Edgardo Ramos, U.S.D.J.
Plaintiffs bring this action against Bill de Blasio, Mayor of New York, and Richard A. Carranza, Chancellor of the New York City Department of Education ("DOE"), claiming that the Mayor and Chancellor's changes to the admissions process for the eight specialized New York City public high schools violate the Equal Protection Clause of the Fourteenth Amendment because they discriminate against Asian-American students. Plaintiffs are three organizations—Christa McAuliffe Intermediate School PTO, Inc. ("PTO"), Chinese American Citizens Alliance of Greater New York ("CACAGNY"), and Asian American Coalition for Education ("AACE")—and three individuals— Phillip Yan Hing Wong, Yi Fang Chen, and Chi Wang, who are the parents of students in New York City public schools. Before the Court are two motions: Plaintiffs' motion for the Court to take judicial notice of certain facts and Plaintiffs' motion for a preliminary injunction prohibiting Defendants from implementing the challenged changes while this action is pending.
For the reasons set forth below, Plaintiffs' motion for judicial notice is GRANTED in part and DENIED in part, and Plaintiffs' motion for a preliminary injunction is DENIED.
Under Federal Rule of Evidence 201(b), "[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined
Plaintiffs ask this Court to judicially notice a variety of facts for the purposes of adjudicating this action, including the instant preliminary injunction motion. The Court addresses Plaintiffs' requests in turn.
1. The Court takes judicial notice of the statistics contained in New York City's Demographic Snapshot, a database containing demographic information for every public school in New York City. Plaintiffs have rendered certain relevant information from the database into tables and attached them as exhibits to their motion for a preliminary injunction, see Kieser Decl. Ex. 1-5, but ask the Court to take judicial notice of the entire database. As the Demographic Snapshot is information published by the DOE and available on a government website, the Court takes judicial notice of it. See Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F.Supp.3d 156, 166 (S.D.N.Y. 2015).
2. The Court takes judicial notice of the fact that in connection with the changes to the Discovery program,
3. The Court does not take judicial notice of the statistics and projections in the DOE slide deck to school districts, Doc. 19 Ex. B. Many of the statistics in the slide deck are uncited, including the statistic Plaintiffs specify for judicial notice, that 61% of Asian-Americans who received offers to attend a specialized school are low-income, see Doc. 19 Ex. B at 13. The Court will, however, take judicial notice of the facts that the DOE made the slide deck and made the statements in the slide deck, facts which are undisputed by Defendants, see Roberts Decl. ¶ 9.
4. The Court takes judicial notice of the fact that Mayor de Blasio's office, Mayor de Blasio, and Chancellor Carranza made the statements attributed to them in the June 3, 2018 DOE press release, Doc. 19 Ex. J. A press release is a source whose accuracy "cannot reasonably be questioned" as to the fact that the statements contained therein were made.
5. The Court does not take judicial notice of the offer rate data for 100 New York intermediate schools contained in the June 14, 2018 Chalk Beat article, Doc. 19 Ex. C. Chalk Beat is a non-government website that publishes news related to public education; it is not a source "whose accuracy cannot reasonably be questioned" as to the proffered data. Plaintiffs argue that the statistics contained therein should still be judicially noticed because a New York Times article contained the same statistics and stated that they came from the DOE. But this does
6. The Court does not take judicial notice of any of the facts or data in the August 13, 2018 New York Times article, Doc. 19 Ex. F. The New York Times is a well-respected news publication, but it is not a source "whose accuracy cannot reasonably be questioned" when it comes to the facts and data Plaintiffs ask the Court to notice, namely, (1) the Specialized High School Admissions Test ("SHSAT") cut-off for admission at each specialized school in 2018, (2) the SHSAT cut-off score for the Discovery program in 2018, and (3) an explanation of how the Discovery program worked before 2018, Doc. 19 ¶ 5.
7. The Court does not take judicial notice of the statistics on the percentage of Discovery program participants who were Asian-American in 2018 proffered in the August 14, 2018 Chalk Beat article, Doc. 19 Ex. E, for the same reason as item (5), above.
8. The Court takes judicial notice of the fact that Mayor de Blasio made the statements published under his name in a June 2, 2018 Chalk Beat article, Doc. 19 Ex. D. He authored the article. The fact that he made the statements thus "can be accurately and readily determined" from a source "whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2).
9. The Court takes judicial notice of the fact that Mayor de Blasio made the following statements published on Twitter in his official account, @NYCMayor, under his name, on June 3, 2018:
See Doc. 19 Ex. H, I. The statements were "tweeted" by the Mayor on his official account, under his name. The fact that he made the statements thus "can be accurately and readily determined" from a source "whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2).
10. The Court takes judicial notice of the statements made by Chancellor Carranza in a television interview conducted on June 5, 2018 on local news station Fox 5 New York. Plaintiffs ask the Court to specifically take notice of one of the Chancellor's statements, "I just don't buy into the narrative that any one ethnic group owns admissions to these schools," Doc. 19 ¶ 10, citing a New York Times article that reprints the statement in isolation,
Having determined what facts the Court can and shall take judicial notice of in deciding Plaintiffs' motion for a preliminary injunction, the Court turns to that motion.
The New York City DOE operates eight high schools that, under state law, must admit students solely on the basis of an academic exam. These schools, called "specialized schools," are the Bronx High School of Science ("Bronx Science"); Stuyvesant High School; Brooklyn Technical High School ("Brooklyn Tech"); Brooklyn Latin School; High School for Mathematics, Science and Engineering at City College of New York; High School of American Studies at Lehman College; Staten Island Technical High School; and Queens High School for the Sciences at York College.
