New York Office

Office for Civil Rights

U.S. Department of Education
32 Old Slip, 26th Floor
New York, NY 10005-2500
September 27, 2012

RE:

The admissions process for New York Citys elite public high schools violates Title
VI of the Civil Rights Act of 1964 and its implementing regulations

Dear New York Office:

Each year, nearly 30,000 eighth and ninth graders compete for the chance to attend
Stuyvesant High School (Stuyvesant), The Bronx High School of Science (Bronx Science),
Brooklyn Technical High School (Brooklyn Tech), and five other public high schools that are
among the best schools in New York City and, indeed, the nation. Known as the Specialized
High Schools, these eight prestigious institutions are operated by the New York City
Department of Education (NYCDOE). They provide a pathway to opportunity for their
graduates, many of whom go on to attend the countrys best colleges and universities, and
become leaders in our nations economic, political, and civic life.
For decades, a single factor has been used to determine access to these Specialized High
Schoolsa students rank-order score on a 2.5 hour multiple choice test called the Specialized
High School Admissions Test (SHSAT). Under this admissions policy, regardless of whether a
student has achieved straight As from kindergarten through eighth grade or whether he or she
demonstrates other signs of high academic potential, the only factor that matters for admission is
his or her score on a single test. Because there is a limit to what any single factor can predict
about a persons academic promise, let alone his or her potential to succeed and thrive in life,
admissions decisions based solely on a high-stakes test have been roundly criticized by
educational experts and social scientists. They also defy common sense. By relying upon a test
as the sole criterion, the admissions policy for the Specialized High Schools does not fully
capture any students academic merit or his or her potential. This is particularly true of a
standardized test given to thirteen- and fourteen-year-olds.
But there is an even more basic problem with the Specialized High Schools admissions
policy. For decades, the NYCDOE has continued to use rank-order SHSAT scores as the sole
admissions criterion, even though it has never shown that this practice (or the test itself) validly
and reliably predicts successful participation in the programs offered by the Specialized High
Schools.
As a result of the NYCDOEs exclusive, unjustified, and singular reliance on the SHSAT,
many fully qualified, high-potential students are denied access to the life-changing experiences
that the Specialized High Schools offer. In a community as diverse as New York City, it is
particularly critical that these pathways to leadership be visibly open to talented and qualified

individuals of every race and ethnicity. Grutter v. Bollinger, 539 U.S. 306, 332 (2003). Yet,
year after year, thousands of academically talented African-American and Latino students who
take the test are denied admission to the Specialized High Schools at rates far higher than those
for other racial groups.
The impact is particularly severe at Stuyvesant and Bronx Sciencetwo of the
Specialized High Schools that serve the largest numbers of students, have the longest track
records of educational excellence, and are among the most popular for test-takers. For example,
of the 967 eighth-grade students offered admission to Stuyvesant for the 2012-13 school year,
just 19 (2%) of the students were African American and 32 (3.3%) were Latino. While these
figures show a de minimis increase over the prior two years, they are worse than figures from
three years ago. Indeed, the overall trend for the Specialized High Schools is one of increasing
racial disparities over time. See Appendix A (Specialized High Schools Admissions Offers
2009-2012).
Because determining admissions to the Specialized High Schools based solely on rankorder SHSAT scores causes this unjustified, racially disparate impact, the admissions policy
violates Title VI of the Civil Rights Act of 1964 and its implementing regulations. See 42 U.S.C.
2000d; 34 C.F.R. 100.3. Moreover, there are equally effective, less discriminatory
alternatives available to select academically talented students. Following the well-established
model for college admissions, other high schools in New York City, New York State, and across
the nation use admissions policies that consider multiple measuresnot just one factor, such as a
standardized test. Other factors may include middle school grades, teacher recommendations,
leadership, community service, other aspects of applicants own backgrounds and experiences, as
well as the demographic profile of students middle schools and neighborhoods. When
considered in combination, such factors help assess students achievements and capabilities in
the context of the opportunities they have received. At both the high school and college levels,
admissions procedures that rely on multiple measures can yield classes that are both diverse and
meet high standards of academic excellence. By continuing to rely exclusively on rank-order
SHSAT scores to determine admission to the Specialized High Schools, the NYCDOE is failing
to follow best practices among education experts nationwide, as well as the well-established test
development standards set forth by the American Psychological Association, the American
Educational Research Association, and the National Council on Measurement in Education.
Diversity of backgrounds and perspectives has always been New York Citys and the
United States strength. It helps drive innovation, new ideas, and our national prosperity. See
Grutter, 539 U.S. at 330-31 Thus, the key pathways to opportunity in our society, such as those
provided by the Specialized High Schools, must be open and accessible to good students with
bright educational futures from all communities. Ensuring all young people an opportunity to
succeed is in everyones interest. The Specialized High Schools admissions policy can no longer
be allowed to deprive students of a fair chance to demonstrate their merit.
To redress this ongoing persistent pattern and practice of unjustifiable and
disproportionate exclusion of African-American and Latino students from the Specialized High
Schools, the NAACP Legal Defense and Educational Fund, Inc., LatinoJustice PRLDEF and the
Center for Law and Social Justice at Medgar Evers College file this complaint on behalf of the
NYC Coalition for Educational Justice, La Fuente, the Alliance for Quality Education, New

York Communities for Change, Black New Yorkers for Educational Excellence, the Community
Service Society of New York, the Garifuna Coalition, USA Inc., Make the Road New York, the
Brooklyn Movement Center, UPROSE and DRUM-Desis Rising Up and Moving.
To be clear, this complaint does not contend that federal law forbids any use of tests in
the admissions process for the Specialized High Schools; but it does contend that federal law
prohibits admissions policies that inappropriately utilize scores on tests, like the SHSAT, that
have not been properly validated as a fair predictor of student performance. In the absence of
any attempt by the NYCDOE to validate the SHSAT and because there are equally effective, less
discriminatory alternatives available, the NYCDOE should not be permitted to use the SHSAT as
the sole criterion to determine which students should be admitted to the Specialized High
Schools. Instead, the NYCDOEin consultation with the New York State Department of
Education (NYSDOE), the organizations filing this complaint, educators, parents, and students
who are directly affectedshould collectively devise a fair and workable admissions policy.

I. PARTIES
The organizational complainants bring this complaint on behalf of African-American and
Latino students who have been and who will continue to be unjustifiably and disproportionately
excluded from some of the best public schools in New York City and the nation as a whole.
Among the complainants are organizations with members who are African-American and Latino
students (and/or parents of such students) who have taken the SHSAT, either in Fall 2011 or
previously, but did not receive an offer of admission to any one of the Specialized High Schools,
even though they excelled in middle school and have shown significant promise for academic
and civic leadership in high school and beyond. The complainant organizations also have
members who are African-American and Latino students (and/or parents of such students) who
intend to take the SHSAT this year and in the coming years.
The complainants include the NYC Coalition for Educational Justice (CEJ), La Fuente, the
Alliance for Quality Education (AQE), New York Communities for Change (NYCC), Black
New Yorkers for Educational Excellence (BNYEE), the Community Service Society of New
York (CSS) the Garifuna Coalition USA, Inc. (GCU), Make the Road New York (MRNY), the
Brooklyn Movement Center (the MC), UPROSE and Desis Rising Up and Moving (DRUM).
CEJ is a collaborative of community-based organizations led by parents committed to ending the
inequities in New York Citys public school system. La Fuente is an umbrella organization that
brings together labor and community partners to engage in neighborhood-based grassroots
organizing efforts around immigrant and worker rights issues, developing campaigns to improve
their communities. AQE is a statewide non-profit organization that unites parents, childrens
advocates, schools, teachers, clergy, and others to advocate for high quality public education.
NYCC is a coalition of working families in low and moderate income communities working to
ensure that every family throughout New York has access to quality schools, affordable housing,
and good jobs. BNYEE is a progressive organization dedicated to building a black education
movement. CSS draws on a 169-year history of excellence in addressing the root causes of
economic disparity, responding to urgent, contemporary challenges through applied research,
advocacy, litigation, and innovative program models that strengthen and benefit all New

Yorkers. GCU is a non-profit organization that serves as a resource, forum, advocate, and united
voice for the Garifuna immigrant community. MRNY builds the power of Latino and working
class communities to achieve dignity and justice through organizing, policy innovation,
transformative education, and survival services. The MC is a membership-led, direct-action,
community organizing body that focuses on parent and education organizing, street action,
leadership development, and communication organizing. UPROSE is an environmental and
social justice community-based organization dedicated to the empowerment of Southwest
Brooklyn residents through environmental, sustainable development, and youth justice
campaigns. DRUM unites South Asian low wage immigrant workers, youth, and families in
New York City to advocate for economic and educational justice, and civil and immigrant rights.
Appendix B contains additional information on each of the organizational complainants.
Counsel for complainants are the NAACP Legal Defense and Educational Fund, Inc.
(LDF), LatinoJustice PRLDEF, and the Center for Law and Social Justice at Medgar Evers
College. LDF is a non-profit legal organization established under New York law that has
worked for over seven decades to dismantle racial segregation and ensure equal educational
opportunities for all. LatinoJustice PRLDEF is a 40-year-old not-for-profit civil rights
organization thatthrough litigation, advocacy and educationworks to protect opportunities
for all Latinos to succeed in school and work, and to sustain their families and communities. The
Center for Law and Social Justice at Medgar Evers College is a community-based legal
organization that specializes in addressing racial justice issues.
The respondents are the New York City Department of Education (NYCDOE) and the
New York State Department of Education (NYSDOE), to the extent that relief implicates not
only the NYCDOEs policies but also the laws and policies of the State of New York. Both
respondents are recipients of federal financial assistance from the U.S. Department of Education.

