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Decision No. 16,665

Appeal of A.R. and M.N., on behalf of their children, from action of the New York City Department of Education regarding educational placement.

Decision No. 16,665

(September 2, 2014)

Emery Celli Brinckerhoff & Abady LLP, attorneys for petitioners, Alison Frick, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Lauren A. Lively, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“respondent” or “NYCDOE”) to deny their children admission to one of its specialized high schools.  The appeal must be dismissed.

During the 2013-2014 school year, petitioner A.R.’s daughter, Student A, and petitioner M.N.’s daughter, Student B, were eighth-grade students in respondent’s P.S. 333 Manhattan School for Children (“Manhattan School”).  According to petitioners, at Manhattan school, Student A earned a 95% grade point average (“GPA”) and 98% attendance record, while Student B has a 96% GPA and 100% attendance record. 

According to respondent, the Fiorello H. LaGuardia High School of Music and the Arts (“LaGuardia”) is a specialized public high school in New York City.  LaGuardia admits selected students into six studio areas: fine arts, dance, instrumental music, vocal music, drama, and technical theater.  Admission to LaGuardia is competitive: for the 2014-2015 school year, 14,943 students applied for 696 ninth-grade seats.  In fine arts studio, 340 students were offered admission from among 2,741 applicants (9%), while the vocal music studio accepted only 262 of 3,918 applicants (7%).  According to respondent, LaGuardia selects students based on evaluation of their auditions for the different studio areas and their school records.  An applicant is first evaluated based on an audition by studio faculty and associated staff.  Students are scored on a scale from zero to five and pass the audition if they receive a score of three or higher.  The admissions committee then reviews the school records of the students who received a three or higher on their audition.  According to respondent, the admissions committee does not review the school records of students scoring below a three on the audition.

In the fall of 2013, Student A applied for LaGuardia’s vocal music studio and Student B applied for the fine arts studio.  Their seventh-grade school records were included as part of their applications.  In November 2013, both students auditioned for their desired studios.  According to respondent, since Student B did not score a three or higher, she was ineligible for the next round of review, and the admissions committee did not consider her school record.  Student A scored above the threshold on her vocal audition and the admissions committee then considered her school record, which included her seventh-grade final grades, standardized test scores, and attendance record, as well as her audition essay and questionnaire regarding her background and interest in vocal music.  Admission decisions were completed in early February 2014, and by letters dated March 2014, Student A and Student B were notified that they would not be admitted to LaGuardia for the 2014-2015 school year.  This appeal ensued.

Petitioners claim that respondent’s refusal to admit their children to LaGuardia is arbitrary, capricious, unlawful, and violates respondent’s representations and promises.  Specifically, petitioners assert that respondent represented that Common Core standardized tests would not be considered in high school admissions, including admissions to LaGuardia.  Petitioners also allege that respondent failed to provide Student A and Student B with an education at Manhattan School sufficient to prepare them for Common Core tests.  Finally, petitioners assert that respondent relied on Common Core test results as the “major factor” in school placement determinations, in violation of Education Law §305(47).  Petitioners request the immediate acceptance of Student A and Student B into LaGuardia for the 2014-2015 school year, and an injunction requiring LaGuardia to abandon the Common Core test as a criterion for admissions.

Respondent asserts that petitioners have not established that they are entitled to the relief requested and maintains that its decision not to admit the students to LaGuardia was not arbitrary or capricious.

I must first address the procedural matters.  By letter to my Office of Counsel dated June 11, 2014, respondent’s attorney requested, pursuant to 8 NYCRR §276.5, that I accept a supplemental affidavit from an attorney employed by respondent, which incorporates an “Art Department Audition Rating Sheet” for Student B’s fine arts studio audition that was contained within Student B’s LaGuardia application materials.  According to respondent’s attorney, the affidavit and exhibit are submitted to refute petitioners’ challenge to the veracity of a previously-submitted affidavit from LaGuardia’s principal and supporting exhibit regarding Student B’s audition score.  Petitioners, who are represented by counsel, did not object to respondent’s request.

Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).   I note that respondent should have submitted the exhibit along with its answer; however, under the circumstances presented here, I find that petitioners would not be prejudiced by my review of the additional affidavit and exhibit on the issue of Student B’s audition score.