The state law that requires the specialized schools to use testing as the basis for admissions is the Hecht-Calandra Act (the "Act"), and it states the following:
N.Y. Educ. Law § 2590-g(12)(b) (1997).
To apply to a specialized school, students first decide their order of preference for the schools. Chadha Decl. ¶ 4. Students then take the SHSAT, during which they declare and submit their order of preference. Id. The tests are then scored, and the students who took the test are ordered by score from highest to lowest. Id. ¶ 5. The student with the highest score is offered a seat at her first choice school. Id. ¶ 6. The student with the next highest score is then offered a seat in his first choice school, and so on, until all the seats in a student's first choice school have been filled. Id. In that case, the student is offered a seat in her second choice school. Id. If all the seats in the second choice school have been filled, the student is placed in her third choice school, and so on. Id. This process continues until all the seats at the eight specialized high schools have been filled.
The Hecht-Calandra Act provides only one other means of admission—the Discovery program. The Act expressly provides for the implementation of the Discovery program "to give disadvantaged students of demonstrated high potential an opportunity to try the special high school program." Roberts Decl. in Opp. to Pls.' Mot. Prelim. Inj. Ex. 3 at 3. Under the Act, to be eligible for the program, a student must: (1) be disadvantaged; (2) be certified by her current school as being "high potential"; (3) score just below the lowest overall score of all admitted students; and (4) successfully complete a summer preparatory program demonstrating her ability to "cope with the special high school program." Id.; Chadha Decl. ¶¶ 8, 10. Importantly, however, the Act neither defines "disadvantaged" nor prescribes the number of students that may be admitted through the Discovery program, leaving such determination to the discretion of the Chancellor. Roberts Decl. in Opp. to Pls.' Mot. Prelim. Inj. ¶¶ 14, 15. Once a student successfully completes the summer school program, the student is admitted to a specialized school. Chadha Decl. ¶ 10. Of the class entering in September 2017, approximately 4% of offers were made through the Discovery program. See Chadha Decl. Ex. 1 (recording that 203 out of 5,281 offers were made through Discovery).
By all accounts, this admissions process is grueling. Yet over 29,000 students took the SHSAT last year in hopes of attending a specialized high school in the fall of 2019. This demand reflects the common view of New Yorkers that the schools are "elite," "exclusive," and "among the best high schools in the country." See The Exclusive Eight, N.Y. TIMES (Oct. 16, 2012);
New York's specialized schools stand out in another way: their racial demographics are highly unrepresentative of the City's public school system overall. The racial makeup of New York City's public high schools is 40% Hispanic, 26% Black, 16.1% Asian-American, and 15% white. Kieser Decl. Ex. 3. In sharp contrast, the racial makeup of Stuyvesant, the second largest of the specialized schools, is 73.5% Asian-American, 0.7% Black, 2.8% Hispanic, and 17.8% white. Kieser Decl. Ex. 4. The other specialized schools are more representative, but none come close to proportionate representation. While Black and Hispanic students make up 66% of New York City public high schools, they only make up 13.5% of Brooklyn Tech, 8.7% of Bronx Science, 3.5% of Staten Island Tech, 23.9% of Brooklyn Latin, 25.2% of the High School for Math, Science & Engineering, 8.4% of Queens High School for the Sciences, and 15% of the High School of American Studies. See id. Asian-American students make up 61.3% of Brooklyn Tech, 65.6% of Bronx Science, 48.4% of Staten Island Tech, 51.5% of Brooklyn Latin, 36.2% of the High School for Math, Science & Engineering, 81% of the Queens High School for the Sciences, and 22% of the High School of American Studies. See id.
The demographically skewed student populations and test-only admissions basis of the specialized schools have attracted scrutiny from civil rights groups and government agencies for decades. In 1977, the federal Office of Civil Rights ("OCR") opened an investigation into whether the use of a single test as an admission standard constituted a form of discrimination against racial minorities and women. See Wallack Decl. ¶ 8. The OCR and the City eventually reached an agreement not to change the admissions standard. See id. In 2012, the NAACP Legal Defense and Education Fund, Inc., Latino Justice PRLDEF, and the Center for Law and Social Justice at Medgar Evers College filed a complaint with the OCR against the DOE, alleging that the use of the SHSAT violated Title VI of the Civil Rights Act of 1964. See id. ¶ 13. OCR opened an investigation in response to the complaint. Id. That investigation is still pending. Id.
Over the years, the DOE has undertaken multiple initiatives in hopes of increasing the enrollment of Black and Latino students at specialized schools. Beginning in 2002, when the only specialized schools were Stuyvesant, Bronx Science, and Brooklyn Tech, the DOE added a new specialized school in each borough in a conscious effort to increase the number of available seats. Id. ¶ 10. In addition, the DOE instituted citywide extra-curricular programs that provided for additional coursework and taught test preparation skills for pre-high-school-aged students. See id. ¶ 11. These programs include the Specialized High School Institute ("SHSI"), which began in the 1990's and ended in 2012, and its replacement, Dream-SHSI ("DREAM"), which began during the 2011-12 school year. Id. In 2016, the DOE added the DREAM intensive program, which runs during the summer before students take the SHSAT in the fall. Id. The DOE also engaged in targeted outreach to students from underrepresented groups to increase awareness of the specialized schools and allowed students
In the spring of 2018, a DOE working group recommended to Chancellor Carranza that he modify the Discovery program in order to increase the racial, ethnic, geographic, and socio-economic diversity of the specialized schools. Wallack Decl. ¶ 19. There were two parts to the proposed changes, both of which relate to the two areas that the Act left to the discretion of the Chancellor: the size of the Discovery program and the definition of "disadvantaged." First, the DOE sought to expand the program. The Discovery program would increase from 252 seats to 528 seats, comprising 13% of the available specialized school seats, in the 2019-20 school year. Chadha Decl. ¶ 9 n.1. It would further increase to 800 seats, comprising 20% of the available seats, for the 2020-21 school year and thereafter. Id.
