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Decision No. 18,098

* Subsequent History: Matter of I.A. individually and on behalf of U.A., an Infant v Betty A. Rosa, et al.; Supreme Court, Albany County; petition filed; July 15, 2022. *

Appeals of P.C. and W.C. on behalf of student 1, N.R. and A.R. on behalf of student 2, A.R.-R. and M.L. on behalf of student 3, I.A. on behalf of student 4, A.L. on behalf of student 5, J.N. on behalf of student 6, H.T. and Y.W. on behalf of student 7, and X.J.Z. and S.B.Z. on behalf of student 8 from action of New York City Department of Education and Richard A. Carranza[1] as Chancellor of the New York City Department of Education, regarding student placement.

Decision No. 18,098

(March 15, 2022)

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

Georgia Pestana, Corporation Counsel for the City of New York, Marilyn Richter and Thomas Roberts, Esqs., of counsel

ROSA., Commissioner.--In eight separate appeals, petitioners appeal the determination of the New York City Department of Education (“NYCDOE”) and Richard A. Carranza, former Chancellor of the NYCDOE, (collectively, “respondents”) to deny their children admission to their top-ranked specialized high schools (“SHSs”).  Because the appeals present similar issues of fact and law, they are consolidated for decision (8 NYCRR 275.18).  The appeals must be dismissed.

Given the disposition of these appeals, a detailed recitation of the facts is unnecessary.  The factual and legal background of respondents’ specialized high schools (“SHS”) is set forth in Appeals of C.K. et al. (59 Ed Dept Rep, Decision No. 17,748), a prior consolidated appeal brought by counsel for petitioners, and need not be repeated here.  Briefly, in Appeals of C.K., parents of students who applied for admission to SHSs challenged respondents’ 2019 changes to the “discovery program,” an admissions pathway for disadvantaged students authorized by statute (see Education Law § 2590-h [1] [b] [SHSs “shall be permitted to maintain a discovery program....”]).[2]  The petitioners in Appeals of C.K. claimed, in part, that their children would have been admitted to the SHSs of their choice but for respondents’ expansion of the discovery program.  The Commissioner dismissed the consolidated appeals for lack of standing, lack of jurisdiction, and on the merits.  

As in Appeals of C.K., the petitioners in these appeals are parents of children who took the standardized test used for admission to certain SHSs during the 2019-2020 school year.  By letters received on or about March 19, 2020, respondent denied the students admission to their top-ranked schools.  These appeals ensued.

As in Appeals of C.K., petitioners argue that, but for the changes that respondents made to the discovery program for the 2019-2020 and 2020-2021 school years, the students would have been admitted to their top-ranked SHS.  Petitioners also assert that respondents improperly implemented changes to the discovery program without promulgating rules in violation of 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 the State Administrative Procedures Act (“SAPA”) (see SAPA § 100, et seq.).  Petitioners also allege that respondents’ changes to the program are arbitrary and capricious because:  (1) it is possible for disadvantaged students to become ineligible for the discovery program if they score above the cutoff score of any SHS, regardless of whether they listed that SHS as a preferred school; (2) respondents have expanded the size of the discovery program,[3] which limits the number of seats in SHSs available to other students and implicitly raises the cutoff score for each SHS; (3) the admission of a greater number of students through the discovery program will lower the academic rigor of the SHSs; (4) eligibility for the discovery program is improperly determined by NYCDOE instead of by local schools; and (5) NYCDOE improperly determines a student’s disadvantaged status by analyzing economic need at the school instead of the individual or household level.  For relief, petitioners request that I declare the discovery program invalid and vacate NYCDOE’s decision to deny the students’ admission into their top-ranked SHSs. 

Respondents argue that the discovery program complies 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 and was not subject to CAPA or review by the PEP; and that the expansion of the discovery program was neither arbitrary nor capricious.  Respondents further claim that petitioners are not aggrieved and, therefore, have no standing to bring an appeal.

First, I must address a procedural issue.  Pursuant to former section 276.4 of the Commissioner’s regulations, respondents were required to serve their memoranda of law within 30 days after service of the answer, or 20 days after service of the reply, whichever is later.[4]  Respondents’ answer was served by mail on May 27, 2020, and petitioners did not submit a reply.  Therefore, respondents had until June 26, 2020 to serve their memoranda of law.  Respondents’ memoranda of law were served on petitioners on July 16, 2020 and were, therefore, untimely.  Respondents did not seek permission to submit late memoranda of law pursuant to 8 NYCRR 276.4 (a) and offer no explanation for the delay.  Therefore, I have not considered respondents’ untimely memoranda of law.

Other than vague assertions of anti-Asian bias, which respondents deny and petitioners failed to support in the record, petitioners’ arguments were directly raised and decided in Appeals of C.K.  Counsel for petitioners, who also represented the petitioners in Appeals of C.K., poses the same arguments raised in that appeal but offers no convincing explanation as to why I should depart from its holding and reasoning.  I further note that the Commissioner’s decision was upheld by Supreme Court, Albany County in an appeal under Article 78 of the Civil Practice Law and Rules on October 22, 2020 (C.K. v Tahoe, Sup Ct, Albany County, Oct. 22, 2020, Bartlett III, J., index. No. 909127-2019).[5]  Therefore, in accordance with the decision in Appeals of C.K., I find that the SHS discovery program, as expanded and modified, complies fully with Hecht-Calandra and all other applicable laws and regulations.[6]  Respondents’ decision to expand and modify the discovery program was within their authority and cannot be considered arbitrary or capricious.




[1] I note that, at the time petitioners initiated these appeals, the chancellor was Richard A. Carranza.  The current chancellor is David C. Banks.


[2] The statute in question is known as the “Hecht-Calandra” Act (see L 1971, ch 1212, adding subd. [12] to Education Law § 2590-g.  Education Law § 2590-g [12] was later replaced by Education Law § 2590-h [1] [b]).


[3] The discovery program has grown in absolute and relative terms since the 2018-2019 school year.  The program comprised 6% (252 students) of SHS students in 2018-2019, 13% (528 students) in 2019-2020, and 20% (802 students) in 2020-2021.


[4] Subsequent amendments to section 276.4, effective December 29, 2021, require service of memoranda of law within 40 (petitioner) or 50 (respondent) days after service of the petition (see  


[5] An appeal of this decision is pending before the Appellate Division, Third Department (Matter of C.K. v Tahoe.; Supreme Court, Albany County [Bartlett, J.]; Decision and Order dismissed petition to review October 22, 2020; Notice of Appeal filed December 15, 2020; appeal perfected September 15, 2021).


[6] This includes the determination that 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 forth in CAPA.  Additionally, I find it unnecessary to analyze the standing of the present petitioners in granular detail in light of the disposition of this appeal.  Nevertheless, I reiterate that only those petitioners who were directly affected by respondents’ action and suffered personal damage or injury to civil, personal, or property rights have standing to maintain the instant appeals.