NYS Supreme Court Petition Index # 100738-2013

PRESENT: HON.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

X In the Matter of the Application of,

Justice of the Supreme Court

...................................................................

R.B. on behalf of his minor child L.B.; A.K. on behalf of his minor child S.K.; S.R. on behalf of his minor child H.R.; L.W. on behalf of her minor child E.W. individually and on behalf of all others similarly situated,

At Ex Parte Motion Office - of the Supreme Court of the State of New York, held in and for the County of New York at the Courthouse thereof, 60 Centre Street, New York, New York, on the day of

,2013

Petitioners,

for Judgment pursuant to CPLR Art. 78 and common law claims,

-against-

THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK flWa THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; DENNIS WALCOTT, as Chancellor of the Department of Education of the City of New York; GENTIAN FALSTROM, as Director of elementary enrollment of the Department of Education of the City of New York; ROBERT SANFT, as Director of the Office of Student Enrollment of the Department of Education of the City of New York;

Unsi Order

MAY 1 6 2013

Unsigned Order to Show Cause -I

ORDER TO SHOW CAUSE

Upon the attached Verified Petition, duly verified on May 15, 2013, the Affirmation of

Supreme Court Records OnLine Library - page 1 of 59

Stewart Lee Karlin, dated the 1 Sh day of May 2013, affidavit of Petitioners R.B. on behalf of his

minor child L.B. sworn to on the 1 5'h day of May, 201 3; A.K. on behalf of his minor child S.K.,

sworn to on the 15'h day of May, 201 3; S.R. on behalf of his minor child H.R., sworn to on the1 0th

day of May, 2013, and L.W. on behalf of her minor child E.W.,sworn to on the 14" day of May,

2013; Alexey Kuptsov, sworn to on the lSh day ofMay, 2013; Bogdan Grechuk, swornto onthe 13'h

day of May, 201 3; Jonathan Goodman, sworn to on the 1 Oth day of May, 20 13; Tom Alberts, sworn

to on the 13th day of May 2013; Vladimir Finkelstein, sworn to on the 14Ih day of May 2013;

Vladislav Kargin, sworn to on the 1 4th day of May 20 13, Alexey Onatskiy, sworn to on the 16* day

of May 2013; and upon the exhibits attached to the Affirmation of Stewart Lee Karlin, the

memorandum of law in support of this order to show cause and upon all prior pleadings and

proceedings, and sufficient cause having been alleged therefor, it is hereby,

ORDERED that Respondents THE DEPARTMENT OF EDUCATION OF THE CITY OF

NEW YORK fMa THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE

CITY OFNEW YORK; DENNIS WALCOTT, as Chancellor ofthe Department of Education ofthe

City of New York; GENTIAN FALSTROM, as Director of Elementary Enrollment of the

Department of Education of the City of New York; ROBERT SANFT, as Director of the Office of

Student Enrollment of the Department of Education of the City of New York; appear at a hearing

and show cause at IAS Part , of this Court, to be held at the Courthouse, 60

Centre Street, New York, New York, 10007 on the day of , 2013, at

o'clock in the (a.m. p.m.) or as soon as counsel may be heard why a preliminary

injunction should not be made and entered pursuant to CPLR 630 1 et seq. ordering Respondents to

enjoin selecting students for the Gifted and Talented Program using the current methodology

and shortening Respondent's time to respond the Article 78 proceeding and why an ORDER should

, Room


not be made

a. Declaring pursuant to Article 78 of the Civil Practice Law and Rules that the

notice provided by Respondents as to the change in the Gifted and Talented

Program Selection Process was arbitrary and capricious and violated

applicable laws;

Declaring pursuant to Article 78 of the Civil Practice Law and Rules that the

methodology for selection to the Gifted and Talented Program in its current

form is arbitrary and capricious and violates Petitioners right to equal

protection pursuant to the New York State Constitution;

Declaring and Ordering pursuant to Article 78 of the Civil Practice Law and

Rules that selection to the Gifted and Talented Program be completed

pursuant to the procedure set forth in the G&T Handbook as originally

b.

c.

published, prior to any amendment, with selection based on the students

composite score and sibling priority only effecting selection of students in

cases in which two students have the same composite score.

d. Such additional relief as this Court may deem just and proper under the

circumstances.

IT IS HEREBY FURTHER ORDERED that sufficient cause having been shown, the time

to answer or otherwise respond to the verified petition is May 20 13.

IT IS HEREBY FURTHER ORDERED that sufficient cause having been shown, therefore

pending the hearing of Petitioners application for a preliminary injunction pursuant to CPLR 6301

et seq. the Respondents are temporarily restrained from selecting students for the Gifted and Talented


Program.

IT IS HEREBY FURTHER ORDERED that sufficient cause having been shown, that

Petitioners to protect the educational privacy rights of their minor children can use initials in the

caption,

Sufficient cause being alleged thereof, let personal service of a copy of this order on the New

York City Department of Education and the Law Department of the City of New York, and the

papers upon which this order is granted, upon the Attorney representing Respondents on or before

the ~ day of May 2013 be deemed good and sufficient service. An affidavit or other proof of

service shall be presented to this Court on the return date directed in this order.

ITIS FURTHER ORDERED that if Respondents should file aresponse to the motion, it shall

file such response with the Clerk of this Court after service of a copy thereof upon Plaintiffs counsel

at his office at 9 Murray Street, Suite 4W, New York, NY 10007 on or before

(a.m. p.m.) on the , day of May 2013.

JUSTICE OF THE SUPREME COURT


SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ................................................................... X In the Matter of the Application of,

R.B. on behalf of his minor child L.B.; A.K. on behalf of his minor child S.K.; S.R. on behalf of his minor child H.R.; L. W. on behalf of her minor child E. W., individually and on behalf of all others similarly situated,

Petitioners,

for Judgment pursuant to CPLR Art. 78 and common law claims,

VERIFIED PETITION

Index No. :

-against-

THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK fWa THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; DENNIS WALCOTT, as Chancellor of the Department of Education of the City of New York; GENTIAN FALSTROM, as Director of Elementary Enrollment of the Department of Education of the City of New York; ROBERT SANFT, as Director of the Office of Student Enrollment of the Department of Education of the City of New York;

my 16 2013 -a

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Petitioners by their attorney, Stewart Lee Karlin, allege the following:

This special proceeding is brought to challenge respondents' conduct regarding the flawed

admission process for the gifted and talent program by the New York City Department of Education

that is arbitrary and capricious and denies Petitioners' equal protection under CPLR Article 78 and

the Equal Protection Clause of the New York State Constitution.

1


PARTIES

1.

State New York.

2.

Petitioner R.B. is the father of L.B., a child who resides in County of New York,

Petitioner A.K. is the father of S.K., a child who resides in the County of Kings,

State of New York.

3. Petitioner S.R., is the father of H.R., a child who resides in the County of Kings,

State of New York.

4. Petitioner L.W., is the mother of E.W., a child who resides in the County of Kings,

State of New York.

5 . Upon information and belief, Petitioners claims for relief are brought on their own

behalf and on behalf of all those similarly situated. Respondents have acted or refused to act

unlawfully, arbitrary and capriciously and in bad faith to the named Petitioners and to all those

students seeking placement in the DOE Gifted and Talented Program who have scored highly on

the G&T Test and are not provided placement to the program through the sibling priority provision.

6. Respondent NEW YORK CITY DEPARTMENT OF EDUCATION fMa THE

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK

(hereinafter DOE) was and still is a governmental agency organized and existing under the laws

of the State of New York with its principal place of business located in the County of New York and

is charged with responsibility of public education in the City of New York including providing

education to the Petitioners.

7. Respondent DENNIS WALCOTT (hereinafter Walcott) is the Chancellor of the

Department of Education and such is responsible for the operation of and is the chief executive

officer of the New York City Department of Education fMa the Board of Education of the City

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School District of the City of New York.

8. Respondent GENTIAN FALSTROM (hereinafter Falstrom) is the Director of

Elementary Enrollment and upon information and belief is in charge of the Gifted and Talented

Program of the New York City Department of Education fWa the Board of Education of the City

School District of the City of New York.

