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Decision No. 17,748

Appeals of C.K. on behalf of N.A., W.L. and N.N. on behalf of M.N., A.T. on behalf of H.O., W.M.L. and J.M. on behalf of K.M., D.B. and S.B. on behalf of R.B., I.N. and P.N. on behalf of K.N., and A.T. and R.Y. on behalf of C.Y., from action of the New York City Department of Education and Richard A. Carranza, in his capacity as Chancellor of the New York City Department of Education, regarding student placement.

Decision No. 17,748

(August 29, 2019)

Kostelanetz & Fink, LLP, attorneys for petitioners, Claude M. Millman and Nicholas S. Bahnsen, Esqs., of counsel

Zachary W. Carter, Corporation Counsel for the City of New York, Marilyn Richter and Thomas Roberts, Esqs., of counsel

ELIA., Commissioner.--In seven separate appeals, petitioners appeal the determination of the New York City Department of Education (“NYCDOE”) and Richard A. Carranza, as Chancellor of NYCDOE (collectively referred to as “respondents”) to deny their children (“the students”) admission to its specialized high schools.  Because the appeals present similar issues of fact and law, the appeals are consolidated for decision.  The appeals must be dismissed.

According to the record, NYCDOE operates nine “specialized high schools” (“SHSs”).  Admission to the SHSs is highly competitive and is governed by legislation commonly referred to as the “Hecht-Calandra Act” (“Hecht-Calandra” or “the Act”) (see L 1971, ch 1212, adding subd. [12] to Educ. Law §2590-g).  Education Law §2590-g[12] was later replaced by Education Law §2590-h[1][b], which provides in pertinent part:

The chancellor shall have the following power and duties ... to promote an equal educational opportunity for all students in the schools of the city district, promote fiscal and educational equity, increase student achievement and school performance and encourage local school-based innovation, including the power and duty to:

1. Control and operate:

(b) all specialized senior high schools ....The special schools shall be permitted to maintain a discovery program in accordance with the law in effect on the date preceding the effective date of this section; admissions to the special schools shall be conducted in accordance with the law in effect on the date preceding the effective date of this section.

The Hecht-Calandra Act, in effect at the time Education Law §2590-h(1)(b) was enacted, provides that the principal means of admission into each of the SHSs is an examination called the Specialized High School Admissions Test (“the SHSAT”).[1]  The pertinent sections of Hecht-Calandra regarding the SHSAT are set forth below:

Admissions to the [SHSs] shall be solely and exclusively by taking a competitive, objective and scholastic achievement examination, which shall be open to each and every child in the city of New York in either the eighth or ninth year of study, without regard to any school district wherein the child may reside.  No candidate may be admitted to a special high school unless he has successfully achieved a score above the cut-off score for the openings in the school for which he has taken the examination.  The cut-off score shall be determined by arranging the scores of all the candidates who took the examination and who then commit themselves to attend the school in descending order from the highest score and counting down to the score of the first candidate beyond the number of openings available ... (L 1971, ch 1212, §1; see Educ. Law §2590-h[1][b]).

Currently, students who take the SHSAT may apply for admission to one, some, or all of the SHSs.  Students seeking admission to more than one SHS must rank their desired schools in numerical order of preference.  The tests are then scored, and the student with the highest score is offered a seat in his or her first choice school, then the next student, and so on, until all the seats in a school are filled, at which point the next student is offered a seat at his or her second choice school.  This process continues until all seats in the eight specialized high schools based on SHSAT scores have been filled.

Hecht-Calandra also “permits” the SHSs to “maintain a discovery program to give disadvantaged students of demonstrated high potential an opportunity to try the special high school program without in any manner interfering with the academic level of these schools” (L 1971, ch 1212, §1) and identifies the following conditions for student participation in the discovery program:

A student may be considered for the discovery program provided the student:  (1) be one of those who takes the regular entrance examination but scores below the cut-off score, (2) is certified by his local school as disadvantaged, (3) is recommended by his local school as having high potential for the special high school program, and (4) attends and then passes a summer preparatory program administered by the special high school, demonstrating thereby his ability to successfully cope with the special high school program ... (L 1971, ch 1212, §1; see Educ. Law §2590-h[1][b]).

