Saturday, October 31, 2026

THE CAN OF WORMS: SCHOOL ADMISSIONS, THE ROBERTS COURT, AND THE FULL EMPLOYMENT ACT FOR CIVIL RIGHTS LAWYERS

 

THE CAN OF WORMS: SCHOOL ADMISSIONS, THE ROBERTS COURT, AND THE FULL EMPLOYMENT ACT FOR CIVIL RIGHTS LAWYERS

An Op-Ed

By the time you finish reading this, another lawsuit about school admissions will probably have been filed somewhere in America. You're welcome, lawyers.

Here's the thing about cans of worms: nobody ever opens one on purpose and thinks, "This is going to be tidy." And yet, the Roberts Supreme Court — with the confident swagger of a man juggling chainsaws at a children's birthday party — has managed to pry open the biggest, squirmiest can in American education policy. The result? A constitutional cauldron of litigation that will keep civil rights attorneys billing hours well into the next decade, charter school boards hiring crisis consultants, and voucher programs wondering whether the fine print on their admissions forms was written in disappearing ink.

The Court's decision to take up Association for Education Fairness v. Montgomery County Board of Education this term isn't just another docket entry. It's a flare gun fired into a fireworks factory. And every magnet school, charter lottery, and voucher-accepting private academy in America should be paying very close attention — preferably while retaining counsel.

Act One: How We Got Into This Mess

To understand the current circus, you have to rewind to 2023, when the Roberts Court dropped its blockbuster ruling in Students for Fair Admissions v. Harvard/UNC, effectively dismantling race-conscious affirmative action in college admissions. The decision was hailed by conservatives as a triumph of colorblindness. It was lamented by progressives as a wrecking ball aimed at decades of civil rights progress. And it was received by school administrators nationwide with the quiet dread of someone who just heard a strange noise in the basement.

Because here's the paradox the Court created: you can no longer use race directly in admissions, but you still can't use "race-neutral" policies that are secretly about race. That sounds clear in a law school hypothetical. In the real world of K–12 admissions — where lotteries are weighted, geographic zones are drawn, socioeconomic criteria are calibrated, and entrance exams are redesigned — it's about as clear as a mud puddle in a monsoon.

Enter Montgomery County, Maryland, where a school district tried to diversify its selective magnet middle schools by switching to a lottery-based system for academically qualified students. A group of primarily Asian American parents — the Association for Education Fairness — cried foul, alleging the policy was engineered to reduce Asian American enrollment under the polite disguise of "equity."

The lower courts said: Not enough evidence. You need to show aggregate disparate impact relative to the applicant pool.

The parents said: That standard lets school boards discriminate on purpose, as long as they don't discriminate too much.

The Supreme Court said: We'll take the case.

And every civil rights lawyer in America said: Cha-ching.

Act Two: The Legal Question That Eats Everything

The specific question before the Court sounds like it was drafted by a committee of people who hate plain English:

"Whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool."

Translation for normal humans: How much statistical proof do you need before a court will even listen to your claim that a "neutral" admissions policy was designed to keep your kid out?

This is not an abstract question. It is the question — the one that determines whether every admissions lottery, geographic preference, socioeconomic weighting, and entrance-exam redesign in America can be hauled into federal court.

If the Court lowers the bar for plaintiffs, we're looking at a litigation tsunami. Charter school lotteries? Suable. Magnet school geographic preferences? Suable. Voucher-accepting private schools with selective entrance criteria? Potentially suable, depending on how deep the "state action" doctrine reaches. School boards will need to document every admissions tweak with the forensic precision of a crime scene investigator, lest some disgruntled parent's attorney subpoena the email where a board member wrote, "This should help with diversity," and turn it into Exhibit A.

If the Court upholds the higher threshold, school districts get breathing room — but critics will rightly point out that the standard effectively permits intentional discrimination, so long as it's moderate intentional discrimination. As Justices Alito and Thomas fumed in their dissent when the Court declined to hear the nearly identical Thomas Jefferson High School case in 2024: the Fourth Circuit's logic "permits intentional discrimination so long as it is not too severe." That's not a legal standard. That's a participation trophy for bigotry.

Either way, the lawyers win.

Act Three: Charter Schools — The Sitting Ducks

Let's talk about charter schools, because this is where the can of worms gets really wormy.

Charter schools are public schools. They receive public money. They are bound by the Equal Protection Clause and Title VI. And many of them use exactly the kinds of "facially neutral" admissions tools now under the Court's microscope:

  • Blind lotteries — neutral on paper, but the design of the lottery (who's in the pool, how the pool is defined, what weights are applied) is a choice.
  • Weighted lotteries — giving preference to low-income students, English-language learners, or students from underperforming schools. Noble goals. But if the weights produce predictable racial shifts, a plaintiff could argue the weights are proxies.
  • Geographic preferences — prioritizing students from certain neighborhoods or feeder schools. In a segregated housing landscape, geography is race, just wearing a trench coat and sunglasses.
  • Selective entrance criteria — test scores, GPAs, teacher recommendations, interviews. Every one of these filters produces demographic consequences. Every one of them can now be litigated.

