22-2649-cv Christa McAuliffe Intermediate School PTO, Inc. v. De Blasio

United States Court of Appeals for the Second Circuit _____________________________________

August Term 2022

(Argued: June 14, 2023 Decided: September 24, 2024)

No. 22-2649

_____________________________________ CHINESE AMERICAN CITIZENS ALLIANCE OF GREATER NEW YORK,

Plaintiff-Appellant,

CHRISTA MCAULIFFE INTERMEDIATE SCHOOL PTO, INC., ASIAN AMERICAN COALITION FOR EDUCATION, PHILLIP YAN HING WONG, YI FANG CHEN, CHI WANG,

Plaintiffs,

— v. —

ERIC L. ADAMS, IN HIS OFFICIAL CAPACITY AS MAYOR OF NEW YORK, RICHARD A CARRANZA, IN HIS OFFICIAL CAPACITY AS CHANCELLOR OF THE NEW YORK CITY DEPARTMENT OF EDUCATION,

Defendants-Appellees,

TEENS TAKE CHARGE, DESIS RISING UP AND MOVING, HISPANIC FEDERATION, COALITION FOR ASIAN AMERICAN CHILDREN AND FAMILIES,

Intervenors-Defendants-Appellees, ELIZABETH PIERRET, ON BEHALF OF HER MINOR SON O.R., ODUNLAMI SHOWA, ON BEHALF OF HIS MINOR CHILD A.S., TIFFANY BOND, ON BEHALF OF HER MINOR CHILD K.B, LAUREN MAHONEY, ON BEHALF OF HER MINOR CHILDREN N.D.F AND N.E.F, ROSA VELASQUEZ, ON BEHALF OF HER MINOR CHILD C.M.,

Defendants. _____________________________________

Before: CABRANES and BIANCO, Circuit Judges, and REISS, District Judge. ∗

Plaintiff-Appellant Chinese American Citizens Alliance of Greater New York (“CACAGNY”), alongside a coalition of organizations and individuals (together with CACAGNY, “Plaintiffs”), brought this suit against New York City’s Mayor and Department of Education Chancellor (collectively, “the City”), alleging that the new admissions policy for the Discovery Program in the Specialized High Schools (“SHSs”) violated the Equal Protection Clause because the revisions were intended to discriminate against Asian-American applicants to the SHSs by decreasing the percentage of Asian Americans admitted, and negatively impacted Asian-American students. After partial discovery, the United States District Court for the Southern District of New York (Edgardo Ramos, Judge) granted the City’s motion for summary judgment, concluding that Plaintiffs failed to demonstrate that the policy changes caused an aggregate disparate impact to Asian-American students at the SHSs, as required under Village of Arlington Heights v. Metropolitan Housing Development Corp.,

(1977).

At the outset, we emphasize that, because Plaintiffs were not permitted to conduct any discovery with respect to the issue of discriminatory intent under the bifurcated discovery procedure utilized in the district court, we must assume (without deciding) for purposes of this appeal that Plaintiffs can prove that the policy changes to the Discovery Program were made with the discriminatory intent to reduce the number of Asian-American students at the SHSs. With that factual assumption, we conclude that the district court erred in holding that Plaintiffs must show an aggregate disparate impact on Asian-American students

∗ Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting by designation.

2 in order to establish the requisite discriminatory effect for an equal protection claim under Arlington Heights. Instead, if discriminatory intent is proven, a negative effect or harm from that discriminatory policy on individual Asian- American students applying to the SHSs would be sufficient to trigger strict scrutiny review.

Here, it is undisputed that economically disadvantaged Asian-American students from certain middle schools, who would have been eligible for admission to the SHSs under the prior admission policy for the Discovery Program, were rendered ineligible for admission under the new policy because the Economic Need Index (“ENI”) at their middle school was too high. The exclusion of those Asian-American students from the opportunity to compete for one-fifth of the admission slots at the SHSs through the Discovery Program, if the policy changes were motivated by discriminatory intent towards Asian-American students, would set forth an equal protection claim under Arlington Heights that would subject the new policy to strict scrutiny. Therefore, because no discovery was conducted on the issue of discriminatory intent and there is sufficient evidence of discriminatory effect if such intent is proven, summary judgment in favor of the City was unwarranted on the equal protection claim.

Accordingly, we VACATE the district court’s grant of summary judgment, and the case is REMANDED to the district court for further proceedings consistent with this opinion.

GLENN E. ROPER (Joshua P. Thompson, Pacific Legal Foundation, Sacramento, California, on the brief), Pacific Legal Foundation, Highlands Ranch, Colorado, for Plaintiff- Appellant.

PHILIP W. YOUNG (Claude S. Platton and Deborah A. Brenner, on the brief), for Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of

3 New York, New York, New York, for Defendants-Appellees.

MICHAELE N. TURNAGE YOUNG (Janai S. Nelson, Samuel Spital, Rachel Kleinman, and Kevin Jason, NAACP Legal Defense and Educational Fund, Inc., New York, New York; Jin Hee Lee and Molly M. Cain, NAACP Legal Defense and Educational Fund, Inc., Washington, District of Columbia; Sarah Hinger, American Civil Liberties Union, New York, New York; Stefanie D. Coyle, Arthur Eisenberg, and Emma Hulse, New York Civil Liberties Union Foundation, New York, New York; Francisca D. Fajana, LatinoJustice PRLDEF, New York, New York; Elizabeth A. Ritvo, Brown Rudnick LLP, Boston, Massachusetts; John G. Doyle, Brown Rudnick LLP, Washington, District of Columbia; Caitlin Felise C. Ramiro and Samuel J. Hickey, Brown Rudnick LLP, New York, New York, on the brief), NAACP Legal Defense and Educational Fund, Inc., Washington, District of Columbia, for Intervenors-Defendants- Appellees.

JOSEPH F. BIANCO, Circuit Judge:

In June 2018, the New York City Department of Education (“DOE”) revised

the admission policy at eight of its highly selective Specialized High Schools

4 (“SHSs”), with the stated goal of creating a wider and more diverse pool of

applicants for the SHSs. In particular, the new policy made changes to the

“Discovery Program”—a pre-existing path for admission to SHSs for high-

performing, economically disadvantaged students who would not otherwise be

admitted based solely on their scores on the standardized test for admission. The

changes included: (1) expanding of the number of SHS seats reserved for the

Discovery Program from less than 5 percent to 20 percent of the overall SHS seats;

and (2) adding a new admissions criterion for the Discovery Program, known as

the “Economic Need Index” or “ENI,” that focused on the economic status of the

student applicant’s community as a whole, rather than on an individual basis.

