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Memorandum

TO: FROM: DATE: RE: Nadya Dabby, Associate Assistant Deputy Secretary Office of Innovation and Improvement United States Department of Education Emily A. Kim, Chief Legal Officer Success Academy Charter Schools April 20, 2013 English Language Learners Admissions Lottery Preference

The United States Department of Education (the U.S. DOE) has recently informed Success Academy Charter Schools (Success Academy) that Success Academys admissions lottery preference for English Language Learners (ELLs) does not comply with Charter Schools Program (CSP) funding requirements. Success Academy applies an ELL set-aside in its admissions lotteries for two reasons. First, the ELL set-aside is necessary to comply with state law. Second, critical to Success Academys core mission is the ability to provide a world-class education to vulnerable student populations in New York City, including English Language Learners. Abandoning the ELL preference would detrimentally and significantly affect Success Academys ability to reach and serve ELLs. On the other hand, losing millions of dollars in CSP funding would have devastating consequences most of all for Success Academys at-risk student populations, including ELLs, who require the extra resources and robust programming CSP funding enables Success Academy schools to offer. Success Academy thus finds itself in an utterly untenable position. Moreover, Success Academy has been entirely transparent with the U.S. DOE regarding its ELL lottery preference, explicitly setting forth the preference in all of its CSP grant applications. The U.S. DOE awarded Success Academy CSP funding and disbursed such funding to Success Academy over several years without once raising an objection with respect to the ELL preference. Success Academy has thus never had notice until now (three years later, and on the eve of its annual admissions lottery) that the U.S. DOE disagreed with the ELL preference. Success Academy respectfully requests that the U.S. DOE reconsider its determination, as both the law and the facts support such an outcome, as described further below.

I.

RELEVANT FACTS A. Success Academy Charter Schools: Extraordinary Student Outcomes

Success Academy Charter Schools serve approximately 4,500 students in 15 high-performing public charter schools across New York City (12 elementary schools and three middle schools). Their student population is comprised principally of low-income and minority students. On the New York statewide tests, students attending Success Academys first four public charter schools in Harlem (the only four schools that have reached state testing grades1) have consistently outperformed significantly more affluent communities, including the Upper East and Upper West Sides of Manhattan and the affluent New York suburb of Scarsdale.2 In 2012, these Success Academy schools ranked among the top 1% of all public elementary/middle schools citywide.3 Internal assessments of Success Academys other schools indicate that they are poised for similarly extraordinary student achievement outcomes. In September 2012, the U.S. DOE named Success Academy Charter School Harlem 1 as a national Blue Ribbon School, the U.S. DOEs highest honor. This honor has never before been awarded to an elementary school in Central Harlem.4 B. New York Charter Schools Act: Enrollment Targets In 2010, the New York state legislature amended the New York Charter Schools Act (the Act) to, among other things, add a requirement that charter schools meet or exceed enrollment and retention targets for ELLs. N.Y. Educ. Law 2852(9-a)(b)(i). The target ELL figures must be comparable to the enrollment figures of the surrounding school district or, in the case of New York City, community school district. Id. The amended Act further established that charters could be terminated or not renewed for repeated failure to comply with the mandated targets. Id. 2852(9-a)(b)(i); 2855(1)(e); 2851(4)(e). Success Academys charter authorizer, the State University of New York (SUNY), has recognized the significant challenges that New York public charter
1

Success Academy schools open with kindergarten and first grades, and expand one grade upward each year as their scholars advance to the next grade. New York statewide testing begins in third grade. 2 Based on New York State exam results database, available at http://www.p12.nysed.gov/irs/ela-math/. 3 See http://schools.nyc.gov/Accountability/tools/report/default.htm#Citywide. 4 See http://www2.ed.gov/programs/nclbbrs/index.html.

