REFLECTIONS ON SELECTIVITY.

• Author: Glater, Jonathan D.

Introduction 1122 I. Perpetuation of Inequity in Public Schools 1124 II. A Doctrinal Knife's Edge 1128 A. Doing Too Much 1128 B. Not Doing Enough 1131 C. Doctrinal Implications 1134 III. The Tantalizing Possibility of Prioritizing Fairness 1136 Conclusion 1137 INTRODUCTION

Admission to selective and prestigious institutions has likely always been contested, and admission to elite, public exam schools--high schools that screen applicants on the basis of test scores, middle school grades, or other criteria--is no exception. But the effects of the chosen criteria on the demographic character of the admitted student population (1) prompt difficult and ever more urgent questions about the justifications for those criteria. At the same time, the reasoning of court decisions that limit how public schools may select students has become both more formally complex and more hostile to lived realities. Those deciding how selective public high schools choose students now walk a knife's edge, facing the threat of litigation both if they attempt to modify their practices and if they do not.

Today's contests over student selection processes take place at a moment of heightened awareness of disparities in access to what is perceived as higher quality education (2) variously along lines of race, class, and gender. (3) Further, the historical backdrop of these contests consists of centuries of explicit exclusion of nonwhite students by force of law, undermined relatively recently by the Supreme Court's 1954 decision in Brown v. Board of Education (4) and subsequent federal legislation. (5) Consistent with the desegregation mandate of Brown and its progeny, school boards face pressure to modify their selection practices to include more students who are members of historically excluded and underrepresented groups, typically Black and Latinx students.

At the same time, consistent with the belief and Supreme Court mandate that educational opportunity be provided in a "colorblind" fashion, (6) school boards must be very cautious in pursuing racial equity by taking race into account. Moreover, school boards must contend with parents whose children belong to groups that historically have enjoyed more ready access to desirable, selective schools and who oppose change that might reduce their children's odds of attending. This Essay will analyze the arguments made in two lawsuits, one accusing a school board of doing too little to promote racial equity and one accusing a school board of doing too much and engaging in unconstitutional discrimination.

The tension created by the mandate to desegregate, on the one hand, and the prohibition against discrimination, on the other, arises in part because the Court has adopted this formally colorblind stance, which rejects the use of race as a student selection criterion. But it also arises because there is no baseline that can serve as a point of reference. That is, maintaining selection criteria and practices that consistently, disproportionately, and adversely affect students who are members of historically excluded groups runs counter to the desegregation mandate, and is perceived by members of these groups as the continuation of unlawful discrimination. Modifying selection criteria and practices to change the demographic profile of an admitted student body runs counter to the formalist prohibition on consideration of race, and is perceived by members of different, even historically privileged, groups as discrimination. A majority of the Court has consistently rejected racial balancing, which is pursuing a particular racial mixture for its own sake. (7) And in the absence of a recognized benchmark against which admissions outcomes can be compared, a process and result that all could agree would be fair, there will be no resolution of the tension.

This brief Essay explores the conundrum confronting public schools and school districts that must allocate the scarce resource that is selective high schooling. It pursues four goals. First, it aims to demonstrate the absence of a normative baseline that could guide school boards and courts. Second, it shows how the traditional, historical criteria used by selective high schools to screen students may perpetuate and even worsen disparities along lines of race and class. Third, it teases apart the doctrinal knot created by the competing mandates to desegregate while not discriminating, as the Court has defined the terms. And fourth, it argues that pursuit of equity should dominate other values in the choice of criteria for admission to selective public schools.

The discussion that follows has three substantive Parts. The first Part describes the doctrinal context in which both lawsuits attacking student selection practices for excluding members of historically marginalized groups and lawsuits attacking student selection processes for attempting to remedy such exclusion coexist. The second Part describes two such lawsuits, one challenging a school board's move to scrap selection criteria that disproportionately excluded Black and Latinx students from an elite public high school in Virginia, and the other challenging the continued use of selection criteria that have similar effects in New York City. This Part briefly explores the complicated implications of victory for either group of plaintiffs. The third Part poses the questions: What would the result of a fair allocation regime be? Consequently, what process might produce that result? Does the law afford a pathway to adoption of such a process? The fourth Part concludes.

1. PERPETUATION OF INEQUITY IN PUBLIC SCHOOLS

   The processes that determine who attends desirable, selective public high schools have been the subjects of litigation before, and commitments in the public imagination to those processes run deep. Making changes is consequently a challenging and controversial task. For example, in addition to the lawsuits highlighted above, in the 1990s there was litigation around admissions to Boston's flagship public exam school, the Boston Latin School, (8) and last year there was litigation over possible changes to San Francisco's public flagship, Lowell. (9) As long as perceived disparities in education quality persist and the quantity of opportunities perceived as high-quality remains limited, there will be controversy over selection criteria. And given a general reluctance to increase radically the public investment in traditional public education, neither circumstance looks likely to change; efforts to promote access to children who are members of groups long excluded must navigate this controversy. This Part situates contests over selective public high school admissions in New York in historical and doctrinal contexts.

   Perhaps most immediately, New York City's public schools have been operating through a global pandemic that has had devasting effects, sickening millions and killing, as of this writing, more than one million people in the United States. (10) The COVID-19 pandemic has destabilized and destroyed jobs, prompting deep changes in how people go about their daily lives--including how children go to school. All of the changes have cast in stark relief the profound disparities in educational opportunities and life experiences for children of different racial and ethnic backgrounds, different socioeconomic conditions, and different disability statuses." Schools ceased serving students in-person, putting at a distinct disadvantage those children with less or no access to the internet, and those children less able to engage academically through a screen. (12) The more severe effects of the pandemic and responses to it have increased food (13) and housing insecurity, (14) hindered teacher-student relationships, (15) and slowed the progress of English language learners. (16) In short, the pandemic exacerbated every challenge already confronting disadvantaged students and their families. The need to pursue reform to promote educational access and equity has become more urgent.

   At the same time, awareness of race discrimination in the past, its lingering effects, and its current manifestations has expanded dramatically in the wake of horrific police killings of unarmed Black men and the global protests that followed. (17) In the context of education, this awareness has made vulnerable to reform longstanding practices that have restricted access and opportunity for Black students especially, but for students of other minority backgrounds too. For example, colleges and universities have abandoned the SAT and ACT standardized admissions tests, on which students of color and students who are poor tend to receive lower scores. (18) Readiness to reconsider the rationales for using admissions criteria that have exclusionary effects may be higher than it has ever been, as disparities along lines of race and class appear more arbitrary and unfair to more observers. There is a flickering possibility of change in student assignment practices, which the New York complaint advocates, and which the Virginia complaint challenges. (19)

   While broadening awareness of racial inequity and the global pandemic are new circumstances affecting public education, racial segregation in New York's public schools is nothing new. Indeed, a book of this law journal last year explored some of the issues related to segregation and inequality in the City's schools. (20) Studies have found that New York has the most segregated schools in the entire country. (21) At the same time, neighborhood gentrification has helped to enable some degree of integration in the City, a goal actively pursued by individual school principals. (22) There are potentially viable strategies to promote integration using correlates of race, as well as socioeconomic status, without running afoul of current antidiscrimination laws and doctrine. (23) However, these strategies must function in a doctrinal environment that is increasingly...