Plaintiff-Appellant Chinese American Citizens Alliance of Greater New

York (“CACAGNY”), alongside a coalition of organizations and individuals

(together with CACAGNY, “Plaintiffs”), brought this suit against New York City’s

Mayor and DOE’s Chancellor (collectively, “the City”), alleging that the new

admissions policy for the Discovery Program violated the Equal Protection Clause

because the revisions were intended to discriminate against Asian-American

applicants to the SHSs by decreasing the percentage of Asian Americans admitted,

5 and negatively impacted Asian-American students. 1 After partial discovery, the

United States District Court for the Southern District of New York (Edgardo

Ramos, Judge) granted the City’s motion for summary judgment, concluding that

Plaintiffs failed to demonstrate that the policy changes caused an aggregate

disparate impact to Asian-American students at the SHSs, as required under

Village of Arlington Heights v. Metropolitan Housing Development Corp.,

(1977). See Christa McAuliffe Intermediate Sch. PTO, Inc. v. De Blasio,

, 263 (S.D.N.Y. 2022).

At the outset, we emphasize that, because Plaintiffs were not permitted to

conduct any discovery with respect to the issue of discriminatory intent under the

bifurcated discovery procedure used in the district court, we must assume

(without deciding) for purposes of this appeal that Plaintiffs can prove that the

policy changes to the Discovery Program were made with the discriminatory

intent to reduce the number of Asian-American students at the SHSs. With that

factual assumption, we conclude that the district court erred in holding that

Plaintiffs must show an aggregate disparate impact on Asian-American students

1Because the suit was brought against Mayor Bill de Blasio and Chancellor Richard A. Carranza in their official capacities, they were replaced as defendants by their successors: Mayor Eric Adams and Chancellor David C. Banks.

6 in order to establish the requisite discriminatory effect for an equal protection

claim under Arlington Heights. Instead, if discriminatory intent is proven, a

negative effect or harm from that discriminatory policy on individual Asian-

American students applying to the SHSs would be sufficient to trigger strict

scrutiny review.

Here, it is undisputed that economically disadvantaged Asian-American

students from certain middle schools, who would have been eligible for admission

to the SHSs under the prior admissions policy for the Discovery Program, were

rendered ineligible for admission under the new policy because the ENI scores of

their middle schools were too low. The exclusion of those Asian-American

students from the opportunity to compete for one-fifth of the admission slots for

the SHSs through the Discovery Program, if the policy changes were motivated by

discriminatory intent towards Asian-American students, would set forth an equal

protection claim under Arlington Heights that would subject the new policy to strict

scrutiny. Therefore, because no discovery was conducted on the issue of

discriminatory intent and there is sufficient evidence of discriminatory effect if

such intent is proven, summary judgment in favor of the City was unwarranted

on the equal protection claim.

7 Accordingly, we VACATE the district court’s grant of summary judgment

and REMAND the case to the district court for further proceedings consistent with

this opinion.

BACKGROUND

I. New York City’s Specialized High Schools

Since the early 20th century, New York City has operated SHSs in an effort

to meet the needs of academically gifted students. The original three SHSs,

Stuyvesant High School, Bronx High School of Science, and Brooklyn Technical

High School, are widely considered to be among the finest high schools in the

United States. Their distinguished alumni include more than a dozen Nobel

laureates.

Over the years, the DOE has expanded its SHS system to include six

additional schools. These schools are also highly regarded. Because there are

many more students who wish to attend the SHSs than there are available seats at

the schools, admission to the SHSs is competitive.

SHS admission is determined by the results of an entrance exam called the

Specialized High School Admissions Test (“SHSAT”). By the late 1960s, the SHSs

also offered an alternative path to admission, called the Discovery Program, for a

8 limited number of disadvantaged students who demonstrated potential for

success at the SHS, but did not obtain a qualifying score on the standardized

entrance exam. The New York legislature codified this two-path admission

structure with its enactment of the Hecht-Calandra Act in 1971. 2 See

-h(1)(b); see also

§ 2590-g(12) (1996).

The entrance exam route works as follows. Prospective students rank the

SHSs in preferential order. The DOE then ranks the students by their scores on

the SHSAT. Starting with the highest scorer, students are placed into their highest-

ranked school with available seats. This cycle continues until all seats are filled.

The lowest SHSAT score required to gain admission to each school is termed the

“cutoff score.”

Under state law, the SHSs may admit students who do not meet the cutoff

scores if they qualify for the Discovery Program. This alternative avenue was

intended “to give disadvantaged students of demonstrated high potential an

opportunity to try the special high school program without in any manner

2 This admission structure applies to eight of the nine SHSs. The ninth SHS, Fiorello H. LaGuardia High School of Music and the Arts, relies on auditions, rather than SHSAT scores. Therefore, the use of “SHSs” in this opinion refers only to the eight schools that make admissions decisions based on SHSAT scores.

9 interfering with the academic level of these schools.”

-g(12)(d)

(1996). To be eligible for the Discovery Program, students must take the SHSAT,

be certified as “disadvantaged” and be recommended as having high potential by

their middle schools, and also pass a summer preparatory program.

The SHSs

then consider these students in order of their SHSAT scores.

Beyond this general framework, the statutes leave many details about the

Discovery Program to be determined by the DOE. In particular, the DOE

determines the parameters of the “disadvantaged” eligibility requirement, as well

as the number of seats at the SHSs that are reserved for the program.

Before 2018, the DOE considered students to be “disadvantaged” if they: (1)

qualified for free or reduced-price lunch; (2) received financial assistance from the

City; (3) were a foster child, ward of the state, or lived in temporary housing; or

(4) were English Language Learners who enrolled in DOE schools for the first time

within the preceding four years.

The exact number of Discovery Program students admitted to the SHSs has

fluctuated over the years, but it has traditionally been dwarfed by the SHSAT

admission route. For instance, between 2006 and 2015, annually only

approximately 1 percent to 3 percent of students admitted at the SHSs came

10 through the Discovery Program. The remaining 96 percent to 99 percent gained

admission solely based on their SHSAT scores.