schools face in striving to achieve the statutorily mandated ELL targets. For example, as SUNY has acknowledged, ELL populations are not evenly distributed throughout New York, but often concentrate in discrete areas. The resulting ELL enrollment and retention rates across New Yorkand particularly New York City vary widely, sometimes even within the same district or community school district. As a result, public charter schools located outside of areas with high concentrations of ELL populations find it very challenging to meet the targets. At the same time, public charter schools have limited methods available to them to increase their ELL populations, given that admissions are dictated by a randomized lottery.5 However, the Act provides a safe harbor for public charter schools that demonstrate good faith efforts to meet the targets. See N.Y. Educ. Law 2854(2)(a); 2855(1)(e). New York law specifically states that a charter school may . . . establish enrollment preferences for . . . English language learners. 8 NYCRR 119.5(a)(2). SUNY has indicated that an ELL lottery preference will be considered favorably in determining whether a public charter school will be deemed to have met the good faith efforts standard. C. Success Academys ELL Set-Aside At the heart of Success Academys core mission is a deep commitment to serving New York Citys most vulnerable student populations, including English Language Learners. ELL students excel at Success Academy schools. In 2012, 96% of Success Academys current or former ELLs passed the New York State Math exam, and 85% passed the New York State English Language Arts exam.6 By contrast, across New York City, the average current ELL passage rate was 37% on the Math exam and 12% on the English Language Arts exam.7 Like most public charter schools in New York City, however, Success Academy faces significant challenges in meeting the statutorily mandated ELL targets, for the reasons SUNY has identified, as described above. Success Academy has thus implemented a 20% ELL set-aside in its admissions lotteries. The 20% figure was selected after careful consideration of the ELL percentages district-wide and in the community school districts in which Success Academy schools are

See N.Y. Educ. Law 2854(2)(b); Ex. 1 at 6 (excerpt of SUNY presentation, Enrollment and Retention Targets: Review of Progress to Date, October 2, 2010); Ex. 2 at 2 (SUNY memorandum, Establishing Enrollment and Retention Targets for Charter Schools, March 12, 2012). 6 See http://schools.nyc.gov/Accountability/data/TestResults/ ELAandMathTestResults. 7 Id.

located.8 The goal was to maintain Success Academys commitment to serving New York Citys ELL student population and also to comply with the new mandated targets. Success Academys lotteries operate as follows: (1) returning students and their siblings receive priority; (2) 20% of the total open seats are filled through a random selection of applicants who self-identify as ELL on their applications (in- district applicants prioritized over out-of-district applicants); and (3) students who live within the community school district where the school is located then receive priority for the remainder of the seats and the waitlist, ahead of out-of-district applicants. D. Lack of Notice from the U.S. DOE Success Academy has twice applied for and received federal CSP funding. Both times, Success Academy explicitly stated that it applies an admissions preference for ELLs. See Ex. 3 at 19; Ex. 4 at 13 (excerpts of applications). In October 2010, the U.S. DOE awarded Success Academy CSP funding in the amount of $9,154,750 to open 15 and expand 3 schools over 5 years, and raised no questions concerning Success Academys ELL preference. In October 2011, the U.S. DOE again awarded Success Academy CSP funding in the amount of $6,000,001 to open 6 additional schools over 5 years, and again raised no questions concerning the ELL preference. The U.S. DOE has disbursed CSP funds to Success Academy over the past 3 years. In view of the CSP awards and disbursements (without any objection by the U.S. DOE), Success Academy relied on continued CSP funding in making critical growth and budgetary decisions. Now, years later, the U.S. DOE has abruptly changed course. On December 21, 2012, the draft CSP monitoring report was issued to Success Academy for review and, for the first time, raised a concern about the ELL set-aside. By this time, Success Academys student recruitment campaign was well underway, with the ELL set-aside widely publicized and applications coming in. Success Academy sent timely comments on the draft monitoring report on January 18, 2013, addressing, among other things, concerns about Success Academys ELL set-aside.
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Success Academy considered the range of ELL percentages in the school district and in community school districts in which Success Academy schools were located. It also considered SUNYs requirement that an ELL preference must prioritize all students falling into the ELL category across all of New York City before prioritizing applicants residing within the community school district that do not fall into the ELL category. In settling on the 20% figure, Success Academy thus balanced the need to meet the statutorily mandated ELL targets with its desire to ensure that its schools were truly neighborhood schools serving the surrounding communityan aim important to both Success Academy and local communities.

