C.K. v. Tahoe

• Decision Date: 20 October 2022
• Docket Number: 532572
• Citation: 211 A.D.3d 1,177 N.Y.S.3d 364
• Parties: In the Matter of C.K., Individually and as Parent of N.A., an Infant, et al., Appellants, et al., Petitioners, v. Shannon TAHOE, as Acting Commissioner of Education, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 1

177 N.Y.S.3d 364

In the Matter of C.K., Individually and as Parent of N.A., an Infant, et al., Appellants, et al., Petitioners,

v.Shannon TAHOE, as Acting Commissioner of Education, et al., Respondents.

532572

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 13, 2022

Decided and Entered: October 20, 2022

Kostelanetz & Fink, LLP, New York City (Claude M. Millman of counsel), for appellants.

Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for Acting Commissioner of Education and another, respondents.

Sylvia O. Hinds–Radix, Corporation Counsel, New York City (Philip W. Young of counsel), for Chancellor of the New York City Department of Education and another, respondents.

Before: Garry, P.J., Egan Jr., Clark, Fisher and McShan, JJ.

Clark, J. Appeal from a judgment of the Supreme Court (George R. Bartlett III, J.), entered October 23, 2020 in Albany County, which dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent State Education Department denying the applications of petitioners’ children for admission to Specialized High Schools.

During the first half of the 20th century, New York City established three specialized high schools (hereinafter SHSs) — Stuyvesant High School (in 1904), Brooklyn Technical High School (in 1922) and the Bronx High School of Science (in 1938) — each of which would provide students with a specialized program of rigorous instruction. Starting in 1934, Stuyvesant High School began to conduct an admissions process based exclusively on a prospective student's score on a single examination, which came to be known as the specialized high school admissions test (hereinafter SHSAT). Soon after, Brooklyn Technical High School and the Bronx High School of Science began using the SHSAT to fill their seats; however, each prospective student taking the SHSAT did so in connection with his or her application to one SHS. Each SHS would offer admission to students in descending order according to their SHSAT scores until the SHS filled its allotted score-only seats. As of the 1960s, each of the three SHSs also operated a "discovery program" aimed at increasing the diversity of its student body.

In 1971, the Legislature passed the Hecht–Calandra Act (hereinafter the HCA) — originally Education Law former § 2590–g (12) (see L 1971, ch 1212, § 1) but now incorporated by reference through Education Law § 2590–h (1)(b) (see L 1996, ch 720, §§ 6, 7) — which codified the admissions process for eighth- and ninth-graders seeking admission to one of the three SHSs then in existence.¹ The HCA also continued to permit, but not require, each SHS to reserve an unspecified number of seats to be filled through a discovery program for disadvantaged students. To qualify for the discovery program, a prospective disadvantaged student had to take the SHSAT and score below the cut-off score, be certified by his or her school as disadvantaged, be recommended by his or her local school as having high potential for the rigorous SHS program and have a satisfactory school record. Discovery program admission offers were made in the same manner used to fill the score-only seats — in descending order according to their SHSAT scores until the discovery program seats were filled — however, discovery program admission offers were made contingent on the student attending and passing a summer preparatory program (hereinafter the summer program) administered by the SHS.² The Legislature did not establish a definition for a "disadvantaged" student, but under the criteria used until the 2018–2019 academic year, respondent New York City Department of Education (hereinafter DOE) defined a disadvantaged student as one who qualified for free lunch; attended a Title I school and qualified for reduced price lunch; received assistance from New York City Human Resources Administration; was a foster child, ward of the state or in temporary housing; or had entered the United States within the preceding four years and lived in a home where English was not the primary language.