II. BACKGROUND
A.

New York Citys eight Specialized High Schools

Currently, there are eight Specialized High Schools in New York City that admit students
based exclusively on a single standardized test administered annually.
School

2010-2011

Location
1

Enrollment
Brooklyn Technical High School

5141

Brooklyn

Stuyvesant High School

3288

Manhattan

The Bronx High School of Science

3017

Bronx

Staten Island Technical High School

1020

Staten Island

Queens High School for the Sciences at

York College

408

Queens

High School for Mathematics, Science,

and Engineering at City College

407

Manhattan

High School for American Studies at

Lehman College

371

Bronx

Brooklyn Latin School

336

Brooklyn

Since the 1970s, New York state law has mandated this admissions process for three of
these eight Specialized High Schools: the Bronx High School of Science, Stuyvesant High
School, and Brooklyn Technical High School. See Appendix C (New York State Law
Governing New York City Specialized High Schools). Specifically, state law requires that
admissions to these three schools must be based solely and exclusively upon students rankorder scores on a competitive, objective and scholastic achievement examination. N.Y. Educ.
Law 2590-h(1)(b); Appendix C.2

The New York State School Report Card: Accountability and Overview Reports (201011), available at https://www.nystart.gov/publicweb/ (last visited Sept. 19, 2012). School report
cards for the 2011-12 school year were not available at the time this complaint was filed.
2

In addition to these eight test-based schools, Fiorello H. LaGuardia High School of

Music & Art and Performing Arts is considered a Specialized High School. See N.Y. Educ. Law
2590-h(1)(b); Appendix C. For the purposes of this complaint, however, the term Specialized
High Schools will refer only to the eight test-based schools. Under state law, admission to
LaGuardia is based on multiple measures, including music, dance, or drama arts auditions and a
5

In addition, New York State law permits (but has never required) the NYCDOE to
designate other high schools as Specialized High Schools. Once designated, those schools are
also subject to the same single-test admissions process specified in N.Y. Educ. Law 2590h(1)(b); Appendix C. Pursuant to this provision, in recent years, the NYCDOE has identified
five additional schools that now base their admissions decisions solely on rank-order SHSAT
scores. They are Brooklyn Latin School; the High School for Mathematics, Science, and
Engineering at City College; the High School for American Studies at Lehman College; Queens
High School for the Sciences at York College; and Staten Island Technical High School. See
Appendix D at 5-7 (NYCDOE, Specialized High Schools Student Handbook (2011-2012)).
The three original Specialized High SchoolsBronx Science, Stuyvesant, and Brooklyn
Techare the oldest and best known. Together, they serve over 11,000 students; five times as
many students as are collectively served by the other five schools that have been designated by
the NYCDOE as Specialized High Schools in recent years.
In the words of New York City Schools Chancellor Dennis M. Walcott, the Specialized
High Schools are the true gems of New York Citys public school system. Elissa Gootman, In
Elite N.Y. Schools, a Dip in Blacks and Hispanics, N.Y. Times, Aug. 18, 2006.3 Five of the
Specialized High Schools rank on U.S. News and World Reports most recent list of Americas
top 100 high schools, and they are also among the top fifteen schools in New York State and the
top ten schools in New York City. See Americas Best High Schools, U.S. News and World
Report, http://www.usnews.com/education/best-high-schools/national-rankings (last visited Sept.
18, 2012) (listing Stuyvesant High School, Bronx Science, the High School of American Studies
at Lehman College, Queens High School for the Sciences at York College, and Staten Island
Technical High School). In addition, Newsweeks recent list of the best 1,000 public schools in
the nation ranks Stuyvesant High School, Bronx Science, and Queens High School for the
Sciences at York College as among the top 100 schools that have proven to be the most
effective in turning out college-ready grads. Americas Best High Schools 2012, Newsweek,
http://www.thedailybeast.com/newsweek/2012/05/20/america-s-best-high-schools.html (last
visited Sept. 18, 2012).
Top ranked colleges and universities aggressively recruit graduates of the Specialized
High Schools, who have gone on to excel as award-winning scientists, inventors, government
officials and corporate leaders. For instance, Bronx Science alone boasts at least seven Nobel
Laureates among its alumni (more than most countries), and is the nations all-time leader in the
Westinghouse/Intel Science Talent Search competition. Every year, Stuyvesant is among the
high schools with the highest number of National Merit Scholars, and Stuyvesants notable
alumni include at least four Nobel Laureates, as well as Academy Award winning actors,
Olympic medalists, CEOs of major corporations, Members of Congress (including Rep. Jerrold
Nadler of New York), judges (including the Hon. Denny Chin of the United States Court of
review of academic records. Id. As described below, the student body at Fiorello H. LaGuardia
High School of Music & Art and Performing Arts includes a higher percentage of African
Americans and Latinos than the eight test-based schools.
3

Articles published or posted in newspapers and other similar sources are compiled in
Appendix E in the order they are first cited herein.

Appeals for the Second Circuit), and Eric Holder, the current Attorney General of the United
States. See Alec Klein, A Class Apart: Prodigies, Pressure, and Passion Inside One of
Americas Best High Schools 25-27, 279-87 (2007); Javier C. Hernandez, Holder, High Achiever
Poised to Scale New Heights, N.Y. Times, Nov. 30, 2008.
B.

Specialized High Schools Admissions Test (SHSAT) and placement process

As discussed above, under New York state law, admission to the three Specialized High
Schools enumerated in the statute, as well as those later designated by the NYCDOE on its own,
must be based solely and exclusively on students rank-order scores on a competitive,
objective and scholastic achievement examination. N.Y. Educ. Law 2590-g(12) (1996);
Appendix C. Accordingly, each fall the NYCDOE administers a 2.5 hour multiple-choice exam,
known as the Specialized High Schools Admissions Test (SHSAT).4
In order to take the SHSAT, students must be residents of New York City, but they need
not attend a New York City public school; students who attend elite private and parochial
schools may also apply. The vast majority of test-takers are eighth graders applying for
admission to a Specialized High School for the ninth grade; but ninth graders are also eligible to
test into tenth grade. See Appendix D at 9.5
The SHSAT has two sections: verbal and mathematics. The verbal section covers logical
reasoning and reading comprehension. The mathematics section tests arithmetic, algebra,
probability, statistics, geometry, and, on the ninth grade test, trigonometry. See Appendix G
(NYCDOE, Test Information: Specialized High School Admissions). For each section, the total
number of correct answers is converted into a scaled score using a formula that varies from
year to year based on the difficulty level of questions and the relative performance of test-takers;
then the scaled scores are added together to obtain a final composite score. See Appendix D at
16-17; see also David Herszenhorn, Admission Tests Scoring Quirk Throws Balance into
Question, N.Y. Times, Nov. 12, 2005.

For the last several admissions cycles, the NYCDOE has contracted with a private
testing company called NCS Pearson, Inc. for the SHSAT test development, administration, and
scoring processes. See Appendix F.1 (Redacted Extension Agreement with NCS Pearson, Inc.
for the Provision of a Specialized High School Assessment, May 1, 2009). In January 2011, the
NYCDOEs Panel for Education Policy renewed Pearsons contract for six years. See Contract
Agenda, Panel for Education Policy (January 19, 2011), http://schools.nyc.gov/NR/rdonlyres/
73E0B54A-DDCF-437F-A42B-F7140A03059D/0/January2011FinalRAso.pdf; Public Meeting
Minutes of Action, Panel for Education Policy (Jan. 19, 2010), http://schools.nyc.gov/NR/
rdonlyres/0C9D6B81-D341-472C-B098-126180401DAB/98241/moa11911doc1.pdf. Pearson
previously acquired the prior SHSAT vendor, American Guidance Service, Inc., which had
administered the SHSAT since at least the late 1980s. See Appendix F.2 (Requirements Contract
between the Board of Education of the City of New York and American Guidance Service, Inc.,
March 14, 1989).
5

For example, according to data received from the NYCDOE, 1,726 ninth-graders took
the Fall 2010 SHSAT, compared to 28,281 eighth-graders.

As part of the application process, each student is asked to list the Specialized High
Schools he or she wants to attend in order of preference before taking the SHSAT. Once the
composite scores on the SHSAT are finalized, the scores of all of the thousands of test-takers are
ranked in descending order, from highest to lowest. Beginning with the highest scorer, the
NYCDOE offers each student admission to his or her first-choice school if that school has seats
still available. See Appendix D at 13; Appendix C. If all seats in the students first-choice
school have already been offered to higher scorers, the student is offered admission to his or her
second-choice school, if seats are available, and so on. The NYCDOE proceeds down the list of
students and schools until there are no remaining open seats in any of the eight Specialized High
Schools. Appendix D at 13; Appendix C.6 Students who are not offered admission to any
Specialized High School fall back into the general pool of students vying for admission to other
New York City high schools.
There is no pre-established cut-off score required for admission to any particular
school. But, as a practical matter, the cut-off score for any school in a given year is equivalent to
the lowest score for a student admitted to that school.7 In this way, the cut-off scores at different
schools may vary from year to year. Stuyvesant and Bronx Science have historically had the
highest cut-off scores because these schools tend to be the top choices of the highest-scoring
students. See Appendix A.4 (Cut-Off Scores for Fall 2010 SHSAT); Appendix H at 7 (Joshua
Feinman, High Stakes but Low Validity? A Case Study of Standardized Tests and Admissions
into New York City Specialized High Schools (2008)).

Because not all students offered admission ultimately enroll, the number of offers for
each school exceeds its seating capacitybased on a formula determined by the schools
expected yield. See Appendix G.
7

See N.Y Educ. Law 2590-g(12)(b) (1996) (The cut-off score shall be determined by
arranging the scores of all 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.); Appendix C.

C.

Severe and continuing racial disparities in offers of admission based on

SHSAT results

According to data provided by the NYCDOE and reported by the press in recent years,
African-American and Latino students who take the SHSAT are far less likely to receive
admissions offers than peers from other racial groups. See Appendix A (Specialized High
Schools Admissions Offers, 2009-12). For any given admissions year, the disparity can be
understood in at least two ways: demographic comparisons (comparing the demographics of
test-takers to the demographics of those who received admissions offers), and acceptance rates
by race (the percentage of test-takers in each racial group who received admissions offers). The
data analysis below highlights the trend in recent years:
Acceptance Rates for Eighth Graders By Race for Fall 2008 - 2011 SHSAT exams
(for admission in the 2009-2010 to 2012-2013 School Years)

36.9%
36.2%
35.0%

34.6%

34.4%

30.6%

29.8%

29.5%

Black or African American

Hispanic or Latino
Asian or Pacific Islander
White

7.9%
6.6%

5.7%

5.7%

4.7%

Fall 2008
(2009-2010 School Year)

1.

