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In re Application of R.B.

Sup Ct, New York County

August 1, 2013

In the Matter of the Application of R.B. on behalf of his minor child L.B.; A.K. on behalf of his minor child S.K.; S.R. on behalf of his minor child H.R.; L.W. on behalf of her minor child E.W., individually and on behalf of all other similarly situated, Petitioners,
THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK f/k/a THE BOARD OF EDUCATION OF THE CITY OF NEW YORK; DENNIS WALCOTT, as Chancellor of the Department of Education of the City of New York; GENTIAN FALSTROM, as Director of elementary enrollment of the Department of Education of the City of New York; ROBERT SANFT, as Director of the Office of Student Enrollment of the Department of Education of the City of New York; Respondents. for Judgment pursuant to CPLR Art. 78 and common law claims, Index No. 100738/13

Unpublished Opinion


At issue in this case is the process used by the Department of Education (DOE) to admit four-year-old children to the "gifted and talented" (G&T) program in the New York City public schools. Specifically, the four petitioners, who are parents of children seeking admission to the program, contend that the admission process is arbitrary and capricious and violates the Equal Protection clause of the New York State Constitution by giving preference to applicants who already have siblings in the G&T program. In addition to seeking Article 78 and declaratory relief, petitioners have asked this Court to enjoin respondents from selecting students for the 2013-14 academic year using the DOE's current sibling preference policy and scoring methodology for determining admission to the G&T program.

After extensive argument on the record on May 17 and June 7, 2013, which included strong opposition by respondents, this Court declined to grant a temporary restraining order or a preliminary injunction, though the DOE's timetable for issuing admission decisions did allow petitioners an opportunity to go to the Appellate Division. On July 9, 2013, the Appellate Division denied a preliminary appellate injunction. Motion No. M-3181, Slip Op. No.: 2013 NY Slip Op 79124(U)(First Dep't). By Affirmation dated June 17, 2013, petitioners' counsel advised the Court that the DOE had selected the students for its G&T programs and had notified petitioners that two of the children had been offered placement in a district G&T program but not the more expansive Citywide program, and the remaining two children had not been offered placement into any type of G&T program, despite their high scores on the assessment exams.

While the proceedings were pending, petitioners also moved for discovery, seeking certain information about the methodology used by the DOE to rank the applicants to the G&T program and determine the placement offers. The DOE opposed that request, arguing among other things that ample need had not been demonstrated for discovery in this special proceeding. All matters have been fully briefed and are ripe for a determination.

Relevant Facts

It appears that this controversy was sparked by a proposed change to the G&T program that was potentially beneficial to the petitioners but was derailed due to community opposition and the turmoil created by Hurricane Sandy. Primarily, that proposed change eliminated the preference given to children with siblings in an existing G&T program. Encouraged by the proposal, petitioners — all of whom are exceptionally bright children without siblings in a program — effectively seek to compel the DOE to adopt the proposal by having this Court invalidate the present program, which they claim gives an unfair advantage to children with G&T siblings and deprives them of a public school education suited to their particular talents and needs.

The G&T admission process is somewhat complex. Generally speaking, placements are made according to the child's percentile rank on G&T assessment tests, with eligible siblings of students currently enrolled in G&T programs placed first, and then non-sibling applicants placed by percentile rank. (See Affidavit of Respondent Robert Sanft, Answer Exhibit 1 ¶ 2). The policy is codified in Chancellor's Regulation A-101, which governs admission processes. Each year the community is notified of the deadlines for each stage of the application and admission process in a Program Handbook published and distributed by the DOE.

In the fall of 2012, the DOE decided to propose a policy change affecting two aspects of the admission process: it proposed the elimination of the sibling preference; and it proposed changing the scoring method used from percentile ranking to composite scoring. However, because the existing policy was codified in the Chancellor's Regulation, the proposed change could not be implemented without a notice and comment period and the approval of the Panel for Educational Policy (PEP). The PEP vote was scheduled for December 20, 2012. (Sanft Aff. at ¶ 3).

Pursuant to Education Law § 2590-g, the DOE posted notice of the proposed change on its website on October 26, 2012 and invited public comment. Additionally, the new policy was included in the printed copies of the 2012-2013 Gifted and Talented Handbook. Id. However, it is undisputed that the DOE failed to include any statement in the Handbook that the policy set forth there was a proposal only, and information was provided at public meetings that was consistent with the Handbook. Petitioners further contend flf 28) that the October 26 notice mentioned only the proposed elimination of the sibling preference, without mentioning any changes to the scoring methodology. Some members of the public were nevertheless aware of the proposed changes from the website, and significant public comment was submitted to the DOE that largely opposed the proposed elimination of the sibling preference. The DOE posted a summary of those comments on its website on December 19, 2012, the day before PEP was scheduled to vote. Id. at ¶ 4.

In addition to concerns raised by the negative public comments, the DOE was concerned about changing the scoring methodology from percentile ranking to composite scoring, an issue that petitioners address in detail in their papers. As indicated in the affidavit of Adina Lopatin, the DOE's Deputy Chief Academic Officer for Performance, the DOE was concerned that the proposed composite scoring would not further the G&T objectives. (Answer, Exh 2).

Lopatin explains (at ¶ 4) the scoring methodology as follows. Since at least 2008 (and today), the DOE has used percentile ranks to determine admission into G&T programs. First, two assessment exams are given to the child: the Otis-Lennon School Ability Test (OSLAT-8) and the Naglieri Non-Verbal Ability Test (NNAT-2).[1] The raw scores are normalized and combined to create an overall percentile rank, which is the student's standing relative to other students of the same age within a range of three months. The percentile ranks are determined based on independent national norm studies, as no study exists on a population of this age in New York City that has taken precisely the same two assessment tests. After eligible siblings are placed, the DOE conducts a lottery to determine, among students within a given percentile rank, which students receive offers to the G&T programs.

Lopatin further explains (at ¶ 5-6) that in the fall of 2012 the DOE proposed using composite scores, rather than percentile ranks, to determine eligibility for 2013 admissions. A composite score is a numeric value that provides a description of a student's combined performance on both assessment exams. Because composite scores provide greater differentiation based on test results and therefore would have obviated the need for a lottery system, the DOE initially proposed changing to that methodology. However, the DOE ultimately determined to continue using its tried and true percentile ranking system because it concluded that a small difference in a composite score — based, for example, on a single wrong answer on a test — could unfairly exclude equally gifted students from participating in the G&T program.

For all these reasons, the DOE determined on December 19 not to implement the proposed policy change until further analysis had been completed and to instead determine 2013 admissions using the policy that had been in effect since at least 2008. Sanft ¶ 6. The DOE communicated this decision to interested parties — including petitioners — in an email from Chancellor Walcott to all families who had submitted a Request for Testing, which was the necessary first step in the admission process. (Answer, Exh D). There Chancellor Walcott ...

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