McCauliffe 2018 Case: MOTION for Preliminary Injunction

The judge’s motion denying a preliminary injunction which attempted to block scheduled changes to the Discovery program.

You can find most case documents here

The 40-page document also contains lots of findings of fact that should be a useful legal overview. [pdf-embedder url=””]

Here are some notes…

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 tandem with the fact that she has a higher chance of admission through Discovery this year.

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On 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

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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).21

Plaintiffs claim that this statement wrongly and offensively proposes that Asian Americans believe that they own admission to the specialized schools.

Context suggests otherwise.

Chancellor Carranza was responding to the question, “Are you pitting minority against minority?” Id. In context, Chancellor Carranza’s response is best understood as a rebuke of what he saw as the idea suggested by the interviewer—that minority ethnic groups must compete with each other for their right to specialized school seats.

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Rational basis review standard…

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.

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Narrow tailoring…

The Supreme Court has repeatedly affirmed the benefits that flow from racial diversity in higher education as a compelling government interest.

It has described such benefits to include the promotion of “cross-racial understanding,” “break[ing] down racial stereotypes,” “enab[ling] [students] to better understand persons of different races,” “promo[tion] [of] learning outcomes,” “better prepar[ing] students for an increasingly diverse workforce and society,” and “better prepar[ing] them as professionals.” Grutter, 539 U.S. at 330.

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.

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