This two-path approach to admission at the SHSs has been criticized by

some for failing to promote sufficient racial diversity at those schools. During the

2017–18 school year, the City’s public school system was approximately 40 percent

Latino, 26 percent Black, 16 percent Asian American, and 15 percent White.

However, the statistics at the SHSs were very different. For example, at Stuyvesant

High School, Bronx High School of Science, and Staten Island Technical High

School, Latino and Black students made up between 2.7 and 6.2 percent, and 0.7

and 2.5 percent, of the student bodies, respectively. Across the SHSs as a whole,

only 10 percent of students were Black or Latino. On the other hand, a plurality

of students at every one of the SHSs was Asian American, including majorities at

each of the original three SHSs.

II. Changes to the Discovery Program

Near the end of the 2017–18 school year, then-Mayor de Blasio and then-

Chancellor Carranza announced a policy designed to increase the numbers of

Black and Latino students at the SHSs. The day before announcing the changes,

Mayor de Blasio wrote an op-ed arguing that the racial demographics of the SHSs

11 were a “monumental injustice” and asking: “Can anyone defend this? Can

anyone look the parent of a Latino or black child in the eye and tell them their

precious daughter or son has an equal chance to get into one of their city’s best

high schools?” Joint App’x at 236–37. Mayor de Blasio sought to address this

“injustice” by overhauling the Discovery Program.

More specifically, under the new policy, the Discovery Program no longer

would be a narrow alternative admission path. Instead, each SHS would now be

required to set aside 20 percent of its seats for Discovery Program students, a

dramatic increase from the 1 percent to 3 percent of seats that were previously

reserved. At the same time, the term “disadvantaged” was redefined. To be

eligible under the revised definition, students not only had to be individually

disadvantaged, but also had to attend a “disadvantaged” middle school. To

determine whether a particular middle school qualified as such, the DOE would

rely on a school’s ENI—a metric designed as a heuristic for the economic hardship

of the community the school serves. ENI scores range from 0.0 to 1.0, with higher

scores representing greater economic need. 3 Under the new policy, students

3 A school’s ENI is the mean of its individual students’ economic need values (“ENV”). A student’s ENV is calculated in one of two ways. If a student lives in a household eligible for public assistance, has lived in temporary housing during the past four years,

12 would only qualify for the Discovery Program if they attended middle schools

with an ENI score of 0.6 or higher.

The City acknowledges that “DOE selected the 0.60 ENI requirement as a

way to ‘support greater geographic, racial, and socioeconomic diversity at the

SHS[s].’” Appellees’ Br. at 49 (quoting Joint App’x at 161 (City’s press release

announcing changes to the Discovery Program)). City officials arrived at the 0.6

ENI threshold after modeling the effects that various ENI cutoffs would have on

the racial composition of students at the SHSs. More specifically, as Mayor de

Blasio’s press release emphasized, the City’s modeling suggested that the revised

Discovery Program would result in 16 percent of offers at SHSs going to Black and

Latino students—up from the then-current 9 percent rate. Touting these effects,

the press release presented the revised Discovery Program as an important step in

making the admission process to the SHSs “fairer.” Joint App’x at 160.

SHS admission is a zero-sum game in that admitting more students from a

particular demographic means admitting fewer from other demographics. Thus,

or has a home language other than English and first enrolled in a DOE school within the preceding four years, then the student’s ENV is 1.0. Otherwise, a student’s ENV is the percentage, divided by 100, of families with school-age children in the student’s census tract with incomes below the poverty level.

13 the City’s modeling also projected that the changes to the Discovery Program

would decrease the number of Asian Americans at the SHSs. Although the revised

admissions policy was facially race-neutral, many Asian-American organizations

believed that it unfairly discriminated against high-achieving Asian-American

students. Defending the City’s policy changes against this charge, Chancellor

Carranza stated, “I just don’t buy into the narrative that any one ethnic group

owns admissions to these schools.” Joint App’x at 18.

III. Procedural Background

In December 2018, a collection of organizations and parents of individual

Asian-American students sued Mayor de Blasio and Chancellor Carranza, alleging

that the facially race-neutral Discovery Program revisions violated the Fourteenth

Amendment’s Equal Protection Clause because they were motivated by

discriminatory intent and would produce discriminatory effects. Plaintiffs moved

for a preliminary injunction to halt implementation of the changes. The district

court denied this motion, concluding that Plaintiffs were unlikely to succeed on

the merits. Christa McAuliffe Intermediate Sch. PTO, Inc. v. de Blasio,

(S.D.N.Y. 2019). Plaintiffs appealed.

14 While that appeal was pending, the City executed its planned changes to the

Discovery Program. Admission to the SHSs for the 2019–20 school year was

governed by the revised Discovery Program. 4

Contrary to the City’s pre-policy modeling, its internal data revealed that

the 2019–20 admission cycle saw the proportion of Asian Americans admitted to

the SHSs increase. The City believed these results would defeat Plaintiffs’ claims

of discrimination and, thus, moved to bifurcate discovery. Phase I would cover

the impact of the Discovery Program changes, while Phase II would address the

intent behind the changes. According to the City, this bifurcation would avoid

burdensome discovery production because Plaintiffs would not be able to show

discriminatory effect—a necessary element of their claim—thereby making

discovery into policymakers’ intent unnecessary. Over Plaintiffs’ objection, the

district court ordered the bifurcation of discovery. 5

4 In May 2019, several organizations and parents of individual students moved to intervene as defendants based on their “interest in the increased racial diversity of the student bodies at the [SHSs], and the decreased isolation of Black and Latinx students at those schools, which the expanded Discovery Program is likely to address.” Dist. Ct. Dkt. No. 87 at 2–3. The district court granted the proposed intervenors’ motion.

5 Two months later, we affirmed the district court’s denial of a preliminary injunction, finding that Plaintiffs had not established standing to seek prospective relief. Christa McAuliffe Intermediate Sch. PTO, Inc. v. de Blasio,

(2d Cir. 2019) (summary order). On remand, the organizational plaintiffs submitted supplemental declarations

15 The City supplied its 2019–20 admission data to Plaintiffs during Phase I

discovery. As noted supra, this data indicated that the revised Discovery Program

did not reduce the overall proportion of Asian Americans who were admitted to

the SHSs. In particular, although the data revealed that SHS offers for Black and

Latino students increased to 16.7 percent of SHS offers, Asian-American

representation at the SHSs increased overall from 51 to 53 percent. The data

further indicated that increases in Black and Latino representation were primarily

offset by a decrease in offers to White students. See Joint App’x at 339 (noting that

the changes caused the proportion of offers to White students to drop from 25.8 to

22.4 percent).

