Asian Parents Lawsuit Challenging Discriminatory NY STEP Program Can Go Forward, Court Rules

Asian Parents Lawsuit Challenging Discriminatory NY STEP Program Can Go Forward, Court Rules

In January 2024, Asian Parents Sued NY State Over Discriminatory Student Programs, With Help From Equal Protection Project.

The lawsuit against the NY State Health Commissioner, filed in the U.S. District Court in the Northern District of New York, involved the Science and Technology Entry Program (“STEP”) Act, and differing standards of eligibility based on race and ethnicity required by state regulation.  If applicants are Black, Hispanic, American Indian, or Alaskan Native  they are automatically eligible to apply, but applicants who do not fall into one of those racial and ethnic categories are automatically excluded from consideration unless they can show they are “economically disadvantaged.”

The STEP Act programs are massive and statewide. According to a 2022 legislative report, almost 11,000 middle and high school students participate yearly, with another 6,000 college students under a separate progam not at issue in this lawsuit.

The State moved to dismiss the lawsuit alleging the plaintiffs did not have legal ‘standing’ to sue. You can read the motion papers and our response at our case page. The short version of the motion was the assertion that because the plaintiffs’ children would be ineligible under the economic hardship test, they would not qualify for the STEP program even if black and Hispanic students were not given preferential treatment. In response, we argued, among other things:

Only one factor prevents Plaintiff N.C. and her co-plaintiffs’ children from being eligible for New York’s Science and Technology Entry Program (STEP): their race. If N.C. and her compatriots were black, or Hispanic, or American Indian, or Alaskan Native, their grades and state residency would automatically qualify them to apply for a summer or academic-year enrichment program at colleges and universities around the state. That is the relief they seek here—to be treated the same as black, Hispanic, or Native American children, with access to the STEP program not subject to a family income test. Instead, under the current statutory and regulatory scheme, N.C. and the others must satisfy an additional family income requirement that only applies to Asian American or white students.

Defendant Rosa would have this Court believe that the only available remedy is to subject black, Hispanic, Native American, and Alaskan Native children to the family income test as well, which would effectively rewrite the STEP statute in a way the legislature never intended and Plaintiffs do not seek. Defendant does not get to pick and choose the relief in order to defeat standing. There is relief sought to which Plaintiffs are legally entitled and which would remedy the discrimination, and that is enough for standing.

The Court recently denied the motion to dismiss in a Decision and Order (full embed at bottom of this post) rejecting the ‘standing’ issue asserted by the State. After reciting how the STEP Act works and the related legal standards, the Court held, among other things, that plaintiffs had satisfied the ‘injury in fact’ requirement for standing:

The plaintiffs in this action are a minor child, represented by her mother,
and three non-profit organizations. Defendant argues that plaintiffs have not
plausibly alleged an adequate injury-in-fact. Def.’s Mem. at 9–11. Defendant
asserts that plaintiffs have alleged only a “generalized grievance” that is not
concrete, particularized, actual, or imminent because plaintiffs’ children
never actually applied to STEP. Id. But as plaintiffs respond, the injury
alleged in their amended complaint is not the denial of the benefits of STEP,
but the denial of equal treatment under the program’s eligibility criteria.
Pls.’ Opp’n, Dkt. No. 40-1 at 7–8.

This kind of injury is referred to a “government erected barrier.” [citations omitted] ….

Upon review, plaintiffs have plausibly alleged an injury-in-fact under the
government erected barrier theory. Plaintiffs have plausibly alleged that
their children are part of the disadvantaged group and that a government
erected barrier exists. As discussed above, STEP is a New York State funded
program that provides two entry ways for eligible students: as either a
historically underrepresented minority or as economically disadvantaged.
Supra. As a state-funded program with racial classifications, the Court is
satisfied that plaintiffs have plausibly alleged the existence of a government
erected barrier and that their children are members of the disadvantaged
group because Asian-Americans are excluded from the list of historically
underrepresented minorities. Instead, to become eligible, Chinese-Americans
must meet family income requirements not imposed students who qualify as
historically underrepresented minorities. Supra. Further, for the reasons
described, plaintiffs have plausibly alleged that their children have been
treated differently than members of the historically underrepresented
minorities included in the STEP eligibility criteria.

The Court then found that plaintiffs also had satisfied the ‘redressibility’ requirement for standing:

Defendant argues that none of the plaintiffs have sustained an injury in
fact that is redressable by a favorable decision from this Court because
plaintiffs’ children would remain ineligible for STEP. Def.’s Mem. at 3.
According to defendant, plaintiffs’ children would remain ineligible due to the
family income requirements that plaintiffs have not challenged. Id. In
defendant’s view, plaintiffs’ requested relief would not permit their children
to enter the program….

However, this is not fatal to plaintiffs’ Article III standing.

This is because plaintiffs’ purported injury is not the denial of the benefits
provided under STEP, but the injury caused by not being able to compete for
access on equal footing with other students based on their race. Supra.
If this Court were to grant plaintiffs the relief they have requested, their
children would cease to experience the stigmatic injury they suffer by being
treated differently based on their race. Thus, plaintiffs’ injury is redressable.
Accordingly, defendant’s motion to dismiss the amended complaint for lack of
standing will be denied.

The case now moves forward, with the State required to file its Answer to the complaint by mid-January, and the conceivable there could be discovery and eventually with summary judgment motions or a trial.

Fox News has covered the dccision:

In a win for Asian parents, a judge has ruled that a federal discrimination suit against the New York State Education Department can move forward after parents claimed that their children were unfairly disadvantaged in participating in a summer academic program.

On Nov. 22, United States District Judge David N. Hurb ruled that the case can move forward — after the Education Commissioner of the State of New York, Betty Rosa, moved to dismiss it, and it was denied.

In a statement to Fox News Digital, Cornell law professor and founder of the Equal Protection Project, William Jacobson, said that his hope is that students who were allegedly discriminated against can be vindicated.

“The State of NY tried to get the case dismissed, asserting that the asian parents did not have legal ‘standing’ to challenge the discrimination. We are very pleased that the court has rejected that challenge and has permitted the case to move forward,” he said. “We look forward to fully vindicating the rights of all students to apply for the STEP program free from discrimination based on race or ethnicity.” ….

“The NY STEP program discriminates against Asian and White students by setting entry barriers that do not apply to Black, Hispanic, and Native American students,” Jacobson said. “Together with the Pacific Legal Foundation, the Equal Protection Project of the Legal Insurrection Foundation has challenged these discriminatory barriers on behalf of the parents of Asian students, seeking the constitutionally guaranteed equal protection of the law.”

We will continue to update you if there are future major developments in the case.

Reminder: We are a small organization going up against powerful and wealthy government and private institutions devoted to DEI discrimination. Donations are greatly needed and appreciated.

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