Challengers of Affirmative Action Have a New Target: New York City’s Elite High Schools

https://www.nytimes.com/2018/12/14/nyregion/affirmative-action-lawsuit-nyc-high-schools.html

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Mayor Bill de Blasio’s plan to enroll more black and Hispanic students in New York City’s most sought-after high schools faces a brand-new obstacle.

This week, the Pacific Legal Foundation, a conservative, libertarian-leaning law firm that has a history of challenging affirmative action policies, filed the first lawsuit against his admissions reform proposal, which he announced this summer.

But the suit does not take on the part of Mr. de Blasio’s proposal that has provoked the most controversy: a plan that would entirely eliminate the exam that is currently the sole means of admission into the city’s elite specialized high schools. The mayor wants to replace the test with a system that guarantees seats to top performers at each of the city’s middle schools, which would guarantee that the schools accept many more black and Hispanic students.

Instead, Pacific Legal is taking aim at the first, and more modest, phase of Mr. de Blasio’s proposal: the expansion of a program known as Discovery.

There is a key difference between the two phases: The city has the power to change Discovery by itself, but scrapping the test would require a change to state law in Albany.

Currently, specialized schools enroll tiny percentages of black and Hispanic students, even though those students make up about 70 percent of the school system. This past year, only 10 black students were offered seats at Stuyvesant High School, the most competitive of the eight test-in specialized schools.

Discovery allows mostly low-income students who just miss the cutoff for entry to enroll in summer classes aimed at preparing them for the schools’ academic rigor.

The current version of Discovery sets aside 6 percent of seats at specialized high schools for students who come from low-income families. Mr. de Blasio’s plan would expand that to 20 percent of seats at each specialized school, and require schools to reserve seats for more vulnerable students who not only come from low-income families but also attend high-poverty schools.

In a twist, some of the fiercest critics of Mr. de Blasio’s plan to scrap the admissions test are also the strongest backers of the push to expand Discovery.

The schools’ powerful alumni groups have long been seen as a key obstacle to dramatic admissions reform. But as political pressure has grown around the issue in the last few months, those groups have faced fresh questions about how to integrate the schools. Discovery, which relies on the existence of the test to function, is their solution.

Soo H. Kim, the president of Stuyvesant High School’s alumni organization, said: “Done the right way, Discovery is the answer. Full stop.”

Mr. de Blasio’s plan calls for a sharp increase in the number of students filling seats through Discovery this year. But Joshua Thompson, the lead attorney on Pacific Legal’s lawsuit, said he wants to maintain the status quo.

The complaint, filed in Federal District Court in Manhattan, has two parts: a lawsuit challenging the constitutionality of Discovery and a motion for a preliminary injunction.

Pacific Legal is asserting that, because Discovery could prevent some Asian-American students from gaining access to the schools, the program’s expansion violates students’ constitutional right to equal protection under the law. The expansion “has both a discriminatory purpose and effect,” a Pacific Legal news release reads.

Mr. Thompson hopes the injunction will essentially block Discovery from expanding before applicants receive their admissions offers this spring.

“If the court grants an injunction, the specialized schools would look like they did last year,” Mr. Thompson said in an interview.

The broader suit, Mr. Thompson said, could take “months or years” to resolve.

The city is standing behind its plan to expand Discovery, which would double the number of seats at specialized schools offered to black and Hispanic students, from about 9 percent to 16 percent.

“Our reforms will expand opportunity and raise the bar at our specialized high schools,” Will Mantell, a spokesman for the Department of Education, said.

Pacific Legal’s lawsuit compounds a growing legal threat to affirmative action policies at selective schools.

This fall, representatives for Harvard University defended the school's admissions policies in a high-profile suit revolving around a similar question: Do elite schools use policies to enroll more black and Hispanic students at expense of Asian-American applicants?

Natasha Warikoo, a professor of education at Harvard who studies affirmative action, sees some parallels between the two lawsuits.

“There’s this narrative of Asian-Americans being targeted in the quest to bring more opportunity to black and Latino people,” she said. “I think that narrative is incredibly problematic.”

Of Discovery, she said, “this is not crafted to exclude poor Asian kids.”

One of the plaintiffs in Pacific Legal’s case, the Asian-American Coalition for Education, has been sharply critical of Harvard’s affirmative action policies for years. Other plaintiffs include Asian-American students who feel their entry to a specialized school could be blocked by the expansion of Discovery; the plaintiffs in Harvard’s lawsuit are a group of Asian-American students who were rejected by Harvard.

This week’s lawsuit presents a potential legal headache, but Mr. de Blasio’s plan to eliminate the specialized high school exam has a much bigger problem: a glaring lack of political support.

The mayor wants to replace the exam with an admissions system that would offer seats to the top seven percent of students at each of the city’s middle schools, according to their grades and test scores.

But as top city officials have taken that plan on the road this fall, presenting the proposal in each of the city’s 32 school districts, they have been faced with criticism from all sides.

In Manhattan’s District 2, which includes wealthy, mostly white neighborhoods like the Upper East Side and West Village, hundreds of parents shouted down officials at a recent meeting. Across the city, in the mostly black Brooklyn neighborhood of Bedford-Stuyvesant, parents at two meetings on the topic said the specialized school plan amounted to a distraction from larger problems in the city’s schools.

The plan faces increasingly steep odds in Albany. This week, newly-elected State Senator John C. Liu of Queens, who has been outspoken against Mr. de Blasio’s plan, was named the chairman of the Senate’s New York City education committee. Michael Mulgrew, president of the United Federation of Teachers, which is a key player in Albany politics, has cast doubt on the plan’s chances at the Capitol, and few if any politicians at the city or state level have been eager to take on the issue.

The legislative session will begin in January.