Near the end of March 2013, Success Academy received the final CSP monitoring report (dated February 2013), which raised the same concern as the draft report regarding the ELL set-aside. On March 25, 2013, the CSP Office e- mailed Success Academy with additional questions about the ELL set-aside, to which Success Academy provided responses on March 27, 2013. On April 5, 2013the day of Success Academys lotteriesthe CSP Office wrote to Success Academy, asking that Success Academy hold off on any grant activities for schools implementing a weighted lottery. The U.S. DOE claims that Success Academys ELL set-aside runs afoul of federal law and U.S. DOE guidance. The U.S. DOE points to Title VI of the Civil Rights Act of 1964 (the Civil Rights Act), which prohibits programs receiving federal funding to discriminate on the ground of race, color, or national origin. See 20 U.S.C. 7221i(1)(G). It further points to its April 2011 Nonregulatory Guidance (Guidance), in which the U.S. DOE stated that it permits weighted lotteries only when they are necessary to comply with title VI of the Civil Rights Act of 1964 . . . or applicable State law. Guidance at 17. The U.S. DOE claims that, because New York law does not require an ELL preference, Success Academy cannot implement such a preference under the foregoing provisions. As explained below, Success Academy disagrees with the U.S. DOEs interpretation of both federal law and guidance and New York state law. II. SUCCESS ACADEMYS 20% ELL SET-ASIDE IS ALLOWABLE UNDER FEDERAL LAW AND U.S. DOE GUIDANCE A. Success Academys 20% ELL Set-Aside Comports with the U.S. DOEs CSP Guidance Because the Set-Aside is Necessary to Comply With State Law Success Academys 20% ELL set-aside is consistent with guidance that the U.S. DOE has issued regarding weighted lotteries. In its April 2011 Nonregulatory Guidance, the U.S. DOE stated that it permits weighted lotteries9 only when they are necessary to comply with title VI of the Civil Rights Act of 1964 . . . or applicable State law. Guidance at 17 (emphasis supplied). Success Academys 20% ELL set-aside is necessary to ensure that Success Academy complies with New York state law. New York law places public charter schools at risk of charter revocation and/or non-renewal for failure to comply with statutorily mandated enrollment and retention targets for ELLs. N.Y. Educ. Law
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It is not at all clear that Success Academy implements a weighted lottery. Success Academy sets aside 20% of its seats for ELL candidates. This is not the same as a weighted lottery, which suggests a preference for a particular subset of the student population across all of the available seats.

2852(9-a)(b)(i); 2855(1)(e); 2851(4)(e). The target ELL figures must be comparable to the enrollment figures of the surrounding community school district. N.Y. Educ. Law 2852(9-a)(b)(i); 2851(4)(e). Community Analysis Many of Success Academys schools are located within community school districts that have pockets of high concentrations of ELLs (thereby increasing the target percentages), but the schools themselves are not located in or near these areas. This challenging geography makes it virtually impossible for these schools to reach the ELL targets, particularly without an ELL lottery preference. The below map of New York City Community School District 15 (CSD 15) and the immediate surrounding area reflects this reality. Success Academy Cobble Hill is located in the northern part of CSD 15, where the ELL population is thin. However, the southern portion of CSD 15 has a large, concentrated pocket of ELLs.

The concentrated ELL population in the southern portion of CSD 15 significantly skews the average ELL percentage in the CSD upwardand, correspondingly, the mandatory ELL target for Success Academy Cobble Hill upward. As a result, the ELL target for Success Academy Cobble Hill is 18.8 percentage points higher than the schools ELL percentage. 6

