessy v. Ferguson, striking down Jim Crow segregation in public facilities. (20) The attorneys of the NAACP Legal Defense and Educational Fund, Inc. (LDF), the organization founded by Thurgood Marshall and Charles Hamilton Houston that led the Brown litigation, (21) had debated whether to focus their litigation efforts solely on resource equity among segregated facilities (essentially requiring enforcement of "separate but equal") or to challenge racial segregation head on. (22) In choosing to challenge Jim Crow segregation head on, the LDF attorneys recognized--and argued before the Court using a range of evidence--that racially segregated public facilities were inherently unequal. (23) But, the Brown Court, in its effort to secure a unanimous vote striking down segregation, (24) failed to outline or proscribe a detailed remedy on how school districts should effectuate desegregation. (25) According to critical race theorist and late Harvard law professor Derrick Bell, this failure can be attributed in part to his theory of legal remedies arrived at due to "interest convergence." (26) Bell's theory suggests that the Court arrived at the Brown ruling because Black people's interest in dismantling segregated education finally coincided with white people's interest in preserving America's reputation abroad as it battled communism and accusations by other countries that America was hypocritical in its mistreatment of Black people while it espoused democracy abroad. (27) Bell asserts that white Americans had a strong interest in finally ending legal segregation, but he notes that remedies achieved by interest convergence have their limits. In particular, the Brown decision failed to explicitly condemn white supremacy. (28) Namely, "the ruling's focus on de jure segregation and the moving of bodies to integrate schools without addressing the more pernicious and covert nature of white supremacy left 'untouched the racial inequality that was both a cause and an effect of de facto segregation.'" (29) The failure to clearly articulate a remedy for the decades-long denial of educational opportunity effectuated through invidious segregation left the door open to defiance of the ruling. This defiance--known as massive resistance--spanned for over a decade and required subsequent court rulings to secure defiant district compliance with Brown's call for school desegregation, including Brown II, (30) Cooper v. Aaron, (31) Green v. County School Board of New Kent County (32) and Swann v. Charlotte-Mecklenburg in 1971, (33) in which the U.S. Supreme Court finally called for all vestiges of school segregation to be eliminated "root and branch." (34) Furthermore, the passage of the Civil Rights Act of 1964 -- particularly its Titles IV and VI -- authorized the federal government to penalize non-compliant southern school districts and helped to finally secure compliance with federal school desegregation orders. (35)

      However, subsequent court decisions have gradually eroded this legal precedent and undermined local efforts to advance school integration. As education scholar Gloria Ladson-Billings notes, "[o]ver the... twenty years after Brown, several legal cases functioned to effectively roll back the principle of Brown." (36) Namely, these cases have limited the ways that localities can craft programs to promote diversity and reduce racial isolation. These cases include Milliken v. Bradley (37) San Antonio Independent School District v. Rodriguez, (38) Board of Education of Oklahoma City Public-Schools v. Dowell, (39) and Freeman v. Pitts. (40)

      One of the most significant blows to Brown was inflicted by the Court in 1974's Milliken, which involved a challenge brought by Black parents of Detroit public school students seeking to implement a school desegregation program involving Detroit's schools and the surrounding all-white suburban school districts. (41) The suburban white districts had been formed to circumvent federal school desegregation orders mandating the integration of Detroit City's public schools. White families moved out to surrounding suburbs and formed new all-white school districts--a phenomena known as "white flight." (42) The...