Importantly, the Act neither defines “disadvantaged” nor prescribes the number of students that shall be admitted into the discovery program.  Prior to the modifications challenged in this appeal, a student was considered “disadvantaged” (for purposes of participating in the discovery program) if the student:

(i) qualified for free lunch; (ii) attended a school receiving federal funds under Title I of the federal Elementary and Secondary Education Act and qualified for reduced price lunch; (iii) received assistance from the NYC Human Resources Administration; (iv) was a foster child, a ward of the state, or in temporary housing; or (v) had entered the United States within the last four years and lived in a home where the primary language spoken was not English.[2]

In their verified answer, respondents explain that, in an effort to promote “racial, ethnic, geographic and socioeconomic diversity,” on June 3, 2018, the Chancellor announced that NYCDOE would expand the number of seats in the discovery program and refine the criteria used to identify “disadvantaged” students who may be eligible to participate in the program.[3]  Under the new criteria, a student may be eligible to participate in the discovery program if:

  1. the student took the SHSAT and scored below the lowest cut-off score for the eight specialized high schools;
  2.  an appropriate administrator from the student’s school has recommended the student for the discovery program;
  3. an appropriate administrator from the student’s school has certified that, to the best of the administrator’s knowledge, the information provided by the student’s parents in the discovery program application is accurate;
  4. the student attends a school with an Economic Need Index (“ENI”) of 60% or more;[4] and
  5. one of the following applies:
    1. the student’s family income qualifies the student for free or reduced-price lunch;
    2. the student’s family receives assistance from the NYC Human Resources Administration;
    3. the student is in foster care, is a ward of the state, or is a student in temporary housing as defined by the McKinney-Vento Act; or
    4. the student is an English language learner or a former English language learner within the previous two school years, and enrolled in a DOE school for the first time within the last four years.

In addition, students who are offered admission to a SHS through the discovery program must successfully complete a summer school program to ensure they will be able to “successfully cope with the special high school program.”

The students took the SHSAT in 2019 and identified the SHS(s) of their choice for the 2019-2020 school year.  Each student earned a score below the cut-off score for the SHS(s) of his or her choice.  On March 18, 2019, the students received notification from NYCDOE that, based upon their scores on the SHSAT, they would not be admitted to any of the SHSs which they chose.[5]  These appeals ensued.  Petitioners’ requests for interim relief were denied on May 10, 2019.

Petitioners contend that, but for the changes which respondents made to the discovery program for the 2019-2020 school year, the students would have been admitted to the SHS of their choice.  Petitioners also assert that respondents improperly implemented the changes to the discovery program without promulgating rules and without following the procedures in the City Administrative Procedure Act (“CAPA”) (see New York City Charter, Chap. 45, §1043), the Bylaws of the Panel for Educational Policy of the Department of Education for the City School District of the City of New York (“PEP”) (see PEP Bylaws §2.5.1) and/or the State Administrative Procedure Act (“SAPA”) (see State Administrative Procedure Act).  Petitioners also allege that respondents’ changes to the program are arbitrary and capricious because (1) due to students’ ability to identify some, but not necessarily all, of the SHSs of their choice in order of numerical preference, a disadvantaged student can earn a score that is below the cutoff score for the SHS of his or her choice, but higher than the lowest cutoff score among all eight SHSs, which makes that disadvantaged student ineligible to participate in the discovery program; (2) respondents have expanded the size of the discovery program, which limits the number of seats in SHSs available to test-takers and arbitrarily raises the cutoff score for each SHS; (3) admission of more students into the discovery program will interfere with the academic rigor of the SHSs because more students will be unable to keep up with the coursework, in violation of Hecht-Calandra; (4) eligibility for the discovery program is improperly determined by respondent NYCDOE instead of by local schools; and (5) respondent NYCDOE improperly determines a student’s disadvantaged status by analyzing the economic need of schools in addition to that of individual students’ families.  For relief, petitioners request that I declare the discovery program invalid and vacate respondent NYCDOE’s decision to deny the students’ admission into the SHS of their choice.  Petitioners further assert that “the issues raised by the petition will affect hundreds of other parents and students” and request to be certified as representatives of a class of parents and students who are similarly situated.

Respondents contend that the discovery program, as expanded and modified, complies fully with Hecht-Calandra and all other applicable laws and regulations; that the decision to expand and modify the discovery program was within the authority of the Chancellor, was not subject to CAPA, SAPA, or review by the PEP; and was neither arbitrary nor capricious.  Respondents claim that at least four petitioners are not aggrieved and, therefore, have no standing to bring an appeal, and also that the appeal is time-barred.  Respondents also object to the submission of petitioners’ reply.