The inaccuracy of the City’s modeling appears to be attributable, at least in

substantial part, to dramatic increases in the ENI across New York City in 2018.

Although it is not entirely clear what caused this spike, the increase meant that

nearly one hundred middle schools that would otherwise have been excluded

from the Discovery Program now met the 0.6 ENI threshold. Consequently, the

racial demographics of eligible middle schools under the Discovery Program

discussing the prospective harm they faced due to the Discovery Program changes, thereby curing their lack of standing, as the City conceded in district court.

16 looked quite different from those in the City’s models, and the projected decrease

in overall Asian-American representation at SHSs failed to materialize.

However, that is not to say that the revised Discovery Program did not have

an impact on individual Asian-American students. For example, many Asian-

American students were excluded from eligibility for the Discovery Program,

including all of the students at 11 majority-Asian-American middle schools,

because the ENI at their schools did not rise above the 0.6 threshold. Additionally,

under the revised Discovery Program, the number of Asian Americans receiving

offers to the two most selective SHSs, Stuyvesant and Bronx Science, declined.

Upon completion of Phase I discovery, the City moved for summary

judgment, arguing that Plaintiffs failed to demonstrate the requisite disparate

impact needed to sustain an Arlington Heights claim.

The district court granted summary judgment in the City’s favor. Christa

McAuliffe Intermediate Sch. PTO, Inc., 627 F. Supp. 3d at 269. The district court held

that, under Arlington Heights, Plaintiffs could not prevail on their equal protection

challenge to the revised Discovery Program policy unless they demonstrated

discriminatory intent and discriminatory effect, and the effect must show that “the

policy has disproportionately affected a racial group in the aggregate.” Id. at 261–

17 63. In doing so, the district court rejected Plaintiffs’ contention that discriminatory

effect could be shown by the “unequal treatment” of those particular Asian-

American students negatively impacted by the new eligibility criteria, absent

evidence of aggregate harm. Id. at 263–65.

Applying this legal standard for discriminatory effect, the district court

determined that, under any of the various methodologies proposed by the parties

to measure disparate impact, Plaintiffs had failed to provide evidence that the

reforms to the Discovery Program negatively affected Asian-American students in

the aggregate. Id. at 266–67. More specifically, the district court found that, even

using Plaintiffs’ proposed methodology, the equal protection claim failed because

“[c]ompared to 2018, when the reforms to Discovery were not yet in effect, both in

2019 and 2020, the percentage of offers received by Asian American students

increased [at the SHSs], the offer-rate among Asian Americans increased, and the

spread between Asian American students’ share of offers and share of test-takers

increased.” Id. at 267. Thus, because “[t]his data demonstrate[d] that Asian-

American students ha[d] fared better [in the aggregate] after the reforms than

before them,” the district court “[found] that the changes to [the] Discovery

[Program]—irrespective of the motive behind their passage—have not resulted in

18 a discriminatory effect on Asian Americans.” Id. The district court further

concluded that the reduction in the proportion of Asian-American students in the

pool of students admitted by Stuyvesant and Bronx Science—a difference of 0.7

percentage points and 1.4 percentage points, respectively, based on the report of

Plaintiffs’ expert—was too “minor” to show a disproportionate impact on Asian-

American students. Id. at 268. Additionally, the district court emphasized that “[it

did] not accept that trends in two of the eight Schools can sustain Plaintiffs’

disparate impact claim.” Id. at 268–69. Finally, because it found no discriminatory

effect resulting from the facially neutral admissions policy, the district court noted

that it did not need to “reach any conclusion with respect to whether [the City]

enacted the reforms with discriminatory intent.” Id. at 269. CACAGNY filed a

timely appeal.

DISCUSSION

CACAGNY argues that the district court committed two legal errors in

granting summary judgment to the City on its equal protection claim. First,

CACAGNY contends that the district court erred in concluding that an aggregate

disparate impact is required to demonstrate a discriminatory effect under

Arlington Heights. In particular, CACAGNY argues that “[i]f Defendants intended

19 to discriminate against Asian-American students but merely failed to correctly

model and anticipate the racial effect of their policy, the lack of an aggregate effect

does not excuse the unequal treatment that the policy imposes on Asian-American

students at middle schools excluded from [the] Discovery [Program].”

Appellant’s Br. at 15. Second, CACAGNY asserts that, in assessing discriminatory

effect, the district court erred by disregarding evidence from “Plaintiffs’ expert

analysis [that] showed that under the revised Discovery [P]rogram, some Asian-

American applicants who would have received invitations to Stuyvesant and

Bronx Science (their preferred schools) before the admissions changes were

instead denied admission to those schools.” Id. at 16. In short, CACAGNY

contends that “[e]qual protection is an individual right, and the harm these

individual students suffered due to the Discovery [P]rogram changes means that

Plaintiffs should at least be allowed discovery into Defendants’ discriminatory

purpose.” Id.

We review de novo the grant of summary judgment, “construing the

evidence in the light most favorable to the party against whom summary

judgment was granted and drawing all reasonable inferences in that party’s

favor.” Bey v. City of New York,

, 164 (2d Cir. 2021). Summary

20 judgment must be granted if the moving party “shows that there is no genuine

dispute as to any material fact” and that it “is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a).

The Equal Protection Clause prohibits states from “deny[ing] to any person

within [their] jurisdiction the equal protection of the laws.” U.S. CONST. amend.

XIV, § 1. The Clause’s “central purpose is to prevent the States from purposefully

discriminating between individuals on the basis of race.” Shaw v. Reno,

(1993). Thus, a state law or policy that discriminates on the basis of race

is subject to strict scrutiny, regardless of its intended beneficiaries. Adarand

Constructors, Inc. v. Pena,

(1995).

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. See

Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Hist. Dist. Comm’n,

(2d Cir. 2014).

21 It is undisputed that the revised Discovery Program neither expressly

classifies students on the basis of race, nor is enforced in a discriminatory manner.