Second, the DOE sought to change the eligibility criteria for the Discovery program. Previously, in order to be deemed "disadvantaged" and thus eligible for the program, a student had to have one of the following characteristics: (1) qualify for free lunch; (2) attend a school receiving federal funds under Title I of the Elementary and Secondary Education Act and qualify for reduced price lunch; (3) receive assistance from the New York City Human Resources Administration; (4) be a foster child, a ward of the state, or in temporary housing; or (5) have entered the United States within the last four years and live in a home where the primary language spoken is not English. Wallack Decl. ¶ 16. Under the new plan, to qualify as "disadvantaged," a student would have to attend a school with a 2017-18 Economic Need Index ("ENI") of 60% or higher, and have one of the following characteristics: (1) qualify for free or reduced-price lunch; (2) receive assistance from the New York City Human Resources Administration; (3) be a foster child, a ward of the state, or in temporary housing; or (4) have been an English Language Learner within the last two years and have enrolled in a DOE school for the first time within the last four years.
The old and proposed criteria differ little except in the new ENI requirement. The DOE created the ENI indicator, which is itself based on another indicator, a student's "Economic Need Value" ("ENV"). Id. ¶ 22. The ENV measures the relative poverty of a student. See id. ¶¶ 22, 23. A student's ENV is 1.0 if he (1) lives in
The ENI requirement is not insignificant because only students who attend a school with a relatively low-income student body are eligible for the Discovery program. Thus, if a student is herself very low-income but attends an intermediate school with an ENI below 60%, the student is ineligible for Discovery, despite the fact that the student would have been eligible for the program under the prior criteria. About half of all New York City intermediate schools have an ENI below 60%. Id. ¶ 25.
Modeling conducted by a DOE working group projected that the ENI requirement would change the racial makeup of the Discovery program and therefore the specialized schools, albeit only slightly. To model these demographic consequences, the DOE first took the SHSAT and demographic data of the specialized schools' entering class of 2017, then analyzed how the demographic data would change if the Discovery program's eligibility criteria that year were the new criteria and the program took up 20% of the available seats. Chadha Decl. ¶¶ 19, 20. The projections show a decline of Asian-American enrollment from 53.0% to 50.9% (-2.1%), an increase in Black enrollment from 4.0% to 6.4% (+2.4%), an increase in Hispanic enrollment from 6.8% to 10.2% (+3.4%), and a decline in white enrollment from 27.2% to 24.7% (-2.5%).
The Plaintiffs acknowledge that the proposed changes to the Discovery program are facially race-neutral. They claim, however, that the changes will have a disparate impact on Asian-American students, and that Defendants intended this effect. They note that the projected increase in Black and Latino enrollment will come largely at the expense of Asian-American students.
DOE policymakers forwarded the proposed changes to the Discovery program to Chancellor Carranza in the spring of 2018, and he adopted them on June 3, 2018. Wallack Decl. ¶ 19.
On June 3, 2018, Mayor de Blasio and Chancellor Carranza announced the changes to the Discovery program. Id. The two also announced that they would lobby
Mayor de Blasio and Chancellor Carranza have touted the changes to the Discovery program on the grounds that the new plan would increase racial diversity at the specialized schools. The Mayor's press release stated that the changes "will support greater geographic, racial, and socioeconomic diversity" at the specialized schools. Press Release, Mayor de Blasio and Chancellor Carranza Announce Plan to Improve Diversity at Specialized High Schools, Office of the Mayor of New York City (June 3, 2018). The press release also stated that with the new changes, "[b]ased on modeling of current offer patterns, an estimated 16 percent of offers would go to Black and Latino students, compared to 9 percent currently." Id. On the same day the changes were announced, Mayor de Blasio posted a string of messages on his official Twitter account, stating:
Doc. 19 Ex. H.
Id. Mayor de Blasio went on to defend the changes to the Discovery program and his proposal to eliminate the SHSAT. Id.
Right after the June 3rd public announcement, Chancellor Carranza appeared in an interview on local news channel Fox 5 to defend and discuss the changes to the Discovery program and the plan to eventually eliminate the SHSAT. See Plan to Diversify Elite NYC Schools, Fox 5(June 5, 2018).
Id. It is unclear from this segment of the interview whether the two were referring just to a public reaction against the SHSAT elimination or also to a reaction against the Discovery program changes. Almost all of Chancellor Carranza's statements in the interview concerned the possible elimination of the SHSAT, which would arguably be a more significant change than the amendments to the Discovery program.
On December 13, 2018, Plaintiffs sued Mayor de Blasio and Chancellor Carranza pursuant to 42 U.S.C. § 1983, alleging that the changes to the Discovery program violate the Equal Protection Clause of the Fourteenth Amendment by discriminating against Asian-Americans. Compl. Along with their complaint, Plaintiffs filed a motion for a preliminary injunction, seeking to enjoin the Discovery program changes from being implemented for the class entering in the fall of 2019. Doc. 10.