I will first address the procedural matters.  As respondents correctly point out, petitioners’ reply cannot be considered, as it is unverified.  Pursuant to §275.5 of the Commissioner’s regulations, all pleadings in an appeal must be verified by one of the petitioners.  Although petitioners’ attorney has attached a signed affirmation, this does not satisfy the plain language of the regulations.  Petitioners’ reply is not verified and, therefore, may not be considered as part of the record in this appeal (Appeal of J.L., 41 Ed Dept Rep 62, Decision No. 14,615; see also Appeal of A.A., 54 id., Decision No. 16,782 [attorney may not verify an individual petitioner’s pleading pursuant to regulations governing appeals and other proceedings before the Commissioner of Education]).

To the extent petitioners seek to maintain the appeal as representatives of a class of parents and students who are similarly situated, class status is denied.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  Petitioners do not address the requisite standard, merely stating that, “[s]ince the issues raised by the petition[s] will affect hundreds of other parents and students, the petitioner[s] ask[] that ... the petitioner[s] be certified as ... representative[s] of a class of parents of students aggrieved by the DOE discovery program.”  Petitioners have failed to set forth the number of individuals they seek to represent other than speculating that it “may exceed 500.”  Petitioners also make no specific factual allegations as to how the “hundreds of other parents and students” are aggrieved nor address whether these parents and students share all questions of law and fact at issue in these appeals.  Therefore, class status is denied.[6]

Respondents contend that four petitioners – K.N., C.Y., K.M. and H.O. - lack standing to maintain the appeal.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

To the extent petitioners claim that the expansion of the discovery program resulted in the elevation of the SHSAT examination cut-off scores for entrance to a specialized high school, excluding them from admission to such schools, they have standing to maintain the appeal.  Petitioners claim that, but for the discovery program’s expansion, the cut-off score for admission to each school would be lower – due to increased availability of seats in each school.  They claim that their opportunity for admission has been affected by the expansion of the discovery program.

Respondents assert that, even if the discovery program did not exist, petitioners K.N., R.Y. and K.M. would not have been admitted to their chosen schools and, therefore, have not been harmed and lack standing.  Respondents claim that those students’ SHSAT scores are lower than the requisite cut-off scores for the schools they chose and, thus, they would not have been admitted anyway.  However, respondents’ argument relies upon the current cut-off scores, which are the very scores that petitioners claim were elevated due to the challenged expansion of the discovery program.  Thus, respondents’ argument as to those petitioners’ standing is unpersuasive.

Respondents also assert that student H.O. has been extended an invitation to demonstrate that his family meets the “disadvantaged” criteria for admission to one of his chosen schools through the discovery program and, therefore, is not aggrieved and lacks standing.  However, petitioners’ claim regarding the effect of the expansion of the discovery program on the SHSAT examination cut-off scores pertains to admission to these schools based solely on the test score.  Student H.O.’s invitation to participate in the discovery program does not affect that claim and, on such claim, I cannot conclude that student H.O. lacks standing.

To the extent that petitioners challenge the effect of the use of the lowest school’s cut-off score on disadvantaged students, as well as the change in criteria or method of determining whether a student is “disadvantaged,” I find that the parents of students N.A., K.M., R.B., K.N., C.Y. and H.O. lack standing to assert such claims.  None of those students allege that he or she is a disadvantaged student under any criteria, and they are not authorized to assert the rights of others (Appeal of Radford and Jones, 57 Ed Dept Rep, Decision No. 17,283; Appeal of Walker, et al., 53 id., Decision No. 16,609).[7]  Therefore, I find that such petitioners lack standing to challenge any changes pertaining to “disadvantaged” students in this appeal.

Finally, petitioners maintain that the expansion of the discovery program will impermissibly lower the academic rigor of the SHSs.  While petitioners may object to the alleged effect on the schools’ programs, petitioners identify no injury to their individual civil, personal or property rights in connection with that claim.  Thus, they lack standing to maintain such claim.

To the extent that respondents argue that petitioners’ claims are time-barred because the changes to the discovery program were announced more than 30 days before petitioners brought these appeals, that argument must fail.  Although the changes to the discovery program at issue here were announced as early as 2016, petitioners were not directly aggrieved by these changes until the students took the SHSAT and failed to earn admission to an SHS.  These appeals were filed timely after the students were notified on March 18, 2019, that they would not be admitted to any of their chosen SHSs.

