The New York City Department of Education (DOE) operates eight high schools that, under state law, must admit students solely on the basis of an academic exam. These “specialized schools” — including the vaunted Brooklyn Technical High School, Bronx High School of Science, and Stuyvesant High School — stand out in two ways: First, admission to them is highly sought after because they’re perceived as gateways to highly selective colleges and career success (Bronx Science and Stuyvesant alone have produced 12 Nobel Prize winners). Second, the student racial composition at each school looks nothing like the student population of the city.  

In 2018-19, according to the New York City Council, Black and Latinx students represented 66% of New York City public high schools, but they made up just 10% of the eight specialized schools. On the other hand, while Asian American and white students represented 31% of the city’s student enrollment, they made up 86% of students at the eight schools. To address these disparities, the DOE announced a new plan in 2017 to diversify its highly selective high schools. Shortly thereafter, Asian American organizations and parents — who believe that the plan racially discriminates against their community — filed a federal lawsuit. 

Will New York City be able to increase Black and Latinx representation in its specialized high schools in a way that satisfies the law? Educators and advocates across the country will be watching closely. 

Elite public schools in the Big Apple 

The admission policies of these eight selective high schools are just one contributor to a pervasive pattern of racial segregation throughout the state of New York, where 65% of Black students and 56% of Latinx students attend intensely segregated non-white schools (Kucsera & Orfield, 2014). In fact, New York’s schools are the most segregated of any state in the nation and have been for some time (Frankenberg et al., 2019). (The city’s winding history of attempts to desegregate its schools was memorably depicted recently in the New York Times podcast, Nice White Parents.) 

Still, these eight schools, and their lack of racial diversity, have received intense scrutiny in recent years. In a 2018 op-ed, Mayor Bill de Blasio described their admissions process as a “monumental injustice.” Months later, a citywide School Diversity Advisory Group issued a report that called for the city to adopt “new inclusionary admissions practices which ensure all high schools are reflective of their boroughs’ racial and socioeconomic demographics.”  

Two years ago, the city unveiled a two-pronged strategy to change the admissions process to the eight schools. First, it would seek to phase out use of the Specialized High School Admissions Test or SHSAT (which had generated a federal civil rights complaint back in 2012) and, instead, offer admission to the top 7% of students at each of the city’s middle schools. However, this proposal met with stiff resistance in Albany, and barely a year after announcing this plan, Mayor de Blasio all but conceded defeat 

The DOE then forged ahead with a second proposal, which would alter and expand the only other means of admission to the specialized schools: the Discovery program. To be eligible for this program, a student must be come from a “disadvantaged” background and show good SHSAT scores, high potential, and the ability to cope with a rigorous high school program. Further, while the city has no authority to change the admissions exam, it does have discretion to determine the Discovery program’s size and eligibility criteria. 

For the 2019-20 school year, the DOE more than doubled the size of the program, from 252 seats to 528 seats, comprising 13% of the available spots in the eight schools. For the 2020-21 school year, it further expanded the program to 800 seats (20% of the total), and it also created a new Economic Need Index (ENI), which categorized schools according to, among other things, the percentage of students at each school living in high-poverty census tracts. Under the new policy, students had to attend a school with an ENI score above 60% (about half of the city’s middle schools meet this criterion) to be eligible for the Discovery program. 

Asian Americans file a lawsuit 

On December 13, 2018, three organizations — Christa McAuliffe Intermediate School PTO Inc., Chinese American Citizens Alliance of Greater New York, and the Asian American Coalition for Education — and three parents of Asian-American students sued Mayor de Blasio and DOE Chancellor Richard Carranza in New York federal district court, alleging that the changes to the Discovery program violated the Equal Protection Clause of the 14th Amendment by discriminating against Asian American students. The plaintiffs in the case (McAuliffe PTO v. de Blasio), represented by the Pacific Legal Foundation (which recently went after Hartford, Connecticut’s, magnet schools desegregation plan), also sought an injunction to stop the changes from being implemented for the class entering high school in fall 2019. 

The city’s proposed changes to the Discovery program are, on their face, race neutral.

In equal protection challenges involving race, plaintiffs typically have to show that an explicit racial classification or racial balancing scheme concocted by the government is at play. Failing that, they still need to point to more than a program’s negative impact on a particular racial group. They must also show that the government acted with discriminatory purpose 

The problem for the McAuliffe PTO plaintiffs is that the city’s proposed changes to the Discovery program are, on their face, race neutral. That is, they create a new classification of schools based on students’ economic needs, not their race. 

The McAuliffe PTO plaintiffs maintain, however, that not only would the city’s new policy negatively impact Asian American students, but that the city intended this result. Among their evidence was the following exchange in June 2018 between Chancellor Carranza and a television news reporter:  

INTERVIEWER: So today some Asian Americans are going to rally at City Hall. They’re concerned . . . Are you pitting minority against minority?  

