Sharif Ex Rel. Salahuddin v. New York State Education Department

OPINION AND ORDER

This case raises the important question of whether New York State denies female students an equal opportunity to receive prestigious state merit scholarships by its sole reliance upon the Scholastic Aptitude Test (“SAT”) to determine eligibility. To the Court’s knowledge, this is the first case where female students are seeking to use the federal civil rights statute prohibiting sex discrimination in federally-funded edm cational programs to challenge a state’s reliance on standardized tests. This case also presents a legal issue of first impression: whether discrimination under Title IX can be established by proof of disparate impact without proof of intent to discriminate.

After careful consideration, this Court finds that defendants are discriminating against female plaintiffs and their putative class in violation of Title IX and the equal protection clause of the U.S. Constitution. For the reasons set forth below, this Court enjoins the State Education Department and its Commissioner from awarding the merit scholarships at issue solely on the basis of the SAT.

I. The Present Action

In November, 1988, plaintiffs — ten high school students, individually and behalf of all others similarly situated, and two organizational plaintiffs 1 — brought an action for declaratory and injunctive relief against the State Education Department (“SED”) and Commissioner of Education Thomas Sobol, in his official capacity, alleging that New York’s exclusive reliance on the SAT to award Empire and Regents scholarships discriminates against female students in violation of the equal protection clause of the Fourteenth Amendments to the U.S. Constitution, Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., as amended by the Civil Rights Restoration Act of 1987, Pub.L. 100-259, and the regulations pursuant to Title IX, 34 CFR Part 106. Plaintiff’s proposed class is composed of “all female high school seniors in New York State who are or will be applicants for Regents College Scholarships and Empire State Scholarships of Excellence.” Am. Complaint at ¶ 4. 2

In essence, plaintiffs contend that the SED’s reliance upon the SAT disproportionately impacts female students without advancing the legislature’s purpose of recognizing and awarding superior high school achievement. Plaintiffs argue: “(1) the SAT was not designed to measure academic performance and achievement, and cannot appropriately be put to that use, (2) but even if it did, the SAT discriminates against female applicants for scholarships, because it underpredicts academic performance for females as compared to males.” P.Mem. at 5.

On December 21, 1988, plaintiffs filed an order to show cause as to why this Court should not issue a preliminary injunction *349 enjoining SED’s practice of exclusive reliance on SAT scores in awarding Regents and Empire scholarships. On that date, in a conference before this Court, defendants represented that, to cover the possibility of an adverse decision that would require the use of grade point averages (variously “GPAs”) to determine scholarship eligibility, the SED would commence collection of GPAs immediately.

On January 12, 1989, defendants submitted a cross-motion for an order dismissing the complaint on the grounds that the Court lacks subject matter jurisdiction, that venue is improper, and that the complaint fails to state a claim on which relief can be granted.

On January 23, 1989, at a hearing, the Court accepted amici briefs of the Educational Testing Service (“ETS”) and the College Entrance Board, and the Hewlett School District, and heard the testimony of educational testing experts, college deans of admission, and SED administrators with knowledge of the SED’s programs of scholarship and testing practices. The Court has carefully examined the submissions of the parties, assessed the credibility of the witnesses and reviewed word by word the hearing transcript.

II. Background

A. Evolution of New York State Scholarship Awards

New York State, in one of the most extensive merit scholarship programs in the country, each year makes 26,000 academic achievement awards to New York’s high school graduates. In order to understand the program’s current purpose, a brief recitation of the program’s evolution is appropriate.