Nevertheless, I am unable to consider petitioners’ claims that respondents’ changes to the discovery program are illegal because they were not promulgated in accordance with SAPA or CAPA because I lack jurisdiction over such claims.  An appeal to the Commissioner of Education under Education Law §310 is not the appropriate forum to challenge NYCDOE’s compliance with the rulemaking procedures set in SAPA and CAPA; such relief should be sought in a court of competent jurisdiction.

With respect to SAPA, section 205, entitled “Right to judicial review of rules,” provides that:

Unless an exclusive procedure or remedy is provided by law, judicial review of rules may be had upon petition presented under article seventy-eight of the civil practice law and rules, or in an action for a declaratory judgment where applicable and proper (State Administrative Procedure Act §205).

Here, there is no “exclusive procedure or remedy ... provided by law” concerning petitioners’ claims; thus, any claim arising under SAPA is outside of my jurisdiction.  Additionally, SAPA concerns actions of State agencies, and respondents are not State agencies within the meaning of SAPA (see State Administrative Procedure Act §102[1]).

Petitioners’ CAPA claims must also be dismissed for lack of jurisdiction.  Education Law §310, in relevant part, provides that “[a]ny party ... aggrieved may appeal ... any ... official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools” (Education Law §310[7]).  CAPA does not arise “under this chapter” (i.e., Education Law, Chapter 16) and is not an "act pertaining to common schools.”  Instead, CAPA is municipal legislation which is part of the New York City Charter.  Thus, I find that I lack jurisdiction over an alleged violation of CAPA in an appeal pursuant to Education Law §310.

Additionally, I note that respondents have cited an opinion of NYCDOE Corporation Counsel, which opines that the (then-newly enacted) rulemaking provisions of CAPA did not apply to respondent NYCDOE for two principal reasons:  (1) “many, if not most, of the Board’s and Chancellor’s rules” are educational or pedagogic in nature, thus placing them outside the ambit of local regulation (see Matter of Hirschfield v. Vook, 227 NY 297); and (2) the Education Law establishes the rulemaking authority of the Board and Chancellor in Education Law §2590-d (see NYC Corp. Op. 11-90, N.Y.C. Corp. Counsel [Dec. 20, 1990]).  As respondent NYCDOE suggests, I have jurisdiction over, and have exercised jurisdiction over, regulations promulgated by the Chancellor pursuant to Education Law §2590-d, claims not raised in this appeal (see e.g. Appeal of Cody, 57 Ed Dept Rep, Decision No. 17,278; Appeal of Countryman, 51 id., Decision No. 16,276).

Turning to the merits, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

With respect to respondents’ alleged failure to obtain PEP approval of their expansion and modification of the discovery program, such approval is not required because Hecht-Calandra and Education Law §§2590-g[4] and 2590-h[1][b] state that the day-to-day administration of the SHSs, including the discovery program, is within the exclusive province of the Chancellor, and petitioners cite to no provision that requires or authorizes the PEP to exercise control over the SHSs or the discovery program.  Although petitioners argue that PEP approval of the criteria for “disadvantaged” status and the expansion of the discovery program was required pursuant to Education Law §2590-g(1)(a) (which requires PEP approval for a standard, policy or objective related to educational achievement and student performance), I disagree.  Based on the record before me, I conclude that defining “disadvantaged status” and expanding the number of seats in any particular program do not directly relate to “educational achievement and student performance.”  Moreover, as noted, Education Law §2590-h(1)(b) specifically vests the authority to control and operate SHSs with the Chancellor.

To the extent petitioners complain that respondents’ modification and expansion of the discovery program is unlawful, boards of education (or, in the City of New York, NYCDOE) possess broad authority to prescribe the course of study by which pupils shall be graded and classified, and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship should warrant (Education Law §§1709[3] and 2554[1]).  It has been repeatedly held that the Commissioner of Education will not substitute his or her judgment for that of a board of education, or the Chancellor, with respect to student placement, absent evidence that the board, or Chancellor, has acted in an illegal, arbitrary, or capricious manner (Appeal of I.L., 53 Ed Dept Rep, Decision No. 16,496; Appeal of T.K., 47 id. 234, Decision No. 15,679; Appeal of Landau, 34 id. 79, Decision No. 13,239; Appeal of Alexandreena D., 30 id. 203, Decision No. 12,433; Appeal of DiMicelli, 28 id. 327, Decision No. 12,125; Appeal of Bartowski, 25 id. 52, Decision No. 11,495).

