617 F.Supp.3d 358
ASSOCIATION FOR EDUCATION FAIRNESS, Plaintiff,
v.
MONTGOMERY COUNTY BOARD OF EDUCATION, et al., Defendants.
Civil Action No. 8:20-cv-02540-PX
United States District Court, D. Maryland.
Signed July 29, 2022
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 the admissions criteria for four highly selective and academically rigorous middle school magnet programs offered by Montgomery County Public Schools ("MCPS"). These admissions criteria have prompted robust debate within MCPS about best practices for inclusion and equity in educational access, and in recent years, MCPS has modified the admissions criteria several times.
In September 2020, Plaintiff Association for Education Fairness ("AFEF"), an organization of "concerned Asian-American parents in Montgomery County," sued the Montgomery County Board of Education (the "Board") and MCPS’ then-Superintendent, Dr. Jack R. Smith ("Dr. Smith") (collectively the "County"), alleging that recent changes to the admissions process aimed in part at increasing Black and Hispanic student enrollment violated the equal protection rights of excluded Asian American students. See generally ECF No. 1. The County moved to dismiss the Complaint, which this Court denied. See ECF Nos. 21 & 27; Ass'n for Educ. Fairness v. Montgomery Co. Bd. of Educ. , 560 F. Supp. 3d 929 (D. Md. 2021) (" AFEF I ").
But the criteria challenged earlier in AFEF I , known as the "Field Test," are no longer in effect. Even before this litigation began in earnest, MCPS faced profound educational challenges stemming from the COVID-19 pandemic. See ECF No. 51 ¶¶ 4, 83, 86. MCPS’ response to COVID-19 necessitated substantial changes to the magnet admissions process once again. Id. ¶¶ 83 & 86. MCPS confirmed it will employ this new process, known as the "Pandemic Plan," into the foreseeable future. See ECF Nos. 41 & 41-1. AFEF responded in kind, filing an Amended Complaint (ECF No. 51) in which it now challenges only the Pandemic Plan as intentionally discriminatory against Asian American students.
The County moves to dismiss the Amended Complaint (ECF No. 87), which AFEF opposes (ECF No. 95). The issues are fully briefed, and the Court finds no hearing necessary to resolve the pending motion. See D. Md. Loc. R. 105.6. For the following reasons, the Court GRANTS the motion to dismiss (ECF No. 87). The Court also DENIES as MOOT the motion to intervene (ECF No. 69) filed by Amici Curiae.
I. Background
For the last several decades, MCPS has provided middle school magnet programs in the humanities, math, and science for highly capable students. AFEF I , 560 F. Supp. 3d at 934–36. The Court has previously discussed the history of those magnet programs and need not repeat itself here. See id. Nonetheless, the current admissions process—the Pandemic Plan—must be placed in proper context, necessitating a brief review.
A. Magnet Middle School Admission Process Before This Lawsuit
The magnet admission process has historically been driven by parents’ choice. See ECF No. 51 ¶ 48. That is, although all students could apply for admission, MCPS considered only those students whose parents did apply. See AFEF I , 560 F. Supp. 3d at 939 ("[T]he admission process began with the parents of fifth-grade students submitting an application for consideration."). Those student applicants next had to take the Cognitive Abilities Test ("CogAT"), an in-person written assessment designed to measure students’ quantitative, verbal, and nonverbal skills. Id. ; see also ECF No. 51 ¶ 48. MCPS reviewed the applicants’ CogAT scores alongside their
state assessment scores, report card grades, and teacher recommendations, and it offered the top performing students admission to one of the magnet programs. ECF No. 51 ¶ 48.
Selected students were then placed in one of the two "Upcounty" programs housed at Robert Clemente and Martin Luther King Jr. middle schools, or in one of the "Downcounty" programs at Takoma Park and Eastern middle schools. ECF No. 51 ¶¶ 21 & 22. The magnet programs offer a challenging academic environment which cannot be attained through honors or advanced placement courses in the students’ local schools. See id. ¶ 23. As a result, the demand for seats in these programs is high.