The three organizational plaintiffs are the PTO, CACAGNY, and AACE. The PTO is a private organization of parents and teachers at Christa McAuliffe Intermediate School (I.S. 187), a public school located at 1171 65th St., Brooklyn, New York. Compl. ¶ 7. Many I.S. 187 students go on to attend specialized schools; out of the 274 students who graduated from I.S. 187 in 2018, 205 currently attend a specialized school. Id. Sixty-seven and a half percent of students at the school are Asian-American and 65.8% are classified by the City of New York as living below the poverty line. Kieser Decl. Ex. 1. I.S. 187's ENI is 57.9%. Id. Members of the PTO have organized and participated in multiple public demonstrations protesting Defendants' changes to the admissions system, Doc. 62 ¶ 8, and have met with public officials to discuss their opposition to the changes, see id. ¶¶ 7, 11, 14, 20, 24, 25.
CACAGNY is a 501(c)(8) nonprofit organization formed in 2016 dedicated to furthering Chinese-American interests. Compl. ¶ 8. CACAGNY has advocated against the consideration of racial diversity in setting admissions standards. Doc. 63 ¶ 4. Since Defendants announced their plan to change the Discovery program and eventually eliminate the SHSAT, CACAGNY members have organized events, spoken at public forums, and lobbied legislators in opposition to the changes. Id. ¶ 6. AACE is a 501(c)(3) nonprofit organization formed to further education rights for Asian-Americans, Doc. 64 ¶ 3, and it too has dedicated efforts to protest the changes, see id. ¶ 6.
The individual plaintiffs are Yi Fan Chen, Chi Wang, and Phillip Yan Hing Wong. All are parents with children in the New York City public school system. Chen's son is six years old and attends P.S. 105. Chen Decl. ¶ 3. Wang's two children are five and nine years old respectively; the nine-year-old is a fourth grader at P.S. 203Q. Wang Decl. ¶ 3. Wong's daughter is an eighth grader at I.S. 5, P. Wong Decl. ¶ 5, which has an ENI of 76.3%, Kieser Decl. Ex. 1. As she would like to attend a specialized school in the coming school year, she took the SHSAT in October of 2018. P. Wong Decl. ¶ 6.
Defendants challenge the standing of all six plaintiffs, arguing that none has sufficiently alleged the type of concrete and particularized injury necessary to maintain constitutional standing. Three elements form the constitutional minimum of standing. First, the plaintiff must have suffered an invasion of a legally protected interest that is concrete and particularized, and actual or imminent. Second, the challenged conduct must have caused the plaintiff's injury. Third, it must be likely, not speculative, that a favorable decision by the court will redress the plaintiff's injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted). The party invoking federal jurisdiction bears the burden of establishing standing. Id. at 561, 112 S.Ct. 2130. "Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id.
There are six plaintiffs in this action, three organizations and three individuals. The Court finds that of these plaintiffs, only the three organizations and Phillip Wong have standing.
"[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). In the Second Circuit, however, an organization only has standing to sue under § 1983 on its own behalf, not that of its members. New York State Citizen's Coalition for Children v. Velez, 629 Fed. App'x 92, 93-95 (2d Cir. 2015) (summary order). This is because the Second Circuit has interpreted the rights that § 1983 secures to be personal to those purportedly injured.
Therefore, for an organization to have standing, it must independently satisfy the requirements of Article III standing as enumerated in Lujan. Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011). Defendants argue that the three organizational plaintiffs all lack standing because none have sufficiently alleged an injury in fact.
The Court disagrees. All three organizational plaintiffs independently satisfy the Article III requirements because all three have dedicated resources to counteracting Defendants' allegedly discriminatory actions. Only a "perceptible impairment" of an organization's ability to provide services to further its mission is necessary to constitute an actionable injury in fact. Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). The PTO, CACAGNY, and AACE have all expended resources outside of this litigation organizing public events, speaking to press, and lobbying officials to combat the proposed changes to the Discovery program. See Doc. 62 ¶¶ 7-28; Doc. 63 ¶¶ 8-25; Doc. 64 ¶¶ 5-7. Resources expended for these activities could have gone towards other activities furthering the organizations' goals. Doc. 62 ¶ 29; Doc. 63 ¶ 26; Doc. 64 ¶ 8. Such a "drain on the organization's resources," Havens Realty Corp., 455 U.S. at 379, 102 S.Ct. 1114, is "far more than simply a setback to the organization's abstract social interests," id. The organizational plaintiffs have thus sufficiently pled injury in fact, and they have standing to pursue this action.
Chen and Wang do not have standing. To have standing, a plaintiff's injury must be actual or imminent. Lujan, 504 U.S. at 564, 112 S.Ct. 2130. Chen and Wang's children are both years away from high school. Chen's son is in first grade and thus is likely seven years away from applying to high school. Wang's oldest child is in fourth grade and four years from applying. During that time, they may decide that they do not wish to attend a specialized school. Their current "some day" intentions to attend a specialized school are, like those professed by the plaintiffs in Lujan, see id., insufficient to show the existence of an imminent injury.
Wong does have standing. His daughter is an Asian-American student currently enrolled in eighth grade at a public intermediate school in Queens, New York. P. Wong Decl. ¶ 5. She took the SHSAT in October 2018 and would like to attend a specialized school. Id. ¶ 6. Plaintiffs allege that Defendants' policy denies her the right to compete on an equal basis with other students on account of her race. As Wong's daughter is currently going through the specialized school admissions process, her injury is no longer speculative, but actualized.