4.5%

Fall 2009
(2010-2011 School Year)

Fall 2010
(2011-2012 School Year)

6.7%
5.0%

Fall 2011
(2012-2013 School Year)

Fall 2011 SHSAT (for admission to the 2012-13 freshman class)

a.

Demographic comparisons for Fall 2011 SHSAT

African Americans comprised 23.1% of the 27,612 eighth-graders who took the Fall 2011
SHSAT, but only 6.0% of the 5,360 eighth-graders who received admissions offers to
Specialized High Schools for the 2012-13 academic year. Latinos comprised 22.2% of eighthgrade test-takers that year, but only 7.7% of eighth-graders who received admissions offers.8 By
8

This complaint focuses on eighth-grade test-takers because they comprise the vast
majority of the students who take the SHSAT; ninth-grade is the primary entry point for all the
9

contrast, Asian-American and white students respectively accounted for 25.8% and 14.9% of the
eighth-grader test-takers, yet accounted for 46.5% and 23.4% of the eighth-grade students who
received admissions offers. See Appendix A.1.9
Racial disparities were evident for the Specialized High Schools as a whole; but they
were particularly severe at Stuyvesant and Bronx Sciencethe Specialized High Schools that are
the most popular among SHSAT top scorers and are considered by many to be the most
prestigious. For instance, when admissions offers were made in February 2012 based on the Fall
2011 SHSAT results, just 19 (2.0%) of the 967 eighth-graders offered admission to Stuyvesant
were African Americans, and 32 (3.3%) were Latino; at Bronx Science, only 32 (3.1%) of the
1,020 offers went to African Americans, while 57 (5.6%) went to Latinos. See id.
b.

Acceptance rates for Fall 2011 SHSAT

Analyzing this data in terms of acceptance rates highlights the racial disparities even
more sharply. The overall acceptance rate for Fall 2011 test-takers was 19.4%. But only 5.0%
of African-American test-takers and 6.7% of Latino test-takers received offers of admission. By
comparison, acceptance rates for Asian-American and white eighth-grade test-takers were 35.0%
and 30.6%, respectively. Id. Thus, African-American and Latino test-takers were far less likely
to be offered admission to the Specialized High Schools than their Asian-American and white
peers.10
2.

Fall 2010 SHSAT (admissions to the 2011-12 freshman class)

a.

Demographic comparisons for Fall 2010 SHSAT

For the Fall 2010 SHSAT, African Americans comprised 23.1% of the 28,281 eighthgrade test-takers, but accounted for only 5.4% of the 5,404 eighth-grade students who received
admissions offers to Specialized High Schools for the 2011-12 academic year. Latinos
Specialized High Schools. Counsel for the complainants, along with Advocates for Children of
New York, sought more detailed demographic data from the NYCDOE through a request under
New York Freedom of Information Law (FOIL), Public Officers Law 84 et seq., initiated in
November 2010, but the NYCDOE repeatedly delayed and then refused to release the requested
information. See Appendix I (Selected Documents pertaining to New York Freedom of
Information Law (FOIL) Request filed by LDF and Advocates for Children of New York).
9

The NYCDOE categorizes as unknown the racial background for 13.6% of eighthgrade students who took the Fall 2011 SHSAT and 16.1% of those who received admissions
offers, because they were either enrolled in a private or parochial school, did not fill out the
NYCDOEs ethnic identification form, or are multi-racial. See Appendix A. Even in the highly
unlikely event that all of these students are African American or Latino, statistically significant
racial disparities in the acceptance rates for these two groups would still be evident.
10

Compared to the two prior years, the acceptance rate for African Americans and
Latinos did increase slightly for the Fall 2011 SHSAT; but this small uptick is only a marginal
improvement. Moreover, the racial disparities in admissions offers based on the Fall 2011
SHSAT were still worse than they were for the Fall 2008 SHSAT. See Appendix A.

10

comprised 21.5% of test-takers, but only 6.5% of students who received admissions offers.
Asian-American and white test-takers accounted for 25.7% and 15.1% of the test-takers and
46.5% and 23.3% of the students who received admissions offers. See Appendix A.2.
b.

Acceptance rates based on Fall 2010 SHSAT

While the overall acceptance rate was 19.1%, African-American and Latino test-takers
had acceptance rates of 4.5% and 5.7%, respectively. By comparison, acceptance rates for
Asian-American students and white students were 34.6% and 29.5% respectively. Id.; see also
Sharon Otterman, New Yorks Top Public High Schools Admit Fewer Blacks and Hispanics,
N.Y. Times, City Room Blog (Feb. 11, 2011). Again, racial disparities were evident for all eight
Specialized High Schools, and were particularly severe for Stuyvesant and Bronx Science. See
Appendix A.2. Just 12 (1.3%) of the 937 students offered admission to Stuyvesant were African
Americans, and 13 (1.4%) were Latino; at Bronx Science, only 26 (2.5%) of the 1,044 offers
went to African Americans, while 53 (5.1%) went to Latinos. Id.
3.

Admissions disparities in prior years

Analysis of racial disparities in prior years, in terms of both the percentage of admissions
offers and acceptance rates, shows similar trends. Id.; see also Jennifer Medina, A Demographic
Breakdown of Who Took, and Passed, the Test, N.Y. Times, City Room Blog (Feb. 16, 2010)
(noting similar disparities for the Fall 2009 SHSAT); Jennifer Medina, At Top City Schools, Lack
of Diversity Persists, N.Y. Times, City Room Blog (Feb. 5, 2010) (same); Helen Zelon, What
Will It Take to Alter the Makeup of Top Schools? City Limits, Apr. 6, 2009 (noting similar
disparities for the Fall 2008 SHSAT); Javier Hernandez, Gap Persists in Test for Specialized
High Schools, N.Y. Times, City Room Blog (Feb. 6, 2009) (same); Javier Hernandez, Racial
Imbalance Persists at Elite Public Schools, N.Y. Times, Nov. 8, 2008 (noting similar disparities
for the Fall 2007 SHSAT).
Thus, when the NYCDOE mails out offers of admissions for the 2013-14 school year,
based on the results of the SHSAT administered in Fall 2012, it is plainly foreseeable that the
disparate rates of admission results will continue to reflect the pattern and practice of racial
discrimination that has persisted for decades.11

11

This complaint focuses only on the racial disparities in admission to the Specialized
High Schools of those students who take the SHSAT. In addition, African-American and Latino
students are less likely to take the SHSAT than their fellow students. For example, African
Americans and Latinos respectively made up 23.1% and 21.5% of the eighth-graders who took
the SHSAT administered in Fall 2011, whereas the October 2011 official audit of student
demographics reveals that 28.9% of the New York City public school systems eighth-grade
student population were African American and 39.4% were Latino. See NYCDOE, Official
Audited October 31st Register (JFORM), October 2011,
http://schools.nyc.gov/AboutUs/data/stats/Register/JFormbyDistricts/default.htm (overview of
student demographics).

11

D.

Persistent racial isolation in the Specialized High Schools

In addition to locking many African-American and Latino applicants out of opportunity,

the racially disparate impact caused by the continued use of rank-order scores on the SHSAT as
the sole criterion for admission to the Specialized High Schools also perpetuates the racial
isolation of African-American and Latino students enrolled in those schools, especially
Stuyvesant and Bronx Science. See The New York State School Report Card: Accountability
and Overview Reports (2010-11), available at https://www.nystart.gov/publicweb/ (last visited
Sept. 19, 2012). For example, in the 2010-11 school year at Stuyvesant and Bronx Science,
African Americans comprised only 1% and 3%, respectively, of all enrolled students. Id.
Latinos represented 3% of Stuyvesants students and 8% of Bronx Sciences students. Id.; see
also Fernanda Santos, To Be Black at Stuyvesant High, N.Y. Times, Feb. 25, 2012.
Despite some minor variation from year to year, there has been a decades-long downward
trend in African-American and Latino enrollment at Stuyvesant and Bronx Science, as well as
the Specialized High Schools overall. See Elissa Gootman, In Elite N.Y. Schools, a Dip in
Blacks and Hispanics, N.Y. Times, Aug. 18, 2006; Helen Zelon, What Will It Take to Alter the
Makeup of Top Schools?, City Limits, Apr. 6, 2009.
For example, the percentage of African-American students enrolled at Bronx Science
dropped from 11.8% in 1994-95 to only 3.0% in the 2010-11 school year; at Stuyvesant, AfricanAmerican student enrollment fell from 12.9% in 1979 to only 4.8% in 1994-95 and eventually to
a meager 1.0% during the 2010-11 school year. See The New York State School Report Card:
Accountability and Overview Reports (2010-11), available at
https://www.nystart.gov/publicweb/ (last visited Sept. 19, 2012); Alex Klein, A Class Apart:
Prodigies, Pressure, and Passion Inside One of Americas Best High Schools 66 (2007); Elissa
Gootman, In Elite N.Y. Schools, a Dip in Blacks and Hispanics, N.Y. Times, Aug. 18, 2006);
Tom Allon, The Blackout at Stuyvesant and Bronx Science: Students of Color Have
Disappeared, N.Y. Daily News, May 25, 2011. Latino enrollment has also declined at these two
schools during the same time period. Elissa Gootman, In Elite N.Y. Schools, a Dip in Blacks and
Hispanics, N.Y. Times, Aug. 18, 2006.
At Brooklyn Tech, African Americans comprised 24% of the student body in the 19992000 school year; but by the 2011-12 school year, that figure fell to only 10%. See Fernanda
Santos, To Be Black at Stuyvesant High, N.Y. Times, Feb. 25, 2012. Even the Specialized High
Schools with the largest proportions of African-American and Latino students (Queens High
School for the Sciences, the High School for Mathematics, Science, and Engineering at City
College, and the High School for American Studies at Lehman College) have experienced
general declines in enrollment among these groups. See Appendix A; Elissa Gootman, In Elite
N.Y. Schools, a Dip in Blacks and Hispanics, N.Y. Times, Aug. 18, 2006.
As a result of this persistent racial isolation, African-American and Latino students often
struggle to obtain the support necessary to thrive in these Specialized High Schools. The small
number of African-American and Latino students at these schools can lead to severe racial
isolation. See Fernanda Santos, To Be Black at Stuyvesant High, N.Y. Times, Feb. 25, 2012. In
addition, racial tensions have exacerbated the harms of racial isolation at the Specialized High

12

Schools. See, e.g., id. (describing a YouTube video by a group of white Stuyvesant students
rapping racist and otherwise offensive lyrics).
The U.S. Supreme Court has recognized the importance of having a critical mass of
minority students at the college level so that they are encouraged to participate in the classroom
and not feel isolated. Grutter, 539 U.S. at 318 (internal quotation marks and citation omitted).
The harms of racial isolation, and the benefits of diversity, are equally apparent at the K-12 level.
See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 797 (2007)
(Kennedy, J., concurring in part and concurring in the judgment) (This Nation has a moral and
ethical obligation to fulfill its historic commitment to creating an integrated society that ensures
equal opportunity for all of its children.). Notably, both educational research and Supreme
Court precedent make clear that the educational benefits of diversity are not limited to AfricanAmerican and Latino students. Recent research confirms that students of all backgrounds who
are exposed to diverse learning environments are more likely than their peers to be prepared to
function in an increasingly diverse world.12 Unfortunately, these benefits are not fully realized at
the Specialized High Schools.