Instead, Plaintiffs allege that the revised Discovery Program is a facially neutral

policy motivated by an intent to reduce the number of Asian-American students

and increase the number of other minority students, and has resulted in a

discriminatory effect on Asian-American students. As such, in order to subject the

revised Discovery Program to strict scrutiny review, Plaintiffs are required to

show that, in addition to having a discriminatory effect, the policy “was adopted

with a discriminatory intent.” Chabad Lubavitch,

. Plaintiffs may

offer circumstantial or direct evidence to show that the challenged state action was

motivated by an invidious discriminatory purpose. Arlington Heights,

.

As a threshold matter, and one determinative of the issues here, we

emphasize the primacy of the district court’s decision to bifurcate discovery on our

legal analysis in this particular case. The district court limited the first phase of

discovery to examining the effect of the revised Discovery Program and allowed

the City to move for summary judgment following its completion, without any

second phase discovery on the issue of whether the City intended to discriminate

22 against Asian-American students. Therefore, as the City concedes, for purposes

of the summary judgment motion, the district court was required to assume

arguendo that the revised Discovery Program was motivated by an intent to harm

Asian-American students. The question before us is the quantum of

discriminatory effect that a plaintiff must demonstrate to challenge a facially

neutral law or policy that was adopted with discriminatory intent.

The district court held that, even if there were independent evidence

establishing discriminatory 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.

Therefore, the district court determined that, because Plaintiffs failed to show that

the revised Discovery Program had an aggregate disparate impact on Asian-

American applicants to the SHSs, Plaintiffs’ equal protection claim must fail. This

was error.

As set forth below, neither the precedent of the Supreme Court nor the

precedent of this Court has so limited the scope of the Equal Protection Clause’s

protections. 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

23 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.

I. Discriminatory Effect under Arlington Heights

In the decades since Arlington Heights, we have repeatedly re-affirmed that

“a facially neutral statute violates equal protection if it was motivated by

discriminatory animus and its application results in a discriminatory effect.”

Hayden v. Cnty. of Nassau,

(2d Cir. 1999); see also United States v. City

of Yonkers,

(2d Cir. 1996) (“A plaintiff is required to show not only

that the state action complained of had a disproportionate or discriminatory

impact but also that the action was taken with intent to discriminate.”). In the case

of a facially neutral policy, overlapping facts may be relevant to these two

inquiries. For example, when a facially neutral policy results in an aggregate

disparate impact, that group-wide effect might serve to establish discriminatory

24 effect and might allow for an inference regarding the decisionmakers’

discriminatory animus. However, neither the Supreme Court nor this Court has

ever held that an aggregate disproportionate impact to a racial group is a

prerequisite to an equal protection violation if a plaintiff can demonstrate, through

other evidence, that a law or policy motivated by a discriminatory intent has

resulted in some type of discriminatory effect or impact to one or more individuals

based on their race.

In Arlington Heights and its predecessor, Washington v. Davis,

(1976), the Supreme Court addressed how a plaintiff can prove that a facially

neutral policy violates the Equal Protection Clause and concluded that disparate

impact alone is insufficient to prevail on such a claim. In particular, in Davis, the

Court held that “[d]isproportionate impact is not irrelevant, but it is not the sole

touchstone of an invidious racial discrimination forbidden by the Constitution.”

. Instead, even if a law “affects a greater proportion of one race than

of another,” it does not establish an equal protection claim unless it also has “an

invidious discriminatory purpose,” which “may often be inferred from the totality

of the relevant facts, including the fact, if it is true, that the law bears more heavily

on one race than another.”

25 A year later, in Arlington Heights, the Supreme Court held that “Davis does

not require a plaintiff to prove that the challenged action rested solely on racially

discriminatory purposes,” but rather “proof that a discriminatory purpose has

been a motivating factor” is sufficient. 429 U.S. at 265–66. The Court further

explained that determining whether “discriminatory purpose was a motivating

factor demands a sensitive inquiry into such circumstantial and direct evidence of

intent as may be available.”

.

“Proving the motivation behind official action is often a problematic

undertaking,” as officials rarely make outright pronouncements of their

discriminatory motives. Hunter v. Underwood,

(1985). Thus,

because direct evidence of discriminatory intent may not be available,

circumstantial evidence of disparate impact may be “an important starting point”

in determining whether a facially race-neutral policy or decision was motivated

by a discriminatory purpose. Arlington Heights,

; see also Dep’t of

Homeland Sec. v. Regents of Univ. of Cal.,

, 34 (2020) (listing “disparate

impact on a particular group” as “[p]ossible evidence” in an Arlington Heights

inquiry (emphasis added)); Reno v. Bossier Par. Sch. Bd.,

(1997)

(“[T]he impact of an official action is often probative of why the action was taken

26 in the first place since people usually intend the natural consequences of their

actions.” (emphasis added)). Accordingly, aggregate disproportionate impact on

a particular racial group may be evidence of discriminatory animus or

discriminatory effect; however, we have never held that such impact is necessary

to show that a facially neutral law violates the Equal Protection Clause. See

generally Cooper v. Harris,

(2017) (“[I]n no area of our equal

protection law have we forced plaintiffs to submit one particular form of proof to

prevail.”).

Turning to the case at hand, the district court erroneously concluded that

“irrespective of the motive behind [the] passage” of the reforms to the Discovery

Program, Plaintiffs could not as a matter of law demonstrate discriminatory effect

without evidence that such reforms impacted Asian-American students in the

aggregate at the SHSs. 627 F. Supp. 3d at 267. This conclusion is at odds with

precedent from this Court and the Supreme Court. 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,

(1995) (internal quotation marks and citation omitted).

27 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. 6 See generally

Soule v. Conn. Assoc. of Schs., Inc.,

(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

6 This equal protection claim can be asserted by individuals alleging they suffered harm from the discriminatory policy or law, as well as other individuals (such as a parent or guardian) or organizations that also have standing to sue. See Warth v. Seldin,

(1975). Here, following our remand, the organizations who are named Plaintiffs asserted both associational standing on behalf of their members and/or institutional standing to sue in their own right to pursue injunctive relief, and submitted a declaration in support of their arguments. As noted supra, following those submissions in the district court, the City did not contest standing and we conclude that Plaintiffs (including CACAGNY) have standing to sue based on this record.

28 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,

(1979).