Respondent asserts that petitioners’ memorandum of law raises new assertions and presents new exhibits that were not included in the verified petition or reply.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Petitioners’ memorandum of law includes new factual assertions and exhibits that are not part of their verified petition or reply.  Therefore, while I have reviewed petitioners’ memorandum of law, I have not considered those portions containing new allegations and exhibits that are not part of the pleadings.

Turning to the merits, a board of education possesses 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], 2554[1], and 2590-h[17]).  It has been repeatedly held that the Commissioner of Education will not substitute his judgment for that of a board of education, or the Chancellor, in the case of the New York City School District, with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of I.L., 47 Ed Dept Rep 234, Decision No. 15,679; Appeal of Alexandreena D., 30 id. 203, Decision No. 12,433; Appeal of DiMicelli, 28 id. 327, Decision No. 12,125; Appeal of Henry Bartowski, 25 id. 52, Decision No. 11,495).  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioners assert that LaGuardia improperly denied admission to their children “because of their performance on tests that NYCDOE officials said would not count, based on curricula their school did not use, and testing information they had not learned.”  Petitioners further assert that NYCDOE did not provide notice to applicants and parents regarding LaGuardia’s admissions process and repeatedly promised that the redesigned state standardized tests for grades three through eight aligned to the Common Core State Standards, administered in April 2013, would not be considered in high school admissions, including LaGuardia.  In support of this claim, petitioners rely on a March 2013 memorandum from the New York State Education Department’s (“Department”) Office of P-12 Education, which states that “[s]tudents will not be adversely affected by changes to the design of State tests.”  Petitioners also cite an August 7, 2013 statement on NYCDOE’s website (“August 2013 Statement”) that “students, teachers, and schools are not penalized by the transition to Common Core State tests,” as well as an October 1, 2013 memorandum from NYCDOE’s executive director of high school admissions (“October 2013 memorandum”) stating that the NYCDOE would “make sure students, teachers, and schools are not penalized by the transition to Common Core tests.”  As to the high school admission process, petitioners cite a NYCDOE “Specialized High Schools Student Handbook” (“Handbook”), which outlines the admissions process for all of the specialized high schools, including LaGuardia, and states that “[s]tudents are evaluated solely on the official marks awarded during the previous academic school year.”  Petitioners claim that “[n]owhere did the Handbook mention that standardized test scores would be part of the evaluation.”

In response to petitioners’ claim, respondent contends that NYCDOE publishes materials that are readily available on its website and that describe the admission criteria used by its specialized high schools.  One of those documents, in addition to the Handbook upon which petitioners rely, is its “High School Directory” (“Directory”), which includes detailed information on each of the specialized high schools.  Under “Selection Criteria” – which is listed above “Audition Information” – the Directory provides that each of LaGuardia’s six studios requires candidates to have grades of “80-100” in English, Math, Science, and Social Studies; and “Standardized Test Scores” of levels 2-4 for Math and English Language Arts (“ELA”).  Therefore, according to respondent, its materials describing LaGuardia’s admissions criteria “clearly state the scores on both classroom work and standardized tests that LaGuardia applicants must achieve to be competitive.”  With respect to the Handbook, respondent explains that the language cited by petitioners is taken out of context.  Respondent explains that the Handbook’s reference to evaluation “solely on official marks awarded during the previous academic school year” is actually followed by the sentence “[n]o reevaluation will be done based on any subsequent improved academic performance.”  Accordingly, as noted by respondent, the language demonstrates that the former statement “establishes the year for which grades will be considered, not that these grades are the only factor considered as part of students’ records.”  On the record before me, petitioners have not established that NYCDOE failed to provide notice to applicants and parents regarding LaGuardia’s admissions process or criteria.

Petitioners have also not carried their burden on their claim that respondent repeatedly “promised” not to “penalize” students by considering Common Core test scores as part of high school admissions, including LaGuardia.  According to respondent, in the spring of 2013, the Department introduced redesigned standardized tests for students in grades three through eight, which were aligned to the Common Core State standards.  NYCDOE asserts that it recognized that student test scores for the 2012-2013 school year would be lower than in past years due to higher performance standards in the new State standardized tests.  As a result, respondent asserts that it took steps to ensure that the admissions criteria for school placements reflected the change to the tests.  For example, petitioners cite respondent’s August 2013 statement, which noted that NYCDOE was “working to ensure that students would not be penalized by the transition to the Common Core State tests.”  However, respondent notes that the statement further explained that “[s]tudents who earn the highest scores – even if those scores are lower than in past years – will still have access to screened middle and high schools.”  In its answer, respondent explains that, read in context, the August 2013 statement “demonstrates that DOE considered students to be penalized if their scores were compared to scores from past years; it does not imply that DOE would abandon the use of standardized tests in admission decisions.”