1. Reliance Upon College Entrance Diplomas and Special Regents Examinations

New York State’s scholarship program began in 1913, when the legislature first awarded 750 Regents Scholarships in the amount of $100 a year for a period of four years. Act approved Apr. 16,1913, ch. 292, 1913 N.Y. Laws, § 527. At that time, the $100 stipend was sufficient to cover the tuition charged at most colleges in the State. 3 Thus, the award was in the nature of a full scholarship which would promote excellence in education by enabling “the most deserving and meritorious students ... [to] obtain a college or university training, many of whom would be deprived of such education were it not for the wisdom of the State in providing these scholarships.” 4

The 1913 law authorized the State Board of Regents to make all rules governing the award of the scholarships. Ch. 292, 1913 N.Y. Laws § 72. From 1913 until 1944, the State determined scholarship winners based upon the results of general high school Regents examinations, which also were the basis for granting the college entrance diploma. Lott, T. 64. 5

By 1944, the SED recognized that it could no longer rely solely upon general high school Regents examinations and college entrance diplomas in awarding Regents Scholarships. First, it was hard to rank students based upon the college entrance diploma because it was “difficult under the statute to know just what subjects to take into account in computing the averages of pupils.” 6 Second, the nature of the high school general Regents exams had changed. Instead of measuring levels of achievement in the variety of courses taught in high school, the general Regents exams became a test of the bare minimum *350 that a student needed to know to graduate from high school, and thus was a poor method for sorting students at the top of the spectrum. Lott T. at 73. Faced with these difficulties, in 1944 the SED developed a separate, more challenging Regents scholarship examination. Meno Aff. 112. The examination, in use for the next twenty years, was divided into two equal parts — aptitude and achievement — and was six hours long. Lott T. at 68.

In 1974, New York State’s scholarship program changed dramatically following a revaluation by a Select Committee on Higher Education. At the time the Regents scholarship program provided an annual award of $1,000 to a limited number of highly qualified students. The Committee found that the legislature’s goal of substantially funding students’ college educations as an incentive for select students to attend college was no longer being met. 7 The Committee found that the Regents scholarship examinations “can be criticized for actually rewarding the family background and upbringing that enables students to study and perform well, rather than an objective kind of merit.” 8

Prompted by these concerns, the legislature restructured its awards, creating two types of awards: first, “general awards” which provide substantial monetary assistance, and second, “academic performance awards” which recognize achievement. Act of 1974, ch. 942, N.Y. Laws §§ 604, 605. Classifying Regents Scholarships as “academic performance awards,” the legislature reduced the awards to a stipend of $250, and increased the number of awards to 25,000 to be allocated by county of residence. The legislature created additional awards for the least competitive high schools to enable them to receive at least one for every graduate from that school in the preceding year. Ch. 942, 1974 N.Y. Laws § 605(1).

In the “general awards” category, the legislature created a Tuition Assistance Program (“TAP”) to fund college students based upon financial need. The legislature made TAP awards available to all students enrolled in approved programs and are given to those who demonstrate the ability to complete such program’s courses, and who satisfy financial need requirements established by the Commissioner of Education. Ch. 942, 1974 N.Y. Laws § 604; N.Y. Educ. Law. § 667(1) and (4) (McKinney 1988 & Supp.1989).

2. Reliance Upon the SAT

In 1977, as a cost-cutting measure, the legislature eliminated its funding for the Regents scholarship examinations. P.App. I, Ex. 3. Instead, the legislature directed that the scholarships be awarded on the basis of “nationally established competitive examinations.” Act approved Apr. 12, 1977, ch. 63, 1977 N.Y. Laws § 1. The SED considered examinations, including: (1) the SAT; (2) the American College Testing Program (“ACT”); (3) the Preliminary Scholastic Aptitude Test (“PSAT”); and (4) a combination of Achievement Tests, individual tests given in particularized areas of study, including biology, chemistry and foreign languages. Lott T. at 66. While the Achievement Tests measured performance in a wide variety of courses in a high school curriculum, the SED chose not to use them because few students take the exams and the SED did not want to require them to do so for Regents scholarship purposes. 9 The SED similarly rejected the ACT, a test much like the SAT, because few students take the ACT in New York. 10 The PSAT, a shorter version of the SAT given in the junior year of high school, was not considered a viable option because stu *351 dents took it too early in their high school careers.

