New York City is one of the most diverse cities in the United States. However, its schools remain some of the most segregated. The crown jewel of the City’s public education system, Specialized High Schools, are among the nation’s top public institutions. But in a city where over 60 percent of children are Black or Latinx, less than 10 percent of the students admitted into these prestigious schools come from these communities. Due to a 1971 New York state law, admission into the Specialized High Schools is granted solely on the basis of a standardized exam, the Specialized High School Admissions Test, which students can opt to take during their eighth grade. The statute allows only one exception to this rule, the Discovery program, which allows the City to place “disadvantaged” students near the cutoff score in a preparatory summer program that would grant them admission into a Specialized High School.

Recently, New York City Mayor Bill de Blasio expanded this program to make up 20 percent of the seats at Specialized High Schools and redefined the Discovery program’s parameters to only accept those students who go to high-poverty middle schools. A lawsuit currently before the Southern District of New York alleges that this policy is discriminatory against Asian American students. This Note argues that this lawsuit constitutional challenges is against a facially-neutral affirmative action policy, which undercuts the two major competing Equal Protection frameworks: anti-classification and anti-subordination. Subsequently, this Note contends that Justice Brett Kavanaugh’s ascent to the U.S. Supreme Court tilts the Court’s Equal Protection jurisprudence sharply towards the Court’s anti-classificationist wing, making it even more important to consider other means of reducing racial homogeny that could withstand judicial scrutiny. Further, this Note suggests that the conservative scrutiny facing the revamped Discovery guidelines is due to a distinction between the “deserving” and “undeserving” poor, as the political right’s support of class-based affirmative action has not extended to the present case in New York City.

Ultimately, this Note contends that the Southern District of New York should rule in favor of New York City to remain consistent with Supreme Court precedent in cases regarding facial-neutrality, such as Fisher v. University of Texas. Should the district court decide otherwise, this Note asserts that it will have “pierced the veil” of facial-neutrality, overturning the Court’s precedent and leaving uncertain the constitutionality of facially-neutral programs.

In conclusion, the Note holds that even the adapted Discovery program guidelines do not go far enough to ensure inclusive enrollment at these prestigious institutions. More must be done to provide every child in New York City has the opportunity for a better life—the very foundational value upon which the Specialized High Schools were created.

Full research paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3699190