9. Respondent ROBERT SANFT (hereinafter Sanft) is the Director of the Office of

Student Enrollment and upon information and belief oversees the placement of students in the Gifted

and Talented Program of the New York City Department of Education fMa the Board of Education

of the City School District of the City of New York.

FACTUAL ALLEGATIONS COMMON TO ALL PETITIONERS1

Improper Notice of Changes to the G&T Selection Process Violated Petitioners RiPhts

1 1. Since approximately 2007, The DOE offered to qualifying residents of New York

City the opportunity to attend special public elementary schools and classes.

12. The schools were meant to provide classes in which the students were selected from

the most academically gifted to enable those schools and classes to, inter alia, to teach more

advanced subject matters and provide a more accelerated academic curriculum.

13. These new schools and classes are commonly referred to as Citywide Gifted &

Talented (G&T) Schools and these new classes are commonly referred to as District G&T classes.

Herein after, the Citywide Gifted & Talented Schools will be referred to as Citywide G&T

Schools and the District G&T classes will be referred to as the District G&T Classes.

14. Currently, under the administration and control of the Respondents, the DOE

The factual allegations common to all Petitioners are derived from the affidavits of each Petitioner. Please see Exhibits 4,5,6,7 to the Affirmation of Stewart Lee Karlin.

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operates five Citywide G&T Schools and approximately 70 G&T Classes for K grade that operate

with the normal district public schools of New York City.

15. Annually, the Respondents have published a Gifted & Talented Program

Handbook that provides the primary means of communication to the public on, inter alia, the

admission criteria used by the Respondents to place children into the Citywide G&T Schools and

District G&T Classes.

16. In 2012, the Respondents cause to be published the Gifted & Talented Program

Handbook 2012-13 For students born in 2008 (The G&T Handbook) that provided detailed

information about the Gifted & Talented Program including, inter alia, student assessment,

assessment reliability and validity, scoring the test, placement eligibility for both District G&T

Schools and Citywide G&T Classes.

17. By way of the G&T Handbook the Defendants made the following statements:

ImDortant Dates for the 2012-2013 Admission Process:

-November 9, Deadline to submit Request for Testing (RFT) forms

-October 15-November 9,20 12 Community Information Sessions

-January 5,6, 12,13, 19,20,26,27; February 2 and 3,2013: Current DOE Pre-K Students and Non-public School Students G&T assessments administered at selected sites.

-The Assessments: -The [Department of Education] will use two assessments that have been used in many districts across the country. The combination of verbal test items from the Otis-Lennon School Ability Test (OLSAT) and nonverbal test items from the Naglieri Nonverbal Ability Test (NNAT2) provide a thorough and balanced look at each childs intellectual abilities to identifj students who are eligible to apply for a G&T program. Tests are administered by NYC certified teachers who are trained by Pearson Assessments.

-Assessment Reliability & Validity: - Each test item on the Verbal and Nonverbal Assessments has been statistically analyzed and evaluated for difficulty, reliability, fit, and effectiveness across each age group. All of the items were rigorously reviewed by educators, measurement specialists, and psychologists

4


to ensure that the test is of high quality and without bias toward any subgroup, including gender and ethical/racial subgroups. The items have also be reviewed for clarity, appropriateness of content, accuracy of correct answers, plausibility of answer options, and appropriateness of vocabulary.

-Both tests have been demonstrated to be reliable and valid assessments according to official studies, Reliability refers to the accuracy and precision of the test scores. Validity refers to the extent to which the test measures what it is intended to measure.

-Scoring the Test -Calculating the Score -The scores of the assessment will be combined to generate a percentile rank. This year, the scores will also be combined to generate a composite score. Scores will be calculated based on the weight of each assessment and the students age. The verbal score will be weighted approximately 1 /3 and the nonverbal score will be weighted approximately 2/3.

-What is a percentile rank? - Percentile rank refers to a students relative standing in comparison to other students of the same age. A percentile is not the same as percent correct. - Percentile ranks are useful in showing the students standing within a group, but should not be used in describing differences between the scores of two or more students. Percentile rank is generated based on the childs age; each child is compared to others within the same three-month age band. Therefore, all percentile ranks show the students standing in comparison to other students of the same age, not grade.

-What is a composite score? -A composite score is a numeric value within the range of 200 to 900 that provides a description of a students combined performance. Students within the same percentile rank may have different composite scores.

-Placement Eliaibilitv -Eligibility for District G&T Programs:

1. 2.

Your child must score in the 90 percentile of above. Your child must live in New York City both at the time of RFT submission and time of application.

-Eligibility for Citywide G&T Programs: 1. 2.

Your child must score in the 97th percentile of above. Your child must live in New York City both at the time of RFT submission and time of application.

-Completing the Application -Students who are entering kindergarten should participate in the kindergarten admission process.

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-Placement -G& T placements are based on composite test score, sibling priority, family preferences (ranked program choices), and the district to which you are zoned to elementary school (zoned district.) Students will only be placed in schools that have declared available seats. -There is no guarantee that a student will receive a placement offer to a G&T program. The number of eligible students typically exceeds the number of seats available at these programs.

-Citywide Program Placement -Applicants with the highest composite scores will be placed first. (Emphasis supplied) Among students with the same score, siblings will be given first priority, then assignments will be made by lottery.

-District Promam Placement -Each applicant eligible for placement will have priority for one or more district programs based upon the district to which they are zoned. Families may apply to any program in any district across the city, but applicants with priority to the district will be placed first. Among applicants from within the district, those with the highest composite scores will be placed first. Among students with the same score, siblings will be given first priority.

-Placement ExceDtion Request -Siblings: -If a younger sibling does not receive an offer for his or her older siblings G&T program, you may file a [Placement Exception Request] for the younger sibling to attend the general education program offered in the same school.

18. During the period October 15,2012 to November 9, 1012 the Respondents held

Community Information Sessions at various public venues throughout the five boroughs of New

York City, and made statements consistent with the sections of the G&T Handbook quoted in

paragraph 16 above.

19. At the Community Infomation Session the Respondents through their agents

explained that the children would be placed in the Citywide G&T Schools in priority order

determined by their composite score, and a sibling would only take priority if he/she had an equal

composite score.

20. Respondents agents also explained the children would be placed in the District G&T

classes in priority order determined by their composite score in combination with residency within

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the district school zone, such that a sibling would only take priority if both children lived in the same

school zone and he/she had an equal composite score.

2 1. In addition, the Respondents agents explained the benefit of registering your child

and requesting testing for their G&T assessments via Respondents website would cause the

Department of Education to provide, via email, information about the G&T program pertinent to the

students application and admission to the Citywide G&T and District G&T programs. Examples,

such as receiving the childs test date location and the childs test scores via email were provided

to encourage the parents of students to register their children via the website.

22. The admission placement procedures stated in the G&T Handbook was consistent

with Chancellors Regulation A-1 0 1 dated March 2,20 12 which controls the admission process of

public schools in New York City.

23.

24.

The deadline for all students to request testing was November 9,2012.

On or before November 9,2012, Petitioners requested testing for their eligibility for

the Citywide G&T Schools and District G&T Classes. Each Petitioner, by way of their legal

guardian and/or parent, made their request online via the Department of Education website,

consistent with the instructions and paper application included within the G&T handbook.

25. On or before October 26,2012, the Respondents submitted an amendment to

Chancellors Regulation A- 10 1, regulating admissions into New York City public schools, inter

alia, at the elementary level, to the City Board in accordance with Education Law 2590-g.

26. On October 26,20 12, in accordance with Education Law 2590-g, the City Board was

required to make public and seek public comment relating to the proposed amendment by posting

the required notice on the city boards official internet website.

27. Furthermore, Education Law 259O-g(8)(a)(i) requires that the notice include a

7


description of the subject, purpose and subject ofthe proposed item under consideration. That notice

failed to provide any information suggesting that the Respondents were seeking amendment of

Chancellor Regulation A-101 to place children into the Citywide G&T Schools or District G&T

Classes by any other method than described and outlined in the G&T handbook, except that the

notice erroneously suggested that the Respondents were seeking to remove sibling priority altogether

where a sibling and non-sibling has the same composite score.

