Our first reforms will commit 20% of the seats to kids from disadvantaged communities. And we will work with Albany to eliminate a system where one broken test dictates a child's future.
So much talent is being locked out right now. Justice has been delayed, but it does not have to be denied. We can fix this. These schools will get better when they reflect all of New York City.
A single standardized test can never capture the talent of young people. We need a fairer way to admit students to our Specialized High Schools.
See Doc. 19 Ex. H, I. The statements were "tweeted" by the Mayor on his official account, under his name. The fact that he made the statements thus "can be accurately and readily determined" from a source "whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2).
10. The Court takes judicial notice of the statements made by Chancellor Carranza in a television interview conducted on June 5, 2018 on local news station Fox 5 New York. Plaintiffs ask the Court to specifically take notice of one of the Chancellor's statements, "I just don't buy into the narrative that any one ethnic group owns admissions to these schools," Doc. 19 ¶ 10, citing a New York Times article that reprints the statement in isolation,
Having determined what facts the Court can and shall take judicial notice of in deciding Plaintiffs' motion for a preliminary injunction, the Court turns to that motion.
MOTION FOR A PRELIMINARY INJUNCTION
I. FINDINGS OF FACT
A. The Specialized School System
The New York City DOE operates eight high schools that, under state law, must admit students solely on the basis of an academic exam. These schools, called "specialized schools," are the Bronx High School of Science ("Bronx Science"); Stuyvesant High School; Brooklyn Technical High School ("Brooklyn Tech"); Brooklyn Latin School; High School for Mathematics, Science and Engineering at City College of New York; High School of American Studies at Lehman College; Staten Island Technical High School; and Queens High School for the Sciences at York College.
The state law that requires the specialized schools to use testing as the basis for admissions is the Hecht-Calandra Act (the "Act"), and it states the following:
Admission to the Bronx High School of Science, Stuyvesant High School and Brooklyn Technical High School and such similar further special high schools which may be established shall be solely and exclusively by taking a competitive, objective and scholastic achievement examination, which shall be open to each and every child in the city of New York in either the eighth or ninth year of study, without regard to any school district wherein the child may reside.
To apply to a specialized school, students first decide their order of preference for the schools. Chadha Decl. ¶ 4. Students then take the SHSAT, during which they declare and submit their order of preference.
The Hecht-Calandra Act provides only one other means of admission-the Discovery program. The Act expressly provides for the implementation of the Discovery program "to give disadvantaged students of demonstrated high potential an opportunity to try the special high school program." Roberts Decl. in Opp. to Pls.' Mot. Prelim. Inj. Ex. 3 at 3. Under the Act, to be eligible for the program, a student must: (1) be disadvantaged; (2) be certified by her current school as being "high potential"; (3) score just below the lowest overall score of all admitted students; and (4) successfully complete a summer preparatory program demonstrating her ability to "cope with the special high school program."
By all accounts, this admissions process is grueling. Yet over 29,000 students took the SHSAT last year in hopes of attending a specialized high school in the fall of 2019. This demand reflects the common view of New Yorkers that the schools are "elite," "exclusive," and "among the best high schools in the country."See The Exclusive Eight , N.Y. TIMES (Oct. 16, 2012);
New York's specialized schools stand out in another way: their racial demographics are highly unrepresentative of the City's public school system overall. The racial makeup of New York City's public high schools is 40% Hispanic, 26% Black, 16.1% Asian-American, and 15% white. Kieser Decl. Ex. 3. In sharp contrast, the racial makeup of Stuyvesant, the second largest of the specialized schools, is 73.5% Asian-American, 0.7% Black, 2.8% Hispanic, and 17.8% white. Kieser Decl. Ex. 4. The other specialized schools are more representative, but none come close to proportionate representation. While Black and Hispanic students make up 66% of New York City public high schools, they only make up 13.5% of Brooklyn Tech, 8.7% of Bronx Science, 3.5% of Staten Island Tech, 23.9% of Brooklyn Latin, 25.2% of the High School for Math, Science & Engineering, 8.4% of Queens High School for the Sciences, and 15% of the High School of American Studies. See
The demographically skewed student populations and test-only admissions basis of the specialized schools have attracted scrutiny from civil rights groups and government agencies for decades. In 1977, the federal Office of Civil Rights ("OCR") opened an investigation into whether the use of a single test as an admission standard constituted a form of discrimination against racial minorities and women. See Wallack Decl. ¶ 8. The OCR and the City eventually reached an agreement not to change the admissions standard. See
Over the years, the DOE has undertaken multiple initiatives in hopes of increasing the enrollment of Black and Latino students at specialized schools. Beginning in 2002, when the only specialized schools were Stuyvesant, Bronx Science, and Brooklyn Tech, the DOE added a new specialized school in each borough in a conscious effort to increase the number of available seats.
