When Intent Matters More Than Numbers: The Fight for Equal Protection in NYC Schools

In Chinese American Citizens Alliance of Greater New York v. Adams, 2024 U.S. App. LEXIS 24198 (2d Cir. 2024), the plaintiffs, including the Chinese American Citizens Alliance and several individual parents, challenged changes to New York City’s Specialized High School admissions process.

In 2018, the City’s Department of Education revised the "Discovery Program," a pathway for economically disadvantaged students to gain admission to these prestigious high schools. The plaintiffs argued that these changes were motivated by an intent to reduce the number of Asian-American students admitted to the SHSs and therefore violated the Equal Protection Clause of the Fourteenth Amendment. They asserted that the policy disproportionately excluded Asian-American students from the Discovery Program based on the ENI threshold, which disqualified students from predominantly Asian-American middle schools.

As fate would have it, the modeling performed by the City did not work as intended due to an unforeseen inclusion of a large number of schools. This resulted in increases in the overall percentage of Asian-American students admitted.

The district court dismissed the case in a complicated procedural posture due to a bifurcation decision that is not relevant to the purpose of this blog.

The plaintiff’s appealed which gave the Second Circuit an opportunity to discuss some of the finer points of applying the Equal Protection guarantees of the Fourteenth Amendment to laws passed by legislatures.

Applying Supreme Court precedent, we have generally recognized three types of discriminatory laws: (1) a facially discriminatory law or policy that expressly classifies individuals on the basis of race; (2) a facially neutral law that is enforced in a discriminatory fashion; and (3) a facially neutral law that was adopted with discriminatory intent and resulted in a discriminatory effect.

Chinese American Citizens Alliance of Greater New York v. Adams, at 21 (internal citation omitted). The plaintiffs here are alleging the third type. Usually, plaintiffs point towards a law’s discriminatory effect through establishing a statistically significant disparate impact on a protected category. They then argue that the discriminatory intent can be inferred by the disparate impact. However, the government’s incompetent modeling resulted in a boost rather than hindrance when looking at the impact on all Asian-Americans.

“The district court held that, even if there were independent evidence establishing intent toward a particular race or ethnicity, an aggregate disparate impact on the affected class is necessary for a plaintiff to show the requisite discriminatory effect to prevail on an equal protection claim.” Id. at *22-23.

Although an aggregate disparate impact is often the manner in which a plaintiff seeks to prove both discriminatory intent and effect as required for an equal protection challenge to a facially neutral law, it is not the exclusive means for establishing such a violation. In other words, when a policy is motivated by an intent to discriminate against persons of a particular race, and plaintiffs who belong to that race have suffered harm as a result, the Equal Protection Clause provides for strict scrutiny review of that policy, even if there is no evidence that the discriminatory policy has resulted in negative impact on individuals of that race at an aggregate level.

Id. at *23-24. The Second Circuit explains that the focus should first and foremost be on the individual.

Indeed, it is axiomatic that "[a]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class." Miller v. Johnson, 515 U.S. 900, 911, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995) (internal quotation marks and citation omitted).

Therefore, if the government enacts a law or policy with a proven discriminatory motive against a certain race (as we must assume here for purposes of this appeal given the bifurcation of discovery), 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. See generally Soule v. Conn. Assoc. of Schs., Inc., 90 F. 4th 34, 46 (2d Cir. 2023) ("The Supreme Court has identified discriminatory treatment as an example of a concrete, de facto, injury. In cases involving claims of discriminatory treatment, the alleged harm is frequently twofold: plaintiffs are discriminated against and that discriminatory treatment results in the denial of certain benefits that they would otherwise have enjoyed." (internal quotation marks and citation omitted)). Put simply, a racially-motivated, facially neutral policy that excludes some individuals from a government program based on their race is not immunized from strict scrutiny because it underperforms in an unconstitutional mission with respect to a targeted racial group in the aggregate. As the Supreme Court has emphasized, "[i]nvidious discrimination does not become less so because the discrimination accomplished is of a lesser magnitude." Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 277, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979).

Id. at *27-28 (brackets and parenthesis in original). The plaintiffs still have to prove discriminatory effect, but that effect can be on a class as a whole or on an individual.

This case heads back down the district court for further discovery.