Over the years, MCPS grew increasingly concerned that the magnet programs and other academic programming did not align with the racial demographics of the larger MCPS student body. See AFEF I, 560 F. Supp. 3d at 935–36. For example, in the 2013–2014 school year, Black and Hispanic students represented nearly half of the MCPS student body, yet they accounted for less than 15% of the magnet school seats. ECF No. 51 ¶ 26. Conversely, Asian American students represented just 14.8% of the MCPS student body yet occupied nearly half of the seats. Id.
This divergence prompted MCPS to renew its commitment to "educating each and every student so that academic success is not predictable by race, ethnicity, or socioeconomic status." ECF No. 51 ¶ 28 (emphasis omitted). In 2013, the Board adopted a strategic planning framework for addressing equity of access to MCPS’ "choice" and "special" academic programs. AFEF I , 560 F. Supp. 3d at 936. Next, in 2015, the Board commissioned Metis Associates, Inc. to conduct a comprehensive study of MCPS’ choice and special academic programs and discern whether those programs aligned with the school district's "core value of equity." MR at 16; see also ECF No. 51 ¶ 29. That comprehensive study (the "Metis Report" or "Report") was released in March 2016.1 MR at 1.
The Metis Report documented "significant racial and socioeconomic disparities" in the programs’ enrollment and acceptance rates. MR at 9 & 176. It specifically identified Hispanic, Black, limited English proficient, special education, and "FARMS"2 students as "underrepresented" when compared to districtwide enrollment data. Id. at 9–10. The Report synthesized its observations and suggested remedial action in the following recommendation:
Recommendation 3a: Implement modifications to the selection process used for academically competitive programs in MCPS, comprising elementary centers for highly gifted students and secondary magnet programs, to focus these programs on selecting equitably from among those applicants that demonstrate a capacity to thrive in the program, that include use of non-cognitive criteria, group-specific norms that benchmark student performance against school peers with comparable backgrounds, and/or a process that offers
automatic admissions to the programs for students in the top 5-10% of sending elementary or middle schools in the district.
MR at 10.
This recommendation sparked much controversy. ECF No. 51 ¶¶ 36–45. Board members publicly lamented the low percentage of Black and Hispanic students enrolled in the magnet programs. See, e.g., id. ¶¶ 37, 40, 42. Some Board members questioned whether a "blind and neutral" process would be sufficient to produce the "equitable" results desired by MCPS, while parents of Asian American students expressed their opposition to the Report's findings, characterizing Recommendation 3a as an attempt to "lower" the existing rigorous standards required to gain admittance to the magnet programs. See id. ¶ 44; AFEF I , 560 F. Supp. 3d at 937–38.
B. 2018–2019 School Year (Implementing the Field Test for Downcounty Programs)
On September 12, 2017, Dr. Smith announced that as part of MCPS’ commitment to expand opportunity pursuant to the Metis Report, MCPS would implement several changes to the magnet admissions process. See ECF No. 51 ¶ 47. For the first year of implementation, changes were applied to the Downcounty programs only. Id. Under the newly-developed Field Test, MCPS replaced parent-initiated applications with universal screening of all MCPS fifth graders. Id. ¶ 49. MCPS now reviewed all fifth-grade students’ report card grades and standardized test scores, and it invited roughly half of the student body to take the CogAT examination. See id. ¶¶ 48–49. The Field Test also eliminated teacher recommendations which had the potential to be "infected with racial bias." Id. ¶ 50.
MCPS next compared a student's objective performance to the student's "peer group" at their local school. ECF No. 51 ¶ 51. Although it is not clear exactly how MCPS implemented peer grouping, AFEF alleges that Asian American students are "highly clustered in a relatively small number of MCPS’ 135 elementary schools," and were thus more likely to be adversely affected by peer grouping. Id. ¶ 52.
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