“Back where I come from, we have universities, seats of great learning, where men go to become great thinkers. And when they come out, they think deep thoughts and with no more brains than you have. But they have one thing you haven’t got: a diploma.”
— The Wizard to the Scarecrow in The Wizard of Oz
“What happened to gifted and talented programs?” a teacher asked last year in a subreddit for teachers.
It sparked a thread of 300 replies as teachers commiserated, complained, and speculated about why programs and classes for high-performing students have largely disappeared across the country. One teacher said her school “even acted offended” by the idea students should be differentiated by ability level. Gifted and talented classes are “viewed as being detrimental to equity for all students,” another teacher said. Someone else agreed: “Our district explicitly stated it was an ‘equity issue.’”
A few teachers said their districts still technically had gifted and talented programs but that the enrollment processes had changed. In one teacher’s district, students’ test scores could no longer be used to identify gifted kids.
Another teacher had a dry, cutting response: Gifted and talented programs “are racist because they have too many Asians,” the teacher commented. “The only way to be antiracist is to hold Asians back.”
A New York Story
In New York City—the largest school system in the country—programs and schools for academically gifted students are considered “a monumental injustice” because of their “diversity problem,” as Mayor Bill de Blasio put it in a 2018 op-ed.
While the City’s public school system is majority-black and Hispanic, gifted and talented programs are majority-Asian and white. So are the City’s Specialized High Schools, a set of public high schools that students can test into. Fourteen Nobel laureates have graduated from the schools, many of them children of immigrants. The city once saw the schools as “the embodiment of the American Dream, meritocracy at work,” as a 1948 alumnus wrote in The New York Times. After all, he said,
the students had competed for admission by taking a citywide examination that tested their verbal and mathematical skills… For those accepted, the future could be open and unlimited, despite income and family origins. It was all dependent on performance.
Today the student body at Stuyvesant, one of the top Specialized High Schools, is over 70 percent Asian and 17 percent white. Hispanic enrollment hovers at 4 percent, black enrollment at only 2 percent.
That racial disparity makes the school a political target, along with other schools and programs for academically gifted kids in New York.
By grouping students under a “disadvantaged” label and moving them around like pieces on a chess board—the City thought it could start to make its “diversity problem” disappear.
“Schools debate: Gifted and talented, or racist and elite?” an Associated Press headline asked. One City Council member said the Specialized High Schools were due for “a racial reckoning.”
In a different world, the racial disparity in Specialized High School admissions would inspire on-the-ground, upstream changes at underperforming middle and elementary schools. The government has an interest in increasing educational achievement for all students and removing barriers in their way.
In other words: We could try to fix what’s broken.
But instead—like so many school districts and local governments across the country—New York seized on a way to “solve” the issue with a sleight-of-hand trick: It would change admissions to the Specialized High Schools to make educational outcomes among racial groups appear more equal.
In 2018, Mayor de Blasio announced an overhaul of the admissions process. Previously, 95% of seats went to students who scored above a certain score on the admissions test. The remaining 5% of seats were reserved for students who narrowly missed the score cutoff but were considered “disadvantaged.” De Blasio expanded those seats from 5% to 20%—meaning one out of every five students accepted to the Specialized High Schools would now have missed the score cutoff.
De Blasio also changed the definition of disadvantaged: To qualify, students couldn’t just be individually disadvantaged (such as those living in poverty or foster children) but now had to come from certain middle schools with a high number of students eligible for public assistance, living in temporary housing, or living in low-income neighborhoods.
It was a heavy-handed bit of showmanship and misdirection: Instead of working to improve the quality of education at middle schools in these neighborhoods, the government simply tweaked the rules to treat students from those schools differently.
The city’s own modeling showed that the new policy would increase black and Hispanic enrollment at Specialized High Schools while lowering Asian enrollment because officials intentionally defined disadvantage in a way that would exclude many majority-Asian middle schools. A student at a majority-Asian middle school who barely missed the test cutoff wouldn’t be accepted to a school like Stuyvesant, but a student from a majority-black school who missed the cutoff by a larger margin might be.
In this way—by grouping students under a “disadvantaged” label and moving them around like pieces on a chess board—the City thought it could start to make its “diversity problem” disappear.
Going to Court
Represented by Pacific Legal Foundation, a group of New York parents sued de Blasio over the new policy in 2018.
“We all have the American dream of equal opportunity,” one parent, Yi Fang Chen, said. “But by using race preference to determine student enrollment at these excellent schools, it’s like the mayor is taking someone else’s dream away.”