By process of elimination, then, the SED chose the SAT, the test taken by the greatest number of students. 11 Unlike the Regents scholarship examinations, the entire SAT is labeled an “aptitude” test, and the SAT only purports to test two subjects— Math and English. D.Mem. at 8. Despite the SED’s claim that the Regents Scholarship exam and the SAT are very similar, D.Mem. at 9, the State’s own witness, Lynn Richbart, 12 testified that about 30% of the SAT questions would not have appeared on the Regents Scholarship exam. Richbart T. at 184. Richbart testified that SAT questions, unlike Regents Scholarship questions, often require that students remember concepts learned in earlier grade levels, or test students on material which is outside the high school curriculum. Richbart T. at 178-182. 13 Moreover, the SAT requires students to be able to answer questions designed specifically for the SAT, such as comparison and logic questions, that are not present on the Regents Scholarship exams. Richbart T. at 182. In addition, the SAT was never designed to test high school achievement. While high school performance may affect a student’s performance on the SAT, the SAT does not cover the high school curriculum — indeed there is no standard high school curriculum in New York State — nor has it ever been validated to test achievement in high school. See validation discussion infra.

In 1986, the legislature created the more selective Empire State Scholarships of Excellence carrying an annual stipend of $2000 to be awarded to the 1,000 highest ranking Regents Scholarship winners. Act approved and effective Apr. 18, 1986, ch. 56, 1986 N.Y. Laws. The Governor’s approval memorandum to the legislative bill creating the Empire Scholarship stated the purpose of these new awards as follows:

The Empire State Scholarship of Excellence Program will recognize academic achievement and provide a significant inducement for New York’s brightest students to continue their studies in the State. These new scholarships will complement the efforts we are undertaking to acknowledge and enhance the educational performance of our brightest youth, (emphasis added).

1986 Legislative Annual, P.App. I, Ex. 3. Like the Regents scholarship, the Empire Scholarship is distributed by county of residence, and is renewable for five years. There is no minimum quota per high school for Empire State Scholarships.

3. Reliance Upon SATs and GPAs: The 1987 Experiment

In response to allegations that the SED’s practice of relying solely upon the SAT in awarding Regents and Empire State Scholarships discriminated against females who consistently scored below males, the Board of Regents asked the Governor and legislature for $100,000 to develop a new scholarship achievement examination. The legislature declined to fund a special examination but, instead, amended the Education Law to require that the awards be based upon in part upon the student’s grade point average (“GPA”) as a measure of high school achievement. Senator Kenneth Lavalle, introducing the legislation, explained that the “statute intended to correct a gross inequity that pervaded the New York educational system caused by awarding of Regents College Scholarships and Empire State Scholarships of Excellence based solely on the results of a nationally administered *352 standardized examination.” 14 Lavalle Aff. ¶ 2, P. Reply Mem., Ex. 7. The SED specified in its announcement of the new legislation to high school principals that the law was changed “[i]n order to provide for a better balance of male and female winners.” P.App. I, Ex. 10.

The new legislation, for the first time, expressly stated that awards are to be based on a measure of “high school performance.” Act approved and effective Aug. 7, 1987, ch. 837, 1987 N.Y. Laws §§ 1, 2. In doing so, the legislature altered the criteria for scholarship eligibility — on a one-year, experimental basis — to require the SED Commissioner to base awards on a formula which at least includes a measure of high school performance, and which may include nationally established competitive examinations. The amendment also required the Commissioner to “complete a statistical review of the gender, racial and ethnic composition of students awarded such scholarships within sixty days of the announcement of such scholarship award.” Id. The legislation included a sunset provision that provided that the amendment would automatically lapse after one year if it were not affirmatively extended.

In May 1987, the SED examined possible measures of high school performance that could be used to select scholarship winners equitably. May Hearing at 9. The SED surveyed high school principals for information concerning grade point averages and class rank. Id. at 4. The possibility of using class rank as a measure of high school performance was dropped for three reasons: (1) it is not used by all schools; (2) it adversely affects students in highly selective schools; (3) it cannot be used to compare students from schools of difference size. Id. at 19; Lott T. at 72.

