Access to Elite Public Schools: Opportunity, Disparate Impact, and Equal Protection

by Angela M. Kelly & Keith Sheppard - July 01, 2019

The persistence of ethnic disparities in New York City’s science specialized high schools is a contentious political issue. This article presents evidence of inequitable participation and achievement in pre-college physics in New York City, along with legal precedents in educational opportunity cases, to propose actions for remediating racial imbalances in science-themed academic settings.

Recently, there has been considerable discussion of equity considerations regarding the demographic disparities in New York City’s science specialized public high schools. Admissions to these highly selective institutions depends on a single admissions test (Specialized High School Admissions Test [SHSAT]), with disproportionately large numbers of Asian and White students gaining admittance, compared to relatively few Black and Hispanic students. Many politicians and grassroots organizations have become increasingly vocal about limited access to these elite schools for students traditionally underrepresented in the sciences, technology, engineering, and mathematics (STEM), with admitted students comprised of only 10% Blacks and Hispanics, despite their representation as 67% of the district population. Previous legislation maintained the existence of the specialized high schools and the restriction of admissions to those who scored highest on a single achievement examination.1 This law was passed to preserve the status quo in response to community groups expressing dissatisfaction regarding disparate access with regard to race and class.

To remedy the current situation, Mayor Bill De Blasio has facilitated proposed legislation in New York State to redesign the admissions process, whereby students would be selected based upon state standardized test scores and middle school class rank. He also proposed an expansion of Discovery Programs, which offer coursework designed to boost preparation for the rigors of the specialized schools. Participation in this program would be a means to offer “20% of specialized high school seats to economically disadvantaged students who just missed the test cut-off.”2 Opposition to this plan has been fierce, with several groups expressing concerns about diminishing academic standards and eliminating color-blind admissions practices.

The causes of these inequities are complex, yet two major issues are notable. First, middle school academic preparation varies considerably across the district, particularly as it relates to science. The New York City Coalition for Educational Justice reported disparities in accelerated middle school science offerings, with 10% of students taking advanced Regents science exams in high performing schools, while less than 1% have the opportunity in low performing schools. The Coalition also highlighted impacts of inequitable resource allocation, with middle school students attending schools without science laboratories scoring an average of 10.2 percentage points lower on the state standardized science exam than those in schools with laboratories.3 Secondly, many students admitted to selective science schools attended test-prep or received individual tutoring. Although the NYC Department of Education has expanded Discovery Programs (preserved by the Hecht-Calandra Act of 1971), availability of free tutoring, and afterschool prep programs,4 these efforts have not made a noticeable difference in admissions demographics.


The opportunity to attend science specialized high schools is further complicated by limited access to science coursework in typical urban schools. The curricular resources of these neighborhood schools often stand in stark contrast to their elite counterparts. For example, Bronx schools enroll the highest percentage of students traditionally underrepresented in the sciences in New York City, with Black and Hispanic students comprising 89% of the school population. Bronx High School of Science, a science specialized high that has graduated eight Nobel Laureates (seven in physics, one in chemistry), enrolls nearly 3,000 students, 9% of whom are Black or Hispanic (Table 1). This overwhelming disparity is symptomatic of constrained opportunity to learn, particularly in terms of access to high quality science education.

Table 1. Demographics in NYC and Bronx Schools, 2017-18 5,6







Free/Reduced Lunch

NYC Overall







Bronx Overall







Bronx HS Science







When examining science course taking, physics is an illustrative barometer of educational equity. The American Institute of Physics (AIP) reported that 39% of high school graduates have taken at least one year of physics in the U.S., and fewer than 30% of Black and Hispanic students have done so,7,8 despite the importance of physics as a pre-college gateway course for success in science and engineering majors.9

In the Bronx, 30% of high schools offer Regents physics, the standard college-preparatory physics course in New York State, compared to 45% in NYC overall and 92% in the U.S. (Figure 1).10,11,12 Approximately 47% of all students taking Regents physics in the Bronx attended Bronx Science in 2017-18; this translates to 1612 physics takers in the Bronx altogether, with 756 attending Bronx Science and 856 combined attending all of the other 144 high schools in the borough.5,6 Virtually all students attending Bronx Science enrolled in Regents physics, while only 12% of total high school students in the Bronx took the course at all.6 Of the 58 teachers who instructed physics classes in the Bronx borough in 2011-12, 22 (39%) were not certified in physics; of the 36 physics-certified teachers, 11 (31%) taught at Bronx Science.13,14


Figure 1. Physics accessibility and coursetaking10,11,12

Physics achievement also reflects the disparity in access to physics courses and teachers. Students enrolled in Bronx neighborhood schools have half the nearly perfect Regents Physics Exam passing rate of students at Bronx Science (Figure 2). The overall exam scores for the Bronx are skewed by the inclusion of Bronx Science student performance, with just 12% of students in neighborhood schools earning a mastery score (³85%), and 50% passing the exam (³65%). Bronx Science enrolled 63% of students in borough schools who passed the exam and 85% of students who earned mastery.6


Figure 2. Regents Physics Exam performance in the Bronx, 2017-186

The differences in physics access and achievement in Bronx schools have implications for the future social and economic mobility of students in the borough, given the importance of high school physics participation in post-secondary STEM admissions and retention. This can be construed as severe limitation in educational opportunity that disproportionately impacts traditionally underrepresented students, who happen to constitute the majority of the school district population.