12

See, e.g., Linda R. Tropp & Mary A. Prenovost, The Role of Intergroup Contact in
Predicting Childrens Interethnic Attitudes, in Intergroup Attitudes and Relations in Childhood
Through Adulthood 236 (Sheri R. Levy & Melanie Killen eds., 2008); National Academy of
Education, Race-Conscious Policies for Assigning Students to Schools: Social Science Research
and the Supreme Court Cases (2007); Elizabeth Stearns, Long-Term Correlates of High School
Racial Composition, 112 Teachers Coll. Rec. 1654 (2010); Rosyln Mickelson, Twenty-first
Century Social Science on School Racial Diversity and Educational Outcomes, 69 Ohio St. L.J.
1173 (2008).

13

III.

THE SPECIALIZED HIGH SCHOOLS ADMISSIONS POLICY VIOLATES

FEDERAL CIVIL RIGHTS LAW
A.

Applicable legal standard

Title VI of the Civil Rights Act of 1964 provides that recipients of federal financial
assistance may not exclude students from participation in their programs or activities on the basis
of race, color, or national origin. 42 U.S.C. 2000d. The regulations promulgated by the U.S.
Department of Education to implement Title VI prohibit a recipient of federal funds from
utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals
to discrimination because of their race, color, or national origin. 34 C.F.R. 100.3(b)(2)
(emphasis added); see also U.S. Dept of Justice, Title VI Legal Manual 47-49 (2001). Thus, the
U.S. Department of Educations Office for Civil Rights (OCR) may bring enforcement actions
against recipients of federal funds that implement policies with a disparate impact, regardless of
whether the policy in question was motivated by discriminatory intent. On this authority, OCR
has jurisdiction to investigate a complaint that school admissions policies maintained by a
recipient of federal funds violate this disparate-impact regulation. See 34 C.F.R. 100.7.
Disparate impact claims are analyzed using a three-pronged test:
First, a prima facie case of a Title VI disparate-impact violation is established if a
recipient of federal funds uses selection criteria that have the effect of disproportionately
excluding students of a particular racial or ethnic group. See Larry P. ex rel. Lucille P. v. Riles,
793 F.2d 969, 982 (9th Cir. 1984); U.S. Dept of Justice, Title VI Legal Manual 49-50 (2001).
While there is no rigid mathematical threshold for demonstrating a prima facie case of
disparate impact, Groves v. Alabama State Bd. of Educ., 776 F. Supp. 1518, 1526 (M.D. Ala.
1991) (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-95 (1988) (plurality)),
federal courts use one of several forms of statistical analysis to reach reliable inferences about
racial disparities in a population based on the performance of a particular sample. Id. at 1527.
For instance, borrowing from the employment discrimination context, courts have used the
four-fifths test. Adopted from guidelines promulgated by the Equal Employment Opportunity
Commission, this evidentiary test provides that evidence of a selection rate for any minority
group that is less than four-fifths (or 80 percent) of the selection rate for the group with the
highest rate will be considered evidence of adverse impact. Id. at 1526-27; 29 C.F.R.
1607.4(D).
Second, if a prima facie case is established, then the respondent must demonstrate that the
selection criteria are required by educational necessity. Larry P., 793 F.2d at 982 & nn.9-10
(internal quotation marks omitted). To meet this burden, the recipient of federal funds must
show that the challenged practice bears a manifest relationship to an objective that is legitimate,
important, and integral to [its] educational mission. Elston v. Talladega County Bd. of Educ.,
997 F.2d 1394, 1413 (11th Cir. 1993); U.S. Dept of Justice, Title VI Legal Manual 50-53
(2001). Therefore, justifications that either do not further, or run counter to, the educational
mission of the federal funds recipient (including superficial or nominal justifications) are entirely
insufficient to satisfy this standard. Moreover, where, as here, the challenged practice is an
admissions test, it must be used in a manner that validly and reliably predicts applicants
performance on metrics that are essential to satisfactory participation in the educational program

14

at issue.13 See Larry P., 793 F.2d at 983 (holding that use of IQ tests to place students in special
classes for the educable mentally retarded violated Title VIs disparate-impact regulation
because these tests resulted in the over-identification of African Americans and had not been
validated for this purpose); cf. United States v. Fordice, 505 U.S. 717, 736-37 (1992) (ruling that
Mississippis use of ACT scores as the sole means to determine college admission was not
educationally justified because, among other factors, the ACTs administering organization
discouraged this practice). As OCR has explained, [a]ppropriate validation of tests used for
admissions or other placement decisions would include documentation of the relationship
between what constructs are being measured in the test and what knowledge and skills are
actually needed in the future placements. Evidence should also provide documentation that
scores are not significantly confounded by other factors irrelevant to the knowledge and skills the
test is intending to measure. U.S. Dept of Ed., Office for Civil Rights, The Use of Tests as
Part of High-Stakes Decision-Making for Students: A Resource Guide for Educators and PolicyMakers 25 (2000) (hereinafter OCR, Use of Tests).
Third, even when a recipient of federal funds can show that its selection criteria are
justified by educational necessity, the recipient can still be held liable under Title VI if there are
alternative practices available that would be equally effective in serving the recipients
educational mission while having less of a racially disparate impact. See Young ex rel. Young v.
Elston, 997 F.2d at 1407; Montgomery County Bd. of Educ., 922 F. Supp 544, 550 (M.D. Ala.
1996); U.S. Dept of Justice, Title VI Legal Manual 53 (2001); OCR, Use of Tests, at 57.
B.

The Specialized High Schools policy of basing admissions solely on rankorder SHSAT scores violates Title VI
1.

The Specialized High Schools admissions policy has a severe disparate

impact on African Americans and Latinos

The NYCDOEs offers of admissions to the Specialized High Schools based on the Fall
2011 administration of the SHSAT (and prior years) provide prima facie evidence of a Title VI
disparate impact violation. As summarized in section II, supra, by using rank-order scores on
the SHSAT as the sole criterion for admission to the Specialized High Schools, the NYCDOE
disproportionately excludes African-American and Latino students from these life-changing
educational programs that provide a critical pathway to local and national leadership.
A statistical comparison of acceptance rates reveals a highly significant disparity between
the acceptance rates of either African Americans or Latinos, on the one hand, and those of either
13

In an analogous context, the U.S. Department of Education has promulgated guidelines

requiring that recipients of federal funds may not judge candidates for admission to vocational
education programs on the basis of criteria that have the effect of disproportionately excluding
persons of a particular race, color, national origin, sex, or handicap. However, if a recipient can
demonstrate that such criteria have been validated as essential to participation in a given
program and that alternative equally valid criteria that do not have such a disproportionate
adverse effect are unavailable, the criteria will be judged nondiscriminatory. Examples of
admissions criteria that must meet this test are . . . standardized tests. . . . 34 C.F.R. pt. 100,
app. B (emphasis added).

15

whites or Asian Americans, on the other. A standard difference-in-proportions statistical test

(a statistical convention used today by most social scientists) can be used here to determine if
there is an actual difference between acceptance rates for students from different racial groups or
if, instead, the difference between groups test scores is simply a function of random fluctuation.
For SHSAT admissions offers in Fall 2011 (and prior years), the difference-in-proportions test
indicates that the disparity is statistically significant at the 1% level. In other words, there is a
less than 1% chance that the observed differences between the acceptance rates for students of
different races occurred randomly. Thus, the available data suggests that there is a highly
significant racial disparity in Specialized High School acceptance rates.
Moreover, there is clear evidence of adverse impact under the four-fifths test because
the selection rates for African Americans and Latinos are each less than 80 percent of the
selection rates for either Asian Americans or whites. See Groves, 776 F. Supp. at 1526-27; 29
C.F.R. 1607.4(D). For instance, African-American and Latino eighth-grade students who took
the Fall 2011 SHSAT (for admission in the 2011-12 academic year) had acceptance rates of
5.0% and 6.7%, respectively. By comparison, acceptance rates for Asian-American and white
eighth-grade test-takers were 35.0% and 30.6%, respectively. See Appendix A.1.
This extreme disparity in acceptance rates translates into a profound lack of access and a
long-standing lack of diversity in student enrollment. The impact is particularly severe at
Stuyvesant and Bronx Science. Moreover, this pattern of racial disparity has persisted for years.
See section II(C), supra.
2.

The discriminatory impact of the Specialized High Schools admissions

policy cannot be justified by educational necessity
a.