28. The October 26,2012, notice did not suggest that the Respondents suggested

amendments would give siblings more priority over non-siblings, and failed to mention any

proposed changes that would suggest the Respondents would use the proposed amendment to not

use composite scores to place students into the Citywide G&T Schools and District G&T Classes.

Specifically, the posted notice included the following statement:

-Description of the subject and purpose of the proposed item under consideration. Chancellors Regulation A-1 01 sets forth the policies concerning admission, discharge, and transfer of pupils in the New York City public school system. The prior version of the regulation, which was issued on March 2,2012, will be amended in the following respects: (1) sibling priority for G&T programs is changed to remove first priority for siblings and sibling priority for students with disabilities

29. The October 26,2012, public notice therefore states that the amendment being

sought to Chancellors Regulation A-1 0 1 would in fact remove any remaining priority in placement

for siblings into the Citywide G&T Schools and District G&T Classes and nothing else. .

30. On or before November 5,2012, Respondents submitted a revised amendment to

Chancellors Regulation A-101 to the city board in accordance with Education Law 2590-g.

3 1. On or about November 5,2012, in accordance with Education Law 2590-g, the City

Board posted a notice of the revised amendment being sought to Chancellors Regulation A-1 01 on

the city boards official internet website.

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32. On or before December 5,2012, Respondents submitted an revised amendment to

Chancellors Regulation A-101 to the city board in accordance with Education Law 2590-g.

33. On December 5,2012, in accordance with Education Law 2590-g, the City Board

posted a notice of the revised amendment being sought to Chancellors Regulation A-1 0 1 on the city

boards official internet website.

34. The December 5,20 12, notice failed to provide any information suggesting that the

Respondents were seeking amendment of Chancellor Regulation A- 10 1 to place children into the

Citywide G&T Schools or District G&T Classes by any other method than described and outlined

in the G&T handbook, except that the December 5, 2012, notice erroneously suggested that the

Respondents were seeking to remove sibling priority altogether where a sibling and non-sibling has

the same composite score.

35. The December 5,2012, notice did not suggest that the Respondents suggested

amendments would give siblings more priority over non-siblings, and failed to mention any

proposed changes that would suggest the Respondents would use the proposed amendment to not

use composite scores to place students into the Citywide G&T Schools and District G&T Classes.

Specifically, the posted notice included the following statement:

I. Chancellors Regulation A-1 01 sets forth the policies concerning admission, discharge, and transfer of pupils in the New York City public school system. The prior version of the regulation, which was issued on March 2,2012, will be amended in the following respects:

Description of the subject and purpose of the proposed item under consideration:

(1) sibling priority for G&T programs is changed to remove first priority for siblings and sibling priority for students with disabilities.

36. The December 5,2012, public notice therefore states that the amendment being

sought to Chancellors Regulation A- 10 1 would in fact remove any remaining priority in placement

for siblings into the Citywide G&T Schools and District G&T Classes.

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37. However, contrary to the public notices, on information and belief, Respondents

expanded sibling priority in placing students into both Citywide G&T Schools and District G&T

Classes, in effect deliberately sandbagging the children without sibling priority without notice.

38. The revised amendment to Chancellors Regulation A-101 submitted to the City

Board in accordance with Education Law 2590-g, including Section 1I.A. entitled Sibling

Priorities is silent as to the applicability of any sibling priority being applicable to admissions into

the Citywide G&T Schools and District G&T Classes. Draft amended Section II.A.3. states:

Siblings of students already pre-registered or enrolled at an elementary school at the time of application submission are given priority for admission into elementary school programs for which they meet the eligibility requirements as described below, subject to available seats.

39. Because the Citywide G&T School eligibility requirements, nor District G&T Class

eligibility requirements are described in the revised amended December 5, 20 12 Chancellors

Regulation A-1 0 1, the most reasonable interpretation of the amended regulation (and the previous

October 25 and November 5 pre-iterations) is that sibling priority is not applicable to the Citywide

G&T School and District G&T Classes admissions. Such an interpretation is consistent with the

October 25, November 5, and December 5 public notices disseminated by the city board.

40. On December 20,2012, the City Board voted to approved the amended Chancellors

Regulation A-101 and it issued December 22, 201 1. At no time prior to the issuance of the

amendments incorporated in the December 22,20 12 Chancellors Regulation A- 10 1, did the make

any reasonable steps to notifl the students, their parents andor the guardians of the students

registered to take the G&T test of their intention to use the amendments to Chancellor Regulation

A-101 as a basis to apply a more expanded sibling priority criteria to the admission process for

Citywide G&T Schools and District G&T Classes. Nor did the Respondents state that they intended

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to forego the use of composite scores to rank students for purposes of admission into Citywide G&T

Schools and District G&T Classes. The Respondents, having the email addresses, residential

addresses and/or other contact addresses of every student and their guardian andor parents

registered to take the G&T test, could easily have provided clear and fair notice to those persons

who would be most likely be adversely affected by the Respondents interpretation of the December

22 amended Chancellors Regulation A- 10 1.

41. The Respondents amended the G&T Handbook (Amended G&T Handbook)

without providing notice to Petitioners or the students, and their guardian and/or parents, registered

to take the G&T test. Further to this date, Respondents have failed to update the foreign language

versions of the G&T Handbook which are featured on the DOES website.

42. On or about April 2012, the Respondents notified students via email andor U.S.

Postal Service whether the results of the G&T test, including test scores for both the verbal and

nonverbal test, and included both composite scores and percentile rank for each test and the students

overall percentile ranking.

43.

Summary

44.

45.

The Respondents violated the notice provisions required under the law.

Petitioners have brought this action on behalf of their minor children.

Respondents have discriminated against Petitioners based on their lineage by

exercising a discriminatory methodology which gives priority to siblings of children already

enrolled in Defendants Gifted and Talented program (G&T), despite the fact that these childrens

scores are lower than other children who do not have siblings in the program.

46. The placement policy that the New York City Department of Education (DOE)

uses to determine the eligibility and placement of children into the New York City G&T Program

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is arbitrary and capricious, in bad faith, and violates the purpose and meritocractic nature of the

G&T Program because it inequitably reduces the placement chances of very well qualified students.

It violates equal protection rights, irrespective of lineage. The methodology used reduces the

chances of otherwise well qualified students without a sibling in a G&T placement, by substantial

reducing the chances of admission for overwhelming qualified students while giving priority to

much lower scoring-unqualified siblings of students already enrolled in the G&T Program.

47. In addition, the methodology used to calculate childrens percentile ranking to

determine a childs eligibility and placement for the G&T Program is deliberately and in bad faith

fundamentally flawed in order for the unqualified sibling of a G&T student to be able to gain

admission into the G & T program solely at the expense of well qualified students who being denied

admission into the program because of the limited amount of seats. Further, using such a flawed

methodology undermines the very purpose of the G&T program.

The DOE Gifted and Talented Program

48. The determination of whether a student should be placed in a gifted education

program has a profound impact on the students. The G&T program provides students with

exceptional abilities with differentiated instruction because there educational needs require it. The

program provides enhanced educational opportunities that enable them to succeed in school and

allows for educational opportunities in the future due to the accelerated pace of the program.

Petitioners Application Process

49. Petitioners started the application process for the G&T program on or about

October 2012. At that time, they learned that due to excessive numbers of qualifling applicants in

prior years, the DOE would move from a percentile ranking system to a new, more granular scoring

system, based on composite scores. Petitioners also learned that there would be a new, more

12


difficult section of the exam, called the NNAT2 module, that was introduced to further differentiate

among top scoring students and designed to negate any advantages of test preparation.

50. Petitioners also learned that the rule which provided priority to siblings of

currently enrolled students (the prior year, siblings had guaranteed placement if they met a certain

threshold, i.e., 97* percentile for the Citywide G&T Program, and 90* percentile for the District

G&T Program) would be eliminated. Siblings would only have priority over non-

siblings if composite scores were the same.

5 1. Although the DOE is aware of the errors in the methodology of placing students

in the G&T program, it had informed the parents that because of fear of public backlash, it would

revert back to the erroneous percentile ranking system instead of the composite scores that are

universally accepted as the fairest and most accurate way of ranking childrens test scores.