Similarly, the October 2013 memorandum — upon which petitioners rely — recommended that schools adjust their selection criteria “to ensure that they identify a similar number of qualified students as in the past.”  The October 2013 memorandum advised schools that generally accept students scoring at level 3 (proficient) or higher to consider students scoring 2.25 or higher and that schools that accept students scoring at or above level 2 consider students scoring 1.8 or higher.  According to respondent, LaGuardia acted in accordance with this recommendation, which is also internally consistent with the Department’s March 2013 memorandum – also relied upon by petitioners – which advocates a balance between the need for “increased rigor against legitimate student expectations for access to educational programs, including local promotion and admission policies.”  Thus, the very guidance memoranda relied upon by petitioners for the proposition that Common Core test results would not be considered in specialized high school admissions actually contemplated the use of standardized test scores in placement decisions.  Therefore, on this record I cannot find that petitioners carried their burden of proof with respect to this claim.

Next, petitioners assert that their children were denied admission to LaGuardia based on their Common Core test results alone, and that respondent’s reliance on Common Core test results as the “major factor” in school placement determinations violates Education Law §305(47).  As respondent notes, petitioners appear to have abandoned this argument in their memorandum of law.  In any case, I note that Education Law §305(47), which was added pursuant to Chapter 56 of the Laws of 2014 and prohibits the use of standardized test scores as the “sole, primary or major factor” in student placement or promotion decisions, took effect on March 31, 2014, after LaGuardia admissions decisions were made.

To the extent petitioners argue that LaGuardia’s admissions committee acted contrary to its own admissions procedures by considering their daughters’ Common Core test results alone, or that LaGuardia’s denial of admission was arbitrary or capricious, such claims also fail.  Education Law §2590-h(1)(b) provides that admission to NYCDOE’s specialized senior high schools must be “conducted in accordance with the law in effect on the date preceding” its December 31, 1996 effective date (see Appeal of P.W., 45 Ed Dept Rep 257, Decision No. 15,314).  The statute governing admission to these schools in effect on that date, former Education Law §2590-g(12)(c), provides as follows:

(c)  Candidates for admission to the Fiorello H. LaGuardia High School of Music and the Arts, and other schools which may be established with similar programs in the arts, shall be required to pass competitive examinations in music and/or the arts in addition to presenting evidence of satisfactory achievement.

According to an affidavit from the principal of LaGuardia, the first stage of the application process is the audition, which differs for each studio.  Applicants for the vocal music studio must perform a song without accompaniment, sing back melodic patterns, and tap back rhythmic patterns, as well as complete an essay and answer questions regarding their interest in and experience with vocal music.  Applicants for the fine arts program prepare a portfolio of their work in advance of the audition and then complete three different types of drawings during the audition, as well as draft an essay and respond to a questionnaire.  A student is deemed to have “passed” the audition in either studio if he or she receives a score of three through five.  Students who pass their audition move on to the next stage of review, in which a student’s academic record is examined by the admissions committee.  The academic record for students applying for ninth-grade seats, according to LaGuardia’s principal, includes the student’s grades, standardized test scores, and attendance record from seventh grade.  In light of the changes to the State standardized tests in the spring of 2013, applicants’ raw scores were adjusted so that the scores used to assess students were comparable to the scores on the State standardized tests in past years.  The principal notes that, due to the competitive nature of LaGuardia admissions, even students with very strong grades, State standardized test scores, and auditions may not receive seats at LaGuardia. 

