Association for Education Fairness v. Montgomery County Board of Education et al

Filing 99

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 7/29/2022. (ybs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ASSOCIATION FOR EDUCATION
FAIRNESS
Plaintiff,

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v.
MONTGOMERY COUNTY BOARD OF
EDUCATION, et al.,
Defendants.

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Civil Action No. 8:20-cv-02540-PX

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MEMORANDUM OPINION

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But the criteria challenged earlier in AFEF I, known as the “Field Test,” are no longer in
effect.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

2

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

3

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

The Metis Report is expressly incorporated by reference into the Amended Complaint (ECF No. 51), and
the County does not question its accuracy or authenticity. The Court accepts the Metis Report as part of the
Amended Complaint facts and construes it most favorably to AFEF. See Goines v. Valley Cmty. Servs. Bd., 822
F.3d 159, 166 (4th Cir. 2016). The Report is cited as “MR” throughout this decision.
1

The “FARMS” designation refers to students who are eligible to receive free or reduced-price meals. See
AFEF I, 560 F. Supp. 3d at 935.
2

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“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.
The results of the Field Test further fueled controversy about changing the magnet school
admissions process. While the percentage of Asian American students offered admission in the
Downcounty programs declined, the Field Test had only a marginal effect on the rate of
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admission for Black and Hispanic students. See ECF No. 51 ¶¶ 53–55, 57–59. In several
meetings held to discuss the Field Test results, Board members expressed frustration and concern
that the enrollment appeared largely unchanged for Black and Hispanic students. Id. ¶¶ 58–60.
One Board member questioned the “slight” increase in Black student admissions, while another
Board member asked whether “some form of affirmative action, either socio-economic or
racial[]” could be implemented. Id. ¶¶ 58 & 59. Yet another commented that “MCPS was
systematically under-educating Black and Brown children,” underscoring that “[r]hetorical
support for progress not matched with effective policies and structures to dismantle the barriers
and rapidly improve the material impact of said barriers is an old tool in the cynical American
political playbook.” AFEF I, 560 F. Supp. 3d at 940–41 (alteration in original) (quoting ECF
No. 1 ¶ 60 n.36). Parents of Asian American students expressed disappointment for a different
reason: at least a dozen Asian American students who scored in the 99th percentile on state
assessments and the CogAT were denied admission to a magnet program despite their impressive
academic credentials. ECF No. 51 ¶¶ 57 & 65.
C. 2019–2020 and 2020–2021 School Years (Expansion of Field Test to
Upcounty Programs)
In the face of heated debate, MCPS expanded the Field Test the following year to include
the Upcounty magnet programs. See ECF No. 51 ¶ 66. It also decided to “locally norm”
applicants’ CogAT scores. Id. ¶¶ 66 & 67. Specifically, MCPS classified each elementary
school as either low-poverty, moderate-poverty, or high-poverty, and next compared students’
CogAT scores to other students within the same “poverty band.” Id. ¶ 67. Because of the
demographic concentration of Asian American students in low-poverty schools, AFEF alleges
that this change was aimed at reducing Asian American representation while increasing

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representation of Black and Hispanic students, who are more concentrated in mid- to highpoverty schools. Id.
Asian American student acceptance as compared to pre-Field Test numbers declined over
these school years, and at a few schools substantially so. See AFEF I, 560 F. Supp. 3d at 952–
53. That said, Asian American student participation in magnet programs under the Field Test
always outpaced the percentage representation of Asian Americans in MCPS countywide. See
infra Part III.A.
D. 2021–2022 School Year (The Pandemic Plan)3
In March of 2020, COVID-19 upended all aspects of life, especially primary and
secondary education. See, e.g., Donna St. George et al., Maryland Cancels Classes for 900,000
Students Amid Coronavirus Fears, Wash. Post (Mar. 13, 2020, 12:20 AM),
https://www.washingtonpost.com/local/education/loudoun-county-public-schools-cancel-allclasses-through-march-20-due-to-coronavirus-concerns/2020/03/12/6e3eaf38-6457-11ea-845de35b0234b136_story.html; Megan U. Boyanton, Coronavirus May Be Shutting Classrooms Yet
Lunch Period Goes On, Bloomberg Law (Mar. 9, 2020, 4:53 PM), https://bit.ly/3P8P7t6. MCPS
accordingly had to convert many of its educational programs to virtual learning in response to
the public health crisis facing the schools. See ECF No. 51 ¶¶ 83 & 84. MCPS’ Division of
Consortia Choice and Application Program Services (the “Consortia”), a six-person working
group that administers the magnet programs and other choice academic offerings, quickly began

3
Although MCPS began formulating the Pandemic Plan in the summer of 2020, it did not implement the
Plan until the 2021–2022 school year. This is because MCPS administered the CogAT each fall, and so by the time
the pandemic hit in March 2020, the admissions process for the 2020–2021 school year using the Field Test was
already underway. See ECF No. 27-3 ¶ 12 (“By the spring and early summer of 2020, however, MCPS realized that
the COVID-19 pandemic might pose multiple challenges to administering the CogAT that coming fall.”).