C. Changes to the Discovery Program
In the spring of 2018, a DOE working group recommended to Chancellor Carranza that he modify the Discovery program in order to increase the racial, ethnic, geographic, and socio-economic diversity of the specialized schools. Wallack Decl. ¶ 19. There were two parts to the proposed changes, both of which relate to the two areas that the Act left to the discretion of the Chancellor: the size of the Discovery program and the definition of "disadvantaged." First, the DOE sought to expand the program. The Discovery program would increase from 252 seats to 528 seats, comprising 13% of the available specialized school seats, in the 2019-20 school year. Chadha Decl. ¶ 9 n.1. It would further increase to 800 seats, comprising 20% of the available seats, for the 2020-21 school year and thereafter.
Second, the DOE sought to change the eligibility criteria for the Discovery program. Previously, in order to be deemed "disadvantaged" and thus eligible for the program, a student had to have one of the following characteristics: (1) qualify for free lunch; (2) attend a school receiving federal funds under Title I of the Elementary and Secondary Education Act and qualify for reduced price lunch; (3) receive assistance from the New York City Human Resources Administration; (4) be a foster child, a ward of the state, or in temporary housing; or (5) have entered the United States within the last four years and live in a home where the primary language spoken is not English. Wallack Decl. ¶ 16. Under the new plan, to qualify as "disadvantaged," a student would have to attend a school with a 2017-18 Economic Need Index ("ENI") of 60% or higher, and have one of the following characteristics: (1) qualify for free or reduced-price lunch; (2) receive assistance from the New York City Human Resources Administration; (3) be a foster child, a ward of the state, or in temporary housing; or (4) have been an English Language Learner within the last two years and have enrolled in a DOE school for the first time within the last four years.
The old and proposed criteria differ little except in the new ENI requirement. The DOE created the ENI indicator, which is itself based on another indicator, a student's "Economic Need Value" ("ENV").
The ENI requirement is not insignificant because only students who attend a school with a relatively low-income student body are eligible for the Discovery program. Thus, if a student is herself very low-income but attends an intermediate school with an ENI below 60%, the student is ineligible for Discovery, despite the fact that the student would have been eligible for the program under the prior criteria. About half of all New York City intermediate schools have an ENI below 60%.
Modeling conducted by a DOE working group projected that the ENI requirement would change the racial makeup of the Discovery program and therefore the specialized schools, albeit only slightly. To model these demographic consequences, the DOE first took the SHSAT and demographic data of the specialized schools' entering class of 2017, then analyzed how the demographic data would change if the Discovery program's eligibility criteria that year were the new criteria and the program took up 20% of the available seats. Chadha Decl. ¶¶ 19, 20. The projections show a decline of Asian-American enrollment from 53.0% to 50.9% (-2.1%), an increase in Black enrollment from 4.0% to 6.4% (+2.4%), an increase in Hispanic enrollment from 6.8% to 10.2% (+3.4%), and a decline in white enrollment from 27.2% to 24.7% (-2.5%).
