Brown’s Lost Promise: New York City Specialized High Schools as a Case Study in the Illusory Support for ClassBased Affirmative Action

Abstract

Race-conscious affirmative action faces its stiffest constitutional threat to date. Justice Powell’s “diversity” rationale, articulated in a solo concurrence in Regents of California v. Bakke, has provided the constitutional peg by which race-conscious affirmative action programs have withstood strict scrutiny for over 40 years. But, to opponents of race-based affirmative action,3 policies that
ameliorate historic discrimination are nothing more than a “naked racial-spoils
system.” These opponents maintain their support, however, for class-based
affirmative action—those programs that provide “help for the poor and
disadvantaged.” As Chief Justice Roberts once wrote, “[t]he way to stop
discrimination on the basis of race is to stop discriminating on the basis of race.”6

Given the Court’s increasingly conservative composition during the Trump
administration, it appears that the Court may soon come to disfavor the diversity
rationale. The Court may soon review a First Circuit decision relying on the
diversity rationale to uphold the constitutionality of Harvard’s affirmative action
program, and it seems likely that the Court’s newest members will side against
the university—and race-conscious affirmative action—in that case.

Using the case study of Christa McAuliffe Intermediate School PTO, Inc.
v. de Blasio, a lawsuit challenging New York City’s class-based policies to
diversify its elite Specialized High Schools, this Essay explains that purported
support for class-based affirmative action serves as a rhetorical smokescreen for
eliminating Brown v. Board of Education’s promise of a racially integrated
society. This Essay contends that it is not the ameliorative programs’ race- or
class-based means that elicits conservative disapproval, but rather the
communities that ultimately stand to benefit from the programs.

Keywords: affirmative action, race, specialized high schools, new york city