Between 2002 and 2008, DOE opened and designated (or redesignated) five additional high schools as SHSs — High School for Mathematics, Science and Engineering at City College of New York; High School of American Studies at Lehman College; the Brooklyn Latin School; Queens High School for the Sciences at York College; and Staten Island Technical High School.³ Although the parties did not establish an exact timeline, with eight SHSs in existence, DOE made some changes to the admissions process to allow prospective students to use a single sitting of the SHSAT to apply to one, some or all of the SHSs. Under this unified admissions process, a student applying to multiple SHSs ranks the SHSs that he or she wishes to attend, in order of preference. Students are not considered for admission into any SHS for which they do not indicate a rank. Students are then listed in descending order according to their SHSAT scores; the student with the highest score is offered admission into his or her first-ranked SHS, then the next student receives an offer to his or her first-ranked school, and so on, until all the allotted score-only seats in a particular SHS are filled. The score of the lowest-scoring student admitted into the last score-only seat at any particular SHS will also become the score-only cut-off score for that SHS. The next student on the list whose first-ranked SHS has filled its score-only seats is then offered admission into his or her second-ranked SHS. This process is followed until all the score-only seats at all eight SHSs are filled.

Following the designation of the additional SHSs, their authority to operate a discovery program continued. However, DOE made one crucial change — to qualify for the discovery program at any SHS, a student must score below the cut-off score for the SHS with the lowest cut-off score (hereinafter the discovery program cut-off score). Prospective disadvantaged students are listed in descending order, starting from the discovery program cut-off score, and discovery program admission offers are made in the same manner used to fill score-only seats — the student with the next highest score is offered a seat at his or her first-ranked school, and so on, until the discovery program seats are filled. These discovery program admission offers continued to be contingent upon the student attending and passing the summer program.

Then, in an effort "to promote racial, ethnic, geographic, and socio-economic diversity" in the SHSs, respondent Richard Carranza, in his former capacity as the as Chancellor of DOE, adopted various changes to the discovery program in the summer of 2018, which changes first affected the admissions process for the 2019–2020 academic year. First, the Chancellor expanded the number of discovery program seats at the SHSs. Pursuant to this expansion, approximately 13% of the total SHS seats were reserved for discovery program students for the 2019–2020 academic year; approximately 20% were reserved for them for the 2020–2021 academic year.⁴ Second, the criteria for a "disadvantaged" student also changed; a disadvantaged student is one who attends a school with an economic needs index (hereinafter ENI) of 60% or more and meets one of the following conditions: (1) the student's family income qualifies the student for free or reduced price lunch; (2) the student's family receives assistance from the NYC Human Resources Administration; (3) the student is in foster care, is a ward of the state, or is a student in temporary housing, as defined by the McKinney–Vento Act; or (4) the student is an English-language learner or a former English-language learner within the previous two academic years, and the student enrolled in a DOE school for the first time within the last four years. Third, DOE centralized the process, shifting the inquiry of whether a student is "disadvantaged" from the local middle schools to DOE itself. The discovery program admissions process continues to use a single cut-off score — the discovery program cut-off score — and admission offers continue to be contingent upon a prospective disadvantaged student completing the summer program.

N.A., R.B. and C.Y. (hereinafter collectively referred to as the student-applicants) sought admission to the SHSs for the 2019–2020 academic year; each took the SHSAT and ranked only the SHSs to which he or she sought admission. In March 2019, the student-applicants each received a letter informing him or her that he or she had scored below the score-only cut-off scores for his or her ranked SHSs. The student-applicants were all denied admission to the SHSs by DOE and the Chancellor (hereinafter collectively referred to as the City respondents). Thereafter, petitioner C.K., individually and on behalf of N.A, filed an administrative appeal pursuant to Education Law § 310, alleging that the discovery program was illegally implemented, that the discovery program is contrary to law and that the determination denying N.A. SHS admission was arbitrary and capricious. Two other sets of parents, petitioners D.B. and S.B., individually and on behalf of R.B., and petitioners A.T. and R.Y., individually and on behalf of C.Y., filed similar administrative appeals challenging the determinations that denied SHS admission to R.B. and C.Y., respectively. The administrative appeals brought by C.K., D.B., S.B., A.T. and R.Y. (hereinafter collectively referred to as petitioners) were consolidated into a single proceeding, and the City respondents answered. MaryEllen Elia, the former Commissioner of Education, dismissed the appeal, finding that petitioners lacked standing to challenge the changes to the discovery program, except as it related to the expansion of discovery program seats causing a reduction to the number of score-only seats. Regardless, Elia determined that...