The Plaintiffs acknowledge that the proposed changes to the Discovery program are facially race-neutral. They claim, however, that the changes will have a disparate impact on Asian-American students, and that Defendants intended this effect. They note that the projected increase in Black and Latino enrollment will come largely at the expense of Asian-American students.
DOE policymakers forwarded the proposed changes to the Discovery program to Chancellor Carranza in the spring of 2018, and he adopted them on June 3, 2018. Wallack Decl. ¶ 19.
D. Mayor de Blasio and Chancellor Carranza's Statements
On June 3, 2018, Mayor de Blasio and Chancellor Carranza announced the changes to the Discovery program.
Mayor de Blasio and Chancellor Carranza have touted the changes to the Discovery program on the grounds that the new plan would increase racial diversity at the specialized schools. The Mayor's press release stated that the changes "will support greater geographic, racial, and socioeconomic diversity" at the specialized schools. Press Release, Mayor de Blasio and Chancellor Carranza Announce Plan to Improve Diversity at Specialized High Schools, Office of the Mayor of New York City (June 3, 2018). The press release also stated that with the new changes, "[b]ased on modeling of current offer patterns, an estimated 16 percent of offers would go to Black and Latino students, compared to 9 percent currently."
Stuyvesant High School just admitted almost a thousand students, but only ten of those students were African American and less than thirty were Latino. In a city that is majority African American and Latino. These schools are the proving grounds for future leaders, and unless we believe our leaders should only come from certain communities, we cannot have our most prestigious schools available to only some. Our first reforms will commit 20% of the seats to kids from disadvantaged communities. And we will work with Albany to eliminate a system where one broken test dictates a child's future.
Doc. 19 Ex. H.
Can anyone defend this? Can anyone look the parent of a Latino or Black child in the eye and tell them their precious daughter or son has an equal chance to get into one of their city's best high schools? Can anyone say this is the America we signed up for?
Right after the June 3rd public announcement, Chancellor Carranza appeared in an interview on local news channel Fox 5 to defend and discuss the changes to the Discovery program and the plan to eventually eliminate the SHSAT. See Plan to Diversify Elite NYC Schools , FOX 5 (June 5, 2018).
INTERVIEWER: So today some Asian-Americans are going to rally at City Hall. They're concerned because they feel you're pitting minority against minority; they also come from, you know, poor sections of the city, and they're immigrants, and struggling for, you know, the American dream. 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.
E. The Lawsuit
On December 13, 2018, Plaintiffs sued Mayor de Blasio and Chancellor Carranza pursuant to
The three organizational plaintiffs are the PTO, CACAGNY, and AACE. The PTO is a private organization of parents and teachers at Christa McAuliffe Intermediate School (I.S. 187), a public school located at 1171 65th St., Brooklyn, New York. Compl. ¶ 7. Many I.S. 187 students go on to attend specialized schools; out of the 274 students who graduated from I.S. 187 in 2018, 205 currently attend a specialized school.
CACAGNY is a 501(c)(8) nonprofit organization formed in 2016 dedicated to furthering Chinese-American interests. Compl. ¶ 8. CACAGNY has advocated against the consideration of racial diversity in setting admissions standards. Doc. 63 ¶ 4. Since Defendants announced their plan to change the Discovery program and eventually eliminate the SHSAT, CACAGNY members have organized events, spoken at public forums, and lobbied legislators in opposition to the changes.
The individual plaintiffs are Yi Fan Chen, Chi Wang, and Phillip Yan Hing Wong. All are parents with children in the New York City public school system. Chen's son is six years old and attends P.S. 105. Chen Decl. ¶ 3. Wang's two children are five and nine years old respectively; the nine-year-old is a fourth grader at P.S. 203Q. Wang Decl. ¶ 3. Wong's daughter is an eighth grader at I.S. 5, P. Wong Decl. ¶ 5, which has an ENI of 76.3%, Kieser Decl. Ex. 1. As she would like to attend a specialized school in the coming school year, she took the SHSAT in October of 2018. P. Wong Decl. ¶ 6.
