The Manhattan Institute hosted a panel, “Diversity by Decree: Is NYC’s New Policy for Elite High Schools Constitutional? The panel moderated by Troy Senik the Vice President for Policy and Programs at MI, John Yoo, Pacific Legal Foundation and the John Heller Professor of Law at U. C. Berkeley School of Law, Wai Wah Chin, President, Chinese American Citizen’s Alliance of Greater New York and Ray Dominico, Director of Education Policy at MI.
The Pacific Legal Foundation is challenging the de Blasio-Carranza use of the Discovery Program section of the Hecht-Calandra Law (1971) that embedded the Specialized High School Admittance Test (SHSAT) in statute.
The Discovery Program section of the law establishes a “second chance,” to gain acceptance for “disadvantaged students” to the Specialized High Schools,
(d) The special schools shall be permitted to maintain a Discovery Program to give disadvantaged students of demonstrated high potential an opportunity to try the special high school program without in any manner interfering with the academic level of those schools. A student may be considered for the Discovery Program provided the student: (1) be one of those who takes the regular entrance examination but scores below the cut-of score (2) is certified by his local school as disadvantaged (3) is recommended by his local school as having high potential for the special high school program and (4) attends and then passes a summer preparatory program administered by the special high school….. A candidate reached for consideration on the basis of this examination score will be accepted for admission to the Discovery Program only if his previous school record is satisfactory. Any discovery program admissions to a special high school shall not exceed fourteen (14) per cent of the number of students scoring above the cut-off score and admitted under the regular examination procedure of (b) and (c) above.
The Discovery Program faded as the Specialized High Schools failed to support the program; additionally the “disadvantaged students” who were accepted into the program were primarily white and Asian.
It is the changes in the Discovery Program that is the basis of the legal challenge.
New York City is expanding this alternative admissions process — known as the Discovery program — as a way to increase the diversity of the specialized high schools, where black and Hispanic students are underrepresented. Though the effort has received less attention than the mayor’s ambitious proposal to get rid of the test entirely, it has an advantage because — unlike eliminating the test — it does not require the approval of the State Legislature.
By 2020, 20 percent of the ninth-grade seats in every specialized high school will be set aside for Discovery students, according to city education officials. Currently, only 5 percent of the 4,000 ninth-grade seats are filled through Discovery.
And who makes it into the program will also change. Students are currently eligible if they meet the city Education Department’s criteria for being disadvantaged. But under the new plan, only students who attended high-poverty middle schools will be accepted. Changing to high-poverty schools means that those accepted will be more likely to be black or Hispanic, since they dominate at those schools.
John Yoo is a controversial figure; he authored memos during the Bush administration supporting “enhanced interrogation” (aka, torture), and, recently has been critical of the Trump border wall.
Yoo was almost giddy in his presentation, quoted Mayor de Blasio and Chancellor Carranza as clear evidence that the new iteration of the Discovery Program was designed to discriminate against Asian students unconstitutionally depriving more qualified Asian students of seats in the elite schools and referenced challenges to college admissions.
Whether the current debate over the use of race in the admittance of students to college is equivalent to the elite high schools admittance is open to question.
SCOTUS, in Fisher v The University of Texas (2016), by 4-3 decision, upheld the racial elements used,
The Court held that the University of Texas’ use of race as a factor in the holistic review used to fill the spots remaining after the Top Ten Percent Plan was narrowly tailored to serve a compelling state interest. Previous precedent had established that educational diversity is a compelling interest as long as it is expressed as a concrete and precise goal that is neither a quota of minority students nor an amorphous idea of diversity.
Yoo reminded us that the Supreme Court has changed, Gorsuch and Kavanaugh, according to Yoo, are likely not to support the Fischer when issue comes before the highest court again.
The Harvard Admissions case, alleging a quota restricting the admission of Asian students is awaiting a decision at the Circuit Court; the case will be appealed regardless of the prevailing side and could move towards the highest court, although it could take a few years. There are similar law suits perking through courts in other areas of the country.
Yoo did not address the issue of “disparate impact;” if a test is used as a requirement of employment and adversely impacts a “protected group” the test is discriminatory absent evidence that the test is “job related.” In Duke Power Company,
Court held that Duke’s standardized testing requirement prevented a disproportionate number of African-American employees from being hired by, and advancing to higher-paying departments within, the company. Neither the high school graduation requirement nor the two aptitude tests was directed or intended to measure an employee’s ability to learn or perform a particular job or category of jobs within the company. The Court concluded that the subtle, illegal, purpose of these requirements was to safeguard Duke’s long-standing policy of giving job preferences to its white employees.
Griggs v Duke Power Co (1971)
There are parallels to the use of tests to admit students to educational programs.
Students accepted into the elite high schools through the Discovery programs did as well as student’s accepted through the testing process: does the “disparate impact” concept challenge the use of the SHSAT?
In the early 70’s a class of Black and Puerto Rican teachers challenged the use of a qualifying examination for positions of assistant principals and principal, the court held,
[T]he examinations prepared and administered by the Board of Examiners for the licensing of supervisory personnel, such as Principals and Assistant Principals, have the de facto effect of discriminating significantly and substantially against Black and Puerto Rican applicants.
Such a discriminatory impact is constitutionally suspect and places the burden on the Board to show that the examinations can be justified as necessary to obtain Principals, Assistant Principals and supervisors possessing the skills and qualifications required for successful performance of the duties of these positions. The Board has failed to meet this burden. Chance v Board of Examiners 1972
The litigants, represented by the Pacific Legal Foundation chose to equate the Discovery program with the foundational decisions of the court; Justice Harlen’s dissent in Plessy v Ferguson (1896).
Our Constitution in color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved….
On one hand only a handful of Black students passed the test, the entering class at Stuyvesant is over 70% Asian: is the test discriminatory, or, is the use of the new Discovery Program, that will result in Asian students having higher grades and not accepted, discriminatory?
While one can argue that the Discovery Program is part of the law, the term “disadvantaged students” is not defined, the Department has simply more narrowly defined the relvant section of the statute; clearly to achieve the intent of the law.
The issue is both emotional and controversial.
Black scholars, electeds, as well as white progressives argue that any test that advantages one racial/ethnic group over another is discriminatory, and, with a long history of racial discrimination the SHSAT is especially distasteful. I was at a Midwestern university a few days ago and a professor of Afro-American history was appalled by the vigorous defense of the test. During the same visit I sat in on a class that discussed the many, many, centuries-old use of examinations in China to select the government ruling class,
The examination based civil service thus promoted stability and social mobility. The Confucian-based examinations meant that the local elites and ambitious would-be members of those elites across the whole of China were taught with similar values. Even though only a small fraction (about 5 percent) of those who attempted the examinations actually passed them and even fewer received titles, the hope of eventual success sustained their commitment. Those who failed to pass did not lose wealth or local social standing; as dedicated believers in Confucian orthodoxy, they served, without the benefit of state appointments, as teachers, patrons of the arts, and managers of local projects, such as irrigation works, schools, or charitable foundations
Examinations are at the core of Chinese cultural values.
I suspect the court will not sustain the Pacific Legal Foundation.
Interestingly, Afro-Americans were the largest supporters of Hillary Clinton in 2016; Asians were the second largest supporting group. While “testing” is an important value in the Asian community; the discriminatory impact of the test is of concern to younger Asians.
By the time the court challenges are resolved de Blasio and Carranza may have moved on to other careers.
UPDATE: The court refused to halt the de Blasio-Carranza revised Discovery Programwhile the case proceeds through the courts