The NYCDOE has not demonstrated that sole reliance on the

SHSAT is a valid method for selecting students to attend the
Specialized High Schools

The racially disparate impact caused by the use of rank-order SHSAT scores as the sole
admissions criteria for the Specialized High Schools is not justified by educational necessity. In
order to demonstrate educational necessity of this admissions policy and its attendant
consequences, the NYCDOE and the NYSDOE must show that basing admissions to the
Specialized High Schools exclusively on rank-order SHSAT scores (while ignoring grades and
other sources of academic and other merit) validly and reliably identifies those students with the
knowledge, skills, and abilities essential to satisfactory participation in the programs offered by
the Specialized High Schools. Cf. 34 C.F.R. pt. 100, app. B. In all the years that they have
required or implemented various iterations of the SHSAT, the NYCDOE and the NYSDOE have
never metor even attempted to meetthat legal standard.
City officials have repeatedly acknowledged that they have never conducted a study
attempting to validate the SHSAT. For example, in response to a direct inquiry via a public
records request, the NYCDOE indicated:
To the extent that you are requesting any studies of predictive validity (i.e.,
predictive studies of student performance), a diligent inquiry and search of

16

responsive records has been conducted, and I have been informed that no
predictive ability study of the SHSAT exists in the custody and control of the New
York City Department of Education.
Appendix I.2 (Letter from Joseph A. Baranello, NYCDOE to LDF and Advocates for Children,
May 20, 2011) (emphasis added); see also David Herszenhorn, Admission Tests Scoring Quirk
Throws Balance into Question, N.Y. Times, Nov. 12, 2005 (reporting that city officials
acknowledged that they had never conducted studies to gauge the validity of the SHSAT).14
The NYCDOE has further conceded that it has never attempted to ensure that there is any
relationship whatsoever between the content and/or the results of the SHSAT, on the one hand,
and curricular and/or learning standards in the Specialized High Schools, on the other. See
Appendix I.2 (Letter from Joseph A. Baranello, NYCDOE to LDF and Advocates for Children,
Mach 17, 2011). Nor, we allege on information and belief, has the NYCDOE ever even
attempted to identify the appropriate metrics of satisfactory participation in the programs offered
by the Specialized High Schools. Notably, Specialized High School teachers and principals are
not involved in development of the SHSAT, are not typically shown copies of the test or the
score charts, and are not asked their opinion of the results. See David Herszenhorn, Admission
Tests Scoring Quirk Throws Balance into Question, N.Y. Times, Nov. 12, 2005.
Moreover, the NYCDOE also failed to provide any documentation that it had conducted
any studies, from 2007 to the present, to examine any relationship between SHSAT scores and
the academic performance of SHSAT test takers, including student grades in middle and/or high
school, and/or student performance on nationally-administered tests, including the SAT.
Appendix I.5 (Letter from Joseph A. Baranello, NYCDOE to LDF and Advocates for Children,
May 20, 2011). And notwithstanding a promise in 2006 to study the demographic
lopsidedness of the SHSAT, the NYCDOE subsequently abandoned that effort. Javier
Hernandez, Racial Imbalance Persists at Elite Public Schools, N.Y. Times, Nov. 8, 2008.
The failure to complete a validity study on the SHSAT violates the well-recognized
educational testing standards prepared by a joint committee of the three leading organizations in
14

In its limited response to counsels FOIL request for material related to the validity of
the SHSAT, the NYCDOE did provide a document entitled Pearson Review of Tryout Items for
Statistical Bias. See Appendix I.8 (Letter from Joseph A. Baranello, NYCDOE to LDF and
Advocates for Children, July 22, 2011). That document purports to show that Pearson, the test
developer, experimented with SHSAT test items to determine whether there was statistical bias
based on, inter alia, race and ethnicity. Yet, the document provides no explanation of how this
assessment was conducted or what steps the test developer took to correct for bias that is
manifest in a number of the responses. More significantly, the assessment compares only the
performance of whites and non-whites on the particular test items. Lumping together different
minority groups has been discredited as a flawed approach to assessing equity, cf. Parents
Involved, 551 U.S. at 723-24, especially considering that the long-standing racial disparities on
the SHSAT are primarily between whites and Asian-American students, on the one hand, and
African-American and Latino students, on the other. Even if the methodology were appropriate,
however, identifying statistical bias is merely one component of a properly conducted validity
assessment.

17

the area of educational testingthe American Psychological Association, the American

Educational Research Association, and the National Council on Measurement in Education. See
American Educational Research Association, American Psychological Association, and the
National Council on Measurement in Education, Standards for Educational and Psychological
Testing (1999) (hereinafter Joint Standards). The Joint Standards are widely accepted as the
primary technical authority for developing educational tests. See OCR, Use of Tests, at 2, 6.
According to these standards, [w]hen test scores are intended to be used as part of the process
for making decisions for educational placement . . . , empirical evidence documenting the
relationship among particular scores, the instructional programs, and desired student outcomes
should be provided. Joint Standards, at 147.
In his 2008 study of the SHSAT published jointly by the Arizona State University
College of Education and the University of Colorado School of Education, Joshua Feinman, a
senior economist at Deutsche Bank, aptly concluded: [a]bsent predictive validity studies, theres
no way to know if any test is providing useful information; and without well-specified
objectives, its not even clear what the test is supposed to do or predict. Appendix H at 2
(Joshua Feinman, High Stakes but Low Validity? A Case Study of Standardized Tests and
Admissions into New York City Specialized High Schools (2008)).
Moreover, it is well accepted by educational testing experts that the greater the
consequences of a test in determining educational opportunity, the more important it is to
carefully validate the particular way in which it is used:
As the stakes of testing increase for individual students, the importance of
considering additional evidence to document the validity of score interpretations
and the fairness in testing increases accordingly.
Joint Standards, at 141; see Appendix H at 5-6. Insofar as the NYCDOE and the NYSDOE have
never attempted to establish that the SHSAT is a valid test of skills and knowledge that are
integral to the educational mission of the Specialized High Schools, they are in clear violation of
their Title VI obligations, not to mention well-established standards for educational testing.
b.

It would be difficult, if not impossible, to validate the

educational necessity of using rank-order scores on a
single high-stakes test as the sole criteria for high school
admissions

Even if the NYCDOE and the NYSDOE were to attempt to validate the use of rank-order
scores on the SHSAT as the sole criterion for admissions to the Specialized High Schools, it
would be difficult, if not impossible, to meet this legal requirement.
As a general matter, it is well accepted by educational testing experts that no single test
score can be considered a definitive measure of a students knowledge. OCR, Use of Tests, at 4
(quoting National Research Council, High Stakes: Testing for Tracking, Promotion, and
Graduation 3 (Jay P. Heubert & Robert M. Hauser eds. 1999)); see also Arthur L. Coleman,
Excellence and Equity in Education: High Standards for High Stakes Tests, 6 Va. J. of Soc.
Poly & Law 81, 103 (1998). Because all potential admissions criteria have a degree of

18

uncertainty and imprecision, multiple criteria, used in combination, provide better insight into
future student performance than rigid reliance on the rank-order results from a single imperfect
criterion. See Joint Standards, at 141 (The validity of individual interpretations can be
enhanced by taking into account other relevant information about individual students before
making important decisions.).
In his 2008 study of the SHSAT, Joshua Feinman highlighted some rather unusual
features of the SHSAT that heighten the difficulties of successfully validating the use of rankorder scores on the SHSAT as a sole admissions criterion. See Appendix H.15
First, it is not possible to demonstrate that the SHSAT score of one student yields
information demonstrably different than the score of other students ranked slightly above or
below her. Even a well-designed test has a degree of statistical uncertainty because any test is
only an estimate of the skills or knowledge that are tested. Thus, under the generally-accepted
educational testing standards set forth in the Joint Standards, it is critical to justify that fine
distinctions resulting from use of cut-off scores significantly and reliably correlate with
differences in student performance and cannot simply be explained by statistical uncertainty. See
Joint Standards 2.14, 4.19, 4.20, 4.21; Appendix H at 18-21. As OCR has previously explained:
Validity evidence should generally be able to demonstrate that students above the
cut score represent or demonstrate a qualitatively greater degree or different type
of skills and knowledge than those below the cut score, whenever these types of
inferences are made. In high-stakes situations, it is important to examine the
validity of the inferences that underlie the specific decisions being made on the
basis of the cut scores. In other words, what must be validated is the specific use
of the test based on how the scores of students above and below the cut score are
being interpreted.
OCR, Use of Tests, at 34; see also Groves, 776 F. Supp. at 1523-24 (holding that the Alabama
State Board of Education violated Title VIs disparate-impact regulation by determining
admission to undergraduate teacher training programs based on a cut-off score that had adverse
impact on African Americans and bore no logical relationship to teacher competence).16
15

Notably, when counsel for the complainants inquired about the existence of any
validity or validation studies of the SHSAT, the NYCDOE directed counsels attention to
Feinmans study. Appendix I.5 (Letter from Joseph A. Baranello, NYCDOE to LDF and
Advocates for Children, May 20, 2011). The data and other material released by the NYCDOE
in limited response to the FOIL request submitted by counsel for the complainants do not satisfy
the requirements in the Joint Standards for an appropriate validation studyincluding but not
limited to the flaws and omissions identified by Feinman.
16

Analogously in the employment context, Title VII of the 1964 Civil Rights Act
requires employers to validate that rank-order selection of test-takers, or the use of a cut-off
score, is justified by business necessity, when such a practice causes disparate impact. See, e.g.,
Lewis v. City of Chicago, 130 S. Ct. 2191, 2196, 2198 (2010); Isabel v. City of Memphis, 404
F.3d 404, 413-14 (6th Cir. 2005); Guardians Assn of the N.Y. City Police Dept v. Civil Serv.
Commn, 630 F.2d 79, 100-06 (2d Cir. 1980), affd on other grounds, 463 U.S. 582 (1983);
Firefighters Institute for Racial Equality v. City of St. Louis, 616 F.2d 350, 358-60 (6th Cir.
19

However, as a result of the NYCDOEs process of offering admission to the Specialized High
Schools based on strict rank ordering of students scores, the scores of thousands of students who
did not receive admissions offers may be statistically indistinguishable from the scores of those
who did receive offers. Based on accepted standards, this renders the admissions decisions
arbitrary.
Second, the NYCDOE administers several versions of the SHSAT each year, in part to
reduce any opportunity for cheating. In order to ensure that students who take certain versions
are not more likely to receive admissions offers than those who take other versions, a validity
study would need to show that the NYCDOE has a highly accurate process of statistically
equating the different versions of the SHSAT. See Appendix H at 21-24; see also Joint
Standards 4.10, 4.11.
Third, the manner in which the SHSAT is scored is quite unlike other standardized tests.
The SHSAT ranks students based on a single, composite score, which combines the scaled
score results of the verbal and math sections. Because the scaling of SHSAT scores awards more
points per question as a test-taker approaches a perfect score on either the verbal or the math
section, this unorthodox system of using only the composite score to rank students advantages
those with a very high score on one section and a lower score on the other; in fact, such
unbalanced scorers have a better chance of admission to a top-ranked school than students with
relatively strong performance on both sections. Appendix H at 9-18; see also David
Herszenhorn, Admission Tests Scoring Quirk Throws Balance into Question, N.Y. Times, Nov.
12, 2005 (noting that a student scoring in the 90th percentile on both sections would not gain
admittance to his or her first choice schools, but a student scoring in the 99th percentile on one
section and only the 50th percentile on the other, likely would).
Moreover, this unorthodox system advantages students whose families can afford costly
test-prep tutoring and can learn how to game the system. Test-prep tutors who understand how
the SHSAT is scored advise their students to spend as much time as possible not where they are
weakest, but on their stronger subject. See Appendix H at 9-18; David Herszenhorn, Admission
Tests Scoring Quirk Throws Balance into Question, N.Y. Times, Nov. 12, 2005; Tutors of
Oxford NYC, Everything You Need to Know About the SHSAT,
http://www.tutorsofoxford.com/SHSAT.htm#overview (last visited Sept. 19, 2012). By contrast,
the NYCDOEs Specialized High Schools Student Handbook provides no guidance about the
implications of this peculiar scoring system; to the contrary, it actually misleads students by
recommending that they spend an equal amount of time studying for each section of the SHSAT.
See Appendix D at 14.

