Testimony of Udi Ofer and Johanna Miller on Behalf of the New York Civil Liberties Union Before the New York City Council Education Committee on Introduction 354, Requiring that the Department of Education Report Data Regarding Student Discharges.

Councilmember Jackson and members of the Education Committee: the New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony in support of Introduction 354. Since 1951, the NYCLU has been defending and promoting the civil rights and civil liberties of New Yorkers. We have 48,000 members and eight offices across New York State. We present our testimony today as part of our continuing work to ensure that all children in New York City schools receive an adequate education and an opportunity to graduate.

Passage of Intro. 354 would shed much-needed light on New York City’s graduation rate and achievement gap by providing the City Council with access to basic information about children who leave the school system without graduating. It would mandate that the Department of Education report on a quarterly basis information on the number and nature of student discharges, and would mandate that such information be disaggregated by grade, age, race/ethnicity, gender, English proficiency and special education status.

The New York Civil Liberties Union strongly supports passage of this bill. Introduction 354 would bring transparency to a system that operates largely in the dark. Moreover, it will allow policymakers, parents and the public to make informed decisions about key Department of Education policies and practices, and to determine whether New York City’s graduation rate is a true reflection of student achievement and opportunities.

I. What is a Discharge?
Before discussing the need for passage of Intro. 354, we first need to explain the meaning of a student discharge. Students can leave the public school system in one of three ways: they can drop out, they can graduate (or in the case of elementary and middle school students, matriculate to higher grades), or they can be discharged. Discharges are meant to statistically capture students who leave the school system without a diploma, but whose departure should not necessarily reflect poorly on DOE practices, such as students who relocate out of New York City.

Students who are discharged are removed from the total enrollment pool for their class, known as a cohort, so they do not add to the number of dropouts. In other words, if 100 students are in the 2007 cohort (also known as the class of 2011), and 10 are discharged and the remaining 90 graduate in four years, the graduation rate will be 100 percent, even though 10 students did not graduate with the cohort. As a result, the overuse of discharges can artificially inflate the percentage of students in the class who are classified as “graduates” by reducing the size of the cohort.

New York City does not currently report on the number of students it discharges in any given year, nor does it report the reasons for such discharges. It does not report how many students were discharged to a general equivalency diploma (“GED”) program, to parochial or private schools, or who moved out of New York City. Without such information, policymakers, parents and the public do not have a complete picture of New York City’s graduation rate.

II. The Need for Transparency in Graduation Rate Reporting
Proponents of mayoral control argue that it is a system based on accountability—voters who do not approve of the mayor’s handling of the schools have the opportunity every four years to express their dissatisfaction at the polls. For that presumption to be tested fairly, though, voters must have access to accurate, unbiased information. A well-informed public makes better decisions, and to be well-informed the public needs access to government data and operations. The principle of open government is inseparable from American democracy.

Unfortunately, government transparency has been a scarce commodity under mayoral control. Extracting the most basic information from the DOE, such as budget figures or data on student discharges, is a needlessly onerous chore that even public officials and lawyers have difficulty accomplishing. Instead of embracing openness, the DOE hides its decision-making and operations from public view, carefully managing the disclosure of information and cherry-picking statistics and data that cast its policies in the most positive light. It’s a smart public relations move but lousy public policy.

The NYCLU’s own experience with extracting information from the Department of Education serves as an example. In June 2006, the NYCLU filed a Freedom of Information Law (FOIL) request with the DOE for documents related to a number of school safety programs and tactics. State law requires government agencies to respond to records requests within five business days, if only to acknowledge receipt of the request and set an approximate date for granting or denying it. The DOE didn’t respond to the NYCLU’s June 2006 FOIL request until January 2009—more than two-and-a-half years after receiving it. Why it took so long to respond is unclear; the DOE’s letter only inquired whether the NYCLU still wanted the requested records. The NYCLU responded affirmatively. It has not heard back from the DOE on the matter.

In another example, in June 2008, the NYCLU filed a FOIL request with the DOE seeking discharge data—including demographic information about students who were discharged, and the reasons for the discharges—for each school year from 1996 to 2008 (the FOIL requested other data as well). We never received records regarding discharges. In July 2009, we filed an identical request for discharge records for the 2008-2009 school year. After a delay of more than a year, we finally received in October 2010 information about 2008-2009 discharges.

The NYCLU is not alone in its struggles to obtain public records from the DOE. Parents and advocates frequently complain of the DOE’s refusal to provide them information. Citizens Union of the City of New York, an independent, nonpartisan organization that promotes good government, has reported that it commonly fields complaints from parents and teachers about the DOE’s tight grip on information. Advocates for Children of New York, a nonprofit organization that works to secure public education services for vulnerable families, waited two years for the DOE to turn over data on the academic progress of English language learners. It only received the information after threatening to sue. The president of the lower Manhattan parents’ council said she cannot obtain basic information, such as curriculum plans, plans for adding schools and details on gifted and talented programs.

The above examples are illustrative of a system that operates largely in the dark, and serves as a compelling reason for why the City Council should mandate reporting by the Department of Education on key student achievement indicators, including student discharges, rather than wait for the DOE to voluntarily report such data.

The focus of Intro. 354, student discharges, has been an area of much speculation among advocates and experts. This is in part because of the almost complete lack of accessible information about discharges, both in regards to New York City’s policy and statistics on discharges. While the graduation rate has steadily risen during Mayor Bloomberg’s tenure, there is reason to believe that the number of discharges has also risen. From 2000 to 2007, the discharge rate increased by almost four percentage points, as almost 150,000 students were discharged from the system. The public does not have access to updated discharge data.