The charter school movement has spent two decades arguing it offers choice, innovation, and accountability. It's about to discover that "accountability" includes being sued by parents who believe the lottery was rigged — not with corrupt intent, but with the quiet, structural bias of criteria that produce racially predictable outcomes.

And here's the delicious irony: many of the same political forces that championed charter schools also championed the end of affirmative action. They wanted colorblind admissions. They're about to find out that colorblindness is a two-edged sword, and it cuts charter schools just as deeply as it cuts traditional public schools. You can't demand that Harvard stop considering race and then act surprised when someone demands that your charter school's "holistic lottery" stop producing suspiciously monochromatic results.

Act Four: Vouchers — The Constitutional Bermuda Triangle

If charter schools are sitting ducks, private schools accepting public vouchers are something stranger: Schrödinger's public institution. They are simultaneously private (autonomous, religious, selective) and publicly funded (accepting taxpayer dollars through voucher programs). The legal obligations that attach to them exist in a quantum state of uncertainty that only a Supreme Court ruling can collapse.

Here's the landscape:

The Roberts Court already blessed voucher programs in Zelman v. Simmons-Harris (2002), ruling that publicly funded vouchers flowing to religious schools don't violate the Establishment Clause. More recently, in Carson v. Makin (2022) and Espinoza v. Montana (2020), the Court went further — ruling that states cannot exclude religious schools from public funding programs. The message was unmistakable: public money can follow students into religious and private schools, and the state can't say no.

But here's what the Court hasn't fully resolved: what anti-discrimination strings attach to that money.

  • Does a religious school that accepts vouchers become a "state actor" subject to the Equal Protection Clause? Probably not automatically, but the doctrine is murky.
  • Does Title VI — which prohibits racial discrimination in programs receiving federal financial assistance — apply to voucher-accepting schools? It depends on the funding structure, and it's complicated.
  • Can a private school that accepts public vouchers reject students based on religion, disability, sexual orientation, or behavioral standards that correlate with protected characteristics? State laws vary wildly, and the federal picture is a patchwork quilt sewn by a committee that couldn't agree on thread color.

Now drop the Montgomery County ruling into this stew. If the Supreme Court makes it easier to challenge "neutral" admissions criteria as racially discriminatory, the ripple effects could reach voucher-accepting private schools — especially those using entrance exams, interviews, or character evaluations that produce stark demographic patterns. The "state action" doctrine may shield many private schools from direct constitutional claims, but statutory claims under Title VI, state civil rights laws, and voucher-program conditions could fill the gap.

And if the Court makes it harder to challenge neutral policies? Then private voucher schools get an even wider lane to select students using criteria that produce whatever demographic outcome they prefer — all while cashing checks signed by the taxpayers of their state.

The paradox is exquisite: The same Court that told public universities they can't consider race is now building a legal framework where private schools — funded by public dollars — may face less accountability for their admissions practices than the public schools they're supposedly replacing.

If you're a civil rights lawyer, this is not a crisis. This is a career.

Act Five: Separation of Church and State (Or What's Left of It)

Let's not pretend the religion question is a footnote. It's the whole second volume.

The Roberts Court's aggressive expansion of religious liberty in education — Trinity Lutheran, Espinoza, Carson — has created a constitutional environment where religious schools can access public funds, maintain religious admissions criteria, and potentially discriminate in ways that would be flatly unconstitutional for any public school.

Consider the collision course:

  • A Catholic school participating in a state voucher program declines to admit a student from a same-sex household. Is that religious liberty or taxpayer-funded discrimination?
  • An evangelical academy accepts vouchers but requires a statement of faith for admission. Students of minority religions are effectively excluded. Is that facially neutral (it applies to everyone!) or functionally discriminatory?
  • A religious charter school — yes, they exist in some states — uses admissions criteria that correlate with religious community membership, which correlates with race. Is that a lottery, a liturgy, or a civil rights violation?

The Roberts Court has spent a decade building a legal architecture where religious institutions get public money but public accountability standards don't necessarily follow. The Montgomery County case may not directly resolve these tensions, but it will hand litigators a new set of tools — or take them away — and the church-state battleground will be the next theater of war.

Act Six: Why Your Vote on Tuesday Actually Matters

Here's where the op-ed gets personal.

Tuesday is November 3rd. There are candidates on your ballot — for school board, state legislature, Congress — who will shape the future of public education in ways the Supreme Court cannot unilaterally control.

Because here's the truth the Roberts Court doesn't want you to think too hard about: the best way to make school admissions litigation irrelevant is to make every public school excellent.

