You may recall the lawsuit commenced by our Equal Protection Project, together with Pacific Legal Foundation, challenging the New York Science Technology Entry Program (STEP) Act, which provides state funding to 56 colleges and universities to provide STEM programming to middle- and high school students.
The program is huge, enrolling almost 11,000 middle and high school students yearly, with another 6,000 college students under a separate progam (C-STEP). It’s a great program, with one big problem – It discriminates on the basis of race and ethnicity. Students who are black, hispanic, or Native American are automatically eligible, while other students (i.e. white and asian) must show family economic hardship. The details of the initial Complaint (which has since been Amended) are set for in our first post about the lawsuit. Asian Parents Sue NY State Over Discriminatory Student Programs, With Help From Equal Protection Project/
The lawsuit survived a motion to dismiss the Amended Complaint, as detailed in Asian Parents Lawsuit Challenging Discriminatory NY STEP Program Can Go Forward, Court Rules.
The lawsuit has continued, with the State demanding information about the plaintiff parents and children. That’s all a side show, since the STEP Program eligibility requirements are clearly unlawful. The discovery period should wind down by the fall, at which point both sides will seek summary judgment – that is, a ruling that based upon the undisputed material facts, that side is entitled to judgment as a matter of law.
The State seems to recognise it is likely to lose, particularly since the court affirmed our legal theory in denying the motion to dismiss.
So the State preemtively issued new Guidance on July 8, 2025, that purports to eliminate the mandatory descrimination in the program but leave schools the option to discriminate. The new Guidance provides, in part:
As many of you are aware, the New York State Education Department (NYSED) is currently engaged in active litigation concerning the eligibility criteria for participation in the Science and Technology Entry Program (STEP). The litigation challenges certain aspects of our longstanding eligibility guidelines related to student race and ethnicity.While NYSED remains committed to defending the STEP and CSTEP programs and their historic mission to increase access and opportunity for historically underrepresented students in the scientific, technical, and health-related professions, we recognize the need to provide clarity and support to the field during this period of legal uncertainty.Updated Guidance on STEP and CSTEP Student EligibilityEffective immediately and until further notice, STEP and CSTEP grantees may determine student eligibility without regard to historically underrepresented minority status, race, or ethnicity. Instead, grantees are encouraged to base eligibility decisions solely on indicators of economic disadvantage, in alignment with applicable state and federal guidelines.Implications for Current STEP/CSTEP Programs• Recruitment, selection, and enrollment of new students may proceed using economic-based eligibility criteria only.• Collection or use of race, ethnicity, or minority status data is not required for eligibility purposes. However, data reporting should continue in a disaggregated format, in accordance with Board of Regents policy.• Current program participants remain eligible, and services to these students should continue without disruption.
The Guidance also promises to continue to fight the lawsuit:
NYSED will continue to vigorously defend the mission and intent of STEP and CSTEP in court. We are also evaluating our policies and procedures in light of recent legal developments to ensure continued compliance and sustainability.We will keep you informed of any changes to program guidance as the litigation progresses. If you have questions or concerns, please reach out to your NYSED program officers.
I expect the State will try to use the new Guidance in its defense in the lawsuit. But it’s clearly pretextual and most important, it does not eliminate the discrimination, it simply says that schools “may” choose not to discriminate.
Not good enough, as explained by me and a lawyer from Pacific Legal in a NY Post article covering the new Guidance (emphasis added):
A federal lawsuit filed in January [2024] accused New York of engaging in blatant discrimination against Asian and white students under the program.“Progress!” crowed Yiatin Chu — a co-founder of the Asian Wave alliance who said her daughter was one of the students discriminated against because of the race-based policy — to The Post.A top state education official, noting the still-pending litigation over the program, has already urged directors and administrators of STEP and CSTEP to stop using race or “historically underrepresented minority status” to determine admissions and instead use only family income as admission criteria.,,,The lawyers for the opposing Asian parents said state officials capitulated because they know the race-based policy is illegal. But the parents’ reps complained that state officials still left wiggle room to continue discriminating against students by using words such as “may” and “encouraged.”“The state of New York has raised the white flag of surrender in our lawsuit, but not high enough,” said William Jacobson, founder of EqualProtect.org.“Word games are not acceptable,” Jacobson said. “The state must do away with the racially discriminatory eligibility requirements completely and permanently, or we will ask the court to order it.”A federal lawsuit filed in January accused New York of engaging in blatant discrimination against Asian and white students under the program.Erin Wilcox, a senior lawyer at Pacific Legal Foundation, said, “The state should be requiring all schools to stop this illegal discrimination immediately, not giving them the option to continue.”
We are determined to see the case through to the end, and not to allow the State to play word games that permit the colleges and universities receiving STEP (and C-STEP) grants to discriminate as to which students are permitted into the program.
It’s crazy that the State is defending this.
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