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discussing necessary changes to the middle school magnet admissions process. ECF No. 27-3
¶¶ 12 & 20. 4
Beginning in July of 2020, the Consortia first tackled the logistical difficulties that
remote learning presented for administering the CogAT, which could not be given to students
remotely without compromising test security or equity of access. See ECF No. 51 ¶¶ 84 & 86;
ECF No. 27-3 ¶¶ 13–18. The Consortia initially considered delaying administration of the test,
but uncertainty as to when the pandemic would permit safe, in-person testing rendered this
option unworkable. ECF No. 27-3 ¶¶ 12–19, 23. The Consortia ultimately decided to abandon
the CogAT altogether. See ECF No. 51 ¶ 86; ECF No. 27-3 ¶ 33.
Next, the Consortia considered implementing a lottery selection system akin to that
which MCPS was already using for other choice programs. ECF No. 27-3 ¶ 25. The Consortia
reasoned that a lottery system has the added advantage of reducing selection bias and
subjectivity, minimizing importance of statistically insignificant differences in standardized test
scores, increasing program availability, and reducing bureaucratic burdens on the school district.
Id. ¶ 26. The lottery system also was logistically the simplest option given persistent remote
work and instructional challenges arising from the pandemic. Id. ¶¶ 29 & 30.
Accordingly, the Consortia, in consultation with MCPS senior leadership, designed and
implemented the Pandemic Plan for magnet middle school admissions in the 2021–2022 school
year. ECF No. 51 ¶ 84 (citing ECF No. 27-3 ¶ 31). The Plan operates as follows. First, MCPS
universally screens all fifth-grade students for placement in an eligibility pool. ECF No. 27-3

4
The Amended Complaint expressly incorporates by reference the sworn declaration of Jeannie Franklin,
MCPS’ Director of Consortia Choice and Application Program Services, who describes the Consortia’s deliberative
process. See, e.g., ECF No. 51 ¶ 84. The County produced the declaration (ECF No. 27-3) and therefore obviously
does not contest its authenticity or accuracy. The Court thus accepts the declaration as part of the Amended
Complaint facts and construes it most favorably to AFEF. See Goines, 822 F.3d at 166.

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¶ 33. Any student who received an “A” in the relevant subjects, performed above reading grade
level in fourth grade, and received a locally normed 5 minimum of 85th percentile on the MAPReading assessment or MAP-Math assessment is placed in the pool. ECF No. 51 ¶¶ 86 & 87;
MCPS, Regional Middle School Magnet (Criteria-based) Admission Process: Overview &
Frequently Asked Questions, https://docs.google.com/document/d/1l0Zy-bCfG7O8EF64VOnit_54fjOIU_lTR1JyU8SSMg/edit (last visited July 24, 2022) (the “March 2021 FAQ”). 6
MCPS next employs a lottery to choose from the pool the students to be admitted to the program,
in order of lottery number until each magnet class reaches capacity. March 2021 FAQ at 1. The
remaining students in the pool receive special enrichment programming at their local schools.
Id.
E. The Pandemic Plan Replaces the Field Test Indefinitely
On September 30, 2021, MCPS announced it would implement the Pandemic Plan for the
foreseeable future. See ECF Nos. 41 & 41-1. Also as of this time, MCPS leadership had
changed almost completely. Dr. Smith, the superintendent responsible for overseeing the Metis
Report and Field Test, retired and Dr. Monifa McKnight took his place. See ECF No. 51 ¶ 15;
see also Caitlynn Peetz, McKnight Named Next MCPS Superintendent, Bethesda Mag. (Feb. 8,
2022), https://bethesdamagazine.com/bethesda-beat/schools/mcknight-named-next-mcpssuperintendent/. Likewise, the composition of the Board had changed substantially, as only three
of the eight members who had participated in the Field Test controversy remained in office. See