The DOE continues to mislead the public by suggesting that their published 52.

percentile ranking system is a meaningful and accurate reflection of the childrens actual percentile

ranking. However, the scoring and placement policy was changed in the middle of the testing

process, with very poor communication. The G&T Handbook categorically stated that the children

would be placed in order of composite scores (i.e., their actual scores that have been mathematically

adjusted to take into account age differences) and that siblings would only take priority in the

placement procedure if the composite scores of a sibling and non-sibling child were tied. The Fall

20 12 information sessions presented the same explanations. (Exhibit 1 -B).

53. Nevertheless, on or about December 19* 2012, Petitioners received an email from

DOE announcing that the sibling rule had been reinstated, at the request of families with siblings.

However, the email never gave any specifics stating that the DOE would not use composite scores

to place children. Nor were Petitioners informed that this issue was being considered or that there

13


would be public hearings to discuss the proposal to reinstate sibling priority positive discrimination.

Petitioners believed at this time that the change did not effect them.

54. According to the December 19* e-mail, the siblings would get priority over non-

siblings as long as they attained a score sufficient to place them in the 97'h percentile rank for the

Citywide G&T Program and 90* percentile rank for the District G&T Program. At that time, and

until well after all the testing had been completed, the G & T Handbook continued to present

composite scores as the key mechanism to place children into the G&T Program. The article fiom

the NY times interpreted the DOE email the same as Petitioners did in that composite scores would

be used for non-siblings. (Exhibit 7-B ).

55. Immediately after Petitioners were provided with their child's scores, the Schools

participating in the G&T Program held open houses to aid parent decisions on what order to rank

the schools in order of preference. However, for the first time, while touring these schools parents,

including Petitioners, learned that the composite scores were scrapped and that, because of the large

number of children falling within the 99* percentile rank, after all siblings had been placed any

remaining places would be conducted by lottery among all children in the 99th percentile rank.

56. Furthermore, on April 20,2013, Petitioners were informed that Pearson (the

company hired to administer the testing by Respondents) had made a scoring error and as a result

the number of qualified applicants under the percentile ranking system would double, to the point

where there would now be even more applicants than the prior year which used an easier module

to the NNAT2 module.

57. Specifically, based on recent statistics released by the DOE, of the 13,629

children testing for Kindergarten in the 2013 G&T Program, 5322 (39%) ranked in the 90th

percentile, 2771 (20%) in the 97th percentile and 1480 (1 1%) in the 9gth percentile.

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58. Now after scores have been readjusted following the first scoring scandal when

DOE announced that its vendor Pearson made several errors in the scoring assessment, the chances

to get placement in a citywide program were dramatically reduced.

59. The question turns to be a question of fairness and mathematical accuracy. There

are multiple errors discovered over the course of the application process, indicating that Pearson

methodology is not reliable and therefore DOE shall make this years placement based on valid

composite scores. In fact, the DOE identified an additional error in the Gifted & Talented test results

provided by Pearson on or about May 8,2013. The error impacted the qualification status of 146

test takers. Of these: 82 students who did not previously qualify for G&T now qualify for district

programs; 64 students who previously qualified for district programs now also qualify for citywide

programs.

60. In addition, 159 students percentile rank improved within their eligibility

category: 98 students remain eligible for district programs but will receive a higher percentile rank

within the 90th-96th percentile range; 36 students remain eligible for citywide programs but will

move from the 97th to the 98th percentile; 25 students remain eligible for citywide programs but

will move from the 97 or 98th percentile to the 99th percentile. (See DOE Press Release attached

to the Affirmation of Stewart Lee Karlin as Exhibit 7-C).

6 1. Chancellor Walcott stated the following However, the Department has

determined that when Pearson went through this process, they failed to check the test date data they

used in the score calculation against the test date data indicated on students answer sheets and did

not identify that a default test date had been incorrectly applied. This failure to complete the basic

quality assurance checks Pearson confirmed that they had completed is deeply disturbing; for this

reason the Department of Education is reviewing a variety of options including terminating

15


Pearsons contract. (Exhibit 7-C).

62. The 5 Citywide G&T Program Schools only have approximately 300 seats

available this year before the siblings with priority take away seats from higher scoring non siblings.

Accordingly, even if Petitioners were to rank all 5 schools (which is impractical given the locations),

the lottery chance of each of their children (who are all in the 99th percentile) is approximately 1 in

5 if no siblings take seats, but given the historical trends of sibling enrollment, the chances are

lower. Unfortunately, the DOE has not yet published the number of siblings taking seats, but from

a recent tour of one of the 5 Citywide G&T Program schools, Brooklyn School of Inquiry, the parent

coordinator stated that they have at least 10 qualifying siblings that will take 18% of all available

seats. Assuming that trend extends across all 5 Citywide G&T schools, Petitioners are relegated to

a 1 in 6 chance. However, due the recent change on May 8,2013 that includes additional students,

being taken, Petitioners chances have lowered even further.

63. Sadly, even admission into the District G&T Programs will be via lottery with

Petitioners children and others similarly situated chances not much greater than for admission to the

Citywide G&T Program schools. Even though there are some District G&T Program classes

available to Petitioners children and others similarly situated, because sibling priority takes effect

at the much lower 90th percentile, it is therefore that much easier for siblings to qualify for admission

(they only need to be in the top 39% ofNew York City G&T Test takers - i.e., 61th percentile using

the G&T Test results as a comparator). Thus, within the District G&T Program, the discrimination

against non-siblings is more apparent. But since the sibling placements for District Programs have

not been published, it is hard to provide an accurate figure of Petitioners lottery chances for a

District G&T Program. However, it is clear the chances of each Petitioner are not good.

64. In trying to understand how such a large number of students were ranked in the

16


99th percentile, Petitioners carefully reviewed and researched the methodology used by the DOE and

Pearson (the company contracted by the DOE to analyze and generate the test scores) to assess and

score this years test for the G&T Program. Petitioners requested and reviewed the available

manuals and contacted the DOE and Pearson representatives for details of the methodology that was

being used.

65. Among the aggrieved parents was Professor Alexey Kupstov who conducted

research to verify and validate his initial suspicion. Prof. Kuptsov was quickly able to confirm his

suspicions and identifj and prove that the methodology used by DOE and Pearson to assess and

score this years G&T test is fundamentally wrong.

66. To be sure they were correct, Prof. Kuptsov contacted a number of respected

professors of mathematics at various well respected educational institutions in the United States and

abroad and asked them for their independent analysis of the scoring methodology used by the DOE

to calculate the percentile rankings they intend to use to place children into the G&T Program.

Their experts conclusions were unanimous-the scoring methodology and the 67.

way the DOE uses that methodology to estimate the 99 percentile ranking is fundamentally wrong.

Because those experts felt so passionately that the DOES methodology is wrong and recognizing

the implications on the children who took the test by which many would be unfairly kept from

placement in the G&T program, many of those experts offered to provide their assistance in this

matter without any expectation of payment. Some of those experts have filed expert affidavits in

support of the allegations being made in this petition.

68. Further, before bringing this action, Petitioners alerted the DOE and Pearson to

the errors identified, and attempted to explain their concerns in the hope that they would be

reasonable and use the composite scores of children to place children into the G&T Programs. Upon

17


information and belief the placement letters for the G&T Program are due to be sent to the

applicants in the middle of June 201 3.

69. Starting in the latter part of April, 2013, the Petitioners contacted the DOE

through its web portal; The Petitioners had direct email contact with Members of the Panel on

Educational Policy (Judy Bergtraum, Kevin Diamond, Dmytro Fedkowskyj, Tino Hernandez,

Jeanette Moy, Diane Peruggia, Ian Shapiro, Patrick Sullivan, Milton Williams Jr); direct contact

with ; The New York City Council, Committee on Education, Members (Fernando Cabrera,

Margaret S. Chin, Daniel Dromm, Helen D. Foster, Daniel R. Garodnick, David G. Greenfield,

Vincent M. Ignizio, Robert Jackson (Chair), Karen Koslowitz, Jessica S. Lappin, Stephen T. Levin,

Deborah L. Rose, Eric A. Ulrich, James Vacca, Albert Vann, Mark S. Weprin ; theoffice of Public

Advocate Bill de Blasio; and email and telephone correspondence with Adina Lopatin, the Deputy

Chief Academic Officer for Performance, George Benners and Shira Kessar, Office of Academic

Policy. (E-mail exchanges attached to the Affirmation of Stewart Lee Karlin as Exhibit 4-B).