Quality science education has been characterized as a civil right,15 thus it is instructive to examine several important court cases to contextualize the political and legal issues related to racial imbalance in academic settings, equity in educational opportunity, and high stakes testing admissions to elite public schools. In the landmark educational equity case, Brown v. Board of Education of Topeka (1954), the Supreme Court rejected the legitimacy of “separate but equal” segregated schools in the U.S. The Equal Protection Clause of the Fourteenth Amendment was applied as the rationale for this decision, and the court argued “separate educational facilities are inherently unequal” and deprive children of certain races access to educational opportunities.16


Modern day efforts to achieve racial balance in educational settings have also cited the Equal Protection Clause as justification for considering race in admissions decisions. Traditional college admissions processes have often resulted in racial imbalances that have not met the compelling government interest in an ethnically diverse student population.

Attempts to remediate this problem have met with varying court decisions regarding their constitutionality. The practice of awarding quantitative points to members of underrepresented groups applying for undergraduate admission was ruled as unconstitutional by the Supreme Court (Gratz v. Bollinger, 2003), due to the fact that the process did not meet “strict scrutiny” by narrowly tailoring the practice to individual cases while also evaluating non-racial factors.17 However, the consideration of race within a holistic review of an application was ruled as permissible (Grutter v. Bollinger, 2003).18 In a separate case, reserving admissions for the top 10% of state high school graduates to the University of Texas, combined with holistic applicant review, was also determined to be a valid and narrowly tailored mechanism to achieve diversity (Fisher v. University of Texas et al., 2016).19

Although these rulings affected higher education access, it has been argued that policy makers have a compelling imperative to apply the Equal Protection Clause to implement reforms that address racial and socioeconomic inequities for minors who attend publicly funded schools.20 Legal precedents for holistic application review provide a pathway for equal protection of all students.


Although the previously described cases involved constitutional rights and were decided at the federal level, most opportunity-to-learn considerations have been litigated in state courts due to the nature of school funding in the U.S. The notion of equal opportunity has been established as a fundamental right that should not be stratified dependent upon socioeconomic conditions. In Rose v. Council for Better Education (1989), this was articulated by the court and established precedent for many subsequent cases:

The children of the poor and the children of the rich, the children who live in the poor districts and the children who live in the rich districts must be given the same opportunity and access to an adequate education.21

In the Campaign for Fiscal Equity, Inc. v. State of New York (1999), the plaintiffs successfully argued for an additional $14.8B in state funding for NYC schools to rectify disparate access to a “sound basic education,” newly defined as “the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.” The court agreed with CFE that many children in New York City schools did not have equitable access to qualified teachers, school facilities, and instrumentalities of learning when compared to other districts in the state.22

At the local level, New York City schools, which enroll 1.1 million children, experience persistent disparities in access to high quality education, particularly in science. Mayor De Blasio argued that approximately half of the students admitted to the specialized high schools in 2017 came from just 21 (3.5%) of the 600 middle schools in the city.2 This suggests inconsistent educational quality. In terms of physics access and learning in the Bronx, nearly half of all physics takers attend one school, while just 30% of the other 144 schools even offer the subject.12 The presence of science specialized schools does not justify lack of access to basic science courses in neighborhood schools. Clearly, meaningful science educational opportunity is not available for all middle and high school students.  


The current debate regarding New York City’s science specialized schools presents additional complexities in terms of screening candidates. Academic merit is the sole criterion for access to these schools that provide superior academic opportunity, and the disproportionate representation of certain groups in these schools has arisen from differential performance on the high stakes SHSAT. Although some have argued this test is an objective measure of qualification, the disparate impact on students of color is chronically persistent.

Legal cases related to the use of high stakes testing in employment opportunities and advancement address related issues. Title VII of the Civil Rights Act of 1964 explicitly prohibits the discriminatory adjustment of test scores based upon race, although race should not be a barrier to equal opportunity.23 The differentiation between disparate treatment, which is considered intentional, and disparate impact (unintentional), is an important consideration in the specialized schools issue. There is no evidence unequal racial representation in these schools was intentional. However, according to the Equal Employment Opportunity Commission’s four-fifths rule (2008), “a selection rate for any race, sex, or ethnic group which is less than four-fifths of the rate for the group with the highest rate will generally be regarded by the federal enforcement agencies as evidence of adverse impact.”24 When faced with disparate impact, performance procedures that employ equally valid and less discriminatory assessments may be considered (Ricci v. DeStefano, 2009).25 The SHSAT cannot be invalidated because it has not resulted in a reasonable representation of various ethnicities; however, this does not prevent the state from introducing legislation that mandates alternative means of assessment that evaluate various aspects of an individual’s skills, knowledge, and potential to achieve the government’s compelling interest in ethnically diverse schooling.