Petitioners have not carried their burden of proving that respondents have acted in an illegal, arbitrary or capricious manner, either in permitting the Chancellor to define which students qualify as “disadvantaged” or in expanding and modifying the discovery program as described herein.  Hecht-Calandra dictates that “[a]dmissions to the [SHSs] shall be solely and exclusively by taking a[n] ... examination, which shall be open to each and every child in the city of New York...” and allows for the creation of a discovery program, participation in which is based, in part, on disadvantaged status.

Although the Act dictates some parameters of the discovery program, it does not define which students are “disadvantaged,” thereby leaving such authority to the Chancellor (Education Law §2590-h[1][b]), who has the authority to control and operate, among other things, “all specialized senior high schools”[8] (Education Law §2590-h[1][b]).  As the Act exists today, the Chancellor is well within his authority in establishing the parameters for determining the number of seats and defining “disadvantaged” students for purposes of admittance to the discovery program for SHSs under Hecht-Calandra.

Petitioners have failed to meet their burden of proving that respondents’ expansion of the number of seats in the discovery program was illegal, arbitrary or capricious.  Admission to the SHSs is controlled by the Hecht-Calandra Act, which mandates that a competitive examination be the primary criterion for admission, but also provides that certain students who score below the cutoff score may enter these schools through a discovery program.  Petitioners speculate that, due to increasing the number of seats allotted to the discovery program, there were fewer seats available to students who seek admission on test scores alone - increasing competition among test takers and driving up the cutoff score for each SHS, resulting in the exclusion of their children, who scored just below the cutoff point for the SHS of their choice.  However, the Hecht-Calandra Act sets no cap on the size of the discovery program.  While the original draft of the bill capped the percentage of seats reserved at the SHSs for discovery program participants at fourteen percent, the proposed cap was removed and not included in the final enacted statute (Bill Jacket, L 1971, ch 1212; A.7005-A, (NY 1971)).

Respondents explain in their answer that they made a policy determination to expand the number of seats in the discovery program over a two-year period (2019-2020 and 2020-2021 school years) to increase diversity in these schools.  Respondents assert that “the [SHSs] have become far less diverse than in previous decades, in terms of geography, race and ethnicity.”  Respondents assert that the majority of middle schools in New York City send no students to the SHSs, while “50% of the offers go to students attending approximately 30 middle schools” and that the “percentage of African-Americans and Latino students in the [SHSs] has declined to the extent that[,] in two of these schools[,] ... less than 1% of the enrolled students are African-American.”  Since the Hecht-Calandra Act does not require any particular number of seats in the discovery program and respondents have provided a rationale for their expansion of the number of seats in the program, I find that petitioners have not met their burden of demonstrating that respondents’ decision was arbitrary, capricious or in contravention of law.

Petitioners also complain that admission of a greater number of students into the discovery program will “interfer[e] with the academic level” of the SHSs, in violation of Hecht-Calandra.  As noted above, I find that petitioners lack standing to challenge the academic rigor of the SHSs.  In any event, I find that this claim is entirely speculative and rests upon assumptions which are not borne out by the record.  Petitioners have offered no evidence to show that the expansion of the discovery program will “interfer[e] with the academic level” of the SHSs.  On the contrary, Hecht-Calandra and respondents’ policies relating to the discovery program contain several provisions to help ensure that participants are prepared to meet the academic level of the SHSs, including the requirement that a student’s school certify the student’s “demonstrated potential” and the requirement that participants successfully pass a summer program prior to being admitted to an SHS to demonstrate his or her ability to successfully cope with the special high school program.  Therefore, as contemplated by the Act, students who are admitted to the SHSs through the discovery program must demonstrate that they will keep up with the academic rigor.

Moreover, respondents submitted an affidavit from the director of research and policy (“director”) in respondent NYCDOE’s Office of Student Enrollment.  In this affidavit, the director found that both students admitted by virtue of their SHSAT scores and potential discovery program participants achieved the state level of “[s]tudents performing at this level excel in standards for their grade.”  The director also states that the average grade point averages of students who entered the SHSs in the discovery program in 2017 and 2018 indicate that these students are achieving mid to high 80s to low 90s grade point averages, demonstrating that these students are successfully completing the rigorous coursework offered at these schools.  I, therefore, cannot conclude that the academic rigor of these schools would be compromised by students accepted through the discovery program.