No one the Petitioners reached out to about their concerns showed any illingness 70.

to conduct an independent investigation of their calculations. Although this is of public concern

affecting over 35,000 children in NYC who took the G&T test this year, the parents of the

Petitioners received very little interest from the governmental agencies andor officials.

71. A letter to Chancellor of the DOE was sent twice to request a meeting in person to

discuss the issue, emails were sent to city councils members and the members of Panel of Education,

and the Petitioners attended a forum on Public Education to get their voice heard, unfortunately all

with little success.

72. Filing this law suit is Petitioners last resort to stop the unfair and arbitrary

placement of children into the G&T Program this year and expose the highly flawed methodology

18


supported by multiple experts as set forth in their expert affidavits, who have on public interest

grounds agreed to provide their unbiased opinions without compensation.

73. Every parent in NYC, whose child took the G&T exam this year should know that

DOE mislead all exam takers and their families about the methodology of the scoring result and was

resistant to step up and admit its mistakes and errors because of a potential political backlash at

the expense of fairness and methodological rigor.

74. The fact that the DOE originally abandoned the percentile rank methodology in

favor of the composite score for placing children into the G&T Program is evidence that the DOE

must have suspected that the percentile methodology was flawed. However, the DOE because of

the political backlash from a group of parents, decided to revert back to the percentile rank

placement system.

75. The DOEs current methodology favors siblings because they have a significant

advantage in that a sibling child scoring in the top 39% of the G&T Program test takers (equivalent

to 6 1 st percentile) will be guaranteed placement in a District G&T Program class, yet a child scoring

perfect scores in the case of Petitioners, will be placed in a lottery with very little chances of

admission.

76. The DOEs discrimination is plain - it awards siblings priority into the G&T

Program by guaranteeing siblings placement as long as they attain a fairly low threshold score (as

low as 61 percentile rank compared to the children taking the same test for the G&T Program). Yet

non siblings scoring perfect scores are not guaranteed admission, but are forced into a lottery where

they have a 1 in 6 chance of being admitted into the G&T Program.

77. The DOEs G&T methodology has irreparably harmed Petitioners and others in

Petitioners situation who are discriminated against based on their lineage. The G& T methodology

19


is imperative as it has a direct impact on each of the Petitioners educational fiitures and those of

other children in their situation.

Facts Particular to R.B. on behalf of his minor child L.B.

78.

79.

Petitioner R.B. is the father of L.B., a child who lives in New York, New York.

On or about April, 2013, the G&T Program test results were announced and L.B.

scored at the highest level. Out of the maximum composite scores of 160 and 150 for the NAT2

and OLSAT8 modules respectively, his child L.B. scored: 160 in the NNAT2 and 138 in the

OLSAT8. L.B. scored the absolute maximum score on NNAT, I60 out of 160 points, and 140 out

of 150 (1 38 out of 150 after Pearson error) on the OLSAT portion of the test. (Fkhbit5at714;

Exhibit 5-A).

80. L.B. got this high score despite his language disadvantage; he is bilingual with

Romanian as his first language; he only became fluent in English at 3.5 years old and Romanian

is not one of the alternative languages offered for the G&T test. Despite the nearly perfect score,

it is entirely possible that, L.B., will not get a placement in any citywide or district program as

L.B.s chances have been diminished to approximately a 1 in 6 chance. (Exhibit 5 at f[ 21). For the

less competitive district G&T schools, a sibling scoring only in the 90th percentile (39% of all NY

test takers) has priority over a top-scoring student. The number of 99 percentile applicants in

District 3 where L.B. resides, is almost twice as large than the total number of seats, even before

considering siblings. (Exhibit 5 at f 14).

8 1. Despite achieving the highest possible score no combined composite scores were

provided in the letter, instead the DOE letter merely provided a combined percentile rank for stating

that L.B. was in the 99th percentile rank. (Exhibit 5 at 715).

82. After the scores have been readjusted following the first and second scoring

20


scandals, E.W.s chances to get placement in a citywide program were dramatically reduced.

(Exhibit 5 at 717, 19).

83. L.B. has been aggrieved by the discriminatory and arbitrary methodology utilized

by the DOE. Due to its bias and discriminatory methodology, L.B. has suffered irreparable harm

since he has missed deadlines to apply to other schools.

84. The DOES G&T methodology has irreparably harmed L.B. and others similarly

situated who were discriminated against based on their lineage. The G&T methodology is

imperative as it has a direct impact on my L.B.s educational future as well as those children

similarly situated.

Facts Particular to A.K. on behalf of his minor child S.K.

85.

86.

Petitioner A.K. is the father of S.K., a child who lives in Brooklyn, New York.

On or about April, 2013, the G & T Program test results were announced and S.K.

scored at the highest level. Out of the maximum composite scores of 160 and 150 for the NNAT2

and OLSAT8 modules respectively, S.K. scored: 160 in theNNAT2 and 150 in the OLSAT8. These

were perfect scores, (Exhibit 6 at 7 17; Exhibit 6-A).

87. Despite achieving the highest possible score, no combined composite scores were


that E.W. was in the 99fh percentile rank. (Exhibit 6 at 7 18).


scandals, S.K.s chances to get placement in a citywide program were dramatically reduced.

(Exhibit 6 at 7 20-22).

89. Had A.K. known that his daughter S.K. was going to be exposed to this

discriminatory treatment, he would not have chosen to expose her to the emotional stress of taking

21


an assessment test. In addition, had A.K. not been mislead, he would have explored alternative

school options for his minor child, which are now foreclosed because of application deadlines.

Thus, as a result of the DOEs methodology S.K. has been irreparably harmed. (Exhibit 6 at T 7).

90. The major concern of A.K. is that S. K., will not be challenged enough in school.

She is already well beyond the K level and putting her in general education class will do irreparable

harm to her. There is a great risk that she will lose interest in learning just because she will not be

challenged in the classroom. A.K. a teacher himself has seen many examples of students who are

not provided with appropriate enrichment opportunities. S.K. is the type of student requiring

accelerated curriculum which the G&T Program is intended to serve yet due to the discriminatory

and arbitrary methodology applied by the DOE S.K has been rreparably harmed.

91. S.K. has been aggrieved by the discriminatory and arbitrary methodology utilized

by the DOE. Due to its bias and discriminatory methodology, S.K. has suffered irreparable harm

since she has missed deadlines to apply to other schools.

92. The DOEs G&T methodology has irreparably harmed S.K. and others similarly


imperative as it has a direct impact on my S.W.s educational future as well as those children

similarly situated.

Facts Particular to S.R. on behalf of his minor child H.R.

93.

94.

Petitioner S.R., is the father of H.R., a child who lives in Brooklyn, New York.

H.R. who was four years old at the time took the approximately 1-1.5 hour G&T

Test at the end of January 20 13. (Exhibit 4 at 1 12). The test was carried out in a separate room to

which S.R. was no permitted to observe, a very stressful situation for both S.R. and H.R. (Exhibit

4 at 7 13)

22


95. On or about April, 2013, the G&T Program test results were announced and H.R.

scored at the highest level. Out of the maximum composite scores of 160 and 150 for the NNAT2

and OLSAT8 modules respectively, my child H.R. scored: 160 in the NNAT2 and 144 in the

OLSAT8. (Exhibit 4-A).

96. Despite achieving the highest possible score no combined composite scores were


that H.R.. was in the 99* percentile rank. (Exhibit 4 at 7 15).


scandals, H.R.s chances to get placement in a citywide program were dramatically reduced. 99.H.R.

has been aggrieved by the discriminatory and arbitrary methodology utilized

by the DOE. Due to its bias and discriminatory methodology, H.R.. has suffered irreparable harm

since she has missed deadlines to apply to other schools. (Exhibit 4 at 77 38-40).