The SED also found drawbacks to the use of grade point averages. Because of the volume of scholarship applications it receives yearly, approximately 100,000, the SED would be unable to individually evaluate the GPA information submitted for each candidate as is done by college admission committees. Byrne aff. ¶ 3; Sharrow T. at 133. Also, the SED concluded that it was difficult to convert grade point average information to a common scale because: (1) there is a lack of comparability in the substance of the courses for which grades are given; (2) school grading practices differ from district to district and different grading scales are utilized; (3) schools differ in their practice and philosophy regarding weighing grades in order to take into account course difficulty; and (4) reported grades may reflect grade inflation. Meno Aff. ¶¶ 2-5; Sharrow T. at 129; Meno T. at 140. On the other hand, the SED’s survey indicated that there is a great deal of uniformity as to grading scales: 85 percent of the public schools and 73 percent of the private schools used a numerical score of 1-100. Results of High School Survey, P.App. I, Ex. 8.

Despite comparability difficulties, the SED chose to use GPAs as the best available measure of high school achievement. In awarding the Regents and Empire Scholarships for the 1988 graduates, the SED gave equal weight to students’ SAT scores and GPAs, as the measure of high school performance. The SED, however, did not issue specific instructions to schools as to how grades should be reported. 15 As a *353 result, some schools reported weighted grades, taking into account course difficulty, while others reported students’ grades as they appeared on their transcripts. Hamburger T. at 3-4. Such inconsistent reporting practices touched off a controversy among school administrators who accused each other of cheating in weighting and reporting grades. Meno T. at 139.

In 1988, under the procedure using a combination of grades and SATs weighted equally women received substantially more Regents and Empire Scholarships than in all prior years in which the SAT had been the sole criterion. P.App. I, Ex. 2. In both 1987 and 1988, young women comprised approximately 54 percent of the applicant pool for the scholarship, yet the results in 1988 when grades and SATs were used were markedly different. The results are summarized as follows:

Winners of Empire State Scholarships Winners of Regents of Excellence College Scholarships

Males Females Males Females

1988 62 38 51 49

1987 72 28 57 43

When GPAs were used in 1988, the mean GPAs were: 85 for females and 84.4 for males. P.App. I, Ex. 2.

In May 1988, the legislature held hearings to evaluate the new practice of using both GPAs and SATs. Although use of GPA information reduced the disparity between the number of males and females receiving Scholarships, Commissioner Sobol recommended that the practice be discontinued, as soon as a new scholarship exam was developed, because: (1) use of GPA information put an increased burden on school staff; (2) use of GPA did not provide an equitable way to compare students from different schools; and (3) use of GPA would encourage students to avoid more challenging courses in order to obtain better grades for Scholarship purposes. May Hearing at 17-18. Sobol requested funds for a new scholarship exam but also recommended that, until a separate Regents Scholarship examination could be established, GPAs continue to be used in conjunction with SAT scores. Id. 16

Despite Commissioner Sobel’s recommendation, the legislature allowed to lapse the eligibility calculation “based on a formula which includes high school performance and which may include nationally competitive examinations.” The standard thereby reverted to awards “on the basis of nationally established competitive examinations”. In the 1988 legislative session, the SED received funds for a new scholarship examination, but has not yet received approval for a developed test. Meno Aff. ¶ 9. In September, 1989, the SED determined that it would award Regents and Empire Scholarships to 1989 high school graduates on the basis of SAT scores alone. It is the SED’s sole reliance on SAT scores for 1989 graduates that plaintiffs complain denies them equal protection under the fourteenth amendment to the U.S. Constitution and violates Title IX of the Education Amendments of 1972.