As for locally norming the MAP scores, MCPS explains that it applies the same concept of norming used
by the Maryland State Department of Education, but it does not explain precisely how local norming is
implemented. ECF No. 51 ¶ 87 (“MCPS’ explanation of the 2021 admissions process did not explain how MAP
percentiles were locally normed.”).
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The March 2021 FAQ was prepared by MCPS and shared publicly. The Amended Complaint
incorporates by reference the March 2021 FAQ (ECF No. 51 at 33 n.50), and so it is accepted as part of the
Amended Complaint and construed most favorably to AFEF. See Goines, 822 F.3d at 166.
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MCPS, Board of Education: Meet the Members, Citizens Elected to the Montgomery County
Board of Education,
https://www.montgomeryschoolsmd.org/uploadedFiles/boe/members/ElectedBoardMembers.pdf
(last visited July 13, 2022); see also ECF No. 87-1 at 15 (“[W]ith one exception, all members of
the Board of Education identified in the Amended Complaint no longer serve on the Board.”)
(emphasis added).
F. The Renewed Motion to Dismiss
After MCPS announced that it would implement the Pandemic Plan indefinitely, the
Court granted AFEF leave to amend the Complaint. ECF No. 48. AFEF, in turn, abandoned its
challenge of the Field Test and now alleges solely that the Pandemic Plan intentionally
discriminates against Asian American students, in violation of the Equal Protection Clause of the
Fourteenth Amendment. See generally ECF Nos. 51 & 95.
MCPS, in response, renewed its challenges to the sufficiency of AFEF’s claim on nearly
identical grounds as before. See ECF No. 87. MCPS is joined by a coalition of five nonprofit
organizations—the Montgomery County Branch of the NAACP, Montgomery County
Progressive Asian American Network, Asian American Youth Leadership Empowerment and
Development, and CASA Inc.—which seek to intervene as defendants in the action. ECF Nos.
55, 69, 88, 97. The Court held that request in abeyance, but it allowed the coalition to be heard
as Amici Curiae (“Amici”) on the motion to dismiss. ECF No. 84. For the reasons discussed
below, the Court agrees with MCPS and Amici that AFEF’s equal protection challenge to the
Pandemic Plan fails as a matter of law.

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II.

Standard of Review
A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006). The Court accepts “the well-pled allegations of the complaint as true,” and construes all
facts and reasonable inferences most favorably to the plaintiff. Ibarra v. United States, 120 F.3d
472, 474 (4th Cir. 1997). To survive a motion to dismiss, a complaint’s factual allegations “must
be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009). When ruling on a motion to dismiss, the Court may consider materials attached to the
complaint, or incorporated by reference, without transforming the motion into one for summary
judgment. See Fed. R. Civ. P. 10(c); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007). The Court may also take judicial notice of facts which are “capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
Kayle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011).
III.

Analysis
The Equal Protection Clause of the Fourteenth Amendment prohibits states from denying

“to any person within its jurisdiction the equal protection of the laws.’” Fisher v. King, 232 F.3d
391, 399 (4th Cir. 2000) (quoting U.S. Const. amend. XIV, § 1). The clause prohibits a
government entity from “purposefully discriminating between individuals on the basis of race.”
Shaw v. Reno, 509 U.S. 630, 642 (1993) (citing Washington v. Davis, 426 U.S. 229, 239 (1976)).
Intentional discrimination occurs when: “(1) a law or policy explicitly classifies citizens on the
basis of race; (2) a facially neutral law or policy is applied differently on the basis of race; or (3)

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a facially neutral law or policy that is applied evenhandedly is motivated by discriminatory intent
and has a racially discriminatory impact.” Doe ex rel. Doe, 665 F.3d 524, 543 (3d Cir. 2011)
(citations omitted); see also N.C. State Conf. of NAACP v. McCory, 831 F.3d 204, 220 (4th Cir.
2016); Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810, 819 (4th Cir. 1995).
If the challenged law or policy falls under one of these categories, the next inquiry
centers on whether the law or policy satisfies “strict scrutiny.” See Hunt v. Cromartie, 526 U.S.
541, 546 (1999). Strict scrutiny requires the government to demonstrate that the law or policy is
“‘narrowly tailored’ to achieve a ‘compelling’ government interest.” Parents Involved in Cmty.
Schs. v. Seattle Sch. Dist. No. 1., 551 U.S. 701,720 (2007) (quoting Adarand Contractors, Inc. v.
Pena, 515 U.S. 200, 227 (1995)). However, if the challenged conduct was not motivated by a
discriminatory purpose or intent, then the Court applies rational basis review. See Pers. Adm’r of
Mass. v. Feeney, 442 U.S. 256, 271–72 (1979); see also Doe ex rel. Doe, 665 F.3d at 544. In
that circumstance, the government need only establish the conduct or policy is rationally related
to a legitimate government purpose.
As before, the parties agree that the Pandemic Plan is a facially neutral admissions
process that MCPS has applied evenhandedly. See ECF No. 95 at 7 (arguing only “that the
challenged admissions criteria were ‘implemented with a discriminatory purpose’”) (emphasis
added). Further, AFEF does not meaningfully contest that the Pandemic Plan is rationally
related to MCPS’ legitimate purposes. See id. at 16 n.7 (arguing only that the Pandemic Plan
plausibly fails to survive strict scrutiny). Accordingly, AFEF’s claim survives dismissal only if
the Amended Complaint facts make plausible that the Pandemic Plan both visited a disparate
impact on Asian American students and was motivated by discriminatory intent such that strict