Outreach and Recruitment Success Academy schools have exhausted every available method of outreach and recruitment to attract more ELL applicants, including the following this past year: o Distributed over 150,000 bilingual flyers at apartment doors in public housing complexes and posted bilingual flyers in the lobbies; o Distributed over 27,000 bilingual flyers in neighborhoods with high ELL populations; o Hung over 58,000 bilingual door hangers in neighborhoods with high ELL populations; o Visited or reached out to over 1,399 day cares, preschools, pediatrician offices, children-friendly businesses with bilingual materials; o Sent a Spanish-language e-mail to 18,000 subscribers of El Diario, the largest Spanish-language daily newspaper in New York City;10 o Purchased multiple Spanish print and online display ads in El Diario, as well as additional Spanish online display ads through a Spanish ad network; o Placed numerous Spanish out-of-home ads (including buses, transit shelters, and phone kiosks); o Created a Spanish-language version of the Success Academy website and application; o Provided bilingual staffing at numerous information sessions and tours; and o Provided bilingual services through our call center and in response to questions e-mailed from prospective ELL applicants. These efforts, while extensive, do not bring the average ELL percentage at Success Academy schools in line with the average target percentages they are required to meet. Lottery Analysis Continuing with the example of Success Academy Cobble Hill, the schools ELL target is approximately 22.9%. In this years lottery (with the ELL set-aside), 25.2% of Success Academy Cobble Hills accepted applicants self-identified as ELLs. Without the ELL set-aside, just 18.9% of the accepted applicants would have been self-identified ELLs4 percentage points below the required target. Moreover, the actual ELL acceptance percentage would be significantly lower than 18.9% because a percentage of the applicants mis-identify themselves as ELL, a percentage will decline their seats, and/or some presumably learn English before they start school in the fall.
10

Success Academy conducts significant Spanish-language-speaker outreach based on an analysis of the principal languages spoken by the ELL population in New York City.

With the set-aside, Success Academy hopes to achieve the ELL targets. Alternatively, the set-aside will qualify Success Academy for the good faith efforts statutory safe harbor, as SUNY has indicated that an ELL lottery preference will be important in demonstrating good faith efforts. Accordingly, the set-aside is necessary to comply with . . . applicable State law. Guidance at 17. B. Success Academys 20% ELL Set-Aside Comports with Federal Law Success Academys 20% ELL set-aside comports with the Civil Rights Acts prohibition against discrimination on the ground of race, color, or national origin. See 20 U.S.C. 7221i(1)(G). The ELL designation is not synonymous with race, color, or national origin. Indeed, several federal courts have recognized that language and national origin are not necessarily interchangeable. See, e.g., Mumid v. Abraham Lincoln High School, 618 F.3d 789, 795 (8th Cir. 2010) (finding a schools ELL policy did not single out a protected class because language and national origin are not interchangeable); Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983) (finding that a classification on the basis of language, i.e., English-speaking versus non- English-speaking individuals, is not on its face a classification with respect to national origin); Olagues v. Russoniello, 797 F.2d 1511, 1521 (9th Cir. 1986) (distinguishing the language-only classification in Soberal-Perez from a classification based on foreign-born status and affirming that a non-English-speaking classification is facially neutral with respect to ethnic group classification); Garcia v. Gloor, 618 F.2d 264, 268 (5th Cir. 1980) (finding that prohibiting bilingual employees from speaking a foreign language does not discriminate on the basis of national origin). In New York City in particular, a students ability to speak English does not necessarily correlate to national origin. Families often pass a language to their children from generation to generation born in the United States. Success Academys ELL preference is based on the ability to speak English and not national origin. While ELL status is not, therefore, a good proxy for national origin, unfortunately, ELL status often correlates with low student expectations and performance. In New York City, ELLs pass the New York statewide tests at a rate consistently 30-40 percentage points below their non-ELL peers on the English Language Arts exam, and 20-25 percentage points below their non-ELL peers on the Math exam.11 It is the correlation of ELLs to low student performance that is 11 See http://schools.nyc.gov/Accountability/data/TestResults/
ELAandMathTestResults. See also Ex. 5 (The Parking Lot of Broken Dreams: How English Language Learner Programs in NYC hurt children, March 2011).

particularly pernicious. Success Academy strives to change this unacceptable correlation through its 20% ELL set-aside and the world-class education it provides to all of it students, including its ELL population. The U.S. DOE should not discourage public charter schools from serving higher percentages of ELLs. III. CONCLUSION Success Academys 20% ELL set-aside comports with federal law and guidance, and is necessary for Success Academy to comply with state law. Success Academy urges the U.S. DOE to reconsider its determination in light of the information provided above.