A. Standing
Defendants challenge the standing of all six plaintiffs, arguing that none has sufficiently alleged the type of concrete and particularized injury necessary to maintain constitutional standing. Three elements form the constitutional minimum of standing. First, the plaintiff must have suffered an invasion of a legally protected interest that is concrete and particularized, and actual or imminent. Second, the challenged conduct must have caused the plaintiff's injury. Third, it must be likely, not speculative, that a favorable decision by the court will redress the plaintiff's injury. Lujan v. Defs. of Wildlife ,
There are six plaintiffs in this action, three organizations and three individuals. The Court finds that of these plaintiffs, only the three organizations and Phillip Wong have standing.
1. Associational Standing
"[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Comm'n ,
Therefore, for an organization to have standing, it must independently satisfy the requirements of Article III standing as enumerated in Lujan . Nnebe v. Daus ,
The Court disagrees. All three organizational plaintiffs independently satisfy the Article III requirements because all three have dedicated resources to counteracting Defendants' allegedly discriminatory actions. Only a "perceptible impairment" of an organization's ability to provide services to further its mission is necessary to constitute an actionable injury in fact. Ragin v. Harry Macklowe Real Estate Co. ,
2. Individual Standing
Chen and Wang do not have standing. To have standing, a plaintiff's injury must be actual or imminent. Lujan ,
Wong does have standing. His daughter is an Asian-American student currently enrolled in eighth grade at a public intermediate school in Queens, New York. P. Wong Decl. ¶ 5. She took the SHSAT in October 2018 and would like to attend a specialized school. Id. ¶ 6. Plaintiffs allege that Defendants' policy denies her the right to compete on an equal basis with other students on account of her race. As Wong's daughter is currently going through the specialized school admissions process, her injury is no longer speculative, but actualized.
Defendants argue that Wong does not have standing because his daughter's SHSAT score
For these reasons, the PTO, CACAGNY, AACE, and Wong have standing. Because at least one plaintiff has standing, the Court may consider the case's merits. See Massachusetts v. E.P.A. ,
B. Preliminary Injunction Standard
"It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing , carries the burden of persuasion." Mazurek v. Armstrong ,
None of these exceptions apply here. The government action exception does not apply because it only applies to government action "embodied in a statute and implementing regulations," Able ,
The all-relief-sought exception does not apply either. Granting the preliminary injunction would only affect this year's admissions, while if Plaintiffs win at trial, Defendants would be enjoined from using the changed Discovery procedures in future admissions cycles.
Lastly, the exception for mandatory injunctions does not apply because Plaintiffs seek to maintain the status quo, not disrupt it. The " '[s]tatus quo' to be preserved by a preliminary injunction is the last actual, peaceable uncontested status which preceded the pending controversy." LaRouche v. Kezer ,
The fact that the DOE may have undertaken numerous steps to implement its proposed changes to the Discovery program and is currently planning to utilize the new admissions plan does not make the sought injunction a mandatory injunction. In Mastrovincenzo v. City of New York , street vendors selling shirts featuring graffiti art moved for a preliminary injunction against the City from applying a licensing requirement against them after being repeatedly arrested and told to secure a license,
Thus, the ordinary standard for a preliminary injunction applies in this case: Plaintiffs must demonstrate that (1) they will suffer an "irreparable harm," and (2) either (a) they are "likely to succeed on the merits," or (b) "that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party." Moore v. Consol. Edison Co. of New York ,
As a preliminary matter, the Court finds that Plaintiffs have failed to show that the balance of hardships tips decidedly in their favor. The PTO, which represents parents at a school no longer eligible for participation in the Discovery program because it has an ENI of less than 60%, arguably suffers the most hardship from the new changes. But I.S. 187 students may still compete for 87% of the specialized school seats this year-those seats reserved for the students who score highest on the SHSAT. The expansion of the Discovery program will lead to there being a slightly higher cut-off score for admission based purely on test scores, but this slight change is not a significant hardship. Wong's daughter attends a school with an ENI above 60%, see Kieser Decl. Ex. 1, so the program changes do not change whether she is eligible for Discovery. Further, if Wong's daughter is Discovery eligible-it is unclear from the record whether she is-then any hardship from the increased cut-off must be considered in
Meanwhile, Defendants have shown that granting the injunction would place an undue burden on the DOE. School administrators, teachers, students, and parents have all been proceeding for the last eight months under the assumption that the new changes will be in effect for the upcoming admissions cycle. Defs.' Mem. at 10. The DOE has made extensive preparations necessary to implement the new plan. See Chadha Decl. ¶¶ 34-44. It has also made arrangements for the additional resources that the expansion of the program will require. See
Consequently, Plaintiffs cannot rely on the "serious questions" standard. To secure a preliminary injunction, they must instead show that they are likely to succeed on the merits.
