The Supreme Court of the United States recently agreed to hear the first case concerning race in school admissions since it struck down race-conscious college admissions three years ago in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA). The federal circuit courts since have split on the standard to be applied in evaluating cases challenging policies that have a disparate impact on certain racial groups. So the justices will review a Maryland case this term to resolve the question of what a plaintiff must establish to show discrimination when challenging admissions criteria that are race-neutral on their face. The decision could have a significant impact on schools’ use of race-neutral admissions criteria and could have broader implications for other civil rights claims as well as employment cases.

In Association for Education Fairness v. Montgomery County Board of Education, et al., the petitioner, an organization of “concerned Asian-American parents in Montgomery County,” is challenging the constitutionality of the admissions process for the county’s magnet schools. Specifically, the petitioner alleges that changes the Montgomery County Board of Education made during the COVID-19 pandemic to the admissions process for four of its magnet middle school programs violated the Equal Protection Clause.

The Pandemic Plan

Montgomery County Public Schools operates four highly selective middle school magnet programs in the humanities, math and science. For years, the Board was concerned that enrollment did not reflect its student body. After a comprehensive study released in 2016, the Board adopted a “Field Test” that replaced parent applications with universal screening of all fifth graders and compared students against peers at their local schools. When COVID-19 made in-person testing impractical, the district dropped the in-person assessment and adopted a “Pandemic Plan,” where students who meet grade and locally normed assessment thresholds enter an eligibility pool and then a lottery fills the seats.

Legal Issues at Stake

A facially race-neutral policy, such as the Pandemic Plan, is generally reviewed by the courts only for a rational basis, which is the lowest level of scrutiny that can be applied. Under that test, a policy is found constitutional if it is rationally related to a legitimate government interest, even if it has a disparate impact on certain groups. Disparate impact, standing alone, does not establish a violation. A facially neutral policy is subject to heightened scrutiny only if the plaintiff proves that a racially discriminatory purpose was a motivating factor in the decision, meaning the policy was adopted “because of,” not merely “in spite of,” its adverse effects on a particular group.

Courts assess intent through a review of both direct and circumstantial evidence, such as the historical background of the decision, the specific sequence of events leading to it, departures from normal procedures or substantive criteria and the legislative or administrative history, including contemporaneous statements of decision-makers.

In the Montgomery County case, a federal judge in Maryland in 2022 dismissed the case, finding  the petitioner failed to show either disparate impact or discriminatory intent. The court found no plausible disparate impact because Asian American students consistently made up a larger share of admitted students than of the applicant pool. It also found no plausible discriminatory intent, noting the plan grew out of the pandemic and was adopted largely by new leadership. In February 2026, the 4th U.S. Circuit Court of Appeals affirmed in a brief, unpublished opinion.

Disparate Impact

The central fight before the Supreme Court is over how to measure disparate impact. The petitioner argues the right test is whether a group fared worse after the policy changed than before. The district court instead compared each group’s share of applicants to its share of admitted students. Under that measure, Asian American students continued to be strongly represented in the magnet programs relative to their share of the applicant pool, so the court could not find it plausible that they had been systematically excluded. The 4th Circuit affirmed, explaining that it was bound by its 2023 decision in Coalition for TJ v. Fairfax County School Board, which adopted that approach, even though the petitioner argued that case was wrongly decided.

The 4th Circuit is joined by the 1st Circuit in holding that a before-and-after decrease in one group’s share of admissions offers is not enough to prove disparate impact. Instead, a plaintiff must compare the group’s share of admissions offers with its share of applicants. The 2nd  and 3rd Circuits, on the other hand, have taken a broader view, permitting plaintiffs to use before-and-after enrollment data to show that a policy had a discriminatory effect on a particular group.

Practical Takeaways

The Supreme Court’s decision by next June in Association for Education Fairness is expected to address this circuit split and provide much-needed guidance on how plaintiffs challenging facially neutral admissions policies can establish the impact element of a discrimination claim. If the Supreme Court adopts the approach used by the 2nd and 3rd Circuits, any race-neutral change that significantly reduces one group’s share of seats could be enough to show disparate impact.

If, however, the court adopts the methodology used by the lower court here, public institutions will retain more room to adopt neutral criteria, so long as no group is proportionally disadvantaged relative to its share of applicants. Either way, plaintiffs must still prove discriminatory purpose, so a ruling for the petitioner on impact alone may not change the outcome of this case.

Although this case arises in the school admissions context, the Supreme Court’s decision could have broader implications, including in the employment context. Public employers are bound by the same Equal Protection Clause framework, so the court’s decision could impact constitutional challenges to changes in hiring, promotion, and testing criteria, such as dropping a written exam or redesigning a selection process.

If the court accepts a before-and-after comparison, any neutral change that reduces one group’s share of hires or promotions could satisfy the impact element, shifting the dispute to the employer’s intent and making decision-makers’ emails, messages, and stated goals central evidence. In cases involving private employers, disparate impact claims under Title VII do not require proof of intent and are typically evaluated by comparing selection rates against the applicant pool. If the Supreme Court were to adopt the framework of the 2nd and 3rd Circuits, it is likely that similar “before-and-after” arguments would be made to challenge changes to employment criteria, particularly in hiring.

Miles & Stockbridge’s labor and employment lawyers will be monitoring the case and are available to help schools and employers with their admissions and hiring policies.

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