98. The DOES G&T methodology has irreparably harmed H.R. and others similarly


imperative as it has a direct impact on my H.R.s educational future as well as those children

similarly situated. (Exhibit 4 at T[T[38-40).

Facts Particular to L.W. on behalf of his minor child E.W.

99.

100.

Petitioner L.W., is the mother of E.W., a child who lives in Brooklyn, New York.

To take the G&T Test, E.W. spent 80 minutes with an unfamiliar person, one on

one, without a parent or guardian present, something that L.W. would never have exposed her to if

she knew that the process is based on a lottery, with her chances to receive a seat in the G&T

Program as low as 15%. (Exhibit 7 at T[ 12).

10 1. On or about April 20 13 the G&T Program test results were announced and E. W. a

23


trilingual child, scored at the highest level. Out of the maximum composite scores of 160 and 150

for the NNAT2 and OLSAT8 modules respectively, E.W. scored: 160 in the NNAT2 and 150 in the

OLSAT8. They were perfect scores. (Score Report attached to the Affirmation of Stewart Lee Karlin

as Exhibit 7-A).

102. Despite achieving the highest possible score no combined composite scores were


that E.W. was in the 99th percentile rank. (Exhibit 7 at 7 14).


scandals, E.W.s chances to get placement in a citywide program were dramatically reduced.

(Exhibit 6 at T[ 16-18).

104. E. W. has been aggrieved by the discriminatory and arbitrary methodology utilized

by the DOE. Due to its bias and discriminatory methodology, E.W. has suffered irreparable harm

since she has missed deadlines to apply to other schools.

105. The DOES G&T methodology has irreparably harmed E.W. and others similarly


imperative as it has a direct impact on my E.W.s educational future as well as those children

similarly situated.

Analysis of the DOE G&T Test bv Dr. Alexev Kuptsov

106. Dr. Alexey Kuptsov is currently a Professor of Mathematics at the New York

University (WYU), Courant Institute, located in New York, New York and has extensive

experience in mathematics through his education, teaching, consulting and applied mathematics

research. (Exhibit 1 at lTT[ 2-10)

107. Dr. Kuptsov examined the method used by the DOE to rank students taking the

24


New York City 20 13 Gifted & Talented test for purposes of determining the eligibility of the student

to be considered for admission to the New York City Schools that offer Gifted & Talented (G&T)

programs. (Exhibit 1 at 7 12)

108. The percentile numbers generated by the methodology used by Respondents are

statistically flawed and so cannot be used to select and identify, with sufficient degree of accuracy,

those students who are the more academically gifted and so should be given preference to school

admissions into the New York City G&T programs. Moreover, because of this mathematical flaw

in calculating percentile rank, the percentile rank is not a legitimate mechanism by which to rank

the qualifying students for admission into the G&T Programs. (Exhibit 1 at 7 13)

109. The New York 2013 G&T test involves two parts. A nonverbal part, the NNAT2

test and a verbal part, the OLSAT8 test. Each student taking the New York 201 3 G&T test receives

a normalized score for each part of the test which, in simplistic terms, is the childs actual score

that is manipulated by mathematical equation to account for age difference between the students at

the time they took the test. This is an important consideration since a child that just over 4 years old

would be taking the same test on the same day as a 5 year old. So every student receives a

normalized score for the NNAT2 portion of the test and every student also receives a normalized

score for the OLSAT8 portion of the test which are later combined with weights 2/3 and 1/3 to

produce a composite score. There is no issue with and he do not question the validity of the

calculation used to generate the normalized and composite scores of the students. (Exhibit 1 at 7

14)

1 10. Dr. Kuptsov also reviewed the publications of the Respondents provided to the

public before and at the time of the deadline for students to request testing for admission into the

New York City G&T program, in particular the G&T Handbook attached to the Affirmation of

25


Stewart Lee Karlin as Exhibit 1 -B. Those publications made clear that the Respondents would

use composite scores to rank students for placement into the G&T program. Specifically, the

Respondents stated that a composite score based on the NNAT2 and OLSATS portions of the test

would be used, weighted such that approximately 2/3 would be based on the NNAT2 portion of the

test and approximately1/3 would be based on the OLSATS portion of the test. (Exhibit 1 at 7 15)

1 1 1. An excerpt from the G&T Handbook published by the DOE makes clear that

qualifying students for the G&T Programs were to be placed in order of composite test score and

not percentile rankings as it states:

Gifted & Talented placement are based on composite test score, sibling priority, family preferences (ranked program choices), and the district to which you are zoned to elementary school (zoned district). (Emphasis added) (Exhibit 1-B at pg. 7).

112. Dr. Kuptsov has found no reasonable basis for believing that the composite scores

generated by the DOE for the students that took this years G&T test are in any way inaccurate.

Accordingly, Dr. Kuptsov believes to a reasonable degree of certainty that the composite scores

would provide a fair and mathematically sound way of ranking students for admission into the New

York City G&T programs and would be consistent with the placement criteria outlined by the DOE.

(Exhibit 1 at 7 17)

1 13. Significantly after the students had requested testing for admission into the New

York City G&T programs, the DOE decided to not use the students composite scores to rank

students for placement into the G&T programs, but instead decided to use percentile ranks instead.

(Exhibit 1 at 7 18)

1 14. A percentile rank of a score is universally accepted and understood to be the

percentage of scores in its frequency distribution that are the same or lower than it. For example,

26


a test score that is greater than or equal to 75% of the scores of people taking the same test is said

to be at the 75th percentile rank. (Exhibit 1 at T[ 19)

1 15. When the DOE published the results of the G&T Test, having 11% of students

attaining a 99 percentile ranking, it was an indication that the Respondents methodology for

calculation the percentile ranks were flawed. For example, for students seeking Kindergarten

admission, approximately 1 1 % of students were placed in the 99 percentile rank; approximately 20%

were placed in the 97 percentile rank; and 39% were placed in the 90 percentile rank. See Exhibit

1 at T[ 21 for the DOES published chart of the results.

1 16. Dr. Kuptsov reviewed the methodology by which the Respondents generated the

percentile rank of students that took the G&T Test and have found several flaws that render the

resulting percentile rankings inaccurate and not suitable for: (1) determining the eligibility of

students for G&T Programs; and (2) determining the rank by which qualifjring students should be

placed into the G&T Programs. Any one error alone would render the Respondents reliance on the

percentile rank erroneous. (Exhibit 1 at T[ 22)

1 17. The first error rendering the percentile ranking inaccurate is that the DOE has

misrepresented the meaning of percentile ranking as no national sample exists.

1 18. Because the percentile rank of a student taking a test is a measure of that students

performance compared to all other students taking the same test, the only legitimate way of

calculating a true percentile rank for a student is to compare that students score (e.g., normalized

score) to the scores of all other students taking the same test. (Exhibit 1 at T[ 23)

1 19. For example, if 100 students took test A and one student received a score that

was greater than 90 other students, then that student would have a 90 percentile rank. If that same

student instead received a test score that was greater than 97 other students, then that child would

27


have a 97 percentile rank. A valid percentile rank does not indicate what score the student received,

it only provides information about what percentage of students scored at the same or lower test

score. (Exhibit 1 at 7 24)

120. But to obtain a meaningful and valid percentile rank, the students must take the

same test. So for example, if 50 students take test A and 50 other students take test B then the

students taking test B cannot be used in the pool of students used to calculate the percentile rank

of a student taking test A. It would clearly be wrong to calculate the percentile rank of a student

that took test A based upon the scores of the combined students who took either test A or B

and so a student who received a score higher than 90 students out of the 100 combined students

should not be given a 90 percentile rank. The reason is that the same student may in fact have

scored higher than all 50 of the students taking the different test B , but only scored higher than

40 students who took the same test A, so that student in fact received a 80 percentile rank, not a

90 percentile rank. (Exhibit 1 at 7 25)

12 1. The percentile rank can further be rendered invalid by failing to account for other

test differences (other than just the questions). For example, if test A is administered to a group

of 50 students which involves two parts, A1 and A2 (group l), a second group of 50 students is

administered test B which involves two parts, B1 and A2 (group 2), and a third group of 50

students is administered test C which involves two parts, C 1 and A 1 (group 3), even though there

is some overlap of some parts of the tests, it is mathematically inappropriate and statistically wrong

to combine all 150 students of groups 1,2 and 3 to calculate the percentile rank of a student who

took test A. That is because the overall test is different, and the variations in the overall test will

almost certainly introduce significant variations on how well the student will perform on each of the

test modules (Al, A2, B1 and Cl). However, as Dr. Kuptsov discusses below, this is the method