1980); Pina v. City of East Providence, 492 F. Supp. 1240, 1246-47 (D. R.I. 1980). The Uniform
Guidelines on Employee Selection Procedures, which establish a federal standard for
employment testing, see 29 C.F.R. 1607.1(A), expressly state that a strict rank-ordering system
such as the one imposed by the NYCDOEi.e., treating a candidate as better qualified based
on even a slight incremental difference in scoreis only appropriate upon a scientific showing
that a higher score on a content valid selection procedure is likely to result in better job
performance. Id; 1607.14(C)(9).

20

c.

Validating the SHSAT would also be difficult because it is

not aligned to the middle school curriculum in New York
City public schools

In addition to the concerns cited in Feinmans study, the difficulty of demonstrating the
educational necessity of using rank-order scores on a single high-stakes test as the sole criteria
for high school admissions is exacerbated by the fact that the NYCDOE has not shown that
material tested by the SHSAT is aligned with its public middle school curriculum. Indeed,
complainants allege on information and belief that in many middle schools with high
concentrations of low-income African American and Latino students there is no opportunity to
learn the material tested on the SHSAT because the requisite courses are not offered. Absent
such alignment with the public middle school curriculum, students may be deprived of an
opportunity to learn the necessary skills and knowledge prior to taking what purports to be a
scholastic achievement test.17
At all levels, exams that evaluate mastery of curriculum content are more effective
predictors of academic success and are fairer to low-income and minority students than tests that
evaluate material that students have not yet had an opportunity to learn in school. See, e.g.,
Richard C. Atkinson & Saul Geiser, Reflections on a Century of College Admissions, Center for
Studies in Higher Education, University of California, Berkeley, Research & Occasional Papers
Series: CSHE.4.09 at 2 (Apr. 2009) (hereinafter Atkinson & Geiser, Reflections); Joint
Standards 13.5. When tests are designed to reward mastery of curriculum, the best test
preparation is diligence and achievement in the classroom. By contrast, when tests evaluate
applicants based on material that they have not had an opportunity to learn within the regular
curriculum, the importance of extracurricular test preparation is magnified. The SHSAT has
been repeatedly criticized for giving a significant advantage to students whose families pay for
elite private middle schools or prep courses designed to increase their scores on the SHSAT. See
Anemona Hartocollis, Date of Exam for Elite Schools Is Moved Up, Disturbing Parents, N.Y.
Times, Apr. 27, 2002; Farah Akbar, Test Fuels Anxietyand an Industry, City Limits, Apr. 20,
2010. In a community as diverse as New York City, it is critical that admissions criteria to topnotch educational experiences do not privilege those who have access to special information and
knowledge (through elite private middle schools and extracurricular test preparation services) but
rather provide access to any student who diligently achieves mastery of a public school
curriculum which he or she has full opportunity to learn. Curriculum alignment also sends a
signal to students that working hard and mastering academic subjects in middle school is the
most direct route to a high-quality high school.
The NYCDOE and other entities provide prep courses. Although they are free or
affordable, they are only available to a relatively small number of low-income families, and they
have had minimal impact. Even with the addition of the recently announced DREAM program
(a refinement of the NYCDOEs Specialized High School Institute (SHSI)) and the sponsorship
17

See Shirley M. Malcolm, Equity and Excellence Through Authentic Science

Assessment, in Science Assessment in the Service of Reform 318 (Gerald Kuhn & Shirley M.
Malcolm eds., 1991) (No assessment can be considered equitable for students if there has been
differential opportunity to access the material upon which the assessment is based.).

21

of similar private efforts by Stuyvesant and Bronx Science alumni among others,18 these
programs do not have the capacity to accommodate anywhere near all of the eligible test-takers;
therefore, they will have difficulty making even a relatively small dent in the racial disparities
resulting from the SHSAT.19 Nor do they address the issue of the lack of alignment between
middle school curricula and the SHSAT. Moreover, no amount of test preparation can overcome
the fatal flaw of the SHSATthat it is neither validated nor shown to predict the likelihood of
success of applicants.
3.

Equally effective, less discriminatory alternatives are available

Even assuming that use of rank-order scores on the SHSAT as the sole admissions
criterion for the Specialized High Schools could be validated as consistent with educational
necessity, the NYCDOE and the NYSDOE cannot avoid liability under Title VI because there
are readily available alternatives that would be equally effectiveif not more effectiveat
predicting successful participation in Specialized High School programs while also reducing the
racially disparate impact caused by using rank-order scores from the SHSAT as the exclusive
admissions criterion.
Below is a menu of options that the NYCDOE and the NYSDOE could pursue to develop
an equally effective, less discriminatory alternative to sole reliance on rank-order SHSAT scores.
A combination of the following common-sense approaches, tailored specifically to the unique
challenges and demographics of New York City, would go a long way towards eliminating the
discriminatory effect of the current use of the SHSAT in Specialized High School admissions.
a.

Adopt a multiple-measures approach

Best practices in educational testing have established that a high-stakes decision with a
major impact on students educational opportunities, such as admission to a Specialized High
School, should not turn on a single test score, much less rank-order scores on that test. Joint
Standards, at 141, 146; see also OCR, Use of Tests, at 57 n.202 (noting that less discriminatory
alternatives to sole reliance on a test may include procedures that consider additional types of
performance information along with test results consistent with the institutions goals).
18

See NYCDOE, Press Release, Chancellor Walcott Launches DREAMThe Specialized

High Schools Institute with More Than 2,600 Students and their Families (Apr. 28, 2012),
available at http://schools.nyc.gov/Offices/ mediarelations/NewsandSpeeches/20112012/DREAM-SHSI.htm; Anna Phillips, Alumni Tutoring Effort Strives to Raise Diversity at
Elite Public Schools, N.Y. Times, Oct. 11, 2011.
19

Indeed, in recent years, African-American and Latino enrollment has declined in the
SHSI sponsored by the NYCDOE. See Meredith Kolodner, Prep Course Aimed at Diversifying
Elite City Schools Fails to Reach Black and Latino Students, N.Y. Daily News, Mar. 25, 2011.
The Office of Bronx Borough President Rueben Diaz recently released a report calling for
reforms to the admissions process for the Specialized High Schools and pointing to a number of
flaws in the SHSI, as well as inequities in access to private test preparation programs. See
Appendix J (Office of the Bronx Borough President Ruben Diaz Jr., An Action Plan for Fixing
the Specialized High School Admissions Process (May 2012)).

22

Scholarly research establishes that exclusive reliance on standardized tests does not fully
capture the wide range of intellectual capacities and abilities that are indicators of students with
the potential to thrive in academically rigorous programs, especially for students of color and
those from low-income backgrounds. See Carolyn M. Callahan, Identifying Gifted Students from
Underrepresented Populations, 44 Theory into Prac. 98, 102-03 (2005). In other words, using a
single test is not the best way, and often not even a valid way, to assess true academic merit. For
this reason, the overwhelming consensus among experts is that any process for identifying such
students should include multiple criteriaboth quantitative and qualitativein order to ensure
that talented students of all backgrounds benefit from these programs. See, e.g., National
Association for Gifted Education, Position Statement: The Role of Assessments in the
Identification of Gifted Students 4 (Oct. 2008), available at
http://www.nagc.org/index.aspx?id=4022.20
Reflecting this consensus, colleges around the country use multiple measures when they
make admissions decisions. And increasingly colleges are reducing their reliance on
standardized test scores. Important research at the college level attests that high school grades
outperform standardized tests in predicting college outcomes, irrespective of the quality or
type of high school attended, and are also less closely associated with students socioeconomic
or racial backgrounds than the results of standardized tests. Atkinson & Geiser, Reflections, at 3;
see also Sharif ex rel. Salahuddin v. N.Y. State Educ. Dept, 709 F. Supp. 345, 362-63 (S.D.N.Y.
1989) (granting a preliminary injunction in the context of a Title IX challenge by female merit
scholarship applicants after concluding that consideration of SAT scores plus grade point
averages would be a better measure of high school achievement for purpose of scholarship
eligibility than SAT scores alone); William G. Bowen et al., Crossing the Finish Line:
Completing College at Americas Public Universities 8-10 (2009).
Just as high school grades are considered in the university admissions process, middle
school grades could be one beneficial component of admissions decisions for selective high
school programs, like the Specialized High Schools. Achieving and maintaining a strong GPA
requires not only academic prowess but also measures motivation, personal discipline, and
perseverance. But grades should not be the only factor used in addition to test scores, as
experience at other top-ranked selective high schools and colleges establishes. Other factors
could include teacher recommendations, proven leadership skills, a commitment to community
service, and other aspects of applicants own backgrounds and experiences as well as the
demographic profile of students middle schools and neighborhoodsall of which can help

20

For example, some states, including Texas and Maryland, expressly require use of
multiple measures (including both quantitative and qualitative criteria) as opposed to exclusive
reliance on standardized tests in their identification of students to participate in gifted and
talented programs. See, e.g., Div. of Advanced Acad. Servs., Tex. Educ. Agency, Texas State
Plan for the Education of Gifted/Talented Students 4 (2000), available at
http://ritter.tea.state.tx.us/gted/GTStaPlaEng.pdf; Md. State Dept of Educ., Criteria for
Excellence: Gifted and Talented Education Program Guidelines 1.5 (2007), available at
http://www.marylandpublicschools.org/NR/rdonlyres/04AFAD1F-8EC8-4EFE-B18316C2B0C4F84B/13371/MDGTProgramGuidelines.pdf.

