Ass'n for Educ. Fairness v. Montgomery Cnty. Bd. of Educ.

Glenn E. Roper, Pacific Legal Foundation, Highlands Ranch, CO, Christopher M. Kieser, Pro Hac Vice, Erin E. Wilcox, Pro Hac Vice, Joshua P. Thompson, Pro Hac Vice, Pacific Legal Foundation, Sacramento, CA, for Plaintiff.

Steven F. Barley, Hogan Lovells US LLP, Baltimore, MD, JoAnn Tamila Sagar, Pro Hac Vice, Nathaniel Zelinsky, Pro Hac Vice, Ray Li, Pro Hac Vice, Sundeep Iyer, Hogan Lovells US LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

Paula Xinis, United States District Judge

This case concerns the constitutionality of recent changes by Defendants Montgomery County Board of Education ("Board" or "Board of Education") and Superintendent Jack Smith ("Smith") to the admissions process for the County's magnet middle school programs. Plaintiff Association for Education Fairness ("AFEF" or "Plaintiff") brings this action on behalf of its organization's members, including parents with Asian American children attending the County's elementary and middle schools. ECF No. 1 ¶¶ 3, 9, 11. AFEF specifically challenges the selection criteria for the County's middle school magnet programs as purposely designed to decrease the proportion of Asian American students so as to achieve racial and socioeconomic diversity. Id. ¶¶ 88–89. Defendants (also collectively referred to as "the County") now move to dismiss the Complaint on several grounds. The motions have been fully briefed, and a hearing was conducted on September 1, 2021. See Loc. R. 105.6. For the following reasons, the Court DENIES the motions. ECF Nos. 21 & 27.

I. Background

A. History and Structure of Montgomery County Public Schools

By statute, the Montgomery County Public Schools ("MCPS") operates through the Board of Education, which is vested with the authority to maintain "a reasonably uniform system of public schools that is designed to provide quality education and equal educational opportunity for all children." Md. Code Ann., Educ. § 4-108(2) (West 1996); see also id. § 4-101. The Board of Education, in turn, selects the MCPS Superintendent, who acts as the chief administrator of the school system and sets districtwide policy for most aspects of MCPS' operations. See id. §§ 4-102, 4-103, 4-108, 4-109, 4-111, 4-201, 6-201. As the Board's "executive officer," id. § 4-102, the Superintendent advises the Board on the "educational policies of the county school system," id. § 4-108(3). The Superintendent serves for four-year terms subject to the Board's reappointment. Id. §§ 4-201(b), (e).

In 2015, the Board commissioned Metis Associates, Inc. to conduct an in-depth study of whether its choice and special academic programs align with MCPS' core values of academic excellence and equitable access to education. ECF No. 1 ¶¶ 28–29, 35. A year later, Metis published an impressive, well documented compendium chronicling the history of MCPS and the programming at the heart of this case (hereinafter the "Metis Report" and cited as "MR"). Id. ¶¶ 15 n.3, 29–30. The Court thus relies on the Metis Report to set forth the historical facts pertinent to this matter.¹

As the Report details, MCPS represents one of the largest and most racially, culturally,

and socio-economically diverse public school systems in the United States. MR at 5. MCPS operates 208 public schools serving 165,267 students who hail from over 100 different countries and speak collectively over 100 different languages. ECF No. 1 ¶ 12 ; MR at 15. Its students live in rural, urban, and suburban communities across the County's approximately 500 square miles, with pockets of affluence and of poverty. MR at 15.

MCPS has a "long history of offering a variety of choice and other special academic programs designed to provide students with opportunities to receive specialized instruction in schools outside of their local attendance boundaries." Id. at 5. These programs include language immersion curricula, elementary centers for "highly gifted" students, regional consortia offering thematic instructional options, and academically selective magnet programs at the middle and high school level. Id. This dispute involves solely the middle school magnet programs with selective admissions criteria. Currently, there are four: two located in the "Upcounty" region—a science and technology ("STEM") program at Roberto Clemente Middle School ("Clemente") and a humanities program at the Martin Luther King Jr. Middle School ("MLK"); and two in the "Downcounty" region—a STEM program at Takoma Park Middle School ("Takoma Park") and a humanities and communications program at Eastern Middle School ("Eastern"). ECF No. 1 ¶¶ 20–21. Students who reside in the Upcounty region apply to the Clemente and MLK programs, while Downcounty students apply to Takoma Park and Eastern. MR at 96.

