THE CITY'S ISSUE WITH "EXAM SCHOOLS"

( Editor’s Note: The Department of Education recently released statistics on the first round of 2015 admissions for New York City’s examination high schools. According to their report, offers to join the 2015-2016 incoming class at Stuyvesant High School counts just ten African-American and twenty Latino students. The following by Professor Aaron Saiger of Fordham University’s School of Law was published in the January/February issue of CityLaw.)

New York City is experiencing one of its periodic flare-ups over its eight selective “examination” high schools. As in the past, attention has focused upon what a United Federation of Teachers task force calls “the profound inequity in the admissions demographics” at the exam schools. UFT, Redefining High Performance for Entrance into Specialized High Schools 3 (March 2014). This inequity results from these schools’ practice of admitting students based exclusively upon scores on the standardized Specialized High Schools Admissions Test. Because the exam schools now function as one component in the broader current system of citywide high school choice, however, it is possible to argue that their test-only admissions in fact enhance the diversity of the system overall, their racial demographics notwithstanding.

The current challenge to the exam schools proceeds on two fronts. In 2012, a team headed by lawyers from the NAACP Legal Defense and Educational Fund filed a complaint with the United States Department of Education, arguing that the City’s use of the test violates federal civil-rights law. Meanwhile, Bill de Blasio campaigned against the primacy of the test when he ran for mayor in 2014. Since his victory, he and the new city council, along with allies in the state legislature, have continued to agitate for change.

Their opponents are agitated too. The council’s December 2014 hearing on the subject elicited 686 pages of passionate written testimony on both sides.

None of the eight exam schools’ student bodies come close to approximating the racial makeup of the city as a whole, whose public school student population is about 28 percent Black, 40 percent Hispanic, and 15 percent each white and Asian. Racial inequities are particularly stark at Stuyvesant High School and the Bronx High School of Science, perennially the most popular of the exam schools and therefore the schools that require the highest scores for admission. (See table.) Only seven Black students were offered seats in Stuyvesant’s 2014 freshman class, of roughly eight hundred. That’s seven kids, not seven percent.

In light of this, the Fund’s complaint, a bill pending in the state legislature, a resolution in the city council in support of that bill, and a raft of testimony and policy reports argue that the exam schools’ exclusive reliance on the Specialized High Schools Admissions Test should be abandoned. They urge instead a multidimensional approach. Assembly bill 9979, submitted June 5, 2014, proposes requiring exam schools to use “multiple measures of student merit including the grade point averages of applicants, school attendance records, school admission test scores, and state test scores.” The Fund’s complaint and an associated report adds that schools might supplement these factors by considering “interviews, essays, recommendations from school staff, and portfolio assessments” as well as students’ “geographical location.” Community Service Society, The Meaning of Merit: Alternatives for Determining Admission to New York City’s Specialized High Schools 12–13 (2013).

“What has been done will be done again”

Little of this is new. Indeed, the similarities to the 1971 controversy over admissions tests are striking. The City then had three selective high schools, Stuyvesant, Bronx Science, and Brooklyn Technical. Each had long used such tests. In the electric atmosphere immediately following the racially charged teachers’ strike of 1968, critics charged that those exams were “culturally oriented” and “‘screen[ed] out’ black and Puerto Rican students who could succeed at the school[s].” M.S. Handler, Bronx High School of Science Accused of Bias in Admissions, New York Times, Jan. 22, 1971, at 44. Then-Schools Chancellor Harvey Scribner was prepared seriously to entertain such claims. Leonard Buder, Board Asks Defeat of a Bill Retaining 4 Specialized Schools, New York Times, May 17, 1971, at 26. Proposals were made that year in both the city council and in some community school boards for the replacement of the test with a system of teacher recommendations, a suggestion right in line with positions being advocated today. Handler, supra; Floyd Hammack, Paths to Legislation or Litigation for Educational Privilege, 116 Amer. J. Educ. 371, 377 (2010).

Floyd Hammack’s fine historical account reminds us that a direct line connected this dispute with the 1968 strike. The strike ignited over policies for teacher placement and retention. Advocates for minority groups argued that these should be “responsive and respectful of a community’s customs and values.” The unionized teachers, many of them white and Jewish, thought these “responsive and respectful” criteria would be deployed to deprive them of their positions. They preferred to maintain what they understood to be the schools’ “‘objective’ definitions of merit that were based on measures of individual performance.” To the teachers and their allies, complaints in 1971 about the “cultural orientation” of admissions tests for students felt like a “direct replay” of the claims about teachers over which they had struck. Id. at 379–380. They weren’t wrong: advocates of community control had included among their 1968 demands leading up to the strike that the exam schools be converted to “community schools, open to all.” Heather MacDonald, How Gotham’s Elite High Schools Escaped the Leveller’s Axe, 9 City J. 68, 71 (Spring 1999).