CARRANZA: Oh, absolutely not. And I just don’t buy into the narrative that any one ethnic group owns admission to these schools. 

Edgardo Ramos, the judge in McAuliffe PTO, wasn’t convinced that Carranza’s words revealed a motivation to hurt Asian Americans. But he still had to contend with the larger implication of the plaintiffs’ lawsuit, which was that a “facially neutral policy seeking to improve racial diversity necessarily carries with it a discriminatory intent” because its implementation would affect members of different racial groups differently. He quickly homed in on the controlling opinion in this arena: the 2007 Supreme Court case, Parents Involved in Community Schools v. Seattle School District No. 1 

In Parents Involved, Chief Justice John Roberts, writing for the majority, struck down student assignment plans in Seattle, Washington, and Jefferson County, Kentucky, because (in the majority’s view) the districts relied too heavily on a “crude” system of focusing on individual students’ race to engineer “racial balancing” at particular schools. While Roberts’ opinion carried the day, Justice Anthony Kennedy’s concurring opinion has garnered the most subsequent attention. That’s because Kennedy explains how schools may legally consider race in student-body composition without running afoul of the Constitution:  

If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race . . . School boards may pursue the goal of bringing together students of diverse backgrounds and races through . . . mechanisms [that] are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race . . . [Governments] should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races.  

In other words, adopting “generally” race-conscious policies — such as those pursued by the DOE to diversify its specialized schools — is perfectly kosher. Relying on Kennedy’s guidance, Judge Ramos concluded that seeking to improve racial diversity in a “neutral” manner, as New York City was attempting to do, did not signify a discriminatory purpose against Asian Americans. He also held that the city’s expansion of the Discovery program was “rationally related to a legitimate government interest in helping more economically disadvantaged students receive a high-quality education.”  

He went on to say that, even if some discriminatory purpose against Asian Americans were found, the city’s actions would likely pass constitutional muster because the city had a compelling interest in diversifying its K-12 schools and had tried unsuccessfully in the past to do so in other, race-neutral ways.  

After the plaintiffs’ injunction was denied, the city’s Discovery program changes went into effect. However, the litigation is still pending. 

What does the New York case signify for the nation?  

McAuliffe PTO is just the latest federal case involving Asian American plaintiffs (though funded and orchestrated by conservative legal strategists Edward Blum and the Pacific Legal Foundation) alleging that racial diversity efforts in admissions discriminate against them, and we can expect more such cases to be filed in the future. (See also Students for Fair Admissions v. Harvard.)  

If the case makes its way to the U.S. Supreme Court, and if the Court strikes down New York’s effort to tinker with its elite schools’ admissions process (even though the new policy is race-neutral and has only negligible effects on the racial composition of those schools; Mader, 2020), the implications could be far-reaching. For instance, it could lead to further litigation in other cities, like Boston and Chicago, whose elite public schools are more representative of the districts’ student population. It could further limit schools’ ability to adopt race-conscious measures to integrate K-12 schools (a practice that was already on life support after Parents Involved). It could even prompt further limits to or the end of affirmative action in higher education (if the Harvard case doesn’t get there first). 

Finally, the McAuliffe PTO case touches on the much larger phenomenon in U.S. schools of separating students by ability into different tracks, programs, and schools, which has contributed to vastly unequal educational experiences and outcomes among students of different races. These practices have been legally challenged since Brown v. Board of Education, and they continue today, with students bringing suits to protest unequal access to gifted and talented programs and Advanced Placement classes, and to put an end to discriminatory ability grouping and tracking 

Low-income students of color trapped in low-quality educational environments can seek greater access to challenging and rigorous education programs and schools, faster integration of schools, or more equitable and adequate resources for schools they attend. But none of these approaches has seen smooth sailing in the courts. To be successful, then, these students will likely need more than judicial pronouncements. What they really need is greater political support, backed by stronger expressions of public will.   

References 

de Blasio, B. (2018, June 2). Our specialized schools have a diversity problem. Let’s fix it. Chalkbeat. 

Frankenberg, E., Ee, J., Ayscue, J.B., & Orfield, G. (2019, May). Harming our common future. Los Angeles, CA: The Civil Rights Project & the Center for Education and Civil Rights. 

Kucsera, J. & Orfield, G. (2014, March). New York State’s extreme school segregation. Los Angeles, CA: The Civil Rights Project. 

Mader, N. (2020, April 14). Black and Latinx students still mostly shut out of specialized schools. New York, NY: Center for New York City Affairs. 

School Diversity Advisory Group. (2019, August). Making the grade II. New York, NY: Author. 

ABOUT THE AUTHOR

Robert Kim

Robert Kim is the executive director of the Education Law Center, based in Newark, NJ. His most recent book is Education and the Law, 6th ed.