C. Irreparable Harm
When a plaintiff alleges a deprivation of a constitutional right, the Court presumes the existence of irreparable harm. See Statharos v. N.Y.C. Taxi & Limousine Comm'n ,
D. Merits
"The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race." Washington v. Davis ,
If a court concludes that the government used a racial classification or was motivated by racial discrimination, then the court must review the government action under strict scrutiny. Hunt v. Cromartie ,
The Court first discusses whether Defendants' changes to the Discovery program were intended to discriminate on the basis of race. Then, assuming that they were, the Court discusses whether they survive strict scrutiny.
1. Whether the Discovery Program Changes Amount to Racial Discrimination
Plaintiffs argue that the Discovery program changes, though facially neutral, discriminate against Asian-Americans because the changes disproportionately hurt Asian-Americans and, critical here, Defendants intended the changes to do so. The Court finds that Plaintiffs are not likely to succeed in showing discriminatory intent and the program changes are thus likely subject to rational basis review. As a consequence, Plaintiffs are not likely to succeed on their equal protection claim.
a. Discriminatory Purpose
A plaintiff must show "[p]roof of racially discriminatory intent or purpose" to establish that a facially neutral government action violates equal protection. Arlington Heights ,
Determining whether discriminatory intent exists is often difficult. In the absence of direct proof, litigants must make "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available."
Mayor de Blasio and Chancellor Carranza's statements concerning the Discovery program do not constitute evidence of their intent to discriminate against Asian-Americans. The only statement that either made that could be construed to concern Asian-Americans specifically was Chancellor Carranza's statement that he does not "buy into the narrative that any one ethnic group owns admission to these schools." Plan to Diversify Elite NYC Schools , FOX 5 (June 5, 2018).
With the exception of that statement, Plaintiffs rely upon statements by the DOE and Defendants lauding how the program changes will increase Black and Latino enrollment at the specialized schools. These include the Mayor's press release announcing that with the changes, offers to Black and Latino students would go up to 16%, see Press Release, Mayor de Blasio and Chancellor Carranza Announce Plan to Improve Diversity at Specialized High Schools, Office of the Mayor of New York City (June 3, 2018); his description of the low enrollment of Black and Latino students as a "monumental injustice," Doc. 19 Ex. D; his criticism that so few Black and Latino students attended Stuyvesant "[i]n a city that is majority African American and Latino," Doc. 19 Ex. H; and his suggestion, via rhetorical question, that no one could "look the parent of a Latino or black child in the eye and tell them that their precious daughter or son has an equal chance" at attending a specialized school, Doc. 19 Ex. D. Plaintiffs argue that these statements reveal that in implementing the program changes Defendants sought to decrease the number of Asian-Americans at the specialized schools.