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scrutiny applies. See Vill. of Arlington Heights v. Metro. Hous. Develop. Corp., 429 U.S. 252,
264–65 (1977) (citing Washington, 426 U.S. at 229).
A. Disparate Impact
Although the parties are silent on the question of disparate impact, Amici persuasively
argue that this Court should revisit the issue with the “benefit of adversarial briefing.” See ECF
No. 88 at 10; see also ECF Nos. 21-1; 22; 24; 34. Amici are correct that in AFEF I, the Court
simply accepted AFEF’s disparate impact analysis, in large part because MCPS had not
advanced any real opposition to it. See AFEF I, 560 F. Supp. 3d at 952. In particular, the Court
concluded that because the Complaint plausibly averred a decline in Asian American student
acceptance after the Field Test’s implementation, AFEF had made plausible that the admissions
changes had visited a disparate impact on this cohort. Id. (“Since the Field Test was
implemented, the acceptance rate for Asian American students has dropped at each of the
programs.”).
Amici now urge that the proper analysis does not rest on a “simple before and after
comparison.” ECF No. 88 at 12–13 (citing Bos. Parent Coal. for Acad. Excellence Corp. v. Sch.
Comm. of City of Bos., 996 F.3d 37, 46 (1st Cir. 2021)). Amici echo the concerns voiced by
Judge Heytens’ concurring opinion in Coalition for TJ v. Fairfax County Public Schools, No. 221280, 2022 WL 986994 (4th Cir. 2022) (unpublished), and so their arguments merit careful
discussion.
As here, plaintiffs in Coalition for TJ raised an equal protection challenge to new
admissions criteria imposed at Thomas Jefferson High School in Fairfax, Virginia. 2022 WL
986994, at *1; see also Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 21-296, 2022 WL 579809, at
*1 (E.D. Va. Feb. 25, 2022). In granting plaintiff’s motion to enjoin the school from

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implementing the challenged criteria, the district court employed the same before-and-after
comparison as this Court had in AFEF I. Compare AFEF I, 560 F. Supp. 3d at 952 with Coal.
for TJ, 2022 WL 579809, at *6 (“The proper method for determining the ‘impact of the official
action,’ is a simple before-and-after comparison.”) (internal citation omitted).
On appeal, the Fourth Circuit reversed, concluding that plaintiff was not likely to succeed
on the merits of its equal protection claim, in part because plaintiff could not show the
challenged admissions plan visited a disparate impact on Asian American students. Coal. for TJ,
2022 WL 986994, at *1. Judge Heytens persuasively explained that the district court’s beforeand-after comparison essentially “creates a floor against which all future policies will be judged,
a principle that would, if adopted, make it exceedingly difficult for government actors to change
existing policies that have a real (albeit unintentional) disparate impact.” Id. at *3 (Heytens, J.,
concurring). Instead, Judge Heytens reasoned, “the more obviously relevant comparator for
determining whether this race neutral admissions policy has an outsized impact on a particular
racial group is the percentage of applicants versus the percentage of offers,” because that “metric
targets more directly the core question for assessing disparate impact: whether members of one
group have, proportionally, more difficulty securing admission than others.” Id.
AFEF offers no meaningful response to this point. It first urges the Court essentially to
stick with its previous analysis even if erroneous. ECF No. 95 at 14 n.6 (“Amici dispute the
existence of an adverse impact on Asian Americans . . . . But this Court has already rejected
Amici’s suggestion that the proper comparator is a group’s overall representation in the MCPS
student body.”). AFEF relatedly maintains that to depart from the before-and-after comparison
would permit a school to “engage in racial balancing without having to justify its action under
strict scrutiny.” Id. But this argument puts the cart before the horse. Strict scrutiny is triggered