B. Use of the SAT for Merit Scholarship Awards

1. ETS Recommendations and States’ Practice

The Educational Testing Service (“ETS”) developed the SAT in order to predict academic performance in college. Willingham Aff. at ¶¶ 5-6. The ability of the SAT to serve this purpose has been statistically “validated.” Willingham Aff. at ¶¶ 16-19. 17 It is undisputed, however, that the SAT predicts the success of students differently for males and females. Willing-ham Aff. at 32. In other words, while the *354 SAT will predict college success as well for males within the universe of males as for females within the universe of females, when predictions are within the combined universe of males and females, the SAT underpredicts academic performance of females in their freshman year of college, and overpredicts such academic performance for males. 18 The SAT has never been validated as a measure of past high school performance.

Both the ETS and the College Board, which administers the SAT, specifically advise against exclusive reliance upon the SAT, even for the purpose for which the SAT has been validated — predicting future college performance. 19 Instead, ETS researchers recommend that college admissions counselors use a combination of high school grades and test scores because this combination provides the highest median correlation with freshman grades. Title Aff. at ¶¶ 25-29. Additionally, the National Association of College Admission Counselors’ (“NACAC”) Code of Ethics requires member institutions to refrain from using minimum test scores as the sole criterion for admission, to use test scores in conjunction with other data such as school record and recommendations, and to refrain from using tests in any manner that may discriminate against students. 20 Thus, many colleges refrain from using test scores exclusively to decide admissions questions. See Stewart T. at 58-59; Sharrow T. at 122; Behnke Aff. at ¶¶ 2, 7, 8; Mason Aff. at ¶¶ 5, 6, 7.

Notwithstanding ETS and NACAC guidelines recommending against using the SAT as the sole basis on which to award scholarships or offer admissions, the SED adopted such a policy in 1974. New York State is one of only two states in the nation to rely solely on SAT scores for the award of state-sponsored merit scholarships instead of factoring in other measurements, such as grade point average or high school rank. May Hearing at 54; Lee Aff. at ¶ 3. Most states rely, at least in part, upon GPAs. For instance, California’s extensive merit scholarship program, which gives nearly 17,000 awards annually, relies upon self-reported GPAs. Moss Aff. at ¶¶ 1, 3, 5-6.

2. SAT as Measure of High School Performance

Both the Empire and Regents Scholarships are intended to reward past academic achievement of high school students, and to encourage those students who have demonstrated such achievement to pursue their educations in New York State. Lott T. at 91; Memo Aff. at ¶ 9. It is undisputed, however, that the SAT was developed and validated to serve a different purpose— predicting performance in college.

Professional standards governing educational testing require statistical analysis (“validation”) to be undertaken to ensure that a test is properly used for its intended purpose. Shapiro T. at 51. For example, the American Psychology Association’s Standards on Psychological Testing require that “evidence of validity should be presented for the major types of inferences for which the use of a test is recommended.” P.App. I, Ex. 6, at 13. Similarly, the College Board requires that tests be validated periodically “to ensure that they *355 predict the expected outcome at a level acceptable for the institution’s particular purpose.” 1987-1988 ATP Guide for High Schools and Colleges. The SED has never validated the SAT for the purpose of measuring high school performance. Lott. T. at 89. 21

Notwithstanding the absence of validation studies, it is the SED’s current position that the SAT provides a good measure of high school performance because it “measures skills and knowledge primarily developed in school.” Byrne Aff. ¶ 17. The SED does not dispute that the SAT does not measure performance in all high school courses, but claims merely that the SAT partially tracks high school English and Math courses and thus tests achievement. Lott T. at 89. 22 The SED concedes that the SAT does not measure achievement in other subject matters such as science, social studies, and foreign languages. Moreover, the SED concedes that overall GPAs are a better measure of high school performance than SATs. Lott. T. at 90; See also Anastasi, P.App. II, Part 2, Ex. C.

3. Statistical Impact on Men and Women Statewide

Males have outscored females on the verbal portion of the SAT since 1972, with an average score differential of at least 10 points since 1981. Males have also consistently outscored females on the mathematics portion, with an average differential of at least 40 points since 1967. 23 In 1988, for example, girls scored 56 points lower than boys on the test. The probability that these score differentials happened by chance is approximately about one in a billion and the probability that the result could consistently be so different is essentially zero. See Gray Aff. at ¶ 6.

