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.”