education this case is about new york city's effort to inject racial considerations into the admissions policy at its renowned specialized high schools one of the many virtues of schools like stuyvesant bronx science and brooklyn tech is their objective admissions policy these schools care about your s h s if you score they don't care about your race or where who your parents are about half the schools students at these schools come from low income families and even more of those are asian american however the mare and the chancellor are unhappy with the racial balance of the specialized high schools and seek to make the schools demographics mirror those of the city of the city as a whole that means an ultimate goal of fewer asian american students even though most of those students like those at christa mcauliffe intermediate school come from low income families and many are the children of immigrants the mayor and the chancellor sought to change the admissions record exam requirement but since that is a shrine in state law they use their power over the city schools to alter the eligibility requirements for the discovery program discovery is designed to give a nd chance for admission for low income students who scored just below the cutoff but in recent years before this current expansion it was quite small and schools with high cut off switches stuyvesant and bronx science did not produce paid at all as a means to accomplish these racial goals the man the chancellor required each specialized school to set aside twenty percent of their seats for incoming class for discovery students well then it wasn't just racial or wasn't it also geographic so one of the concerns was you know people from these locations were going to those schools there was a in adequate representation of the holes the whole city in the schools itself and geographic basis certainly  has expressed concern that that that the city as a whole is not being represented however under oath and heights so long as racial motivation is a motivating factor and here the record is clear that the mayor and the chancellor considered race predominantly or at least or or it was at least one of their major considerations for me as you this i mean this new protein new discovery program doesn't race is not quite serious for the program you can see that any circuit court where the program did not have race as a factor that has strict scrutiny as applied what supreme court case and what circuit case where race was not a factor in the lines were geographic in nature they were done with a purpose not just with the purpose that they were using race they were actually using race to assign students well here and your honor one of the factors in louis was that the that the parish school district itself had used racial modeling to determine the outcome and the and the panel or that the likely outcome of its plan and the panel in that case thought that that was probative of let me ask about the rd circuit cases and there was any intent that a particular race be disposed just really impacted in that case it was simply a case where the the city of philadelphia was redrawing the lines in order decision makers intends to go to adversely affect a particular group is not adversely affect a particular group to increase diversity you're saying that's an impermissible intent you can't have the intent to increase diversity in the schools or some other area is that your position not precisely your honor our position is that in a situation such as this where the effect of the program is to take seats away from certain students out and how do we know that it seems like the data from the st year shows that there has not been what your clients were concerned about this enormous impact on asian students right isn't that locked out of twenty percent of the seats at the specialized high schools for and the city's purpose for that according to the mayor and the chancellor of the press releases and the department of education's presentation was to change the racial balance to the detriment of asian american students so the fact that the data in twenty one thousand dollars might not have accomplished what the city expected it to or spit out the the numbers the city expected doesn't necessarily mean that the students at the ineligible middle schools such as christa mcauliffe which is more than two thirds asian american aren't being excluded from those seats on the basis of racial considerations  heights and you can you address in the jan iraq case quoting the supreme court we said to equate desire to eliminate the discriminatory impact on some disadvantaged groups with an intent to discriminate against all groups could seriously stifle attempts to remedy discrimination so what's your response to that your honor of a broader reading of that that quotation from jan iraq which essentially it viscerally this rate arlington heights it would it would it would permit  jurisdictions to discriminate using facial unusual means against over represented races in order to create a racial balance that they desire even though the disparate impact was not  by city or district policy so that the proper reading i think of the quotations from hayden and and john iraq is essentially that and of course in the remedial cont  that that may be permitted to be enacted however it can't be extended to the point that that you would that concerns me is i'm not sure i see where the line is then if you're saying a race neutral policy that is designed to achieve greater diversity if it's going to have a disparate impact on some group that it's  that we're saying i think the distinction your honor is between whether the policy is designed to assume improve opportunity for certain groups versus to change the outcomes so if the supreme court in ricci explained that that of that the city of new haven in that case could have taken steps to provide greater opportunity for the in the minority test takers to succeed however when they when they scrap the exam and and changed the rules so that the same exam yes yes he would spit out different results that they hoped would be more amenable to them ever graphically let me ask you threshold question  you claim that you have associational standing standing up of course in one of these ambiguous seemingly ambiguous requirements in american long but what is exactly is your standard here we are going to the merits of that we've we have already treated to some degree you claim you have associate so called association  in for example just a few months after the northeastern florida decision in the supreme court this court decided read stabilization association of versus dinkins where it just cussed at length the effect of northeastern florida and simply distinguished it because the plaintiffs in that case were bringing a regulatory taking its claims which were not amenable to group representation so this court has recognized that northeastern florida changed the law and instead and in other  cases the court has done that as well so i think there's a conflict within panels in this court and this panel could go one way or the other however i also believe that the in the institutions i just want to say quickly that the institutions has to to sue of their members now plaintiffs say we just ignore that law because there are other cases but don't specifically speak to that issue that may have come in tension with it or that there may there's an apparent tension but with supreme court precedent none of that