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only if AFEF avers sufficient facts to make plausible that the change in the admission process
adversely affected Asian American students such that the inference of intentional racial
balancing is permitted.
In short, AFEF gives this Court no reason to doubt the soundness of Judge Heytens’
analysis. What is more, the demographic data incorporated into the Amended Complaint makes
his point. Under the Field Test or Pandemic Plan, Asian American students consistently have
occupied a proportionally greater share of students admitted into the magnet program as
compared to their representation in the applicant pool. 7
Asian American Student Representation in Middle School Magnet Programs

Clemente
MLK
Takoma
Park
Eastern

% Asian
American
Applicants

% Asian
American
Admittees

% Asian
American
Applicants

% Asian
American
Admittees

% Asian
American
Applicants

% Asian
American
Admittees

Field Test

Field Test

Expanded
Field Test

Expanded
Field Test

Pandemic
Plan

Pandemic
Plan

2019–2020
24.4%
24.3%
19.2%

2019–2020
57.1%
38.8%
28.0%

2020–2021
21.9%
21.9%
16.1%

2020–2021
44.4%
24.3%
35.4%

2021–2022
16.5%
16.5%
13.2%

2021–2022
29.3%
32.0%
20.8%

19.1%

22.4%

16.1%

23.9%

13.2%

22.3%

ECF No. 1-4 at 9–12; ECF No. 33-1 at 20–23.
Accepting these facts as true and most favorably to AFEF, the Court cannot see how the
Pandemic Plan visited a disproportionate burden on Asian American students when the
percentage of admitted Asian American students so substantially outpaces the percentage
representation among all applicants. Because the Amended Complaint does not aver plausibly

Because both the Field Test and Pandemic Plan screen all fifth-grade students for eligibility, the
demographics of the applicant pool and the fifth-grade student population are the same. See ECF No. 51 ¶ 49
(explaining that MCPS now uses “universal screening” of all fifth-grade students).
7

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that the Pandemic Plan disparately impacts Asian American students, the claim fails on this basis
alone.
B. Discriminatory Intent
Alternatively, even if the Court concluded otherwise, no facts give rise to the inference
that the Pandemic Plan was implemented with discriminatory intent. As before, the Court must
conduct a “sensitive inquiry” into the “circumstantial and direct evidence of intent.” N. Carolina
State Conf. of NAACP v. McCrory, 831 F.3d 204, 220 (4th Cir. 2016) (quoting Arlington
Heights, 429 U.S. at 266). In this regard, AFEF need not aver “that the challenged action rested
solely on racially discriminatory purposes . . . or even that a particular purpose was the
‘dominant’ or ‘primary’ one.” Arlington Heights, 429 U.S. at 265. However, the complaint facts
still must give rise to the inference that the Pandemic Plan was enacted “‘because of,’ and not ‘in
spite of,’ its discriminatory effect. McCrory, 831 F.3d at 220 (citing Feeney, 442 U.S. at 279).
Five non-exhaustive factors, first articulated in Village of Arlington Heights v.
Metropolitan Housing Development Corporation, guide this analysis: (1) the historical
background of the Pandemic Plan, (2) the specific sequence of events leading to the Plan, (3) the
Plan’s “legislative history,” (4) whether MCPS departed or varied from its normal procedures in
enacting the Plan, and (5) whether the Plan “bears more heavily on one race than another.” 429
U.S. at 265–69; see also N. Carolina State Conf. of NAACP v. Raymond, 981 F.3d 295, 303 (4th
Cir. 2020); Bos. Parent, 996 F.3d at 45 (citing Anderson ex rel. Dowd v. City of Bos., 375 F.3d
71, 83 (1st Cir. 2004)).
Turning to the events culminating in the Pandemic Plan, it is undisputed that the
Pandemic Plan bears little resemblance to the Field Test. See ECF No. 51 ¶ 86 (“The admissions
process used during the 2021 cycle . . . was different in many respects from the challenged field

