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Press Release

April 7, 2017


New York, New York

In a decision and order dated April 3, 2017, New York State Commissioner of Education, MaryEllen Elia, determined that the New York City Department of Education’s (“DOE”) Gifted and Talented (“G&T”) appeals policy is completely irrational and patently unfair, leaving the tens of thousands of New York City schoolchildren who take the G&T entrance exam each year without Constitutional due process protections to challenge G&T testing procedures and test results when problems arise. In a groundbreaking decision, Commissioner Elia ordered the DOE to overhaul its appeal process, agreeing with petitioner that it was “completely irrational and patently unfair” to require parents to initiate an appeal within 48-hours after the administration of the test, and months before parents even receive their children’s score.  As a result, the Commissioner found the policy to be arbitrary and capricious, and ordered it annulled.  The Commissioner went on to note that “[it] is neither reasonable nor educationally sound to expect an impressionable child of the tender age of four years old to immediately recognize and report problems with test administration.”  In an unprecedented move, the Commissioner also directed her Office of P-12 Education Policy “to provide guidance and technical assistance” to the DOE in order to ensure that its new appeals policy and procedures are consistent with her decision.

Matthew Delforte, a partner at the education law firm Shebitz Berman Cohen & Delforte, who represented the parent in this case, said: “It’s the right decision and an important victory for New York City children.  Nearly 40,000 children take the gifted and talented entrance exam every year. Now those kids will be protected by appeal rights that are real and that didn’t exist before today. The timing of the decision is also important because this year’s scores were released yesterday.”