We do not suggest that an equal protection claim challenging a facially

neutral policy does not require a showing of discriminatory effect; controlling

precedent clearly states that it does. See Hayden, 180 F.3d at 50–52; see also Palmer

v. Thompson,

(1971) (“[N]o case in this Court has held that a

legislative act may violate equal protection solely because of the motivations of the

men who voted for it.”). CACAGNY does not argue otherwise. See Reply Br. at

23 (arguing that Palmer “is perfectly consistent with Plaintiffs’ argument, which is

that Defendants’ discriminatory intent plus the unequal treatment inflicted on

Asian-American students at excluded middle schools violates the Equal Protection

Clause”). Instead, we hold that, when a discriminatory intent in enacting a facially

neutral law or policy is shown, the requisite proof of a discriminatory effect is not

limited to an aggregate disparate harm, but rather can be satisfied by proof of an

29 adverse harm to one or more individuals based on their race that has resulted from

that discriminatory law or policy.

Although the district court relied upon prior decisions in which we have

affirmed the dismissal of equal protection claims, those cases are inapposite. For

example, in Hayden, we held that the district court properly dismissed an equal

protection challenge to the Nassau County Police Department’s redesign of its

entrance examination. In doing so, we explained that plaintiffs failed to

“sufficiently allege that Nassau County harbored an intent to discriminate against

them” and also had “fail[ed] to set forth allegations which would support a claim

that they were adversely impacted by the redesign of the police officers’ entrance

exam.” 180 F.3d at 50–52. Here, by contrast, due to the bifurcation of discovery

below, we must presume discriminatory intent. In other words, we must presume

that the Asian-American students who have been rendered ineligible for the

Discovery Program by virtue of the middle school they attend—despite otherwise

having qualified for admission on an individual basis under the previous

criteria—were excluded from those designated SHS seats precisely because of

their race. Thus, given the limited discovery in this case, evidence that Asian-

American students at certain middle schools are no longer eligible for the

30 Discovery Program under the new policies suffices to establish that they were

adversely impacted. Neither the holding in Hayden, nor any other precedent,

suggests that the equal protection claim would fail as a matter of law under such

factual circumstances. Instead, to sustain an equal protection claim under

Arlington Heights when intent has been established, plaintiffs need only

demonstrate that they suffered some harm from the law or policy, not an aggregate

disparate impact to the racial group they have proven was targeted.

The cases the City cites to support affirmance miss the point. Those cited

cases stand for the well-settled proposition that a plaintiff must prove both

discriminatory effect and intent under Arlington Heights. See, e.g., Pyke v. Cuomo,

(2d Cir. 2009) (“[a]ssuming without deciding” that the plaintiffs

could establish discriminatory impact, but concluding that “they have nonetheless

failed to proffer enough evidence of discriminatory intent to survive summary

judgment” (emphasis omitted)); Jana-Rock Constr., Inc. v. New York State Dep’t of

Econ. Dev.,

, 212 (2d Cir. 2006) (declining to apply strict scrutiny to a

New York affirmative action program “[w]ithout any indication” of a

discriminatory purpose); Orange Lake Assocs., Inc. v. Kirkpatrick,

, 1226

(2d Cir. 1994). However, nothing in our jurisprudence suggests that aggregate

31 disparate impact is the only manner in which the requisite discriminatory effect

can be shown. For example, the City relies on our decision in Orange Lake, in which

we addressed whether a facially neutral zoning amendment that allegedly had a

disparate impact on racial minorities violated the Equal Protection Clause. 21 F.3d

at 1225–27. In finding that the amendment should not be subjected to strict

scrutiny, we noted that the plaintiff had failed to put forth any evidence of

disparate impact and, “[m]ost important[ly],” the plaintiff had made “only

conclusory allegations that the members of the Town Board were motivated by

racial animus and fail[ed] to point to any evidence of such motivation.” Id. at 1227.

In reaching this decision, we did not suggest that aggregate disparate impact was

the only means to prove either discriminatory intent or effect.

The recent decisions by the Fourth and First Circuits relied upon by the City

are similarly inapposite. See Coal. for TJ v. Fairfax Cnty. Sch. Bd.,

(4th

Cir. 2023) cert. denied, --- U.S. ---,

(Feb. 20, 2024); Bos. Parent Coal.

for Acad. Excellence Corp. v. Sch. Comm. of City of Bos.,

(1st Cir. 2021). To

be sure, in these cases, each court examined the group-wide effects of a challenged

admissions policy in determining whether members of an allegedly targeted

group had suffered disparate impact. Coal. for TJ, 68 F.4th at 882; Bos. Parent Coal.,

32

. However, in each case, the court found no evidence of

discriminatory intent, and the lack of a group-wide effect was examined in that

context. Coal. for TJ, 68 F.4th at 886 (“An Equal Protection plaintiff alleging

purposeful racial discrimination must show at least some specific intent to target

a certain racial group and to inflict adverse effects upon that group. In this

situation, the undisputed facts show only that the Board intended to improve the

overall socioeconomic and geographic diversity of TJ’s student body. . . . In sum,

the [plaintiff] cannot satisfy its burden of proving that the Board’s adoption of the

race-neutral challenged admissions policy was motivated by an invidious

discriminatory intent, whether by way of ‘racial balancing,’ ‘proxies,’ or

otherwise.”); Bos. Parent Coal.,

(noting that there is “no likely error

in the district court’s conclusion that a discriminatory purpose did not motivate

the Plan’s adoption” and affirming the district court’s denial of preliminary

injunction).

In contrast, here, due to the limitation on discovery below, we must assume

that the reforms to the Discovery Program were motivated by the specific intent

to target Asian-American students. Parents Involved in Cmty. Sch. v. Seattle Sch.

Dist. No. 1,

(2007). And, in conjunction with that presumed

33 invidious discriminatory intent, CACAGNY has set forth evidence of Asian-

American students who have suffered a discriminatory effect from the new

policies, including those Asian-American students at certain middle schools

excluded entirely from the Discovery Program under the new criteria. Unlike

here, neither Coalition for TJ nor Boston Parent Coalition assumed or found that the

intent-to-discriminate element of plaintiffs’ equal protection claim was satisfied.

See, e.g., Coal. for TJ, 68 F.4th at 888 (Heytens, J., concurring) (“Under the policy

challenged here, no students are told ‘where they can and cannot go to school

based on the color of their skin.’” (quoting Parents Involved,

)).

In sum, we hold that under Arlington Heights, when an individual of a

certain race is denied access to a program or is otherwise adversely affected 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. 7

7 We also emphasize that, because we are presuming intent, our holding in no way undermines, or even implicates, the Supreme Court’s guidance in Feeney, applied by this Court and other circuits under the Arlington Heights standard, namely, that “[d]iscriminatory purpose . . . 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.”