This conclusion, however, requires one to accept the proposition that a facially neutral policy seeking to improve racial diversity necessarily carries with it a discriminatory intent. That is not the law. In Hayden v. County of Nassau ,
Justice Kennedy's concurrence in Parents Involved in Community Schools v. Seattle School District No. 1 ,
For these reasons, the Court concludes that Plaintiffs are not likely to show that Defendants had discriminatory intentions in amending the Discovery program.
b. Rational Basis Review
Under rational basis review, the challenged government policy must be upheld if it is rationally related to a legitimate government interest. City of New Orleans v. Dukes ,
The Discovery program changes would likely be upheld under rational basis review. Indeed, Plaintiffs do not dispute this. The expansion of the program is rationally related to a legitimate government interest in helping more economically disadvantaged students receive a high-quality education. And the only substantial change to the definition of "disadvantaged," the new minimum-ENI requirement, is rationally related to the government's interest in prioritizing Discovery eligibility for students it deems to be the most in need. The government is within its right under rational basis review to determine that limiting the Discovery program to students at schools with a student body that is relatively lower income furthers the purpose of the Act, to provide "disadvantaged students of demonstrated high potential" an opportunity to attend the specialized schools. Roberts Decl. in Opp. to Pls.' Mot. Prelim. Inj. Ex. 3 at 3.
Since it is not likely that the Discovery program changes were motivated by racial discrimination, the changes would be subject to rational basis review, and they would be upheld. Plaintiffs are thus not likely to succeed on their equal protection claim.
2. Whether the Discovery Program Changes Survive Strict Scrutiny
While the foregoing analysis is sufficient to deny Plaintiffs' motion for a preliminary injunction, the Court further notes that even if it were to subject the Discovery program changes to strict scrutiny, it would still not issue the injunction.
All racial classifications trigger strict scrutiny, while facially neutral laws only trigger strict scrutiny if motivated by a racially discriminatory purpose. Cromartie ,
a. Compelling Government Interest
Parents Involved in Community Schools v. Seattle School District No. 1 is "the only recent Supreme Court case respecting the use of race in placing high school students." Student Doe 1 v. Lower Merion Sch. Dist. ,
In Parents Involved , the Supreme Court found that two school districts, one in Seattle, Washington, and one in Louisville, Kentucky, violated the equal protection clause by explicitly using race to assign students to schools. The Seattle school district allowed incoming ninth graders to rank and choose from the district's high schools, and normally students would be allocated to schools based on their preference. Parents Involved ,
Five Justices concluded that the school districts violated the equal protection clause. Writing for himself and Justices Thomas, Alito, Scalia, and Kennedy, the Chief Justice delivered the Court's opinion holding that the racial classifications at issue were not narrowly tailored to the school districts' stated ends of "reduc[ing] racial concentration" in schools,
Four Justices would have held that the school districts had a compelling interest in achieving racial diversity in elementary and secondary schools. Writing for the dissent, Justice Breyer defined the government's interest in racial diversity in this context as its interest in avoiding "racial isolation" and increasing the degree to which "racial mixture" characterizes a
Justice Kennedy authored a sole concurrence in which he explained that he did not join in the Chief Justice's opinion in full because it "does not acknowledge that the school districts have identified a compelling interest here."
Therefore, in Parents Involved , five Justices agreed that achieving racially diverse classrooms in elementary and secondary schools is a compelling government interest,
The Supreme Court has repeatedly affirmed the benefits that flow from racial diversity in higher education as a compelling government interest. See Fisher v. Univ. of Tex. at Austin , --- U.S. ----,
If these benefits flow from increasing racial diversity in universities, the Court sees no logical reason why increasing racial diversity in high schools would not benefit students to the same extent. Indeed, an argument could be made that increased racial diversity is more beneficial at the high school level, when students are younger. This is especially true for the social effects of racial diversity. High school students generally spend more time in class and have smaller class sizes than university students, amplifying the extent to which they interact with each other. Their freedom to move and attend the classes of their choice is also significantly curtailed compared to university students, limiting their ability to self-segregate. Defendants submit multiple studies that purport to show the positive social and educational effects of racial diversity in secondary education. See Defs.' Mem. at 20-21.