23

assess their achievements and capabilities in the context of the opportunities they have received
before entering high school.
Other top-rated schools in New York City already use admissions procedures that rely on
a variety of measures to yield classes that meet high standards of academic excellence and are
generally more diverse than the overall student demographics of the Specialized High Schools
(although still not fully reflective of the Citys overall student population). For instance, the two
Bard Early College High Schools (one in Manhattan, the other in Queens), both require a grade
point average of 85 or better in middle school, scores of 3 or 4 on standardized English and math
exams, and an exemplary attendance record. Applicants who meet these criteria are invited to
take a school-specific entrance exam and then are interviewed by school personnel. Through this
multiple-measures approach, during the 2008-2009, 2009-2010, and 2010-2011 school years, the
percentage of African American students enrolled in the Bard School in Manhattan ranged from
14 to 18%, and the percentage of Latino students ranged from 16% to 19%; at the Bard School in
Queens, the percentage of African Americans ranged from 18% to 20%, and the percentage of
Latino students ranged from 24% to 27%.21 These figures are higher than the average enrollment
for the Specialized High Schools overall.
Another model is the Hunter Science High School, which is different from Hunter
College High School mentioned below. Hunter Science High School takes into consideration an
applicants grade point average in English, math, science, and social studies; scores on
standardized English exams; middle school attendance records; and a school-specific application,
which includes a writing sample. Using these criteria, during the 2008-09, 2009-10, and 2010-11
school years, the Hunter Science School enrolled a student body that ranged from 19% to 22%
African American and from 39% to 41% Latino. And during the same time period, the Fiorello
H. LaGuardia High School of Music & Art and Performing Arts (which is technically considered
a Specialized High School under New York state law even though its admissions process is not
test-based and thus not challenged here) enrolled a student body that ranged from 14% to 16%
African American and from 17% to 18% Latino, based on a competitive audition and review of
students middle school records. Again, these figures are higher than the average enrollment at
the Specialized High Schools overall.
To be clear, references to these schools are for illustrative purposes only and in no way
suggest that the complainants believe those schools are in full compliance with their federal
obligation under Title VI and its implementing regulations to redress unjustified racial
disparities. Nor, for that matter, are the Specialized High Schools the only New York City
schools where close scrutiny of admissions processes may be warranted. See, e.g., Sharon
Otterman, Diversity Debate Convulses Elite High School, N.Y. Times, Aug. 4, 2010 (noting that

21

For the information upon which the analysis in this and the following paragraph was
based, see The New York State School Report Card: Accountability and Overview Reports
(2010-11), available at https://www.nystart.gov/publicweb/ (last visited Sept. 19, 2012), and
summaries of school admissions criteria, NYDOE, Online High School Directory,
http://schools.nyc.gov/ChoicesEnrollment/High/Directory/default.htm (last visited Sept. 19,
2012).

24

Hunter College High School uses a school-specific test as its exclusive admissions criterion,
resulting in a student body that was 3% African American and 6% Latino in 2009-10).
In recently issued joint policy guidance, the U.S. Department of Education and the
Department of Justice included multiple-measures approaches among the examples of
admissions procedures that selective public schools may lawfully use to further their compelling
interests in promoting diversity and avoiding racial isolation. Indeed, this new guidance states
that [a] school district could give special consideration to students from neighborhoods selected
specifically because of their racial composition and other factors or it could give greater
weight to the applications of students based on their socioeconomic status, whether they attend
underperforming feeder schools, their parents level of education, or the average income level of
the neighborhood from which the student comes, if the use of one or more of these additional
factors would help to achieve racial diversity or avoid racial isolation. U.S. Department of
Education and U.S. Department of Justice, Guidance on the Voluntary Use of Race to Achieve
Diversity and Avoid Racial Isolation in Elementary and Secondary Schools 12 (2011), available
at http://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.pdf (emphasis added).22
b.

Abolish the use of rank-order admissions based on the

SHSAT

To the extent that the SHSAT or any other properly validated test is used in a multiplemeasures approach, a less discriminatory alternative would be to avoid the strict rank-order
admissions requirement mandated under New York state law. This requirement exacerbates the
racial disparities in admissions overall, and especially at Stuyvesant and Bronx Science, which
have the highest cut-off scores because they are the most popular among test-takers. A less
discriminatory alternative would be to consider scores on the verbal and math sections separately
along with multiple other criteria of the sort described in the preceding section.
At most, test scores should be used to establish a properly validated baseline score that
denotes mastery of foundational knowledge and skills required for satisfactory participation in
the Specialized High Schools. Any such baseline score must be carefully calibrated and
validated to ensure a qualified student body for each Specialized High School. Scoring above
this baseline would, in theory, certify the test-takers readiness for the rigorous curricula of the
Specialized High Schools. Beyond the baseline, admissions to particular Specialized High
Schools should be determined by the multiple-measures approach discussed above.
Such alternatives should not in any way reduce academic standards because, overall, the
applicant pool is already of high caliber. According to a recent study, SHSAT test-takers in 2008
had math and reading scores that were 0.73 and 0.61 standard deviations above the citywide
22

As the new federal guidance also recognizes, there is no constitutional bar to

considering race as one factor among many in a holistic, individualized review of students
application files as a means to promote diversity and reduce racial isolation at the Specialized
High Schools. See id. at 10; Parents Involved, 551 U.S. at 793 (Kennedy, J., concurring in part
and concurring in the judgment); Hart v. Cmty. Sch. Bd. of Brooklyn, 536 F. Supp. 2d 274, 283
(E.D.N.Y. 2008); Samar A. Katnani, PICS, Grutter, and Elite Public Secondary Education:
Using Race as a Means in Selective Admissions, 87 Wash. U. L. Rev. 625, 652-53, 655 (2010).

25

average. See Sean P. Corcoran & Henry M. Levin, School Choice and Competition in New York
City Schools, in Education Reform in New York City: Ambitious Change in the Nations Most
Complex School System (Jennifer A. ODay et al., eds., 2011).
c.

Revive and expand alternative pathways to admission for

students from disadvantaged backgrounds

Even if the NYCDOE were able to validate an admissions test and to use it as one of
multiple measures in an admissions process, alternative pathways to admission for students from
disadvantaged backgrounds should be revived and expanded. Even now, under New York state
law, the NYCDOE is permitted to operate a Discovery Program as a limited supplement to
exclusively test-based admissions for the Specialized High Schools. See Appendix C. Through
the Discovery Program, students who successfully complete a summer preparatory institute gain
admission to a Specialized High School. Students are eligible if they take the SHSAT, are
recommended by their guidance counselor, and are certified as disadvantaged by their middle
school according to any of the following criteria:
(a)

The student attends a Title I school and comes from a family whose total income
meets federal income eligibility guidelines established for school food services by
the New York State Department of Agriculture;

(b)

The student receives assistance from the Human Resources Administration;

(c)

The student comes from a family whose income is documented as being

equivalent to or below Department of Social Services standards;

(d)

The student is a foster child or ward of the state; or

(e)

The student initially entered the United States within the last four years and lives
in a home in which the language customarily spoken is not English.

See Appendix D at 17.

If adopted on a broader scale, a program like the Discovery Program, which provides
alternate pathways to admission for students from disadvantaged backgrounds, could be an
important component of an equally effective, less discriminatory alternative to the current policy.
The group of students enrolled through the Discovery Program is more diverse than those
admitted based solely on their rank order scores. For instance, according to data provided by the
NYCDOE, 22.8% of the students selected to participate in the Discovery Program based on their
Fall 2010 SHSAT scores were African American and 21.7% were Latino. Moreover, on
information and belief, students admitted through the Discovery Program have thrived at the
Specialized High Schools. See Megan Finnegan & Stephon Johnson, Benign Neglect?: Who
Killed the Discovery Program, Our Town, May 12, 2011.
Unfortunately, the Discovery Program is currently discretionary under New York state
law, and despite the growing racial disparities in their schools, a number of the Specialized High
Schools, including Stuyvesant and Bronx Science, have stopped participating in it. Id.
Accordingly, the NYCDOE now offers very few students the opportunity to enroll in the
Discovery Program. For instance, according to data provided by the NYCDOE, there were only
92 students selected to participate from among the nearly 30,000 eighth-graders who took the
26

Fall 2010 SHSAT. Indeed, the number of students admitted through the Discovery Program has
decreased over time. Id. In order for the Discovery Program to be effective, all of the
Specialized High School must participate in and expand their use of the program.
d.