Defendants argue that Wong does not have standing because his daughter's SHSAT score
For these reasons, the PTO, CACAGNY, AACE, and Wong have standing. Because at least one plaintiff has standing, the Court may consider the case's merits. See Massachusetts v. E.P.A., 549 U.S. 497, 518, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007).
"It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quoting 11A Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 2948 (2d ed. 1995)) (alteration in original). Ordinarily, "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In the Second Circuit, as an alternative to showing a likelihood of succeeding on the merits, the movant can rely on the "serious questions" standard. Under this standard, the movant may secure relief if it establishes that, even in the absence of a likelihood of success, there exist "sufficiently serious questions going to the merits to make them a fair ground for litigation," so long as the movant also establishes that "the balance of hardships tips decidedly" in its favor. See Citigroup Glob. Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)). Because the movant must show that "the balance of hardships tips decidedly" in its favor, its overall burden under the "serious questions" standard "is no lighter than the one it bears under the `likelihood of success' standard." Id. (alteration in original).
None of these exceptions apply here. The government action exception does not apply because it only applies to government action "embodied in a statute and implementing regulations," Able, 44 F.3d at 131. Only the DOE, part of the executive branch, was responsible for the changes to the Discovery program.
The all-relief-sought exception does not apply either. Granting the preliminary injunction would only affect this year's admissions, while if Plaintiffs win at trial, Defendants would be enjoined from using the changed Discovery procedures in future admissions cycles.
Lastly, the exception for mandatory injunctions does not apply because Plaintiffs seek to maintain the status quo, not disrupt it. The "`[s]tatus quo' to be preserved by a preliminary injunction is the last actual, peaceable uncontested status which preceded the pending controversy." LaRouche v. Kezer, 20 F.3d 68, 74 n.7 (2d Cir. 1994) (alteration in original) (citing BLACK'S LAW DICTIONARY 1410 (6th ed. 1990)). This status can differ from "the situation existing at the moment the law suit is filed." O Centro Espirita Beneficiente
The fact that the DOE may have undertaken numerous steps to implement its proposed changes to the Discovery program and is currently planning to utilize the new admissions plan does not make the sought injunction a mandatory injunction. In Mastrovincenzo v. City of New York, street vendors selling shirts featuring graffiti art moved for a preliminary injunction against the City from applying a licensing requirement against them after being repeatedly arrested and told to secure a license, 435 F.3d at 86. The City characterized the sought injunction as a mandatory injunction "affirmatively forc[ing] the City to change its conduct" because unless "restrained" by the district court, the City would "continue" to enforce the licensing requirement. Id. at 89. But the Second Circuit rejected this reasoning, finding that "[o]n its face," the injunction "clearly prohibits, rather than compels," government action. Id. at 90.
Thus, the ordinary standard for a preliminary injunction applies in this case: Plaintiffs must demonstrate that (1) they will suffer an "irreparable harm," and (2) either (a) they are "likely to succeed on the merits," or (b) "that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party." Moore v. Consol. Edison Co. of New York, 409 F.3d 506, 510 (2d Cir. 2005).
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
Meanwhile, Defendants have shown that granting the injunction would place an undue burden on the DOE. School administrators, teachers, students, and parents have all been proceeding for the last eight months under the assumption that the new changes will be in effect for the upcoming admissions cycle. Defs.' Mem. at 10. The DOE has made extensive preparations necessary to implement the new plan. See Chadha Decl. ¶¶ 34-44. It has also made arrangements for the additional resources that the expansion of the program will require. See id. The burden on the DOE has been exacerbated here by the fact that Plaintiffs filed the complaint and moved for a preliminary injunction in late December, nearly seven months after the changes were publicly announced. Of course, the Court is sensitive to the time and resources needed to initiate a lawsuit and the imperative of ensuring compliance with Rule 11 of the Federal Rules of Civil Procedure. But Plaintiffs' filing date has left the DOE with only two months to accommodate the possibility that Plaintiffs' motion will be granted. Cf. Irish Lesbian & Gay Org. v. Giuliani, 918 F.Supp. 732, 740 (S.D.N.Y. 1996) (refusing to apply lower standard of proof for a preliminary injunction because plaintiff could have moved for injunctive relief within one or two months of receiving notice of the challenged event). The Court thus concludes that the balance of hardships does not tip decidedly in Plaintiffs' favor.
Consequently, Plaintiffs cannot rely on the "serious questions" standard. To secure a preliminary injunction, they must instead show that they are likely to succeed on the merits.
When a plaintiff alleges a deprivation of a constitutional right, the Court presumes the existence of irreparable harm. See Statharos v. N.Y.C. Taxi & Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999); Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992). As Plaintiffs allege a violation of their right to equal protection, this condition is satisfied.
"The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race." Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Government action can discriminate on the basis of race in various ways. First, a law or policy discriminates on its face if it expressly classifies persons on the basis of race. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Second, a law or policy that is facially neutral discriminates on the basis of race if it is enforced in a discriminatory way. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 S.Ct. 220 (1886). Lastly, a law or policy that is facially neutral discriminates on the basis of race if it is motivated by a discriminatory purpose and its application results in a discriminatory effect. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).