(internal quotation marks and citation omitted) (emphasis added); accord Howard v. Senkowski,

(2d Cir. 1993); see

34 II. Evidence of Discriminatory Effect from the Discovery Program

There is sufficient evidence at this stage in the litigation that the revised

Discovery Program has a discriminatory effect on Asian-American applicants

seeking admission to SHSs to preclude summary judgment on the equal protection

claim and require discovery on the issue of discriminatory intent.

The loss of an opportunity based on race is an actionable harm under the

Equal Protection Clause. See Regents of Univ. of Cal. v. Bakke,

, 319–20

(1978) (explaining that an equal protection violation occurred because certain

applicants were, due to their race, “totally excluded from a specific percentage of

seats in an entering class” while “the preferred applicants have the opportunity to

compete for every seat in the class”). The requisite harm or effect is no different

when the racial motivation is hidden beneath a facially neutral law or policy,

which is proven to have the same discriminatory motivation. See Students for Fair

also Coal. for TJ, 68 F.4th at 886 (“[T]he simple fact that the Board may have been able to discern that expanding [the school’s] Black and Hispanic student population might—as a “natural and foreseeable consequence”—impact the enrollment figures for Asian American students (or students of another racial group) is, under Feeney, wholly insufficient from which to infer constitutionally impermissible intent.” (quoting Feeney,

)); Bos. Parent Coal.,

(“The fact that public school officials are well aware that race-neutral selection criteria . . . are correlated with race and that their application would likely promote diversity does not automatically require strict scrutiny of a school system’s decision to apply those neutral criteria.”).

35 Admissions, Inc. v. President & Fellows of Harvard Coll.,

, 230 (2023)

(“What cannot be done directly cannot be done indirectly. The Constitution deals

with substance, not shadows, and the prohibition against racial discrimination is

levelled at the thing, not the name.” (alteration adopted) (internal quotation marks

and citation omitted)); N.C. State Conf. of NAACP v. McCrory,

(4th

Cir. 2016) (“If discriminatorily motivated, such [facially neutral] laws are just as

abhorrent, and just as unconstitutional, as laws that expressly discriminate on the

basis of race.”). Once discriminatory motive is established, or as here, assumed, a

statute’s facial neutrality becomes immaterial. The exclusion resulting from a

discriminatorily motivated law, in those circumstances, is a sufficient

discriminatory effect that would preclude summary judgment. 8

It is undisputed that a large group of Asian-American students at certain

middle schools across New York City was excluded from the revised Discovery

8The parties disagree regarding the proper methodology for measuring disparate impact. We need not address those methodologies because the evidence of discriminatory effect that precludes summary judgment is not dependent upon the aggregate impact, but rather the exclusion of Asian-American students in numerous middle schools from the Discovery Program based upon what Plaintiffs may be able to prove (once they are given discovery) was a discriminatory motive in enacting the new admissions criteria.

36 Program under the new criteria. 9 The new criteria for the Discovery Program

restricted eligibility to students who attended schools in a community with an ENI

of 0.6 or greater. Under that new criteria, 11 of 24 majority-Asian-American

middle schools were rendered ineligible for the Discovery Program. The Asian-

American students at those 11 middle schools were thus excluded from a fifth of

all SHS seats under the new Discovery Program, even if they were economically

disadvantaged on an individual basis and would have qualified for the Discovery

Program under the prior admissions policies. This exclusion, assuming (as we

must here) that the revisions to the program were motivated by an intent to

9 The City suggests that Plaintiffs based their equal protection claim on the anticipated aggregate disparate impact on Asian-American students at the SHSs and, thus, should not be able to “materially revise” their theory of discrimination by pointing to negative effects on subsets of Asian-American students at certain middle schools. Appellees’ Br. at 53. We are unpersuaded. As an initial matter, the district court addressed the merits of Plaintiffs’ claims of non-aggregate discriminatory effect and granted summary judgment on that basis. In any event, although the complaint alleged that the revisions to the Discovery Program would “disproportionately harm[] Asian-American students by decreasing the number of students who can gain admission without [the] Discovery [Program],” Joint App’x at 6, it also alleged, inter alia, that: (1) “[the City’s] plan to expand and reorganize the Discovery Program for admission into New York City’s [SHSs] is intended to racially balance the schools by limiting the number of Asian Americans who are admitted”; (2) “the precise impact of the changes is unknowable before they go into effect”; and (3) “[i]ndividual school data also shows that [the City’s] plan targets for exclusion from [the] Discovery [Program] heavily Asian-American schools that are known to send many students to the [SHSs],”

at 20–21. Accordingly, we conclude that nothing in the pleadings limits Plaintiffs’ equal protection claim to harm to Asian- American students at an aggregate level.

37 discriminate against Asian-American students, is sufficient to constitute a

discriminatory effect under Arlington Heights and would be sufficient to trigger

strict scrutiny review of the revised Discovery Program under the Equal Protection

Clause.

The existence of an equal protection claim under such circumstances is not

undermined by the fact that “the percentage of offers received by Asian American

students who took the SHSAT increased in 2019 and 2020 more than they would

have if offers had been made using the admissions criteria for the 2018 entering

class” and the new criteria resulted in a slight increase in the representation of

Asian-American students in the SHSs as a whole. 627 F. Supp. 3d at 260. Based

on this statistic, the Intervenors argue that Asian Americans cannot show

discriminatory effect because, “[w]hile CACAGNY may be able to point to isolated

instances where individual students fared worse under a new policy, at the same

time, there are no doubt many Asian-American applicants who fared better.”

Intervenors-Appellees’ Br. at 32. However, as CACAGNY correctly notes, “[t]he

slight overall increase in Asian-American admission to the specialized schools as

a whole is of no comfort to the individual Asian-American students who were

disproportionately excluded from Discovery [P]rogram eligibility by the 0.6 ENI

38 cutoff.” Reply Br. at 21. In other words, if certain Asian-American students, such

as those attending the 11 excluded majority-Asian-American middle schools, were

treated unequally from non-Asian-American students at eligible middle schools

and thus excluded from the Discovery Program because of a racially motivated

policy, such intentional unequal treatment is not cured by the fact that, because of

other (allegedly unintended) variables that led to a general jump in ENI, enough

Asian-American students at other middle schools secured admission to yield an

overall slight increase in Asian-American students across the SHSs in 2020.

