Our Demand Letter To NY Gov. Kathy Hochul: “Eliminate Race as an Eligibility Criterion” in State-Funded STEM Program

Our Demand Letter To NY Gov. Kathy Hochul: “Eliminate Race as an Eligibility Criterion” in State-Funded STEM Program

The New York Science and Technology Entry Program (STEP) is a state-funded grant program to 56 NY Colleges and Universities to provide Science Technology and Mathematics (STEM) programming for high school and middle school students.

The Equal Protection Project, together with Pacific Legal Foundation, filed suit in federal court challenging racially discriminatory eligibility provisions that are written right into the regulations. Students who are Black, Hispanic, or Native American automatically are eligible, while other students (e.g. White and Asian) must show family economic hardship. These differing standards based on race are unconstitutional.

EPP’s case page for the STEP lawsuit has the pleadings and media coverage. We already have survived a motion to dismiss, with the court ruling:

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.” Roberts v. Bassett, 2022 WL 785167, at *3 (E.D.N.Y. Mar. 15, 2022). “[A] policy or program is only a ‘barrier’ if it denies plaintiffs equal treatment in some manner.” Id. The Second Circuit has articulated three criteria for establishing an injury-in-fact under this so-called, “barrier” theory. Id. “(1) there exists a reasonable likelihood that the plaintiff is in the disadvantaged group, (2) there exists a government-erected barrier, and (3) the barrier causes members of one group to be treated differently from members of the other group.” Id. at *4.

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.

STEP has a sister program – CSTEP. It is substantively identical to STEP, except that the programming is for college students, not high school and middle school students.

Because CSTEP suffers from the same constitutional violations as STEP, EPP and PLF this morning sent a demand letter to NY Governor Kathy Hochul demanding she remove all racial eligibility factors:

We write on behalf of Pacific Legal Foundation and the Equal Protection Project, public-interest legal organizations dedicated to ensuring that government programs comply with the Constitution’s guarantee of equal protection under the law. We are counsel for the plaintiffs in Chu v. Rosa, a pending federal action challenging the constitutionality of New York’s Science and Technology Entry Program (STEP).^[1]

 The purpose of this letter is to address the closely related Collegiate Science and Technology Entry Program (CSTEP).^[2] As currently structured, CSTEP raises the same constitutional concerns at issue in Chu. Specifically, CSTEP conditions eligibility on race, limiting participation to students deemed “minorities historically underrepresented,” defined as “Black, Hispanic, American Indian or Alaskan native.”^[3]  In our view, that use of racial classifications cannot be reconciled with controlling Supreme Court precedent.

The Supreme Court has made clear that state programs that allocate benefits or opportunities based on race are presumptively unconstitutional and permissible only in exceedingly narrow circumstances. In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court reaffirmed that racial classifications are lawful only when necessary to remedy specific, identified instances of past discrimination by the government itself or to address imminent threats to human safety.^[4] CSTEP does not rest on either justification.

We are aware that the New York Department of Education has issued guidance stating that STEP and CSTEP applicants may be considered without regard to historically underrepresented minority status, race, or ethnicity. While some institutions have elected to follow that guidance,^[5] others have not.^[6]  In any event, discretionary guidance does not resolve the underlying constitutional issue. A program that authorizes race-based eligibility criteria remains constitutionally vulnerable so long as those criteria are permitted to operate.

Pacific Legal Foundation and the Equal Protection Project have extensive experience evaluating and litigating constitutional challenges to race-based government programs nationwide. Before determining whether further action is warranted here, we are providing the State with an opportunity to address these concerns directly.

Accordingly, we respectfully request that you inform us by March 25, 2026, whether New York intends to eliminate race as an eligibility criterion in the CSTEP Program. We will evaluate our options after receiving your response.

We appreciate your attention to this matter and look forward to hearing from you.

Fox News covered the story in an article that has been on the homepage most of the day:

New York governor warned to fix race-based college program or be taken to court

New York could face legal action over a state-funded college enrichment program after two groups warned Gov. Kathy Hochul that the program’s eligibility rules allow for discrimination against White and Asian students.

In a demand letter sent Wednesday and obtained by Fox News Digital, the Pacific Legal Foundation (PLF) and the Equal Protection Project (EPP) urged Hochul and Education Department Commissioner Betty A. Rosa to change the state-funded Collegiate Science and Technology Entry Program (CSTEP), arguing it violates the Equal Protection Clause by authorizing eligibility based on race and ethnicity.

CSTEP, a grant-funded program sponsored by the New York State Department of Education, is an academic and professional development program intended to help minority students and economically disadvantaged students pursue careers in math, science, technology and health-related fields. Under state law, the program offers financial aid, tutoring, counseling and remedial and special summer courses to eligible students.

State regulations limit eligibility to those who are either economically disadvantaged or those who are “historically underrepresented” minorities, defined as Black, Hispanic, American Indian or Alaskan Native students. The two groups argue this allows for discrimination against White and Asian students, who have to prove they are economically disadvantaged to qualify.

After PLF and EPP filed a federal lawsuit in 2024 challenging the state’s sister program for high school students — STEP — New York officials issued interim guidance to program administrators in 2025 saying they may base eligibility decisions for new students in both programs solely on economic disadvantage and “without regard” to race or ethnicity.

But PLF and EPP argue some campuses still apply or advertise the “historically underrepresented” requirement. They point to the University at Albany’s CSTEP page, which states applicants may qualify as “economically disadvantaged and/or historically underrepresented” and lists underrepresented minority groups. The website also says it is “not currently accepting new applications.”

The letter asks the governor to say by March 25 whether New York will eliminate race as an eligibility criterion for CSTEP, or potentially face further legal action.

“The Supreme Court has made clear that state programs that allocate benefits or opportunities based on race are presumptively unconstitutional,” the groups wrote, citing the 2023 Students for Fair Admissions decision.

In a statement to Fox News Digital, Cornell law professor and founder of the Equal Protection Project, William Jacobson, said, “It is shameful that the State of New York requires, funds, and defends racially discriminatory programming just because the victims are Asian and White students. This would never be tolerated if the victims were Black or Hispanic.”

Erin Wilcox, a senior attorney at Pacific Legal Foundation, said, “CSTEP should be open to all qualified students, regardless of race.”

“Racial discrimination has no place in a publicly-funded program like CSTEP, and NYSED should stop funding CSTEP programs that treat applicants differently based on race or ethnicity,” she continued in a statement to Fox News Digital. “It’s time for Commissioner Rosa and her department to show they’re serious about equal opportunity for all New York students.”

PLF and EPP are already challenging STEP in a similar case in federal court in Chu v. Rosa. The case was filed in January 2024, and allowed to proceed in November 2024, after U.S. District Judge David N. Hurd denied the state’s motion to dismiss.

Jacobson thanked the Asian parents and organizations “who were brave enough to be plaintiffs” in the STEP court case, saying the college program “also deserves legal challenge” and invited Asian and White students who’ve been discriminated against through this program to share their story.

Gov. Hochul’s office and New York Education Department Commissioner Betty A. Rosa did not immediately return Fox News Digital’s request for comment.

The University at Albany told Fox News Digital, “As noted on the program website, the program is not currently accepting applications. When the program application window opens, the website will also be updated to reflect that UAlbany’s CSTEP program relies on race-neutral and ethnicity-neutral eligibility criteria.”

The STEP lawsuit was enabled by parents of affected high school and middle school students coming forward and willing to be plaintiffs. We would welcome any parents or students concerned about C-STEP to reach out to us.

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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