supreme court precedent to the extent that there is alternative argument is that even under the by expanding resources that they themselves have standing under and i pronounce in them the other cases that i've said for an organization has to expend resources to in this case oppose a prosecutor and that was that therefore the ongoing expenditures of resources was a speculative right where the specular particularly because the organizations themselves didn't face the risk of prosecution that any in any future expenses that they in  incurred would be on behalf of their members which is not that kind of stand in that the plaintiffs here you know who are there can and to expend resources to keep opposing this indefinitely they say that in their reply brief but they did not say that in their complaint they did not say that in the st round of defamation and they didn't say that in the in the nd round of affirmations so to to be able to assert stand in based on a claim that's not made until their appellate reply brief that would be inconsistent with the usual rules governing the house denny has to be established even if i take the point and i think the knife rights case does control it i think it's on all fours with this instance but even if there were article three stand if there is the ability to proceed with the case at all there is still the nd independent that i disagree i mean if you're on the page at two hundred and forty four of the appendix what we argue is that there is not a reparable harm because none of the plaintiffs are imminently going to be participating with the exception of mr wattles daughter are a reply brief she's aged now but because she's already been placed in into the into a special into into a high school that's one of the famous problems of all of these cases because from the friends point of view you can you can wait there's the past but if that in damages and so to the extent that that's the harm that you can allege past damages for past action you don't have to get into prospective relief and nd if that ultimately speaks to the the standard to proceed with the case at all it doesn't speak to the irreparable let me try contra factual question for you if you were on their side how would you cure this problem what should the other is what should they have done to pursue this case to at least achieve standing to see so had they alleged in their complaint both past expenditures and in the willingness ability inclination to continue is necessary in any circumstance if i understand your position they can simply seek to amend their complaint by making precisely that planters who are young enough to perhaps a good many delays right that i couldn't they do that then i guess a little trickier because if we're talking about you know rd grade students they're not imminently likely to be applying for specialized high schools but i take the point on the other hand by the time you're through with them you know they'll be in graduate school i take the  point and to step back just a little bit none of this helps on this appeal none of us helps plaintiffs on this appeal why is there still unable to show irreparable harm they're still not able to show as organisations that their constitutional rights are going to suffer any any harm  serious question of serious questions in the balance of hardships some of the things that the detroit court relied upon wouldn't apply right now right because part of that had to do with the offers were about to go out and go into printing there wasn't time to redo the changed i think though that ultimate isn't the circumstance haven't changed that much just because of the time it's taken to let me get this case where we're now approaching the time and i appreciate the opportunity to make this point to some i must say less is that in order for the by the end of the month which you know i'm not going to presume to set deadlines for the court but that's the timeline that we're looking at the extension by january it could be done with delays with the on that if one is what is it that could be done in  isn't it to achieve racial demographics in the schools that most more closely mirror the city isn't that the purpose of this new discovery program i don't know if i fully agree with that that the purpose of the program  is to increase racial socio economic engine graphic diversity through the specialized high schools and that consideration then so certainly race is it considering that comes into that but that the mere fact that race is considered is not itself grounds to trigger strict scrutiny i want to point out that the the best case that the plaintiffs offer for this that in their argument was the littlest one decision from the th circuit they omit the fact that all the reason for the plan wouldn't it i don't think so you know there's two points on that st i don't think that's the case here i think that race is certainly one consideration is not the primary consideration nd in order to get districts you have to show strongly disagree with both the chancellor and the merrier suggests that it is their intention argue with their intention to pose yet no they have not been and part of the reason for that is that in order in addition to showing intent plaintiffs have to be able to show effect in order to get to strict scrutiny and on that point their claim completely fails i mean most dramatically the big the largest beneficiary the large of the new discovery program criteria h americans their numbers increased overall and specifically within the discovery program was not primarily race and was just to help disadvantaged students the amica sprit points out there are a lot of different ways this could have been framed to do that they give the example i want you i'm curious what your response to this is you have an asian american child who's in a homeless shelter on welfare if they go to a certain school this program is not available to them does that make sense why would you race is not the primary reason and you're just trying to reach disadvantaged kids and ways this could be done just based upon economics as opposed to the way it's currently frame well that the program as it's currently structured is based on economics and it's based on on two separate economic correct because the dealing in this if we're talking about what economic considerations often in place are looking at rational basis review and the district that department education has the ability to say that not only is individual poverty important but the poverty of the neighborhood the poverty of the school in general matters that a student who is themselves poor and could be direly and in dire straits who is nonetheless attending a more affluent school it is not an unreasonable determination to say that that student is not as disadvantage as someone who is also individually poor and also attends a school where the majority where the large majority of students are also facing similar problems similar poverty that is a consideration of the department of education is able to make and did make and that explains that the criteria here there needs to be any particular animas towards a particular racial group in order to find that race was the was a moody motivating factor on arlington heights feeney clearly states that all that's necessary is that the decision maker decided to do what it did because it would have an effect on a particular racial group and that's all that we have here thank you thank you very much reserve decision and we were