If a court concludes that the government used a racial classification or was motivated by racial discrimination, then the court must review the government action under strict scrutiny. Hunt v. Cromartie, 526 U.S. 541, 546, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Absent either conditions, the government action is subject to rational basis review. Pers. Adm'r of Massachusetts
The Court first discusses whether Defendants' changes to the Discovery program were intended to discriminate on the basis of race. Then, assuming that they were, the Court discusses whether they survive strict scrutiny.
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.
A plaintiff must show "[p]roof of racially discriminatory intent or purpose" to establish that a facially neutral government action violates equal protection. Arlington Heights, 429 U.S. at 265, 97 S.Ct. 555. Having a discriminatory purpose implies more than simply having volition or being aware of the consequences of a government action. See Feeney, 442 U.S. at 279, 99 S.Ct. 2282 (citing United Jewish Orgs. v. Carey, 430 U.S. 144, 179, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (Brennan, J., concurring)). Instead, "[i]t implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Id. While a plaintiff must prove that a discriminatory purpose exists, he or she need not prove that the "challenged action rested solely on racially discriminatory purposes." Arlington Heights, 429 U.S. at 265, 97 S.Ct. 555.
Determining whether discriminatory intent exists is often difficult. In the absence of direct proof, litigants must make "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 266, 97 S.Ct. 555. Whether the government action challenged has a disparate impact on certain races is one piece of evidence. Id. But unless a "clear pattern, unexplainable on grounds other than race, emerges ... impact alone is not determinative, and the Court must look to other evidence." Id. (footnotes omitted). The Supreme Court has identified possible factors showing racially discriminatory intent, including "[t]he historical background of the decision... particularly if it reveals a series of official actions taken for invidious purposes"; "[d]epartures from the normal procedural sequence"; "[s]ubstantive departures"; and "[t]he legislative or administrative history ... especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports." Id. at 267-68, 97 S.Ct. 555.
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).
With the exception of that statement, Plaintiffs rely upon statements by the DOE and Defendants lauding how the program changes will increase Black and Latino enrollment at the specialized schools. These include the Mayor's press release announcing that with the changes, offers to Black and Latino students would go up to 16%, see Press Release, Mayor de Blasio and Chancellor Carranza Announce Plan to Improve Diversity at Specialized High Schools, Office of the Mayor of New York City (June 3, 2018); his description of the low enrollment of Black and Latino students as a "monumental injustice," Doc. 19 Ex. D; his criticism that so few Black and Latino students attended Stuyvesant "[i]n a city that is majority African American and Latino," Doc. 19 Ex. H; and his suggestion, via rhetorical question, that no one could "look the parent of a Latino or black child in the eye and tell them that their precious daughter or son has an equal chance" at attending a specialized school, Doc. 19 Ex. D. Plaintiffs argue that these statements reveal that in implementing the program changes Defendants sought to decrease the number of Asian-Americans at the specialized schools.
This conclusion, however, requires one to accept the proposition that a facially neutral policy seeking to improve racial diversity necessarily carries with it a discriminatory intent. That is not the law. In Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999), the Second Circuit affirmed the use of racial preferences to remedy past racial discrimination, id. at 50, and added that "[e]ven in the absence of specific and identified discrimination, nothing in our jurisprudence precludes the use of race-neutral means to improve racial and gender representation," id. at 51 (citing City of Richmond v. J.A. Croson Co., 488 U.S. 469, 509-10, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989)). As the Second Circuit explained in a later case, "to equate a `desire to eliminate the discriminatory impact' on some disadvantaged groups with
Justice Kennedy's concurrence in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007), also suggests that seeking to improve racial diversity among secondary school students does not amount to discriminatory intent. In his concurrence, Justice Kennedy stated that mechanisms that seek to improve racial diversity at secondary schools "but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race" are "unlikely" to demand strict scrutiny. Id. at 789, 127 S.Ct. 2738 (Kennedy, J., concurring in part and concurring in the judgment) (citing Bush v. Vera, 517 U.S. 952, 958, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996)). In order for such facially neutral mechanisms to demand strict scrutiny, they must embody a discriminatory intent. Justice Kennedy's concurrence thus necessarily suggests that seeking to improve racial diversity in a facially neutral manner, as Defendants are attempting to do here, does not ipso facto implicate a discriminatory purpose.
For these reasons, the Court concludes that Plaintiffs are not likely to show that Defendants had discriminatory intentions in amending the Discovery program.
Under rational basis review, the challenged government policy must be upheld if it is rationally related to a legitimate government interest. City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). Rational basis review affords the government's policy "a strong presumption of validity." Heller v. Doe by Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The government need not "actually articulate at any time the purpose or rationale" behind the distinctions set out in its policy. Id. at 320, 113 S.Ct. 2637. Instead, the policy "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis" for the distinctions. Id. (quoting F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). "[T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it[.]" Id. (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973)). "Finally, courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends." Id. at 321, 113 S.Ct. 2637.
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. Roberts Decl. in Opp. to Pls.' Mot. Prelim. Inj. Ex. 3 at 3.
Since it is not likely that the Discovery program changes were motivated by racial discrimination, the changes would be subject to rational basis review, and they would be upheld. Plaintiffs are thus not likely to succeed on their equal protection claim.
While the foregoing analysis is sufficient to deny Plaintiffs' motion for a preliminary injunction, the Court further notes that even if it were to subject the Discovery program changes to strict scrutiny, it would still not issue the injunction.