28


which the DOE has chosen to employ in using percentile rank for the 2013 G&T test. (Exhibit 1

at f 26)

122. Similarly, a student taking test A will be fresh when he takes part A1 of the test,

but a student taking test C will be tired and/or frustrated by the time the student answers the

questions to part A1 of that test because the student has already had to answer the questions of the

C1 portion of test C. (Exhibit 1 at f 27)

123. To avoid these factors that inherently introduce significant errors into the

percentile rankings, the only feasible and accurate way to calculate percentile ranking is by

comparing student scores who have taken the exact same test. In the example above, to calculate

an accurate percentile rank, a student taking test A would have his scores ranked in comparison

only to other students that took test A, and you would refrain from using any test scores of

students taking tests B and C. (Exhibit 1 at f 28)

124. Dr. Kuptsov reviewed the G&T Handbook, attached hereto as to the Affirmation

of Stewart Lee Karlin as Exhibit 1 -B states that the DOE calculated the percentile rank based on

a students relative standing in comparison to other students of the same age nationwide. The DOE

determined three different percentile scores for each candidate (please see NYC Gifted and Talented

Score Report FAQ for Parents, dated April 26,20 13, attached hereto as Exhibit 1 -C), all of them

are reported on the G&T test score reports, received by the students and their parents: 1) Domain

Percentile Rank for verbal part of the test (OLSAT8) calculated based on norms published in 2003,

2) Domain Percentile Rank for nonverbal part of the test (NNAT2) calculated based on norms

published in 201 1, 3) Overall Percentile Rank calculated based on mathematical formulas and

students performance in OLSAT8 and NNAT2. While Domain Percentile Ranks are reported just

for informational purposes, the Overall Percentile Rank is the only number that determines whether

29


a student is eligible to apply for district and citywide G&T programs, and just as important, after the

siblings with priority are placed, is the mechanism by which the Respondents will rank the

remaining students for placement into the G&T program. (Exhibit 1 at 7 29)

125. From the G&T Handbook, it is clear that the Respondents stated that they

calculated the percentile rank of the students by comparing the students score to other students of

the same age nationwide. (Emphasis added). However, the Overall Percentile Rank does not

represent students relative standing to other students nationwide. The Respondents have confirmed

that there is no nationwide test, or any other test administered outside of the New York City G&T

Test that is the same. This is misleading, and falsely implies that the same G&T test is administered

in other parts of the country. (Exhibit 1 at 7 30)

126. For the reasons described above, the Respondents statement that their calculated

percentile rank is based on a students relative standing nationwide to be misleading and have no

legitimacy based on sound mathematical and statistical analysis. As discussed above, one cannot

generate a valid percentile rank of a student using test scores of students who took different tests

without introducing significant errors. Accordingly, the only valid way to generate accurate

percentile ranks for the students who took the G&T Test would be to use the test scores of only the

students who took the same test, i.e., it would include only scores of students who took the NYC

G&T Test. (Exhibit 1 at 7 3 1)

127. The second error rendering the percentile ranking inaccurate is that the NYC

sample is fundamentally different fi-om national samples.

128. Faced with the fact that there is no nationwide sample for calculating the Overall

Percentile Rank (percentile ranking), the DOE attempted to use some mathematical

approximations in order to combine two independent results for NNAT-2 and OLSAT-8, based

30


respectively on national data generated in two different years (from 2003 and 201 l), into a single

number. (Exhibit 1 at 7 32)

129. The Respondents mixed numbers specific to national samples and numbers that

are specific to the G&T Test, Le., to the sample of NYC children. Such an approximation would be

legitimate only if G&T Test scores in NYC closely resemble the national sample in terms of the

shape of bell curve or, in mathematical terms, only if G&T Test and national scores are drawn fiom

the same probability distribution. (Exhibit 1 at 7 34)

130. However, the published test results show a large disparity between the G&T Test

group and the national test group, thus rendering Respondents mathematical assumption invalid.

(Exhibit 1 at f i 32-35).

13 1. The probability of a NYC student scoring the maximum score in both the NNAT-

2 and OLSAT-8 modules of the G&T Test. Applying simple probability formulas for the normal

distribution, one can observe that on average, 1 child out of approximately 10,000 would be

expected to score the maximum score in both NNAT-2 and OLSAT-8 modules. In New York City

approximately 13,000 students seeking kindergarten admission into the G&T Program took the G&T

Test. Therefore, you expect on average between 1 and 2 children to score the absolute maximum

(i.e., 13,000 + 10,000 = 1.3 students). Yet, both EW and SK, Petitioners in this action, received the

maximum score in both the NNAT-2 and OLSAT-8 modules. Additionally, Dr. Kuptsov is aware

of at least five children who have scored the maximum score. Given that this is know fiom just a

small sample of test-takers, in reality the number of kindergarten children who scored the absolute

maximum is very likely much higher. (Exhibit 1 at 7 37).

132. As already mentioned above, this calculation mixes up the data from different

samples both in terms of the students tested, years that those tests were administered and uses the

31


covariance from the NYC score data, which is not a legitimate thing to do in view of the fact that

NYC data is fundamentally different from the national data. (Exhibit 1 at 7 40)

133. Therefore, the statistical evidence supports his opinion that the Respondents

approach has very likely lead to substantial distortions of the calculated percentile rankings and so

the percentile rankings being relied on by Respondents to place children into the G&T Programs is

likely wrong. (For a further mathematical analysis see Error 2 in Exhibit 1)

134. The third error rendering the percentile ranking inaccurate is the Respondents

have created a theoretical national sample with Gaussian copula methodology which is known for

its limitations.

135. In the absence of a true nationwide sample, the Respondents create a

hypothetical national distribution by using the methodology described in Exhibit 1 -B. In

essence, they attempt to shoehorn various other tests administered outside of the G&T Test together,

to artificially create a national test to resemble the G&T Test. The DOE collects the test scores of

students nationwide that took either the NNAT-2 module or the OLSAT-8 module and, irrespective

of what other modules were co-administered with either module, or in what order modules were

administered in those tests, compare the scores of those students who took the G&T Test. (Exhibit

1 at 7 42)

136. The Respondents choose the simplest methodology, equivalent to the well-

known methodology known as the Gaussian Copula methodology. (Exhibit 1 at 7 43)

137. However, the Gaussian Copula methodology is well-known for being

particularly erroneous in estimating very high and very low percentile ranks, i.e., those appearing

at the ends of the bell curve. These are also commonly referred to as tail events, where the

precision is indispensable. So, when the Respondents methodology is used to, in essence, create

32


a fake bell curve to represent a hypothetical national student population by which to compare the

G&T Test scores, the inaccuracies in the results that

errors towards the ends of the bell curve. (Exhibit 1 at 7 44)

are obtained will likely have very large

138. Because the admission for the G&T Programs is indeed dependent on the student

attaining a very high percentile rank, Le., 99 percentiles for Citywide G&T Programs (97 percentile

for siblings), and because these 99 percentile rankings are at the very end of the calculated virtual

bell curve, those rankings are expected to be associated with large errors. (Exhibit 1 at 7 45) 139. Experts who studied the Gaussian Copula model concur that it is poorly suited for

representation of tail events. Some experts who have published on this subject have explained this

limitation of the Gaussian Copula methodology in the following way: The Gaussian Copula model

lacks tail dependence, which means that tail events in the Gaussian copula are close to independent.