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test.”) (emphasis added). The Pandemic Plan uses a wholly new screening and selection process
fueled by the impracticalities of the COVID-19 pandemic. See id. ¶¶ 86–90; see also ECF No.
95 at 6. And it was created and adopted by the Consortia under the leadership of a new
superintendent. See supra Part I.D–E.
In response, AFEF essentially recognizes the weakness of its claim. It presses that
“discovery” is necessary to explore the “private” motivations of the Consortia. See ECF No. 95
at 7–12 & nn. 2–3. But absent any facts which make plausible that the Consortia—explicitly or
implicitly—intentionally aimed to rebalance the racial composition of the magnet programs, the
Court cannot conclude that such a motivation is plausible as pleaded. See Hughes v. LaSalle
Bank, N.A., No. 02-6384-MBMHBP, 2004 WL 414828, at *1 (S.D.N.Y. Mar. 4, 2004) (“The
purpose of discovery is to find out additional facts about a well-pleaded claim, not to find out
whether such a claim exists.”).
Nor does the Pandemic Plan itself give rise to such an inference. The Consortia expressly
considered that the Pandemic Plan provided for the most inclusive yet rigorous screening process
to establish a pool of eligible candidates. Final selection, however, is now left wholly to chance.
See ECF No. 27-3 ¶¶ 26 & 34. As the Consortia reasoned, admission by lottery scrubbed the
final selection of any value-based decisions, all of which could be far more vulnerable to implicit
and explicit biases. See id. ¶ 26. AFEF pleads no facts to upset the logic of this admissions plan.
Thus, when viewing the Amended Complaint most favorably to AFEF, the chain of events
leading to the Pandemic Plan are devoid of discriminatory purpose.
Next, as to the history leading to the Pandemic Plan, the parties hotly dispute “how much
[of] the past matter[s].” See Raymond, 981 F.3d at 298. AFEF maintains, essentially, that
because this Court had previously concluded that the Complaint had plausibly stated an equal

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protection challenge to the Field Test, then the same inferential benefit of the doubt should carry
the claim here. See ECF No. 95 at 8. This is especially so, says AFEF, because at this stage, it
need only “make it plausible” that the current plan is motivated by racial animus. See id. at 12.
MCPS rightly responds that the Court may not accord the Field Test history an outsized
impact because “past discrimination cannot, in the manner of original sin, condemn
governmental action that is not itself unlawful.” ECF No. 96 at 8 (quoting Abbott v. Perez, 138
S. Ct. 2305, 2324 (2018)). The challenge for this Court is to decide what weight to accord any
averred discriminatory intent behind the Field Test in evaluating the Pandemic Plan.
In this respect, Abbott v. Perez is instructive. There, the Supreme Court of the United
States was called to pass on the constitutionality of a 2013 redistricting plan enacted by the
Texas legislature. Abbott, 138 S. Ct. at 2313. The 2013 plan was passed after the Supreme
Court found an earlier redistricting plan unconstitutional and ordered the state to remedy the
defects. Id. (citing Perry v. Perez, 565 U.S. 388 (2012) (per curiam)). Now reviewing the 2013
plan, the district court declared that it, too, was unconstitutional because the legislature had not
demonstrated that it had adequately “purged” the “discriminatory intent” animating the earlier
plan. Id. at 2318.
The Supreme Court squarely rejected this analysis. Abbott, 138 S. Ct. at 2325. Although
the Court acknowledged that the “historical background” of legislation “is one evidentiary source
relevant to the question of [discriminatory] intent,” it explained that this factor cannot be
accorded such weight that it effectively shifts the burden to the defendant to demonstrate it has
“cured” its historically impermissible motives. Id. at 2324–25. Rather, the Supreme Court
emphasized that the new legislation should be accorded the presumption of good faith, and that
the plaintiff must demonstrate the 2013 Legislature “acted with invidious intent.” Id. at 2325.

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After Abbott, the Fourth Circuit faced a similar question in North Carolina State
Conference of the NAACP v. Raymond. There, the plaintiffs challenged a 2018 state voter
identification law passed after a previous voter identification law had been enjoined as racially
discriminatory. Raymond, 981 F.3d at 299–300. The Fourth Circuit faulted the district court for
placing great weight on the fact that a substantially identical legislative body passed the 2018
legislation without making any apparent attempt to “cleanse” the legislation of the “old”
discriminatory intent. Id. at 304. In so doing, the Fourth Circuit cleaved closely to Abbott,
setting forth the proper analytical framework for assessing the historic background of challenged
legislation. The Court explained:
[T]he Challengers bear the burden of showing that racial discrimination was a
“‘substantial’ or ‘motivating’ factor behind enactment of the law.” Satisfying that
burden requires looking at the four factors from the Supreme Court’s Arlington
Heights decision[.]
***
And in doing so, the district court must afford the state legislature a “presumption”
of good faith. Abbott, 138 S. Ct. at 2324. For “a finding of past discrimination”
neither shifts the “allocation of the burden of proof” nor removes the “presumption
of legislative good faith.” Id.; see also City of Mobile v. Bolden, 446 U.S. 55, 74
(1980) (“[P]ast discrimination cannot, in the manner of original sin, condemn
governmental action that is not itself unlawful.”); McCrory, 831 F.3d at 241
(finding that we cannot “freeze North Carolina election law in place” as it existed
before the 2013 Omnibus Law).
Id. (emphasis in original).
Accordingly, the Fourth Circuit made clear that the historical background of a challenged
law is “one evidentiary source” that is certainly relevant but not dispositive. Raymond, 981 F.3d
at 305 (quoting Abbott, 138 S. Ct. at 2325). Most critically, and contrary to AFEF’s position,
Raymond underscores the importance of according the challenged policy and its decisionmakers
the presumption of good faith. To do otherwise would erroneously shift the burden of proof to