All racial classifications trigger strict scrutiny, while facially neutral laws only trigger strict scrutiny if motivated by a racially discriminatory purpose. Cromartie, 526 U.S. at 546, 119 S.Ct. 1545. The strict scrutiny "standard of review ... is not dependent on the race of those burdened or benefited by a particular classification." Adarand, 515 U.S. at 222, 115 S.Ct. 2097 (quoting Croson, 488 U.S. at 494, 109 S.Ct. 706). To withstand the Court's strict scrutiny analysis, the government must show that its actions are narrowly tailored to further a compelling government interest. Gratz, 539 U.S. at 270, 123 S.Ct. 2411. The Discovery program changes at issue here are narrowly
Parents Involved in Community Schools v. Seattle School District No. 1 is "the only recent Supreme Court case respecting the use of race in placing high school students." Student Doe 1 v. Lower Merion Sch. Dist., 2010 WL 2595278, at *3 (E.D. Pa. June 24, 2010). Because of its importance to the issues in this case, the Court will describe the case in detail.
In Parents Involved, the Supreme Court found that two school districts, one in Seattle, Washington, and one in Louisville, Kentucky, violated the equal protection clause by explicitly using race to assign students to schools. The Seattle school district allowed incoming ninth graders to rank and choose from the district's high schools, and normally students would be allocated to schools based on their preference. Parents Involved, 551 U.S. at 711-12, 127 S.Ct. 2738. When more students wanted to attend a school than there were spots available, however, the school district would use a "tiebreaker" factor that depended on the students' race and the racial composition of the school. Id. The district classified all students as either "white" or "nonwhite" and would use the racial tiebreaker to ensure each school had an acceptable "balance" between white and non-white students. Id. at 712, 127 S.Ct. 2738. The Louisville school district assigned elementary school students only to the schools within each student's "cluster," but allowed students to transfer to other schools within or outside of the cluster if their parents so chose. Id. at 716-17, 127 S.Ct. 2738. Each school, however, needed "to maintain a minimum black enrollment of 15 percent, and a maximum black enrollment of 50 percent." Id. at 716, 127 S.Ct. 2738. Assignments and transfers to schools would be denied if they would exacerbate the racial imbalance at a school whose racial composition was at "the extremes of the racial guideline." Id. Both the Seattle and Louisville plans, therefore, involved the use of an explicit racial classification to allocate students to schools.
Five Justices concluded that the school districts violated the equal protection clause. Writing for himself and Justices Thomas, Alito, Scalia, and Kennedy, the Chief Justice delivered the Court's opinion holding that the racial classifications at issue were not narrowly tailored to the school districts' stated ends of "reduc[ing] racial concentration" in schools, id. at 725, 127 S.Ct. 2738, encouraging the educational benefits the flow from racial diversity, id. at 725-26, 127 S.Ct. 2738, and "racial integration," id. at 732, 127 S.Ct. 2738. Id. at 733, 127 S.Ct. 2738. In a section not joined by Justice Kennedy, the Chief Justice stated that the Court would withhold judgment of whether enhancing racial diversity in secondary schools was a compelling government interest. Id. at 726, 127 S.Ct. 2738 (plurality opinion). The issue need not be resolved, the plurality explained, because regardless of what the school districts claimed, the two city's plans were "directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate." Id. (plurality opinion).
Four Justices would have held that the school districts had a compelling interest in achieving racial diversity in elementary and secondary schools. Writing for the dissent, Justice Breyer defined the government's interest in racial diversity in this context as its interest in avoiding "racial isolation" and increasing the degree to which "racial mixture" characterizes a
Justice Kennedy authored a sole concurrence in which he explained that he did not join in the Chief Justice's opinion in full because it "does not acknowledge that the school districts have identified a compelling interest here." Id. at 783, 127 S.Ct. 2738 (Kennedy, J., concurring in part and concurring in the judgment). "To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools," in Justice Kennedy's view, "it is ... profoundly mistaken." Id. at 788, 127 S.Ct. 2738. He proceeded to explain that he would find avoiding racial isolation and achieving a diverse student population, of which race is one factor, to be compelling government interests. Id. at 797-98, 127 S.Ct. 2738.
Therefore, in Parents Involved, five Justices agreed that achieving racially diverse classrooms in elementary and secondary schools is a compelling government interest,
The Supreme Court has repeatedly affirmed the benefits that flow from racial diversity in higher education as a compelling government interest. See Fisher v. Univ. of Tex. at Austin, ___ U.S. ___, 136 S.Ct. 2198, 2208, 195 L.Ed.2d 511 (2016) ("Fisher II"); Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 310, 133 S.Ct. 2411, 186 L.Ed.2d 474 (2013) ("Fisher I"); Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003); Gratz v. Bollinger, 539 U.S. at 268, 123 S.Ct. 2411; Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 314, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). 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,"
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.
Assuming that increasing racial diversity in the specialized high schools is a compelling government interest, Defendants must still show that this interest was in fact a reason for changing the Discovery program. Defendants claim that it was. Plaintiffs argue that the DOE's reason for changing the Discovery program was instead to racially balance the specialized schools, a constitutionally impermissible motive.