Translating this in terms of the G&T Test, tail dependence is the likelihood of observing very high

or very low scores for both NNAT-2 and OLSAT-8 modules for a given student. (Exhibit 1 at f

46)

140. It is very probable that a child who scored a high result on one of the modules,

say NNAT-2, would also perform well on the other module. The exact amount of dependence, often

called correlation, between NNAT-2 and OLSAT-8 for the whole NYC G&T sample is not available

to me, but in examining the test scores of the four Petitioners, the dependence is very high. For

example, all the families I know where their child scored very high in the NNAT-2 module of the

G&T Test also scored very high on the OLSAT-8 module of that test. Therefore, the tail

independence for NNAT- 2 and OLSAT-8 scores which is implied by the usage of the Respondents

methodology is likely to be wrong and lead to substantial errors in determining the hypothetical

9gth percentile. (Exhibit 1 at 7 47)

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141. To give a definitive answer of how much the use of the Gaussian Copula model

by the Respondents has distorted the percentile rankings cannot be determined by publically

available information. However, the Gaussian Copula methodology has been shown to be a bad

model to determine tail events such as 99 percentile rankings and so does likely result in a large

error which significantly impacts the percentile rankings used by the Respondents to place children

into the G&T program. (Exhibit 1 at f 48)

142. Therefore, the G&T Test results are indicative of and support Dr. Kuptsovs

opinions that the DOEs calculation of the percentile rankings were misrepresented to the public and

contain significant errors, particularly with respect to the higher percentile rankings that will be used

by the DOE to place children into the G&T Program. The DOEs methodology creates an arbitrary

and artificial bell curve by which the G&T Test percentile rankings were generated, which has had

the erroneous effect of considerably raising the percentile ranks of many students well above their

true percentile rankings. For example, the G&T Test results indicate that:

a. 39% of students seeking Kindergarten G&T Programs attained the DOEs 90 percentile threshold for applying to a District G&T Program, and

b. 10% attained the DOEs highest percentile ranking of 99 percentile. (Exhibit 1 at 7 49)

143. Because the Respondents methodology has wrongly inflated the percentile

ranks of many students who took the G&T Test, it would have also incorrectly elevated many

sibling to the 97 percentile rank or 90 percentile rank, guaranteeing them placement into the

Citywide and District G&T Programs respectively, unfairly precluding other truly eligible children

fiom attending Citywide G&T Schools and District G&T classes. (Exhibit 1 at f 50)

144. For the reasons set forth above, Dr. Kuptsov concludes that an accurate percentile

ranking cannot be calculated using the methodology used by the Respondents, and that the percentile

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ranking that the Respondents intend to use to place students into the G&T Programs is

fundamentally flawed. Moreover, the composite scores already generated by Respondents provides

an accurate and fair basis on which to place those students into the G&T Program.

145. Thus the DOE has already compiled the data necessary to accurately select

students for placement in the G&T program and to do so would be a rather simple task. (Exhibit

1 at 7 51)

Analvsis of the DOE G&T Test bv Dr. Borrdan Grechuk

146. Dr. Grechuk a Lecturer of Mathematics at the University of Leicester, with more

than ten years experience in mathematical research and having published many articles on topics

of mathematical finance, risk measurement and optimization. (Exhibit 2 at 7 1; Exhibit 2-A)

147. Dr. Grechuks research and teaching experience has given him a theoretical and

empirical grounding for examining the methodology used by Respondents to evaluate and score the

test results of the Gifted and Talented admission test for the 2013-2014 application period.

148. Upon review of the analysis and conclusions as set forth in the Affidavit of Dr.

Alexey Kuptsov (Exhibit I), Dr. Grechuk concluded that Dr. Kuptsovs analysis and conclusions

are valid and consistent with his own conclusions. Based on this Dr. Grechuk would recommend

not to use percentile ranking and use composite scores instead for 2013 Gifted & Talented

placements, as percentile ranking results could be substantially distorted because of its calculation

methodology. (Exhibit 2 at fi 3).

149. Additionally in Dr. Grechuks analysis, he determined that the methodology

makes a key assumption that the scores are approximately normally distributed. But from his

experience, the distribution of students exam results is usually far from the normal, so this

assumption looks unsubstantiated. In fact, taking a look at the results of 201 3 Gifted and Talented

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Test (See Exhibit 1 -A) one can see that the assumption could be easily rejected for the actual New

York City test results. In particular, Dr. Grechuk saw, that 1,480 out of 13,629 children (which is

more than 10%) tested at grade K have gotteb percentile rank of 99, which is maximally possible.

With the normal distribution assumption made by the DOE, only about 1 %, or 136 children would

have percentile rank of 99. This difference is much more than could reasonably appear due to any

statistical error.

150. Dr. Grechuk in his analysis could not glean why the DOE chose not calculate

percentile rank directly from the test results of NYC children: if for example a childs composite

score is 115.6, and 80% of other participants have lower score (thus 20% - higher score), then the

rank is 80%. This would give the exact correct answer and does not require any assumption about

the underlying distribution. The percentile ranking currently used by the DOE is fundamentally

flawed because the distribution of scores is far from normal.

15 1. Another problem in the DOE methodology as presented by Dr. Grechuk is that

they round the percentile rating to the integer value. As a result, all 1,480 children mentioned above

have an equal percentile rank 99, resulting in equal chance to be selected for the gifted programs,

despite some of students having significantly lower composite scores. In Dr. Grechuks opinion,

to a reasonable degree of certainty the system currently used by the DOE is fundamentally flawed.

152. The patently obvious method would be to use the composite scores for NYC

students only, because the sample base is more than large enough, and would result in a precise and

accurate method of selecting children for placement in the DOE Gifted and Talented Program.

Given the testing data already compiled by the DOE, this method would of calculation would be a

rather simple task.

Analysis of the DOE G&T Test by Dr. Jonathan Goodman

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153. Dr. Jonathan Goodman, PH.D, is currently a Professor of Mathematics at the

New York University (NYU), Courant Institute, in New York, New York. Dr. Goodman has

extensive experience in mathematics through his education, teaching, consulting and applied

mathematics research and has published articles relating to computational methods in statistics.

(Exhibit 3-A, Exhibit 3 at yq 1-5).

154. Dr. Goodman has examined the method used by the DOE to categorize the test

results of the students taking the 2013 Gifted and Talented test. He was provided with an email

written by an expert with the New York City Department of Education (DOE) describing the

methods the DOE uses to categorize test results, and the model used to justify the categorization

methods. This email states, among other things, that the DOE uses a Gaussian (also called normal)

model of the distribution of test scores. (Exhibit 3 at 7 8).

155. Dr. Goodman believes that this Gaussian model significantly underestimates the

number of students who will score significantly above and below average and thus is fundamentally

flawed. Additionally he believse that it is possible to construct a more precise and accurate model

of the distribution of test scores, and that such a more accurate model will predict far more students

with test scores the DOE method characterizes as exceptional. (Exhibit 3 at 7 8)

156. The DOE has chosen to assign percentile ranks to test scores not relative to other

children who took the test, but with respect to national norms. In Dr. Goodmans opinion this

method of assigning percentile ranks is fundamentally flawed as the sample size of NYC students

who took the exam is more than large enough to create an accurate percentile ranking and would be

more precise and accurate given that it compares students who took the modules under the same

conditions. For the DOE to use the method that they chose it is necessary to use a model of test

score distribution. The DOE uses a Gaussian model for this purpose. (Exhibit 3 at 1 10)

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157. The assignment of percentile ranks to aggregate test scores on the basis of the

Gaussian model is flawed. The Gaussian model has the well-known flaw that it often

underestimates the number of data with large Z-scores. Statisticians say that a distribution has fat

tails if the number of data with high Z-scores is much larger than the Gaussian model predicts.

Many common real-world distributions have fat tails. Examples include daily stock market returns

(there have been several 3 sigma events this year), insurance claim payouts, and test scores. The

DOE uses its statistical analysis to choose the brightest children for Gifted and Talented programs.

This implies that the DOE is primarily interested in children whose aggregate test scores have high

Z-scores. This, in turn, implies that the DOE should pay particular attention to the fat tail difficulty.

(Exhibit 3 at f 12)

15 8. Thus, in terms of the Gifted and Talented test, the DOE is seeking to identifjr

students for acceptance into the gifted and talented program, which are those students with the

highest test scores and therefore those that appear at the tail end of the statistical curve applied by

the DOE. The DOE is using a statistical model that, as shown above, is not accurate for the

distinguishing between those events that occur at the tail ends. Given the limited number

NYS Supreme Court Petition Index # 100738-2013

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