Access to elite public science specialized schools has not been equitable for all ethnic and socioeconomic groups in New York City. The severity of the problem is evidenced by a close look at the Bronx, where the physics opportunities and achievement of Bronx High School of Science students present a stark contrast to those in the 144 neighborhood schools. Previous court decisions provided a road map for designing solutions that are constitutionally sound while securing meaningful educational opportunity for all. Several courses of action are proposed to remedy the current disparate inclusion of groups traditionally underrepresented in the selective science high schools.

Improved middle school science instruction and resource allocation. Students vying for seats in the science specialized high schools come from a variety of educational backgrounds, frequently dependent upon the quality of the middle schools they attend. The availability of Regents science courses and Algebra I in the city’s middle schools is inconsistent,3 which contributes to the disproportionate number of specialized high school students coming from 3.5% of New York City middle schools. The improvement of middle school science instruction and wider availability of advanced STEM course opportunities must be prioritized. This will prepare a more diverse pool of students to qualify for the rigors of the science specialized schools. Annual progress on these metrics should be communicated to parents so they may increase awareness of the coursework necessary to best prepare their children for science specialized admissions.   

Increased science opportunities in neighborhood high schools. Too often, the presence of elite science high schools makes substandard science opportunities in neighborhood schools politically acceptable. The New York City Department of Education has proposed expanding access to computer science and Advanced Placement courses through their Equity and Excellence for All plan.26 These are positive steps but more action must be taken to provide basic college-prep courses in the sciences, particularly physics and chemistry, which are regarded a gatekeeping courses for post-secondary STEM achievement. Opportunity to learn in the physical sciences requires coursework access, qualified teachers, laboratories, and instructional resources. These are critical assets and their metrics should be carefully monitored and communicated to key stakeholders.

Teachers/counselor identification of high potential students. Although New York City school leadership has worked to expand access to summer programs and test preparation for economically disadvantaged children, these efforts need to be more targeted, intensive, and coordinated. Middle school teachers and school counselors should be trained to identify a diverse group of high potential students for inclusion in preparatory programs. In New York State, Black and Hispanic students are more than twice as likely than other students to attend middle schools without any school counselors;27 therefore, professional development for teachers should be targeted towards under-resourced schools with high numbers of socioeconomically disadvantaged and traditionally underrepresented students.

Multiple means of admissions assessment. Many other U.S. cities and counties with science specialized high schools have employed multiple means of assessment for admissions. For example, the renowned Thomas Jefferson High School of Science and Technology in Fairfax County, Virginia, requires Algebra I completion in 8th grade, middle school grades, an admissions test, two teacher recommendations, and multiple essays.28 Selective high schools in Chicago Public Schools are evaluated by 7th grade final grades, state standardized test scores in reading and mathematics, and admissions tests; the first 30% of available seats are filled by students with the highest composite scores, while the other seats are divided equally among four socioeconomic tiers and filled by the highest scoring students in each level.29 During the magnet school application process in Los Angeles Unified School District, students who attend overcrowded schools and/or predominantly non-Anglo schools are awarded extra points to their composite scores.30 Although there is no established pathway towards enrollment parity, holistic review that considers many academic and socioeconomic factors is a more desirable and equitable means of assessing candidates. This will require compromise and legislative effort to ensure the validity and reliability of the evaluation process.  

Access to excellent science education should be universal for all public school students. By addressing systemic inequities in admissions to elite schools, basic science course availability, and fairness in resource allocation, school leaders and policy makers can provide sound and just mechanisms for equal opportunity in science learning and achievement.



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Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).


Gratz v. Bollinger, 539 U.S. 244 (2003).


Grutter v. Bollinger, 539 U.S. 306 (2003).


Fisher v. University of Texas at Austin et al., 579 U.S. ___ (2016).


Rebell, M. (2012). The right to comprehensive educational opportunity. Harvard Civil Rights – Civil Liberties Law Review, 47(1), 47–117.


Rose v. Council for Better Education, 790 S.W.2d 186, 60 Ed. Law Rep. 1289 (1989).


Campaign for Fiscal Equity, Inc. v. State of New York, 265 A.D.2d 277, 697 N.Y.S.2d 40 (App. Div. 1999).


Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat. 241 (1964).


Equal Employment Opportunity Commission. 29 CFR •1607.4(D) (2008).


Ricci v. DeStefano, 557 U.S. 557 (2009).


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Cite This Article as: Teachers College Record, Date Published: July 01, 2019 ID Number: 22951, Date Accessed: 12/6/2021 9:50:22 AM

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