Keeping in mind the sparse record the Court has for this fact-intensive question, at this stage the Court finds that Defendants likely intended to achieve the benefits flowing from increased diversity in the specialized schools, not to racially balance them. This finding is explained simply by the modest projected increase in Black and Latino enrollment: the DOE expects that the changes will increase Black and Latino enrollment at the schools by 5.8 percentage points, from 10.8% to 16.6%. Chadha Decl. Ex. 1. These modest effects are more consonant with an intention to achieve the educational benefits that obtain from having a "critical mass of underrepresented minority students," a permissible motive, Grutter, 539 U.S. at 335, 123 S.Ct. 2325, than with an intention to racially balance the schools to reflect "racial proportionality," an impermissible motive, Parents Involved, 551 U.S. at 730, 127 S.Ct. 2738 (plurality opinion). Moreover, as Defendants plainly acknowledge, "[n]o one can predict the precise effect [the changes] will have on the composition of the Specialized High Schools." Defs.' Mem. at 33.
Therefore, Plaintiffs are not likely to succeed in showing that the program changes were not intended to further a compelling government interest.
Once a compelling government interest is established, the government must show that its actions are narrowly tailored to further that interest. Gratz, 539 U.S. at 270, 123 S.Ct. 2411. "Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative." Grutter, 539 U.S. at 339, 123 S.Ct. 2325. The Court can take account of the government's "experience and expertise" on its policy choices in considering whether the actions are narrowly tailored. Fisher I, 570 U.S. at 311, 133 S.Ct. 2411.
A racial classification is narrowly tailored only if the government "sufficiently considered workable race-neutral alternatives," Grutter, 539 U.S. at 340, 123 S.Ct. 2325, and shows that "`race-neutral alternatives' that are both `available' and
The changes to the Discovery program are exactly the sort of alternative, race-neutral means to increase racial diversity that the Court has repeatedly suggested governments may use in lieu of express racial classifications. See, e.g., Parents Involved, 551 U.S. at 788-90, 127 S.Ct. 2738 (Kennedy, J., concurring in part and concurring in the judgment) ("If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race."). Additionally, Defendants have shown that they have exhaustively attempted numerous other racially neutral efforts over many years to achieve greater diversity. All have failed. Cf. Fisher II, 136 S.Ct. at 2208 (holding that in evaluating whether a racial classification passes strict scrutiny, courts assess, among other factors, whether the entity considered other race-neutral alternatives). The Court therefore concludes that, were the changes to the Discovery program subject to strict scrutiny, they would likely be upheld as narrowly tailored to a compelling government interest.
For the foregoing reasons, Plaintiffs' motion for judicial notice is GRANTED in part and DENIED in part, and Plaintiffs' motion for a preliminary injunction is DENIED. The Clerk of the Court is respectfully directed to terminate the motions, Docs. 10, 19. The parties are directed to appear for an initial conference at 10:00AM, March 7, 2019, at Courtroom 619, Thurgood Marshall Courthouse, 40 Foley Square, New York, NY.
It is SO ORDERED.
Two Supreme Court opinions issued shortly after Aguayo, however, cast doubt on that holding. First, in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), a § 1983 action, the Supreme Court stated in dicta that "[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members." id. at 511, 95 S.Ct. 2197. Then, in Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), the Supreme Court cited to that dicta in Warth and held that an organization could sue on behalf of its members, id. at 343, 97 S.Ct. 2434. Hunt was not a § 1983 action, however.
Nonetheless, the Second Circuit reaffirmed Aguayo in League of Women Voters of Nassau County v. Nassau Board of County Supervisors without addressing Warth or Hunt. See 737 F.2d 155, 161 (2d Cir. 1984). Only many years later in Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011), did the Second Circuit address the apparent tension between Aguayo and the two Supreme Court cases. The Second Circuit in Nnebe held that, since they "reaffirmed the Aguayo rule in League of Women Voters nine years after Warth and have not since reconsidered" the rule, it is "bound by the implicit determination of prior panels that the rule survives Warth `until such time as [our prior decisions] are overruled either by an en banc panel of our Court or by the Supreme Court.'" 644 F.3d at 156 n.5 (alteration in original) (quoting United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004)). Therefore, in the Second Circuit, organizations still cannot have standing solely by virtue of the standing of their members.
On February 8, 2019, Defendants asked for leave to submit evidence showing that Wong's daughter's score is too high or too low to be affected by the challenged program changes. Doc. 61. The Court denied Defendants' request. Doc. 65.
These impacts cast doubt on Plaintiffs' theory that Defendants specifically targeted Asian-Americans in changing the Discovery program. Ultimately, however, they do not change the equal protection analysis. Plaintiffs' equal protection claim could simply be recast as one on behalf of groups other than Black and Latino students.
The Second Circuit affirmed the district court in a summary order "substantially for the reasons stated" in the district court opinion. Ricci v. DeStefano, 264 F. App'x 106, 107 (2d Cir.), opinion withdrawn and superseded, 530 F.3d 87 (2d Cir. 2008), rev'd and remanded, 557 U.S. 557, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). The active judges of the Second Circuit voted on whether to rehear the case en banc, and the majority decided to deny rehearing. Ricci v. DeStefano, 530 F.3d 88, 88 (2d Cir. 2008). After the poll was concluded, the original three-judge panel withdrew their summary order and filed a per curiam opinion again affirming the district court. See Ricci v. DeStefano, 530 F.3d 87, 87 (2d Cir. 2008).
The Supreme Court then granted certiorari, Ricci v. DeStefano, 555 U.S. 1091, 129 S.Ct. 893, 172 L.Ed.2d 768 (2009), and ultimately reversed the Second Circuit, holding that the city intentionally discriminated against plaintiffs under Title VII, Ricci v. DeStefano, 557 U.S. 557, 592, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). The Supreme Court did not reach the equal protection issue. See id. at 563, 129 S.Ct. 2658.
