Law & Courts

Court Revives Asian-American Groups’ Challenge to New York City Selective Admissions

By Mark Walsh — September 24, 2024 5 min read
Image of a gavel
  • Save to favorites
  • Print

Asian American high school students may get a chance to prove that a key New York City admissions process discriminated against them after a federal appeals court revived their legal case.

The case is one of several over selective admissions at the K-12 level that have drawn greater attention in the wake of the U.S. Supreme Court’s 2023 decision largely curtailing the consideration of race in college admissions.

The case involves the Discovery Program, a middle school pathway for admissions to the city’s nine selective high schools, which include such nationally known schools as Stuyvesant High School and Bronx High School of Science.

Most students are admitted through an entrance exam, but the Discovery Program has been around since the late 1960s to give opportunities to promising disadvantaged students, which until 2018 included such categories as free or reduced-price lunch recipients, those receiving city financial assistance, foster children, and English learners.

In 2018, then-New York City Mayor Bill de Blasio and then-schools chancellor Richard A. Carranza announced policy changes meant to increase the enrollment of Black and Latino students at the selective high schools. De Blasio called their lack of representation a “monumental injustice.”

The city overhauled the Discovery Program and began requiring the selective high schools to set aside 20 percent of their entrance seats for disadvantaged students. And the rules changed to require not only that an individual applicant be disadvantaged, but that he or she come from a disadvantaged middle school, defined by a metric for measuring the economic hardship of the community the school served.

The city and school system’s modeling projected that the number of selective admissions spaces offered to Black and Latino students would increase from 9 percent to 16 percent in the first year and that the share of Asian American students would necessarily decline.

A coalition of Asian American advocacy groups and parents of Asian American students sued under the 14th Amendment’s equal protection clause, arguing that the changes were motivated by discriminatory intent and would produce discriminatory effects.

As it turned out, more middle schools than expected met the disadvantage metric, and the projected decrease in Asian American enrollment at the selective high schools failed to materialize, at least in the first year.

But there were Asian American applicants who were declined for admissions, and 11 majority Asian American middle schools were excluded from the Discovery Program because they exceeded the disadvantaged metric, the lawsuit argues.

A federal district judge granted the city’s request for summary judgment on the basis that there was no disparate impact on Asian American students. Case law required that any discriminatory impact had to be proven in the aggregate, the district court said.

Appeals court opens opportunity to prove ‘discriminatory intent’

In its Sept. 24 decision in Christa McAuliffe Intermediate School PTO v. De Blasio, a three-judge panel of the 2nd Circuit court, in New York City, ruled unanimously to revive the lawsuit.

The appeals court said that because the district court had divided the discovery process and ruled only on the basis of a lack of discriminatory racial impact, it was required to assume that the city’s changes to the admissions program were adopted with a discriminatory intent.

The court then said it was enough that some Asian American students suffered adverse effects of the new policy to allow the plaintiffs the chance to prove the discriminatory intent of officials and thus subject the new policy to so-called strict scrutiny, the highest level of constitutional review and one that race-specific policies are unlikely to survive.

“If the government enacts a law or policy with a proven discriminatory motive against a certain race, … a valid equal protection claim can be based on a showing that any individual has been negatively affected or harmed by that discriminatory law or policy based on race, even if there is no disparate impact to members of that racial class in the aggregate,” Judge Joseph F. Bianco wrote for the 6th Circuit panel.

He cited the Supreme Court’s 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College, the higher education admissions decision.

The harm of a loss of opportunity based on race is “no different when the racial motivation is hidden beneath a facially neutral law or policy, which is proven to have the same discriminatory motivation,” Bianco said, citing language from the Harvard opinion that “what cannot be done directly cannot be done indirectly.”

The plaintiffs in the New York City case have “set forth evidence of Asian American students who have suffered a discriminatory effect from the new policies, including those Asian-American students at certain middle schools excluded entirely from the Discovery Program under the new criteria,” Bianco said.

He said it didn’t matter that enough Asian American students were admitted to the selective high schools across the city to keep the proportion from declining if individual Asian American applicants were barred from the Discovery Program whose changes were based on an alleged discriminatory intent.

The New York City suit is backed by the Pacific Legal Foundation, which is also involved in at least two other prominent cases challenging selective admissions programs in K-12 education.

In February, the Supreme Court declined to take up a challenge to an admissions program for a selective high school in the Fairfax County, Va., school district. A federal appeals court had upheld changes to the program that were race-neutral on their face but adopted to boost underrepresented minorities. That program was challenged on behalf of Asian American students, whose numbers declined. The lower court said there was no illegal racially disparate impact.

Meanwhile, an appeal is pending at the Supreme Court in a case from Boston, in which advocates for Asian American students challenged changes to that school system’s admissions for its competitive “exam schools.”

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Assessment Webinar
3 Key Strategies for Prepping for State Tests & Building Long-Term Formative Practices
Boost state test success with data-driven strategies. Join our webinar for actionable steps, collaboration tips & funding insights.
Content provided by Instructure
Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and K-12 education jubs at the EdWeek Top School Jobs virtual career fair.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Artificial Intelligence Webinar
Promoting Integrity and AI Readiness in High Schools
Learn how to update school academic integrity guidelines and prepare students for the age of AI.
Content provided by Turnitin

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Schools Fear Funding Loss as Supreme Court Weighs E-Rate Case
The justices hear arguments next week in a challenge to the funding structure of the $4 billion program to connect schools to the internet.
8 min read
The Supreme Court of the United States is seen on Capitol Hill, Thursday, Feb. 27, 2025, in Washington.
The U.S. Supreme Court, seen on Feb. 27, next week will hear arguments in a challenge to the funding structure of the $4 billion federal E-rate program, which provides discounts to schools to connect to the internet.
Rod Lamkey, Jr./AP
Law & Courts Religious Charters, LGBTQ+ Books, and More: A Winter Legal Roundup
This winter, key court cases tackled school desegregation, parental rights, religious charters, LGBTQ+ policies, and education funding.
7 min read
People Waiting In Line Before Brass Scale On Blue Background
E+
Law & Courts Judge Orders Trump Admin. to Restore Teacher-Prep Grants It Slashed
The administration must reinstate funding for all recipients of three federal grants supporting educator development, a judge ruled.
3 min read
Vector illustration of a dollar being repaired with tape.
iStock/Getty
Law & Courts Parents Sue Ed. Dept. Over Civil Rights Office Layoffs and Delays
The lawsuit argues that the mass layoffs leave students and families with little recourse for discrimination complaints.
4 min read
The exterior of the Department of Education Building in Washington, DC on Thursday, December 14, 2017.
The exterior of the Department of Education Building in Washington on Dec. 14, 2017. Parents are suing the department over the firing of its office for civil rights staff, arguing that the layoffs will stifle civil rights investigations.
Swikar Patel/Education Week