Petitioner M.N. next complains that, due to students’ ability to apply to any number of the SHSs in order of numerical preference, a disadvantaged student can earn a score that is in a “gap” region below the cutoff score for the SHS(s) of his or her choice, but higher than the lowest cutoff score among all eight SHSs, making that student ineligible for admittance into the SHS solely on the basis of his or her test score but also ineligible to participate in the discovery program.

In response, respondents explain that, when Hecht-Calandra was enacted, there were only three SHSs and students were allowed to apply to only one of the three SHSs.  Between 2002 and 2008, respondents created additional SHSs and permitted students to apply to any or all of the SHSs.  According to respondents, it became impracticable for the SHSs to assess eligibility for the discovery program based on the “cut-off score” for each school “[b]ecause ... approximately 27,000 eighth grade students take the SHSAT ....”  Respondents further explain that:

Under the structure advocated by petitioners, many students considered for the Discovery Program admission in one school would already have received, or even accepted, an offer to another Specialized High School.  However, if a student participates in the Discovery Program to obtain admission to a [SHS] the student had ranked higher, it will not be known until late summer whether the student has successfully completed the summer school program and thus will be admitted to her higher-ranked school.  In the meantime, the lower-ranked [SHS] to which the student had received an offer would have to hold the student’s seat open until the end of summer since she might not successfully complete the summer school program or might choose not to attend the higher-ranked [SHS].  If the student ultimately attends the higher-ranked school, the lower-ranked [SHS] would then have to make additional offers to fill these vacancies in late summer.  This, in turn, would create further vacancies in lower-ranked schools, creating a domino effect.  This would be extremely disruptive for school administration and planning, not only at the [SHSs], but also at other DOE high schools, particularly the schools whose rosters who include students that applied for admission to a [SHS].

Employing petitioners’ preferred method of using individual cutoff scores for each school would result in delays in student placement, which would compromise respondents’ ability to administer the program.  Thus, I cannot find that respondents’ administrative decision is arbitrary or capricious.  I note that, significantly, students have the ability to avoid this “gap” by ranking all eight SHSs.

Petitioner M.N. also challenges respondents’ modification to the criteria for “disadvantaged status.”  In 2018, respondents modified the criteria for a “disadvantaged” designation such that a student’s school must have an ENI of 0.6 or more, but after that threshold is met, local schools must still certify that individual students are, in fact, disadvantaged based on how those individual students meet the remaining criteria under respondents’ updated definition of “disadvantaged.”  Respondents explain their rationale for the dual criteria in their verified answer:

Students who are both from low-income families and attend schools that have students with higher economic hardship face more disadvantages than students who are from low-income families but attend schools with higher-income students ....  The incorporation of two standards into the definition of “disadvantaged” allows the DOE to more effectively ensure that the [d]iscovery [p]rogram serves the most disadvantaged students.

As respondents point out, 465 of the approximately 650 middle schools in New York City have an ENI of more than 0.6, which means that individually disadvantaged students attending over 70 percent of respondents’ middle schools have the potential to be eligible for the discovery program.  Therefore, respondents’ rationale for using the dual criteria of school ENI and individual disadvantage is neither arbitrary nor capricious, and I will not disturb their determination to use the threshold ENI requirement.

Petitioner M.N. further argues that respondents’ decision to require that a student attend a school with an ENI of at least 0.6 to participate in the discovery program violates subdivision (b) of the Act because the discovery program is not open to “each and every child in the city of New York ... without regard to any school district wherein the child may reside” (L 1971, ch 1212, §1).  However, in so arguing, petitioners misapply subdivision (b) of Hecht-Calandra to the discovery program.  Subdivision (b) relates to admission to the SHSs through test score and provides as follows:

Admissions to the [SHSs] ... shall be solely and exclusively by taking a competitive, objective, and scholastic achievement examination, which shall be open to each and every child in the city of New York ... without regard to any school district wherein the child may reside (see L 1971, ch 1212, §1).

The Act merely mandates that all New York City students must be allowed to take the exam.  This provision does not mean that every student in the City must be eligible for the discovery program.