Statisticians have attempted to explain the score differentials between males and females by removing the effect of “neutral” variables 24 , such as ethnicity, socioeducational status (parental education), high school classes, and proposed college major. However, under the most conservative studies presented in evidence, even after removing the effect of these factors, at least a 30 point combined differential remains unexplained. 25

As a result of the State’s practice of basing scholarship awards solely upon SAT scores, males have consistently received substantially more scholarships than females. In 1987 for example, males were 47 percent of the scholarship competitors, but received 72 percent of the Empire State Scholarships and 57 percent of the Regents Scholarships. 26 For Empire State Scholarships, these results represent 15.8 standard deviations from the mean; for Regents Scholarships, the difference represents 31.7 standard deviations. In other words, the probability that the Empire Scholarship results would occur by chance is less than one in a billion, and the probability of the *356 Regents Scholarship results would occur by chance is even less. Shapiro T. at 29. 27

III. Discussion

A. Procedural Issues

At the outset, defendants argue that this Court should dismiss plaintiffs’ complaint on three procedural grounds: first, this Court is without authority to issue the relief requested in this case because plaintiffs do not have standing to bring their claims; second, the Court lacks subject matter jurisdiction; and third, venue is improper. The Court will consider each of these arguments in turn.

1. Standing

In order to establish standing for the purposes of the constitutional “case or controversy” requirement, the general rule is that a plaintiff “must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979), and that the injury is “likely to be redressed by a favorable decision.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). Otherwise, the exercise of federal jurisdiction “would be gratuitous and thus inconsistent with the Article III limitation.” Id. at 38, 96 S.Ct. at 1924.

More precisely, plaintiffs must demonstrate: (1) that the “interest sought to be protected is within the zone of interests protected or regulated by the statute or constitutional guarantee in question,” Association of Data Processing Service Organizations Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970), (2) “injury in fact,” and (3) “causation in fact.”

Plaintiffs have fulfilled the first standing requirement. The interest sought to be protected — freedom from discrimination in the award of state scholarships — is within the zone of interests to be protected by the fourteenth amendment and Title IX. Education Amendments of 1972, 20 U.S.C. § 1681.

The second requirement, injury in fact, is satisfied by a showing of a likelihood of harm, if not actual harm. In University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) the Supreme Court found that a student had standing to challenge a school’s allegedly discriminatory admissions policy, not because he could establish that he would have been admitted were it not for the challenged policy, but rather because his chances for admission were reduced by the policy. Id. at 280-81 n. 14, 98 S.Ct. at 2743 n. 14 (Powell, J., concurring). See also, McCleskey v. Kemp, 481 U.S. 279, 295 n. 8, 107 S.Ct. 1756, 1766 n. 8, 95 L.Ed.2d 262 (1987); Heckler v. Mathews, 465 U.S. 728, 738, 104 S.Ct. 1387, 1394, 79 L.Ed.2d 646 (1984); Gladstone, Realtors v. Village of Bellwood, 441 U.S. at 115, 99 S.Ct. at 1615.

Plaintiffs here allege that their chances for winning a state merit scholarship are reduced by the SED’s practice of basing such awards solely on SAT scores and that, therefore, they are less likely to receive benefits such as substantial public recognition, an enhanced ability to attract additional scholarships, and an increased opportunity to attend the college or university of their choice. 28 These allegations alone are sufficient to establish “injury in fact.” 29

*357 Moreover, while plaintiffs need only establish a likelihood of injury, they have shown as to at least three plaintiffs a near certainty of injury if the SED is not enjoined. Defendants concede that plaintiffs Hart, Capodice, and Bozon probably will qualify for Regents Scholarships if eligibility is determined by using equally weighted GPA and SAT scores but will not qualify if SAT scores are the sole criterion. T. at 19, 207; Byrne Aff. at ¶ 10. These three plaintiffs alone are sufficient to establish standing to challenge the awarding practices for both Regents and Empire Scholarships since both are awarded from the same list of 25,000 names. 30 Because the claims raised by plaintiffs necessarily implicate the entire system, and any relief would require modification of that system, plaintiffs have standing to challenge both the Regents and Empire Scholarships even though they personally may not be eligible for the latter.

