PICS, Grutter, and elite public secondary education: using race as a means in selective admissions.

• Author: Katnani, Samar A.

"If [Seattle] students were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application." (1)

"I don't think someone would want to hire somebody just on the basis of a test score, and we don't admit them to a great college on the basis of a test score, and we shouldn't admit them to a great high school on that basis." (2)

1. INTRODUCTION

   Every year, Newsweek publishes a list of the top one hundred public high schools in the country that excludes many prestigious public schools. (3) Instead, Newsweek places these schools on a separate list--"The Public Elites." (4) The reason for this distinction: "Because their students are too good. The best of the best." (5) These schools, along with other prestigious public high schools across the country, provide their students with an education unparalleled to that which the vast majority of American teenagers receive. (6) Elite public high schools, however, are not typically open to all students in the district, but rather these schools selectively admit students based on stringent admission requirements. To decide which students merit these remarkable educational opportunities, many school districts utilize admission policies that rely heavily on standardized test scores. The students admitted to these elite public high schools are considered the most intelligent, talented students that will attend the best colleges and universities and become the country's future leaders. However, the representation of black and Latino students at each of these elite public high schools is disproportionately low. (7)

   Standardized test scores have been traditionally considered an objective measure of "merit." If this is true, however, then what can explain why the use of test scores in admissions by elite public high schools has resulted in the admission of so few black and Latino students? Said otherwise, why do black and Latino students score lower on standardized testing than white students? Some academics proffer that black and Latino students do not genetically have the same intelligence or ability to meet the rigorous admissions test score criteria, (8) an unpopular proposition. Other scholars have focused on social structure factors to explain the gap between white and black and Latino standardized test scores: "parent and teacher expectations, differences in attitude and attributional styles, family structure, motivation, culture and history, values, and genetics." (9) Additionally, social psychology has shown that even when socioeconomic status and other social structure factors are held equal, black and Latino students still score lower than similarly situated white students on standardized tests because of a psychological phenomenon called stereotype threat. (10) Research has demonstrated that negative group stereotypes about the inferior intelligence of blacks and Latinos triggers severe anxiety for black and Latino students during the administration of standardized tests, resulting in lower individual test scores. (11) Furthermore, "model minority" or "positive" stereotypes relating to the superior intelligence of Asians as a group has the opposite affect: Asian students outperform white students on standardized tests. (12) Therefore, social structure and psychological factors contribute to the continuing low numbers of black and Latino students at elite public high schools where admission is heavily based on standardized testing.

   The next question then is, what can elite public high schools do to increase the number of black and Latino students if standardized testing leads to racially imbalanced student bodies? In 2003, the Supreme Court, in Grutter v. Bollinger, (13) held a diverse student body to be a compelling governmental interest in the context of higher education "that could justify the use of race in university admissions." (14) After Grutter, lower courts (15) and school districts considered this holding applicable in the context of primary and secondary education. (16) The Supreme Court in Parents Involved in Community Schools v. Seattle School District No. 1 (PICS) (17) indeed confirmed this interpretation of Grutter and held diversity to be a compelling interest in primary and secondary education. (18) While PICS is often cited as a decision that limits the use of race as a means to increase black and Latino enrollment in public high schools, (19) admission policies administered by colleges and universities are still constitutionally viable, and as Justice Kennedy noted, Grutter would have "some application" to primary and secondary education if "students were considered for a whole range of their talents and school needs with race as just one consideration." (20)

   Therefore, Grutter can serve as a constitutional framework for admission policies that elite public high schools should adopt to increase the number of black and Latino students attending their schools. Thus far, school districts with admissions policies based on standardized test scores have considered race alone as a decisive factor in final decision making. (21) There are two problems with this approach: first, under the popular view that standardized tests fairly assess merit, any deviation from test scores that involves a consideration of race creates a sense of injustice in many parents, often white and with the most political clout and the resources to challenge admission policies; (22) second, Supreme Court precedent has long held that using race as the sole means in making decisions constitutes unconstitutional "racial balancing" or quota systems. (23) For this reason, many attempts by school districts to utilize race as a means in admissions have been limited, deterred, or dismantled by state statutes and lower court decisions. (24)

   This Note argues that PICS does not prevent elite public high schools from utilizing race as a means to increase diversity; indeed, schools with selective admissions may remain the only primary and secondary entities that can potentially utilize race as a means for integration. By examining the selective admissions processes of three elite public high schools, this Note proposes first, that Grutter applies to these high schools and second, that these public schools have the capacity to consider race through a narrowly tailored selection process that would pass constitutional review. Part II introduces three public high schools that have received nationwide acclaim: Stuyvesant High School (Stuyvesant) in New York, Boston Latin School (Boston Latin) in Massachusetts, and Thomas Jefferson High School for Science and Technology (Thomas Jefferson) in Virginia. (25) This part describes each high school's "elite" (1) academic and extracurricular offerings, (2) college support and counseling, and (3) physical facilities and resources. Next, Part III discusses each school's admission policies and reviews failed attempts to modify such policies to increase the black and Latino representation at each of these schools.

   Part IV.A examines the Grutter decision in the context of higher education and identifies the components of the University Michigan Law School's admission policy that the Supreme Court upheld as constitutional. Part IV.B then examines how the principles of Grutter can apply in the context of primary and secondary education per Justice Kennedy's opinion in PICS. Finally, Part V analyzes the faults in the school plans held unconstitutional by the PICS Court and outlines what school districts must take into consideration when crafting admission policies for elite public high schools. Selective admissions schools have the capacity to create admission policies that utilize race as a means to create a diverse student body without violating the Constitution. School districts where these elite public high schools sit must first recognize the negative impact on black and Latino students produced by the heavy dependence on standardized test scores in admissions and then avail themselves of all constitutionally permissible avenues to provide black and Latino students with these incredible educational opportunities.

2. ELITE EDUCATION, RESOURCES, AND OPPORTUNITIES

   This part provides a thorough description of Stuyvesant, Boston Latin, and Thomas Jefferson, including information on each school's: (1) academic and extracurricular offerings, (2) college support and counseling, and (3) physical facilities and resources, in order to highlight the disparity between the resources and opportunities at elite public high schools and other high schools in the country and the need to change standardized-test-heavy admission policies to afford black and Latino students an equal opportunity to attend these elite public high schools.

   1. Stuyvesant High School: New York City's Premiere High School

      Stuyvesant (26) was founded in 1904 (27) and is now one of eight specialized high schools in New York City, which base admissions on standardized test scores. As the most well-known elite public high school, (28) Stuyvesant prides itself on the success of its students--one out of four seniors receives acceptance to an Ivy League college or university (29)--and its star-studded list of notable alumni. (30)

      Stuyvesant has ten different academic departments, each with its own chairperson, (31) and a Program Office run by seven staff members to help students select classes (32) from an online course guide that describes in detail each course offered by the school. (33) Students have the opportunity to learn eleven different languages (34) and take classes ranging from "Existentialism" (35) to "Geopolitics."36 In addition to hundreds of classes, including thirty-seven Advanced Placement (AP) courses in 2009, (37) Stuyvesant students have the opportunity to do independent research and take courses at local universities and colleges. (38) Furthermore, extracurricular activities supplement the academics...