Defenders of “objective” measures therefore mobilized. In classic New York City fashion, fearful of a wobbly Schools Chancellor, they decided to outflank him in Albany.

The result was a 1971 state statute known (then and today) as Hecht-Calandra, after the Bronx Assemblyman and Senator who sponsored it. Hecht-Calandra requires that admission to the examination schools “be solely and exclusively” gained “by taking a competitive, objective and scholastic achievement examination.” Laws of New York, Chapter 1212 §12 (1971). (Schools for the arts are treated separately.) A provision in the Assembly’s version of the bill that would have reserved 14 percent of seats for disadvantaged students through a “nonexamination recommendation process” met with fierce resistance and was stricken in the State Senate. Hammack, supra at 380. The bill as amended passed over the objection of some of the same institutional players objecting to the Specialized High Schools Admissions Test today: the Mayor, the State Board of Regents, and the City Board of Education. MacDonald, supra at 73.

Nor do the historical parallels end there. The mid-1970s saw an investigation by the federal Office of Civil Rights, spurred by the same kind of racial imbalance in enrollment that the Fund cites in its 2012 complaint. “The schools’ defenders,” reported the Times in 1977 , “view the Federal investigation into how the stiff entrance examinations are validated and graded as a threat to the preservation of high-quality education for the city’s academically superior students.” Marcia Chambers, U.S. Inquiry Into Bias Is Opposed At Prestigious New York Schools, New York Times, Nov 7, 1977, at 1.

City principals are more circumspect these days than the Bronx Science principal, Dr. Alexander Taffel, was in 1971 when he supported his school’s stiff entrance exams publicly and vigorously. Handler, supra. But the defenders’ argument is frequently advanced not only by individual alumni of the exam schools, but their alumni associations. Such claims pervade the Council’s contemporary hearing testimony and comments posted in online fora.

Some new things under the sun

In some respects, little has changed since the seventies but the jargon. We talk today about whether tests are “reliable” and “valid”; the Fund’s complaint at some length emphasizes that the Specialized High Schools Admissions Test has not been shown to be either. Such psychometric lingo was not current in the early 1970s. But the basic idea — that plenty of kids not among the tippy-top scorers are as capable as those who are admitted of doing the work and benefiting from the program — has not changed. Similarly, a lot of the fire directed at the test is about the advantages enjoyed by those who can afford to engage the expensive services of a large and growing test preparation industry. It is plausible that these advantages are genuine, although they are of unknown magnitude. Still, this argument remains just the instantiation in today’s consumer culture of the longstanding claim that the tests are “culturally oriented.”

But a few things are genuinely new. First of all, Hecht-Calandra mandates test-only admissions by name only for three non-arts exam schools that existed when it was passed: Stuyvesant, Bronx Science, and Brooklyn Tech. It also applies to “such further schools which the city board may designate from time to time.” Mayor Michael Bloomberg, after he secured mayoral control of City schools, used that authority to establish five more such schools: the High School for Mathematics, Science and Engineering at City College; The High School of American Studies at Lehman College; the Queens High School for the Sciences at York College; Staten Island Technical High School; and the Brooklyn Latin School.

These five schools, along with the original three, all continue to operate as exam schools today. Candidates for the schools, at the time that they sit for the Specialized High Schools Admissions Test (and therefore before receiving their scores), rank their preferences across all eight. Beginning with the highest-scoring student, city officials then match each student with that student’s most preferred choice that has not already been filled by higher-ranked applicants, until the schools are filled or the pile exhausted. The latter never happens.

All these schools are in the same category for students; but Bloomberg’s use of his discretionary authority means that there are two legal categories of exam schools. To abolish test-only admissions at Stuyvesant, Bronx Science, or Brooklyn Tech requires legislative change in Albany. But the City can unilaterally abolish test-only admissions at the other five exam schools. It need only revoke their designation as “specialized” to exclude them from the Hecht-Calandra mandate.

There would be substantial irony in such an action, as the racial disparities at Stuyvesant and Bronx Science in particular have been the cause célèbre, whereas the Bloomberg-created specialized schools are more racially integrated. (See table.) But the option is available, and might in some political contexts put real political pressure on Albany if exercised.

A more substantial change is that the eight exam schools are now embedded within a citywide program of comprehensive high school choice. That system requires all aspiring high school students in the City to communicate their ranked preference among all the high schools they wish to attend. High schools simultaneously provide ranked lists of the students whom each desire to admit. The City then matches students to schools using an algorithm, modeled upon that used to match hospitals with medical residents, that jointly maximizes students’ and schools’ preferences.

The eight exam schools are a carve-out from the standard procedure, because they make assignments based upon only student preferences, without regard for school preferences. The eight’s test-based selection process runs in parallel to the general match.