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require the County disprove discriminatory intent, rather than place the onus on AFEF to aver
facts from which such intent may be inferred. Id. at 303–05.
Turning to this case, the Court fully embraces its prior decision regarding the magnet
program’s legislative history, as had the courts in Abbott and Raymond. See AFEF I, 560 F.
Supp. 3d at 954 (“[T]he Complaint allows the reasonable inference that the County wished to
engage in a form of racial balancing; and that, as pleaded, makes plausible the field test was
implemented with a discriminatory purpose.”); Raymond, 981 F.3d at 305 (“None of this
suggests that the 2013 General Assembly’s discriminatory intent in enacting the 2013 Omnibus
Law is irrelevant.”); Abbott, 138 S. Ct. at 2325 (explaining that historical background is
“relevant to the question of intent” though not dispositive). That said, when viewing the
Amended Complaint facts as true and most favorably to AFEF, the Consortia enacted a wholly
new admissions process that bears little resemblance to the Field Test. See ECF No. 51 ¶ 86.
Further, this Court cannot ignore that, according to the Amended Complaint itself (ECF No. 51
¶¶ 83 & 86), the Pandemic Plan came about because of COVID-19. Cf. Raymond, 981 F.3d at
306 (noting the “intervening event” of constitutional amendment breaks the inferential chain
linking the challenged legislation to intentional discrimination). This intervening event alone
breaks any inference that the same impetus giving rise to the Field Test also animated the
Pandemic Plan. Id.
Moreover, and unlike Abbott and Raymond, different decisionmakers created and
implemented the Pandemic Plan. The Consortia developed and executed the Pandemic Plan
under new leadership and with many new Board members. See supra Part I.E. Where few of the
decisionmakers remain the same, the Court is hard pressed to find it plausible that the same
intentions fueling the Field Test can be imported to the Pandemic Plan. Thus, even giving full

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credence to the Metis Report and the former Board members’ stated impetus to change the racial
demographics of MCPS’ magnet programs, that history alone does not make plausible that the
Pandemic Plan is the product of discriminatory animus.
The Court next asks whether MCPS made “[s]ubstantive departures” from the “factors
usually considered important” in decisions of this kind. See Arlington Heights, 429 U.S. at 267.
AFEF maintains that such a departure is apparent, given that the Field Test and the Pandemic
Plan were adopted and implemented in vastly different ways. Whereas the Field Test followed
from highly public exchanges between the Board and the community, AFEF argues that the
Pandemic Plan had been hatched in “clandestine” fashion. See ECF No. 95 at 10–11. AFEF’s
spin in this regard is not plausible.
According to the facts incorporated in the Amended Complaint, the Consortia has always
been tasked with evaluating, administering, and altering admissions processes for special
programs, including the magnet middle school programs. ECF No. 27-3 ¶ 20 (“Every year, a
group of MCPS officials carefully collects and evaluates the data MCPS has gathered based on
the prior year’s magnet program selection process, identifies any changes that might be
necessary . . . and recommends modifications to MCPS’s senior leadership.”). By contrast,
nothing in the Amended Complaint supports the inference that MCPS created the Pandemic Plan
(or the Consortia, for that matter) under cover of darkness. Rather, the Consortia did what it
always does: create a plan, announce the plan, and implement the plan. See generally ECF No.
27-3.
Further, to extent there were any departures from the ordinary course of business, it must
all be assessed in the context of COVID-19. The Amended Complaint makes plain that the
aptly-named Pandemic Plan emerged as a solution to the obstacles presented by COVID-19.