When parents fight over magnet school lotteries, it's because the magnet school is better than the neighborhood school. When families sue to get into selective charters, it's because the charter offers something the traditional public school doesn't. When voucher programs flourish, it's because public schools have been starved of resources for so long that a $7,000 voucher for a private school starts to look like a lifeboat.

The entire admissions litigation industry exists because we have created a system of educational scarcity in the richest country on Earth.

Fully funded public schools — with competitive teacher salaries, modern facilities, small class sizes, robust special education, arts, music, and counseling — don't generate admissions lawsuits. They generate educated citizens. When every school in a district is a school parents want to send their kids to, the lottery becomes irrelevant, the voucher becomes unnecessary, and the charter becomes what it was always supposed to be: an experiment, not an escape hatch.

The Roberts Court can spend the next decade refining the evidentiary standards for challenging facially neutral admissions policies. Or we can elect leaders who fund public schools so generously that no parent needs to hire a lawyer to get their child a decent education.

One of these paths employs a lot of attorneys. The other employs a lot of teachers.

Vote for the teachers.

The Bottom Line

Here's your cheat sheet for the constitutional chaos ahead:

School TypeDirect Legal ExposureKey Vulnerability
Public Magnet SchoolsHigh — directly at issue in the caseLottery design, geographic criteria, socioeconomic weights
Public Charter SchoolsHigh — bound by Equal Protection and Title VIWeighted lotteries, enrollment preferences, selective criteria
Private Voucher SchoolsModerate to Uncertain — depends on state action doctrine and funding rulesEntrance exams, religious criteria, behavioral filters
Religious Voucher SchoolsLow direct / High political — shielded by religious liberty precedent but politically explosiveFaith-based admissions criteria funded by taxpayer dollars

The Roberts Court has opened Pandora's Box and called it jurisprudence. The billionaire donors behind the privatization movement got what they wanted: public money flowing to private schools with minimal public oversight. But the constitutional contradictions they've created — a system where public schools face maximum legal scrutiny and private schools face minimum accountability, all while both serve the same children with the same taxpayer dollars — are unsustainable.

The litigation will last for years. The lawyers will prosper. The ideological battles will rage.

But the children sitting in underfunded classrooms on Monday morning don't have years to wait.

Vote Tuesday. Vote for candidates who fund public schools. Vote like your kid's education depends on it.

Because it does.

The author believes strongly in both the Oxford comma and the radical notion that every child in America deserves a great public school without their parents needing to retain a constitutional law firm to get them enrolled.




Complete Source & Reading List for "The Can of Worms"

1. The Central Case: Association for Education Fairness v. Montgomery County Board of Education

These sources cover the Supreme Court's October 2026 certiorari grant and the underlying dispute over magnet school admissions in Montgomery County, Maryland.

2. The Landmark Affirmative Action Ruling: Students for Fair Admissions v. Harvard/UNC (2023)

The foundational decision that ended race-conscious college admissions and set the stage for the current litigation wave.

3. The Thomas Jefferson High School Precedent: Coalition for TJ v. Fairfax County School Board

The closely related Virginia case involving similar admissions changes at an elite public magnet school, which the Supreme Court declined to hear in 2024 — setting the stage for the Montgomery County case.

4. Religious Schools & Public Funding: Carson v. Makin (2022) and Related Cases

Key rulings in the Roberts Court's expansion of public funding to religious schools — central to the voucher and church-state dimensions of the op-ed.

5. Additional Landmark Cases Referenced in the Op-Ed

These are the other major Roberts Court rulings that form the legal backdrop. For each, the best starting points for readers:

CaseYearKey IssueRecommended Source
Zelman v. Simmons-Harris2002Vouchers to religious schools don't violate Establishment Clause🔗 https://www.oyez.org/cases/2001/00-1751
Espinoza v. Montana Dept. of Revenue2020States can't exclude religious schools from scholarship programs🔗 https://www.oyez.org/cases/2019/18-1195
Trinity Lutheran v. Comer2017Religious institutions can't be excluded from public benefit programs🔗 https://www.oyez.org/cases/2016/15-577

6. Broader Policy & Background Reading

For readers who want to go deeper on the policy dimensions — charter schools, vouchers, privatization, and civil rights accountability:

7. Voting & Civic Engagement Resources

Because the op-ed's final argument is that the ballot box matters as much as the courtroom:

💡 How to Use This List

This reading list is organized from most case-specific (the Montgomery County case itself) to broadest context (voting resources). For readers new to the topic, I'd recommend starting with the Oyez summaries — they're clear, accessible, and include audio of oral arguments. For legal professionals or policy researchers, the full opinion texts on Justia and Cornell Law and the law review articles offer the deepest analysis.

The constitutional storm over school admissions is just beginning. These sources will help you follow it — and, more importantly, understand what's at stake for every child in every classroom in America.




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