The district court also erred in concluding that no discriminatory effect

could be demonstrated by these excluded students, notwithstanding the policy’s

motivation, because “all disadvantaged students attending schools with an ENI of

less than 0.6 are equally prohibited from participating in [the] Discovery

[Program], regardless of their race.” 627 F. Supp. 3d at 265. If the new policies for

the Discovery Program were motivated by an animus against Asian Americans,

then Asian-American students rendered ineligible for the Discovery Program

under those racially motivated polices have suffered a discriminatory effect or

harm in the form of diminished educational opportunity that is actionable under

39 the Equal Protection Clause, even if they were not the only students rendered

ineligible at their middle schools.

Thus, we hold that the evidence of the exclusion of Asian-American

students at numerous New York City middle schools based on the new ENI

criteria is sufficient discriminatory effect to assert a viable equal protection claim

under Arlington Heights that would require strict scrutiny review if it were proven,

after discovery, that the implementation of the ENI was racially motivated to

reduce the number of Asian Americans in the SHSs. We also disagree with the

City’s suggestion that a reduction of the Asian-American students at two of the

eight SHSs, Stuyvesant and Bronx Science, that resulted from the changes to the

Discovery Program could not independently satisfy the requisite discriminatory

effect if a discriminatory intent were proven. Plaintiffs submitted an expert study

regarding the Fall 2020 entering class at those two schools, which they contend

shows a discriminatory effect on Asian-American students because: (1) Asian-

American students received 66.9 percent of the invitations to attend Stuyvesant in

Fall 2020, but would have received 67.6 percent of the invitations if the pre-

implementation 2018 criteria for the Discovery Program were used; and (2) Asian-

American students received 55.8 percent of the invitations to attend Bronx Science

40 in Fall 2020, but would have received 57.2 percent of the invitations if the 2018

criteria for the Discovery Program were used. See Joint App’x 180. Because the

lack of discovery on intent requires that we presume, for the purpose of the

summary judgment motion, that the new Discovery Program criteria were

motivated by a discriminatory intent to reduce the number of Asian-American

students at those schools, the question becomes whether an equal protection claim

would lie based on the exclusion from admission of some Asian-American

students for Discovery Program seats at those two schools under the new criteria.

The answer to that question is yes. For reasons previously discussed, if it is proven

that these facially neutral criteria were enacted with discriminatory animus

towards Asian Americans, an equal protection claim would arise if such

discrimination resulted in certain Asian-American students being deprived of

placement in their preferred high school under the new criteria. That some Asian-

American students were unaffected or that the number of Asian-American

students increased as a whole at the SHSs does not strip Plaintiffs of the ability to

obtain recourse under the Equal Protection Clause based on the harm suffered by

those students who were deprived of the opportunity to attend Stuyvesant or

Bronx Science. Here, Plaintiffs’ expert asserted that there are “specific, identifiable

41 [Asian-American] students in the 2020 admissions cohort who would have been

admitted to Stuyvesant High School and Bronx Science had the 2018 admissions

[criteria] been used.” Joint App’x at 358. If a racial motivation for the changes to

the Discovery Program is shown and the expert’s study is correct, the exclusion of

those specific, identifiable Asian-American students is a sufficient discriminatory

effect to trigger an equal protection claim under Arlington Heights and subject the

Discovery Program to strict scrutiny. 10

On remand, Plaintiffs may be able to show evidence of discriminatory intent

once discovery on that issue is obtained. If such intent is established, a plaintiff

need only demonstrate that they suffered some harm from the law or policy, not

an aggregate disparate impact to the racial group they have proven was targeted.

Thus, if such intent is shown here, Plaintiffs may sustain an equal protection claim

10To the extent the City suggests that this evidence should not be credited because of the methodology utilized by Plaintiffs’ expert, we note that the district court did not exclude the expert’s report and, on summary judgment, we must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Koral v. Saunders,

, 408 (2d Cir. 2022) (quoting Terry v. Ashcroft,

(2d Cir. 2003)). In any event, as noted supra, the evidence of the exclusion of Asian-American students at certain middle schools from the Discovery Program under the new criteria is a sufficient discriminatory effect or harm to require discovery on the issue of discriminatory intent before the City can obtain summary judgment in its favor on the equal protection claim.

42 under Arlington Heights if any Asian-American students suffered a discriminatory

effect either by their exclusion from seats reserved for the Discovery Program or

the denial of admission to their preferred SHS under the new criteria. Therefore,

it was premature for the district court to grant summary judgment on Plaintiffs’

equal protection claim due to the lack of an aggregate disproportionate impact

prior to discovery on the issue of the City’s intent in revising the Discovery

Program. 11

CONCLUSION

In sum, we hold:

1. An aggregate disparate impact on the affected class is not the exclusive

means by which a plaintiff can demonstrate the discriminatory effect that

is required to prevail on an equal protection claim under Arlington

Heights.

2. With the assumption that Plaintiffs can prove after discovery that the

policy changes to the Discovery Program were made with the

11 Because we find that the district court erred in granting summary judgment before Plaintiffs were afforded discovery on the defendants’ intent in reforming the Discovery Program, we need not decide whether those reforms would survive strict scrutiny review if such intent were ultimately proven.

43 discriminatory intent to reduce the number of Asian-American students

at the SHSs, the district court erred in holding that Plaintiffs must show

an aggregate disparate impact on Asian-American students to

demonstrate the requisite discriminatory effect under Arlington Heights.

3. With the assumption that the policy changes to the Discovery Program

were motivated by discriminatory intent, evidence that Asian-American

students at certain middle schools across New York City were excluded

from the Discovery Program under the new criteria, as well as evidence

that other Asian-American students were denied admission to their

preferred SHSs given the new criteria, is sufficient to demonstrate the

requisite discriminatory effect under Arlington Heights and preclude

summary judgment on that ground.

For the foregoing reasons, we VACATE the district court’s grant of

summary judgment, and the case is REMANDED to the district court for further

proceedings consistent with this opinion. 12

12 Although we directed in the previous summary order, which found a lack of standing, that any subsequent appeal (if standing was cured) should be referred to this panel in the interest of judicial economy, see Christa McAuliffe Intermediate Sch. PTO, Inc., 788 F. App’x at 86, any subsequent appeals at this juncture should be assigned to a new panel in the ordinary course.

44