Assuming that increasing racial diversity in the specialized high schools is a compelling government interest, Defendants must still show that this interest was in fact a reason for changing the Discovery program. Defendants claim that it was. Plaintiffs argue that the DOE's reason for changing the Discovery program was instead to racially balance the specialized schools, a constitutionally impermissible motive.
Keeping in mind the sparse record the Court has for this fact-intensive question, at this stage the Court finds that Defendants likely intended to achieve the benefits flowing from increased diversity in the specialized schools, not to racially balance them. This finding is explained simply by the modest projected increase in Black and Latino enrollment: the DOE expects that the changes will increase Black and Latino enrollment at the schools by 5.8 percentage points, from 10.8% to 16.6%. Chadha Decl. Ex. 1. These modest effects are more consonant with an intention to achieve the educational benefits that obtain from having a "critical mass of underrepresented minority students," a permissible motive, Grutter ,
Therefore, Plaintiffs are not likely to succeed in showing that the program changes were not intended to further a compelling government interest.
b. Narrow Tailoring
Once a compelling government interest is established, the government must show that its actions are narrowly tailored to further that interest. Gratz ,
A racial classification is narrowly tailored only if the government "sufficiently considered workable race-neutral alternatives," Grutter ,
The changes to the Discovery program are exactly the sort of alternative, race-neutral means to increase racial diversity that the Court has repeatedly suggested governments may use in lieu of express racial classifications. See, e.g., Parents Involved ,
III. CONCLUSION
For the foregoing reasons, Plaintiffs' motion for judicial notice is GRANTED in part and DENIED in part, and Plaintiffs' motion for a preliminary injunction is DENIED. The Clerk of the Court is respectfully directed to terminate the motions, Docs. 10, 19. The parties are directed to appear for an initial conference at 10:00AM, March 7, 2019, at Courtroom 619, Thurgood Marshall Courthouse, 40 Foley Square, New York, NY.
It is SO ORDERED.
Notes
Available at http://www.fox5ny.com/good-day/338399825-video.
LaGuardia High School is also a specialized school under state law, but admits students using a competitive audition instead of an exam. It is thus not at issue in this case. When the Court refers to the specialized schools, it is referring to the eight schools that use the SHSAT as a basis for admissions.
Available at https://www.bxscience.edu/apps/pages/index.jsp?uREC_ID=219378&type=d&termREC_ID=&pREC_ID=433038&hideMenu=0.
Available at https://stuy.enschool.org/apps/pages/index.jsp?uREC_ID=126631&typr=d&pREC_ID=251657&hideMenu=1.
This text has been replaced by language incorporating it by reference. See
Not all students accept the offers they receive. Accordingly, the DOE makes more offers than there are seats available. Chadha Decl. ¶ 7.
Available at https://www.nytimes.com/2012/10/17/opinion/the-exclusive-eight-highschools.html?rref=collection%2Ftimestopic%2FStuyvesant%20High%20School&action=click&contentCollection=timestopics®ion=stream&module=stream_unit&version=latest&contentPlacement=27&pgtype=collection.
Available at https://www.washingtonpost.com/local/education/nyc-plan-to-diversify-elite-high-schools-challenged-in-court/2018/12/13/37810eb6-ff20-11e8-862a-b6a6f3ce8199_story.html?utm_term=.b68752394a36.
Neither Plaintiffs nor Defendants provide further information concerning the OCR investigation.
The other three statutory factors-that the student (1) be certified by her school as high-potential; (2) score just below the lowest overall score; and (3) successfully complete a summer program-remain the same.