But the general match does involve school preferences, and it includes several academically selective schools. A recent census of academically selective schools in the United States lists the eight exam schools, but also fifteen schools that participate in the general match. Chester E. Finn, Jr. & Jessica A. Hockett, Exam Schools: Inside America’s Most Selective Public High Schools 211–13 (2012). These “screened” schools, each of them rigorous, popular, and generally excellent, rank their applicants by considering test scores along with factors like middle-school grades, teacher recommendations, interviews, neighborhoods of residence, and personal background. Various schools use different combinations of these factors and weight them differently. But all use multiple criteria — just as the Council’s resolution, the Fund’s complaint, and the pending bill in the Assembly would have the exam schools do.

The proliferation of selective, excellent, multiple-criteria screened schools raises important new questions about abandoning the Specialized High Schools Admissions Test in the exam schools. The most glaring is that many of the multiple-criteria schools also admit student bodies that do not reflect the demographics of City children — although they are much more representative than Stuyvesant or Bronx Science. The Fund’s complaint hedges on this issue, averring that its advocacy of multiple-measure selectivity should “in no way suggest that the complainants believe th[e screened] schools are in full compliance with their federal obligation under Title VI and its implementing regulations to redress unjustified racial disparities.” Complaint at 25. There can be no doubt that the under-representation of Blacks and Latinos relative to the local population, and the overrepresentation of both whites and Asians, is endemic in the City’s academically selective high schools, regardless of admissions systems. It is likewise a pervasive problem in selective high schools nationally, Finn & Hockett, supra at 175–76, and of course in selective colleges.

Perhaps even more important, the exam schools enjoy no monopoly over selectivity or excellence. The Finn and Hockett report, when it chose a single academically selective New York school to highlight, chose not an exam but a “screened” school, Townsend Harris High. Id . at 114–121. The Newsweek and Great City School high-school rankings, upon which the Fund complaint relies in part, rank some screened schools above the exam schools.

As the liberal scholar-activist Pedro Noguera told an interviewer, “I don’t think th[e exam] schools are that great. I would not tell a top African-American student to go to one of those schools, I would tell them to go to Medgar Evers Prep. It’s a much more supportive environment and the quality of education is better.” Eliza Shapiro, How to Address the Stuyvesant Problem, Capital New York, July 1, 2014. Others argue that truly elite schools ought not elevate academic achievement above other crucial values, such as democratic participation. Lani Guinier, The Tyranny of the Meritocracy (2015). These are contested and contestable claims; but it is certainly far from clear that the exam schools are or should be thought of as the City’s “best.”

This recasts the problem of the exam schools as one of first-order versus second-order diversity: does the City benefit more from diversity within each school or diversity among schools? On any account, the racial demographics of Stuyvesant and Bronx Science are deeply disturbing. But solutions must be weighed against their costs. Given that there are highly selective and very desirable screened schools that do use multiple measures, imposing that same system on the exam schools would, it can fairly be said, reduce diversity of the system in its totality.

This argument gains force because the flip side of low Black and Latino enrollment in the exam schools is a corresponding overrepresentation among Asians. Many of these students are the children of immigrants or from otherwise modest backgrounds. Only two percent of Stuyvesant students are Black or Latino, but nearly half its student body receives free or reduced-price lunch.

Plausibly, children in the City’s immigrant communities, whether hailing from Asian nations or elsewhere, systematically benefit from test-only admissions. Weak English skills make it hard not only to perform on verbal tests but to impress teachers in class in ways that result in high grades and good recommendations, not to mention to shine at interviews. Securing stellar recommendations and interview slots also often requires parental involvement, which again favors informed and English-literate parents. In contrast, not only is half the Specialized High Schools Admissions Test about mathematics rather than English, but because of the way composite scores are calculated, mathematics can represent well more than half of a student’s scaled test score. The math-heavy Specialized High Schools Admissions Test can thus pick out bright kids who might underperform on other dimensions.

It would be disastrously unfair for all schools to rely only on the Specialized High Schools Admissions Test. But for some selective schools to underweigh measures that demand English proficiency is in an important sense a pro-diversity policy.

This observation has political as well as policy implications. The impact of the City’s Asian community on the politics of testing constitutes, potentially, the other big change since 1971. Even during the debate over Hecht-Calandra, Principal Taffel reported a “substantial number of Chinese” students at Bronx Science. Handler, supra. Today, Asian Americans have more political power. They wield that power in an environment where diversity is widely understood to embrace dimensions like wealth, immigration status, and language. In such a context, the second-order diversity of a system that includes some exam-only schools may come to seem newly compelling.

The problem of the exam schools was not resolved by passing Hecht-Calandra in 1971. Nor can it be resolved by repealing Hecht-Calandra in 2015. The exam schools will remain contested turf in the shifting terrain the City’s ethnic and racial politics. More important, the conundrums the exam schools pose will continue to challenge New Yorkers to struggle over what we mean by concepts like diversity and merit.

Aaron Saiger is a Professor of Law at Fordham University School of Law

2013-2014 data on enrollment by race for New York City’s examination high schools may be found here.