The final requirement, causation in fact, necessitates that the injury be both “fairly traceable” to the defendant and “redressable.” Allen v. Wright, 468 U.S. 737, 753 n. 19, 104 S.Ct. 3315, 3325 n. 19, 82 L.Ed.2d 556 (1984). As with injury in fact, causation in fact does not require a showing of complete certainty. In the Second Circuit:

All that is required is a showing that such relief be reasonably designed to improve the opportunities of a plaintiff not otherwise disabled to avoid the specific injury alleged. To ask the plaintiffs to show more than that they would ‘benefit in a tangible way from the court’s intervention,’ would be to close our eyes to the uncertainties which shroud human affairs.

Huntington Branch N.A.A.C.P. v. Town of Huntington, 689 F.2d 391, 394 (2d Cir. 1982) (emphasis added) (plaintiffs seeking funding to construct housing project had standing to challenge zoning ordinance, even though no federal housing money was presently available).

In the present case, plaintiffs allege that the SED’s reliance upon the SAT is the direct cause of their injury. Injunctive relief compelling the SED to use an alternative procedure with a less discriminating effect would redress their grievance. Defendants argue that because variables other than sex might account for the disparate number of women receiving low SAT scores — and, consequently, not receiving scholarships — there is no causation. D.Mem. at 23. This, however, is a dispute on the merits of plaintiffs’ claim. Standing does not depend on whether plaintiffs actually will prevail. See e.g., McCleskey, 481 U.S. 279, 107 S.Ct. 1756.

The fact that some of the named plaintiffs may not receive scholarships if the injunction is granted presents no barrier to this suit. The claim rests on the alleged discriminatory nature of the system as a whole. In analogous circumstances, the Supreme Court held that a black would-be resident had standing to challenge discriminatory zoning practices, because he intended to apply for housing, although he might not actually obtain it. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977). Here, as in Arlington, if the requested relief is granted, the plaintiffs would no longer suffer the injury complained of. See also Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988) (landlords had standing to challenge rent control ordinance when there was a likelihood of enforcement of the ordinance and concomitant probability that rent would be reduced below what some landlords could afford); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (standing to challenge act limiting liability in the event of a nuclear accident where “substantial likelihood” that construction of plants could not be completed without liability limit).

*358 Since we find plaintiffs have sufficiently alleged injury in fact and causation in fact and that plaintiffs are within the requisite zone of interests, we conclude that plaintiff have standing.

2. Jurisdiction

Defendants argue that this Court lacks subject matter jurisdiction over plaintiffs’ equal protection claim against the SED. This argument is wholly meritless.

While it is true that the Eleventh Amendment bars suits against states, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984), the “important exception to this general rule [is that] a suit challenging the constitutionality of a state official’s action is not one against the state.” Id. at 102, 104 S.Ct. at 909. Moreover, Congress has specifically provided that a state shall not be immune from suit under Title IX. 42 U.S.C. § 2000d-7. Thus, this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and (4).

3. Venue

Defendants also challenge the venue of this action. They argue that it is more properly brought in the Northern District of New York where the defendants are located. The Court finds this argument unpersuasive.

Venue in this case is governed by 28 U.S.C. § 1391(b), which provides:

A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.

Where the claim arose in more than one district, “a plaintiff may chose between those two (or conceivably even more) districts that with approximately equal plausibility — in terms of the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not of the plaintiff) — may be assigned as the locus of the claim.” Leroy v. Great Western, 443 U.S. 173, 185, 99 S.Ct. 2710, 2717, 61 L.Ed.2d 464 (1979).

Applying the