MCPS' magnet programs were originally developed "to serve the dual purpose of promoting diverse student enrollment and academic excellence." Id. at 94. The middle school magnet programs have "utilized selective admissions criteria to identify students to participate in the[ir] rigorous instruction programs." Id. at 33. MCPS takes pride in the "unique educational experiences" these programs provide to "highly able students," which "are not offered through honors or Advanced Placement in home schools."² Id. at 94; ECF No. 1 ¶ 23. Not surprisingly, each of the four middle school magnet programs are in great demand.³

The genesis of the middle school magnet programs, and indeed the choice-based programs at MCPS more generally, remain inextricably intertwined with the County's efforts at achieving and maintaining racial integration throughout its school system. MR at 29. In the wake of Brown v. Board of Education , 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), MCPS was never subject to court-ordered desegregation. ECF No. 1 ¶ 15. Rather, it voluntarily desegregated the schools and thereafter made "a strong commitment to integrated education." MR at 29.

In the 1970s, amid growing concerns of "racial isolation," MCPS established magnet programs as part of its "first integration efforts." Id. at 30. At the time, minority students comprised about 11% of the student body. Id. Like the name suggests, "magnet" programs were designed to offer "innovative instruction, stabilize enrollment, and decrease segregation by attracting and retaining White students to schools ... where the Black/African-American population was increasing significantly." Id. at 31; ECF No. 1 ¶ 16. The "magnet schools" thus offered programs of

choice aimed at fostering racial diversity throughout the district. Eisenberg ex rel. Eisenberg v. Montgomery Cnty. Pub. Schs. , 197 F.3d 123, 125 (4th Cir. 1999).

In the 1980s, the percentage of minority students attending MCPS nearly doubled. MR at 30. MCPS, in response, expanded its magnet programs to "support its voluntary desegregation efforts." Id. at 32. MCPS recognized that as its population grew, "racial isolation continued to increase in certain areas of MCPS." Id. To counteract this trend, MCPS created additional elementary magnet school programs and next, middle and high school magnet programs with selective admissions criteria. Id. at 33.

In the 1990s, "MCPS faced new challenges in providing quality integrated education." Id. at 35. Concerned that "overall achievement levels ... masked low achievement among ethnic minority groups," MCPS commissioned a study aimed at "improving minority student outcomes." Id. The results of the study confirmed MCPS' fears. Id. Particularly with regard to the magnet programs, the study concluded that while those programs were "created to serve the purpose of reducing racial isolation in schools," they had not adequately served the "academic development interests of minority students." Id.

From this, and after much consideration, MCPS renewed its focus on mitigating racial segregation within the magnet schools. Id. In 1993, MCPS adopted a formula to calculate the "diversity profile" of every school, looking to each school's racial composition and the "rate of change" in that composition over a four-year period. Id. at 36. MCPS also incorporated into its "diversity profile" economic need as captured by a student's eligibility for free and reduced-priced meals ("FARMS") and other metrics. Id. To further promote integration, MCPS also altered its inter-school transfer policy to consider these "diversity profiles" when either granting or denying a transfer request. Id. ; see also Eisenberg , 197 F.3d at 126–27. Where granting a transfer would have a negative "impact on diversity" at either the home or transfer school, the request was denied. Eisenberg , 197 F.3d at 127.

And yet, despite MCPS' efforts to maintain racial integration in its schools, MCPS was criticized on all fronts. Some educators accused MCPS of creating "within-school segregation" in its magnet programs because they "ha[d] not systematically broken up pockets of segregation and concentrated poverty." MR at 37 n.33 (quoting Susan Eaton & Elizabeth Crutcher, Slipping Towards Segregation: Local Control and Eroding Desegregation in Montgomery County (1994)). Meanwhile, other parents and organizations filed suit, challenging the district's race-conscious transfer policy. Id. at 37.

One such challenge came to a head in Eisenberg . There, the parents of a white student sued MCPS for denying their child's transfer request on the basis of his race. 197 F.3d at 127–28. In reversing the district court, the Fourth Circuit concluded that even though MCPS' transfer policy was aimed at attracting students of "all ... backgrounds to be part of a different learning environment," the policy denied the white student equal protection under the law. Id. at 131–33. The Court more particularly...