To get around the Constitution, the City wasn’t technically enrolling students on the basis of race. Instead, with P.T. Barnum-level trickery, it was adopting a facially race-neutral policy that it projected would have certain racial results.
That put New York on bad legal ground, our lawsuit pointed out. The Supreme Court says that if a facially race-neutral policy was adopted with discriminatory intent and has a discriminatory effect, it violates the Equal Protection Clause of the Constitution.
In this case, discriminatory intent wouldn’t be hard to prove: New York officials practically gloated about the “racial reckoning” coming to Specialized High Schools.
But our lawsuit hit a roadblock: The district court wouldn’t let us ask for evidence of the City’s discriminatory intent unless we first showed a clear discriminatory effect on Asian students.
And in a surprising twist, the real-world effect of the policy was more varied than the City had projected—perhaps because human experience is less homogenous and more individualized than New York education officials believed. The City’s internal racial projections were flawed, and its sleight-of-hand did not have the full intended effect.
Some Asian students were certainly worse off under the new rules: We provided expert testimony about an undisputed drop in Asian admissions at Stuyvesant and Bronx Science, the two most competitive schools. But Asian admissions hadn’t dropped across the board at all the Specialized High Schools. Because there was not an aggregate drop in Asian admission to the schools as a whole, the district court ruled against the parents and awarded the City summary judgment.
We appealed to the U.S. Court of Appeals for the Second Circuit.
A ‘Complicated Portrait’
In 2022, while PLF worked on appealing the parents’ lawsuit, The New York Times spoke to Asian students at the Specialized High Schools.
Despite City officials’ characterization of the schools as unjust and segregated, the Times discovered “a more complicated portrait” that “def[ies] the political characterizations put forth in New York and across the country.”
One 17-year-old Brooklyn Tech student told the Times that her parents, both Bangladeshi immigrants, worked as a cab driver and a lunchroom attendant. Looking around at “the multihued sea of students” at Brooklyn Tech, the student
expressed puzzlement that a school where three-quarters of the students are nonwhite could be described as segregated. “I have classes with students of all demographics and skin colors, and friends who speak different languages,” she said. “To call this segregation does not make sense.”
The Times also looked into historical admissions data. De Blasio had suggested the Specialized High Schools’ entrance exam was biased against black and Hispanic students. “That does not reckon with history,” the Times reported. “Decades ago, when crime and socioeconomic conditions were far graver than they are today, black and Latino teenagers passed the examination in great numbers.” In the 1970s and ’80s, black and Hispanic enrollment at Bronx Science was more than twice as high as it is today.
To understand the decline, the Times said, you have to look at decades of education policy decisions—in particular, the decision to roll back honors programs and reform gifted programs at middle schools in the name of equity.
“Black alumni of Brooklyn Tech argue that this progressive-minded movement handicapped precisely those Black and Latino students most likely to pass the test,” according to the Times. “Some poor, majority Black and Latino districts now lack a single gifted and talented program.”
Now, instead of fixing that problem by expanding opportunities for gifted students, New York is trying to wallpaper over it by forcibly changing the racial makeup of Specialized High Schools to ensure more black and Hispanic are admitted. It’s a superficial tactic that does nothing to address where the school system continues to fail—and punishes Asian students for the government’s own mistakes.
Victory at the Second Circuit
Last year PLF argued on behalf of New York parents at the Second Circuit. This September—14 months after oral argument, and nearly six years after we filed the case—we won a major victory.
The Second Circuit disagreed with the district court and ruled we had successfully shown the discriminatory effect of New York’s school admissions policy on Asian students.
The court ruled:
When an individual of a certain race has been denied access to a program . . . by a facially neutral law or policy that is racially motivated, a viable equal protection claim exists even if the individual’s racial group did not suffer an aggregate disparate impact from that law or policy.
As my colleague Larry Salzman put it, “One could not hope for a more expressly individualist decision than this.” Although not every Asian student suffered because of their race under New York’s new policy, some did—and that’s enough to trigger the Equal Protection Clause. While New York City has been treating students as tokens for racial groups, the Second Circuit’s ruling recognizes them as individuals—none of whom should be denied opportunities on the basis of race.
Now PLF and the plaintiffs will move into the discovery phase of the case—where we’ll pull back the curtain to reveal the City‘s discriminatory intent. Schools should be cultivating students’ gifts and talents, not creating barriers based on race.