Reserve seats for top students at middle schools across the City

Another potential component of a less discriminatory alternative approach, also endorsed

in the new federal policy guidance, would be to allocate a small portion of admissions slots at the
Specialized High Schools to the top-performing students at each of the public middle schools
across the City. See U.S. Department of Education and U.S. Department of Justice, Guidance on
the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and
Secondary Schools 12 (2011).
This approach could help foster geographic diversity, which currently is lacking at the
Specialized High Schools. See Richard Buery, The Case of the Disappearing Black and Latino
Student: Race and the Achievement Gap at Smith College and Stuyvesant High School,
Huffington Post, Mar. 2, 2012. For instance, Mark Twain Gifted and Talented in Brooklyn and
certain other middle schools annually send dozens of students to Stuyvesant, while years can go
by without a single student from District 7, in a poor section of the South Bronx, earning an offer
of admission. See Fernanda Santos, To Be Black at Stuyvesant High, N.Y. Times, Feb. 25, 2012;
see also N.R. Kleinfeld, Why Dont We Have Any White Kids? N.Y. Times, May 11, 2011)
(reporting first student admitted to Stuyvesant from Explore Charter School in Brooklyn founded
in 2002). Moreover, as a recent report issued by the Office of Bronx Borough President Rueben
Diaz reveals, Bronx students are significantly underrepresented among students admitted to the
Specialized High Schools. See Appendix J at 4 (Office of the Bronx Borough President Ruben
Diaz Jr., An Action Plan for Fixing the Specialized High School Admissions Process (May
2012)).
A survey of enrollment at Stuyvesant in 1997 revealed that more than half of the admitted
students had previously attended a private school or a middle school in only three out of thirtytwo Community School Districts. Equally as significant for purposes of this complaint, the five
community school districts that sent the highest number of students to Stuyvesant were 45%
African American and Latino; the five districts that sent the lowest number of students were 97%
African American and Latino. Samar A. Katnani, PICS, Grutter, and Elite Public Secondary
Education: Using Race as a Means in Selective Admissions, 87 Wash. U. L. Rev. 625, 639 n.94
(2010). More recently, 115 of the 843 students in the 2010-11 freshman class at Stuyvesant did
not come from New York City public middle schools, and this class included no students at all
from ten of the Citys community school districts. See Schott Foundation for Public Education,
A Rotting Apple: Education Redlining in New York City (2012) available at
http://schottfoundation.org/drupal/docs/redlining-full-report.pdf (last visited Sept. 25, 2012).
Specialized High Schools should serve students from a wide cross section of the Citys
neighborhoodseven the most economically disadvantaged. Allocation of a certain number of
slots to promote geographic diversity has been used successfully in admissions policies for
certain selective middle and high school programs in Chicago and Virginia. See Noreen S.
Ahmed-Ullah, High School Cutoff Scores Reveal Impact of Diversity Policy, Chicago Tribune,
Feb. 28, 2011; Jeremy Slayton & Holly Prestidge, Henrico School Officials Plan Meeting on

27

Maggie Walker Selection Process, Richmond Times Dispatch, Jan. 23, 2010. Complainants do
not advocate that such an approach should be used to fill more than a relatively small number of
slots in the Specialized High Schools; rather, it could supplement a multiple-measures approach,
which complainants believe should be the primary means of admission to promote diversity and
reduce racial isolation.
*

Accordingly, not only do the practices of the NYSDOE and the NYCDOE with respect to
admissions to the Specialized High Schools produce an unjustified disparate impact for AfricanAmerican and Latino applicants, but there are also less discriminatory alternatives available.
The NYSDOE and the NYCDOE are therefore in violation of Title VI and its implementing
regulations.23

23

A finding of intentional discrimination is not necessary for OCR to conclude that the
NYSDOE and the NYCDOE have violated Title VI, but there is sound basis for a finding of
disparate-treatment liability due to the stark empirical evidence of disparate impact over an
extensive period of time, the long-standing official and public recognition of these racially
disparate outcomes, the NYCDOEs persistent failure to conduct any validity study of the
SHSAT, and its failure to adopt other readily available and equally effective, less discriminatory
admissions policies. The foreseeability of a segregative effect, or [a]dherence to a particular
policy or practice, with full knowledge of the predictable effects of such adherence upon racial
imbalance, is a factor that may be taken into account in determining whether acts were
undertaken with segregative intent. United States v. Yonkers Bd. of Educ. 837 F.2d 1181,
1227 (2d Cir. 1987) (quoting Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 465 (1979)
(quoting district court opinion therein, 429 F. Supp. 229, 255 (S.D. Ohio 1977)); accord United
States v. City of New York, 683 F. Supp. 2d 225, 249, 262-64 (E.D.N.Y. 2010). Rather than
respond to calls to broaden admissions criteria for the Specialized High Schools, the NYCDOE
has taken steps to increase racial isolationinsofar as it has made little use of the Discovery
Program generally and discontinued it at Stuyvesant and Bronx Science in the 1990s. See Megan
Finnegan & Stephon Johnson, Stuyvesants Minority Admissions Under Attack, Our Town, May
18, 2011.

28

IV.

REMEDY AND PRAYER FOR RELIEF

Neither the NYCDOE nor the NYSDOE should accept the status quo. There is a moral
and legal imperative to change this long-flawed policy. As Supreme Court Justice Anthony
Kennedy recognized in his controlling concurrence five years ago in Parents Involved, [i]n the
administration of public schools by the state and local authorities it is permissible to consider the
racial makeup of schools and to adopt general policies to encourage a diverse student body, one
aspect of which is its racial composition. 551 U.S. at 788 (Kennedy, J., concurring in part and
concurring in the judgment).
As discussed above, it is well accepted by educational testing experts that a single test is
neither fair nor accurate as a metric to determine high-stakes decisions such as admission to a
selective high school. See Joint Standards, at 141. Moreover, as also discussed above, it would
be extremely difficult for the NYCDOE and the NYSDOE to justify that the fine distinctions
required by using rank-order SHSAT scores as a sole admissions criterion significantly and
reliably correlate with differences in student performance and cannot simply be explained by
statistical uncertainty. See Joint Standards 2.14, 4.19, 4.20, 4.21; Appendix H at 18-21; OCR,
Use of Tests, at 34. Especially in light of the numerous equally effective, less discriminatory
alternatives that are available, Title VI should prohibit the continued use of rank-order SHSAT
scores as the only factor in admission to the eight Specialized High Schools.
For the foregoing reasons, there is a pressing need for OCR to conduct a comprehensive
investigation of the admissions process for the Specialized High Schools and remedy the
NYCDOEs and the NYSDOEs violation of Title VI and its implementing regulations. Both
requiring admission and actually admitting students to the Specialized High Schools based solely
on their rank-order scores on the SHSAT conflict with Title VI and its implementing regulations,
where, as here, this practice produces a disparate and discriminatory impact, neither the test nor
rank-order admissions has ever been validated as necessary for satisfactory participation in
Specialized High School programs, and equally effective, less discriminatory alternatives are
available. See 42 U.S.C. 2000d; 34 C.F.R. 100.3.24

24

Although OCR has twice investigated complaints regarding the Specialized High
Schools, these prior reviews do not preclude the significant present need for federal scrutiny.
The Specialized High Schools admissions process was one issue addressed by an OCR
investigation in 1977-78, but the circumstances were very different. At that time the Specialized
High Schools included substantially higher percentages of African Americans and Latinos44%
combined for the 1975-76 school year, and era when the Citys public school population was less
diverse than it is now. See Ari L. Goldman, Grouping by Ability of Students Upheld for New
York City, N.Y. Times, June 16, 1978. In the 1990s, OCR investigated a complaint that the
NYCDOE was not providing information to minority parents about programs offered by the
school district, including the Specialized High Schools. When OCR and the NYCDOE entered
an agreement requiring that parents receive information necessary to access quality education,
the validity of the SHSAT as a sole criterion for admission was not addressed. See Norma V.
Cantu, Assistant Secretary for Civil Rights, U.S. Dept of Educ., Statement before the House
Appropriations Subcommittee on Labor, Health & Human Services and Education on the Fiscal
29

To redress this Title VI violation, the complainants urge OCR to take the following
actions:
First, OCR should make findings that: (a) New York state law requiring the use of rankorder scores on the SHSAT as the sole criterion for admission to the Specialized High Schools is
in violation of Title VI and its implementing regulations; and (b) so long as the NYCDOE and
the NYSDOE do not implement less discriminatory alternatives for admissions to the Specialized
High Schools, they will remain in violation of Title VI and its implementing regulations.
Second, OCR should require the NYCDOE and the NYSDOE to revise the admissions
procedures for the Specialized High Schools to comply with federal law.
Third, OCR should require that the NYCDOE and the NYSDOE refrain from any use of
the SHSAT or any other test, unless it can demonstrate, through a professionally acceptable,
high-quality predictive validity study that its admissions process is justified by educational
necessity and there are no equally effective, less discriminatory alternatives available. OCR
should require that any validity study be conducted by an independent educational researcher or
consortium of researchers, with expertise in analysis of educational testing and equity issues.
Fourth, the NYCDOE and the NYSDOE should be required to demonstrate that any such
test must be aligned with the curriculum that students across New York Citys public school
system have an opportunity to learn.
Fifth, at most, OCR should permit the NYCDOE and the NYSDOE to use a properly
validated, curriculum-aligned, standardized test only to establish a baseline mastery of
foundational knowledge and skills required for the Specialized High Schools. To distinguish
among applicants who meet or exceed this baseline, the NYCDOE and the NYSDOE should
consider multiple measures including middle school grades, attendance, teacher
recommendations, leadership, community service, and other aspects of applicants own
backgrounds and experiences, as well as the demographic profile of students middle schools and
neighborhoodsall of which can help assess their achievements and capabilities in the context
of the opportunities they have received.
Sixth, any revised admissions procedure should make full use of the Discovery Program,
already sanctioned under New York state law, and other tools to ensure that even students from
the most disadvantaged backgrounds get a fair opportunity to take advantage of the pipelines to
leadership offered by the Specialized High Schools.
Finally, the NYCDOE and the NYSDOE should involve parents, teachers, students, and
community members in the design of any reforms to the Specialized High Schools admissions
process.
*

Year 1999 Budget Request for the Office for Civil Rights, Apr. 1, 1998, available at
http://www.ed.gov/Speeches/99ocr.html. Thus, the issue is still ripe for OCR review.

30

We will be happy to provide additional information about the matters raised in this
complaint and look forward to further communication with OCR as its investigation proceeds.
Respectfully submitted,

/s/ Damon T. Hewitt

Debo P. Adegbile
Elise Boddie
Damon T. Hewitt
Rachel M. Kleinman
Leticia Smith-Evans
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
99 Hudson Street, 16th Floor
New York, NY 10013
(212) 965-2200
Joshua Civin
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
1444 I Street, NW, 10th Floor
Washington, DC 20005
Juan Cartagena
Jose Perez
Jackson Chin
LATINOJUSTICE PRLDEF
99 Hudson Street, 14th Floor
New York, NY 10013
(212) 219-3360
Esmeralda Simmons
Joan Gibbs
CENTER FOR LAW AND SOCIAL JUSTICE
AT MEDGAR EVERS COLLEGE
1150 Carroll Street
Brooklyn, New York 11225
(718) 804-8893

Dated:

September 27, 2012

Enclosures

31