The data also includes an "other" category, which includes students who do not report their race, Native American students, and multi-racial students. Chadha Decl. ¶ 20 n.2. The program changes were projected to decrease enrollment of students in the "other" category from 9.0% to 7.8% (-1.2%). Chadha Decl. Ex. 1.
Because state legislation, the Hecht-Calandra Act, provides that admission to the specialized schools must be made exclusively on the basis of an exam, the City of New York and the DOE cannot unilaterally get rid of the SHSAT.
For the reasons given supra , the Court takes judicial notice of the fact that Mayor de Blasio made these statements.
For the reasons given supra , the Court takes judicial notice of the fact that Mayor de Blasio made the statements in this document.
Available at http://www.fox5ny.com/good-day/338399825-video. For the reasons given supra , the Court takes judicial notice of the fact that Chancellor Carranza made the statements in this video.
This limitation on associational standing appears to be unique to the Second Circuit. See Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay ,
Two Supreme Court opinions issued shortly after Aguayo , however, cast doubt on that holding. First, in Warth v. Seldin ,
Nonetheless, the Second Circuit reaffirmed Aguayo in League of Women Voters of Nassau County v. Nassau Board of County Supervisors without addressing Warth or Hunt . See
Defendants explain that as part of this litigation, they specifically inquired of the organization that administers the SHSAT what Wong's daughter's score is. Chadha Decl. ¶ 37.
If Wong's daughter's SHSAT score is higher than the cut-off score for a particular school with the Discovery changes in place, then the changes will not affect her because she will be admitted to that school. Conversely, if her score is lower than what the cut-off score for a particular school would be if the Discovery changes were not in place, then the changes would also not affect her because she would not be admitted regardless.
On February 8, 2019, Defendants asked for leave to submit evidence showing that Wong's daughter's score is too high or too low to be affected by the challenged program changes. Doc. 61. The Court denied Defendants' request. Doc. 65.
State law grants the Chancellor the "power and duty" to "control and operate" the specialized schools, which includes the Discovery program.
Available at http://www.fox5ny.com/good-day/338399825-video.
Plaintiffs specify the object of Defendants' animus as Asian-Americans, but it is unclear whether Asian-Americans will be the demographic most affected by the changes. The DOE projects, with admittedly low confidence, that the enrollment of Asian-Americans will decline by about 2.1 percentage points, from 53.0% to 50.9%-a decline of about 4%. Chadha Decl. Ex. 1. The same model projects that the enrollment of white students will decline by about 2.5 percentage points, or 9%, from 27.2% to 24.7%; and that the enrollment of students who do not report their race, Native American students, and multi-racial students will decline by about 1.2 percentage points, or 13%, from 9.0% to 7.8%. See Chadha Decl. Ex. 1; Chadha Decl. ¶ 20 n.2. The model thus predicts that while Asian-American enrollment will decline the most numerically as a result of the changes, enrollment in the white and "other" category will decline more proportionately .
These impacts cast doubt on Plaintiffs' theory that Defendants specifically targeted Asian-Americans in changing the Discovery program. Ultimately, however, they do not change the equal protection analysis. Plaintiffs' equal protection claim could simply be recast as one on behalf of groups other than Black and Latino students.
At issue in Ricci was the New Haven Civil Service Board's refusal to certify the test results of two promotion exams for officer positions at the New Haven Fire Department. See
The Second Circuit affirmed the district court in a summary order "substantially for the reasons stated" in the district court opinion. Ricci v. DeStefano ,
The Supreme Court then granted certiorari, Ricci v. DeStefano ,
Additionally, the majority opinion in Texas Department of Housing v. Inclusive Communities Project, Inc. , --- U.S. ----,
Defendants argue that under the Marks rule, Justice Kennedy's opinion is the controlling opinion from Parents Involved . A few district courts agree, and therefore conclude that under Supreme Court precedent, racial diversity in public schools is a compelling government interest. See United States v. Alamance-Burlington Bd. of Educ. ,