Finally, I must reject petitioner M.N.’s argument that respondent has improperly centralized the certification of individual students’ disadvantaged status in violation of subdivision (d)(2) of Hecht-Calandra, which requires that the local school certify that the student is disadvantaged to be eligible for the discovery program.  Petitioner argues that, under respondents’ new discovery program criteria, respondent NYCDOE will be determining students’ potential eligibility for the discovery program rather than a student’s local school as required by the Act.  Respondents have explained that, as potential discovery program candidates are identified, respondent NYCDOE sends out applications for families to complete in order to determine their status as “disadvantaged.”  After families have completed the applications, the families submit them to their local schools, which certify that the submitted information is accurate to the best of the school’s knowledge.  The applications are then sent to respondent NYCDOE for final processing.  I, therefore, find that respondents have complied with the requirements of Hecht-Calandra regarding local schools’ certification of individual students’ status as “disadvantaged.”

On the record before me, I cannot conclude that respondents’ expansion and modification of the discovery program was unlawful, arbitrary or capricious.  In certain respects, as described above, petitioners have not proven that they are aggrieved by the expansion, modification, or administration of the discovery program as currently implemented.  Petitioners have also failed to establish that the current parameters of the discovery program, as defined and implemented by respondents, are in violation of any of the laws or regulations they cite, including Hecht-Calandra and the Education Law.  While I am sympathetic to petitioners’ desire to have their children attend the specialized high school of their choice, on this record, I cannot grant the relief they seek.

I have considered petitioners’ remaining arguments and find them to be without merit.

THE APPEALS ARE DISMISSED.

END OF FILE

 

[1] Eight of the nine SHSs use performance on the SHSAT as the main criterion for admissions:  Stuyvesant High School; The Bronx High School of Science; The High School for Math, Science and Engineering at City College; High School of American Studies at Lehman College; Brooklyn Technical High School; Brooklyn Latin School; Queens High School for the Sciences at York College; and Staten Island Technical High School.  The ninth SHS operated by NYCDOE, the Fiorello H. LaGuardia High School of Music and the Arts, has a separate admissions process which involves auditions and a review of applicants’ academic records and for which applicants do not take the SHSAT.

 

[2] This information comes from a declaration submitted by Joshua Wallack in Christa McAuliffe Intermediate School PTO, Inc., et al v. Bill De Blasio, et ano., Case No. 1:18-cv-11657-ER, S.D.N.Y., and has been submitted by petitioners as part of this appeal.

 

[3] There were 252 discovery program participants during the 2018-2019 school year.  NYCDOE has reserved 528 seats for discovery program participants for the 2019-2020 school year (approximately 13% of available seats) and plans to reserve approximately 800 seats for the 2020-2021 school year (approximately 20% of the available seats).

 

[4] The ENI is a value created by respondent NYCDOE that is used to estimate each school population’s overall economic need.  The ENI is calculated by averaging all of a school’s students’ Economic Need Values (“ENV”).  Each student’s ENV is calculated as follows: the ENV is 1.0 if:  (i) the student lives in a household that is eligible for public assistance from the NYC Human Resources Administration; (ii) the student has lived in temporary housing in the past four years; or (iii) the student has a home language other than English and enrolled in a NYCDOE school for the first time within the last four years.  Otherwise, a student’s ENV “is based on the percentage of families with school-age children in the student’s census tract whose income is below the poverty level, as estimated by the American Community Survey Five-Year Estimate...(for example, if 62% of families in the census tract have income below the poverty line, the student’s [ENV] is 0.62).”

 

[5] One of the students was eligible for and received an invitation to participate in the discovery program.

 

[6] In light of this determination, I need not address respondents’ affirmative defense that the appeal must be dismissed for failure to join necessary parties, which was contingent upon a certification of class status.  In any case, had class status been granted, it would have obviated the need for joinder, and respondents’ affirmative defense would still be moot.

 

[7] M.N. asserts that he “qualifies for free lunch” which meets the threshold criteria for “disadvantaged” status under the previous criteria for eligibility to the discovery program.  Therefore, M.N. has standing to assert the aforementioned claims relating to disadvantaged students (where discussion of such claims also includes discussion of petitioners’ expansion claims, reference will be made to “petitioners”).

 

[8] In 1996, the State Legislature changed the school governance structure in New York City such that the authority of the former Board of Education was bestowed upon the Chancellor (see L 1996, ch 720, §6 [repealing and adding a new §2590-g of the Education Law] and §7 [amending §2590-h(1)(b) of the Education Law and incorporating Education Law §2590-g(12), as in effect on March 29, 1997]).