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See, e.g., ECF No. 51 ¶ 84 (incorporating by reference the Franklin Declaration); id. ¶ 86 (“Due
to COVID-19 restrictions, MCPS did not administer the CogAT.”); ECF No. 23 at 2 (“As you
know, the pandemic has reshaped how Montgomery County Public Schools (MCPS) delivers
services to students and families in a virtual setting, and it has impacted established annual
admission processes for the criteria-based middle school magnet programs for 2021-2022.”);
March 2021 FAQ at 1 (“As part of the Pandemic Plan, the Cognitive Abilities Test (CogAT) will
not be administered this year due to limitations of in-person administration and test security.”)
(emphasis omitted). COVID-19 clearly necessitated new and innovative responses in every facet
of public education. It thus makes little sense to attribute the COVID-19 inspired changes to the
magnet program as somehow nefarious when the entire world needed to pivot quickly, and in all
respects, to cope with the pandemic.
Lastly, the Court asks whether the Pandemic Plain “bears more heavily on one race than
another.’” McCrory, 831 F.3d at 230 (quoting Arlington Heights, 429 U.S. at 266). For this
factor, the Court considers whether “a clear pattern, unexplainable on grounds other than race”
has emerged from the Pandemic Plan. See Arlington Heights, 429 U.S. at 266 (citing cases).
When viewing the Amended Complaint facts most favorably to AFEF, the answer is no. Asian
American students continue to maintain strong representation in the magnet programs relative to
their composition in the applicant pool. See supra Part III.A. From this, the Court cannot view
as plausible that Asian Americans have been systematically excluded from the magnet schools
for no apparent reason. Cf. Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960) (finding it facially
evident that legislation was designed to exclude Black voters where all but “four or five” of the
city’s Black residents were drawn out of the city limits during legislative redistricting); Yick Wo
v. Hopkins, 118 U.S. 356 (1886) (finding that the San Francisco Board of Supervisors held

22

“hostility to the race and nationality to which the petitioners belong[ed]” where all Chinese
American laundry owners were denied certain permits required to operate their businesses).
AFEF likewise has not plausibly demonstrated that any particular component of the
Pandemic Plan visits an outsized effect on Asian American students. Although the Amended
Complaint broadly asserts that “local norming makes it harder for Asian-American students to
enter the lottery pool” (ECF No. 51 ¶ 89), no facts support this contention. Indeed, the local
norming that is part of the Plan involves the MAP-Reading and MAP-Math assessments; yet the
Amended Complaint refers to a different statewide assessment—the Maryland Comprehensive
Assessment Program (“MCAP”) which is not even used in the magnet admissions process.
Compare ECF No. 51 ¶ 87 with id. ¶ 89.
In fairness to AFEF, the Amended Complaint contends that given 35% of Asian
American students countywide achieved the “highest level” on the MCAP, yet only 24% of
Asian American students were placed in the magnet programs, the disparity “suggests that local
norming makes it harder for Asian American students to enter the lottery pool.” ECF No. 51
¶ 87. But AFEF provides no other detail as to why this attenuated explanation is plausible.
Given that the final selection for magnet admissions is wholly randomized, it is just as possible
that the disparity is due to chance as it is to local norming or some other change to the
admissions process. Nor does the Amended Complaint make plausible that the MCAP
phenomenon is unique to Asian American students. Put simply, the MCAP variance by itself
does not make plausible that the Pandemic Plan burdens Asian American students, let alone that
it burdens Asian American students more than any other cohort.
To summarize, having considered the Arlington Heights factors, the Amended Complaint
fails to make plausible that the Pandemic Plan was the product of intentional discrimination.

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The Pandemic Plan emerged in response to COVID-19, not to address racial disparities of the
magnet middle school student body. Moreover, because the Field Test had been implemented
with different aims, and under the auspices of different leadership, no facts permit this Court to
import those earlier objectives to the Pandemic Plan. And even when considering the Pandemic
Plan on its own merits, nothing suggests that the process adopted by the Consortia had been
designed to favor one racial group over another. Thus, based on the foregoing, the County’s
motion to dismiss the Amended Complaint (ECF No. 87) must be granted.
IV.

Conclusion
The Amended Complaint fails to make plausible that the Pandemic Plan disparately

impacts Asian American students or had been implemented with discriminatory intent. The
single equal protection claim, consequently, fails as a matter of law. The County’s motion to
dismiss (ECF No. 87) is GRANTED; Amici’s motion to intervene (ECF No. 69) is DENIED as
MOOT; the Amended Complaint (ECF No. 51) is DISMISSED; and the Clerk is DIRECTED to
CLOSE this case.
A separate Order follows.

July 29, 2022
Date

/s/
Paula Xinis
United States District Judge

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