According to respondent, Student B’s school record was not considered because she did not receive a score of three or above on her audition.  Student A scored high enough on her audition to have her school record considered, which included an assessment of her scores on the State standardized tests.  Respondent asserts that Student A’s application was not denied due to her State test scores, since she exceeded LaGuardia’s selection criteria, which require a score of at least two on both the ELA and Math tests.  However, after consideration of Student A’s record, along with the records of thousands of other qualified applicants, the admissions committee determined that it would not offer Student A a seat in the vocal program.  Fewer than seven percent of the applicants for the vocal music studio were offered seats in the ninth grade for the fall of 2014.[1] 

To support their claims, petitioners primarily rely on two e-mail responses from LaGuardia’s admissions director (“director”), responding to each of their inquiries as to why their daughters were not accepted into LaGuardia.  Regarding Student B, the director stated that “her academic scores brought her overall score down to a point that she was not given an offer.”  With respect to Student A, the director stated that she “needs to improve her academic scores.”   Petitioners contend that these statements are inconsistent with statements made by respondent regarding the admissions process indicating that Student B passed her audition and had her student record reviewed.  In response, LaGuardia’s principal submitted an affidavit stating that the director’s statements were erroneous, that Student B’s student record was not reviewed due to her score on the fine arts studio audition, and that Student A was treated no differently than any other applicant to the vocal music studio.  Petitioners submit no additional evidence to contradict or otherwise rebut respondent’s explanation of the procedures it used.  Therefore, petitioners have failed to carry their burden of establishing that their daughters were improperly denied admission due solely or primarily to their standardized test scores, or that LaGuardia’s denial of admission was arbitrary or capricious.

Finally, petitioners allege that respondent failed to provide their children with an education at Manhattan School that would have enabled them to succeed on the Common Core tests.  Specifically, they claim that Manhattan School did not adopt the “high-quality Core Curriculum options” specifically “aligned to the Common Core Learning Standards” that NYCDOE recommended for grades 6-8 Math and ELA on February 28, 2013.  Petitioners assert that, as a result, only 23.5% of Manhattan School seventh-graders passed the Common Core Math test and only 44% passed the Common Core ELA test.  Petitioners assert that, similarly, their children “did not fare well” on “what should have been a meaningless Common Core test”.

Petitioners have not proven that their daughters’ scores on the Common Core assessments are attributable to a failure on respondent’s part to provide instruction aligned to the Common Core learning standards, much less that respondent’s denial of admission of these two students to LaGuardia was caused by an alleged deficiency in the Common Core instruction provided at Manhattan School.  In fact, it appears from the record that Student B was denied admission based solely on her audition.  As to Student A, the record indicates that respondent’s denial of admission was based on multiple factors, including the assessment scores, and I am not persuaded that the mere fact that respondent considered these assessment scores rendered respondent’s decision arbitrary or capricious or in violation of law.

In any case, respondent has countered petitioners’ claims with evidence that Manhattan School effectively prepared its students for the tests.  The principal of the Manhattan School attested in an affidavit that  the curricula used during the 2012-2013 school year, when Student A and Student B attended seventh grade, were fully aligned to the Common Core standards and covered all units of study set forth in the Common Core standards.  Indeed, respondent notes that Manhattan School received an overall grade of “A” on NYCDOE’s Progress Report for the 2012-2013 school year, placing Manhattan School in the top quartile citywide of all schools serving kindergarten through eighth grades.  Further, the record indicates that Manhattan School offered a course to provide students with additional preparation for the 2013 State tests and provided scholarships to students whose families were unable to afford the course.  Petitioner A.R. chose not to enroll Student A in this course, but Student B did attend the course.  As respondent notes, however, petitioners’ argument is undercut by the fact that the preparation courses offered by NYCDOE necessarily occurred before the tests were administered in April 2013, months prior to NYCDOE’s issuance in August and October 2013 of two of the statements upon which petitioners rely to support their claim that petitioner A.R., “[r]elying on the many representations that the Common Core tests would not count in placement decisions,” “gave up” Student A’s slot in a preparation class.  Based on the record before me, I cannot conclude that Manhattan School failed to effectively prepare Student A and Student B for the 2013 State standardized tests in ELA and Math.  Therefore, petitioners have not met their burden of demonstrating that the determination to deny their daughters admission to LaGuardia was arbitrary or capricious and I will not substitute my judgment for that of respondent (see Appeal of B.M., 48 Ed Dept Rep 302, Decision No. 15,866).

In light of the foregoing disposition, I need not address the parties’ remaining contentions.





[1] According to respondent, 633 students passed the audition in the vocal studio, and over half of these students, 370 applicants, received a score of five on the audition.  Of the 370 applicants who, like Student A, received a five on the vocal audition, 173 were offered seats in the vocal music studio.  The other 89 students offered seats in the vocal program also performed very well in the audition, receiving scores of four, and were extremely academically qualified.