While there are legitimate reasons for a student to be discharged, such as moving to another state, advocates have expressed serious concerns about certain categories of discharges. For example, students who enroll in a DOE GED program are considered discharges and not dropouts. In the past, students who “aged out” of the system and young women who dropped out due to pregnancy were also counted as discharges. The NYCLU and other advocates have had, and continue to have disagreements with such categorizations.

Advocates have long speculated that the incredibly large numbers of students who are reportedly discharged to other school systems each year (private and parochial schools and other districts) may actually include large numbers of students who should be reported as dropouts. In 2008-2009, these categories of discharges accounted for more than 40,000 students. Corresponding census and private school enrollment data does not support these numbers. With such extraordinarily large numbers of students at issue, accurate reporting is vital.

The response that the NYCLU received from the Department of Education regarding discharge data in the 2008-2009 school year provides an illustration of the significance of these numbers. According to the data we received:

  • The Department of Education discharged 2,487 students to GED programs. 1269 were discharged to full time DOE GED programs, 808 were part time DOE GED programs, and 410 were full time non-DOE GED programs.
  • The Department of Education discharged 158 students to parenting programs or for reasons relating to pregnancy or parenting. 116 “voluntarily withdrew” due to pregnancy, and 42 were discharged to LYFE START programs
  • The Department of Education discharged 5, 614 students to parochial or private schools. 3,224 were in grades 6-12.
  • The Department of Education discharged 35,597 students for reasons related to family relocation out of New York City. 17,395 were in grades 6-12.

III. Transparency in Policy Decisions
Not only has the DOE refused to report basic data on who is being discharged, it has also kept secretive its categories of discharges, even when re-categorizations have taken place in response to concerns raised by advocates. Intro. 354 will also shed much needed light on who is counted as a discharge.

In the past three school years, the DOE has begun to improve the discharge system to more accurately categorize high school dropouts. As explained above, as recently as 2008, students who aged out of the system and young women who dropped out due to pregnancy were considered discharges. Those categories seem to have been rectified by the DOE in recent years, perhaps due to increased scrutiny of discharge rates. We recognize the DOE for its efforts to reduce illegitimate discharges, and to ensure that students are not incorrectly discharged.

Unfortunately, these changes in DOE policy were hidden from most advocates and policymakers due to the lack of transparency that has become characteristic of the DOE. This is not entirely surprising, since the Department of Education is one of the most secretive and autonomous agencies in New York City. It has repeatedly taken the position that it is answerable to no one but the chancellor and mayor, and has claimed that it is not subject to other government statutes providing for transparency and oversight.

For example, the DOE has repeatedly stated that it is not subject to the public notice and comment periods required by the City Administrative Procedures Act (CAPA) or the State Administrative Procedures Act (SAPA). Indeed, prior to the recent reauthorization of the mayoral control law, Chancellor’s Regulations were not subjected to public hearings or comments and rarely receive meaningful public scrutiny.
Intro. 354 will at least ensure that the public is kept updated about the DOE’s discharge policies and practices.

IV. Accuracy in Graduation Rate Reporting
Introduction 354 will also lead to a citywide conversation about who should count as a discharge or dropout.

According to DOE policy, students who obtain a GED are then counted as “graduates” for purposes of calculating the graduation and dropout rates. There are good policy reasons to support not counting GED recipients as dropouts—notably, the creation of an incentive for the DOE to ensure that students who leave high school are successful in obtaining their GEDs.

However, counting GED recipients as graduates overstates the graduation rate and perpetuates the illusion that GEDs and high school diplomas are equal. According to researchers, “by definition, GED recipients have dropped out of school, the system has in some way failed them, and schools should not receive ‘credit’ as if they succeeded in educating and graduating these students.” A study sponsored by the National Bureau of Economic Research found that “treating [a GED] as equivalent to a high school degree distorts social statistics and gives false signals that America is making progress when it is not.”

Importantly, federal law does not permit the inclusion of GED recipients as graduates when calculating the Adequate Yearly Progress (AYP) rate for purposes of the No Child Left Behind Act. According to the United States Office of Elementary and Secondary Education, the graduation rate should be calculated as “the percentage of students measured from the beginning of high school, who graduate from high school with a regular diploma (not including an alternative degree that is not fully aligned with the state’s academic standards, such as a certificate or a GED) in the standard number of years.”

V. Recommendations
With the above in mind, the NYCLU makes the following recommendations to amend Intro. 354:
(1) Mandate reporting by cohort. As currently drafted, Intro. 354 would lead to the reporting of information on student discharges according to the year that such discharge occurs. While such information would be valuable, it would limit the ability of Council Members and the public to fully understand the impact of the discharge rate on the graduation rate.

Therefore, the NYCLU recommends that the City Council amend the bill to require reporting by cohort as well as year. Obtaining the data by cohort will create a more complete picture of discharge and graduation rates by reporting the outcomes for each entering high school class (cohort) of students. More meaningful trends can be discerned comparing, for instance, the class of 2010 to the class of 2011, rather than students from many different classes who may have been discharged in any particular year.

(2) Mandate reporting of all discharge categories. As written, the bill lists examples of discharge categories. The categories listed in the bill reflect some of the more controversial past and present discharge categories. We recommend that the bill be amended to request reports of all discharge and graduation codes, rather than by listing examples. By listing current and past definition of discharge categories, the bill needlessly limits the categories to be reported in the future. This is a transparency bill, and should simply require the reporting of discharge codes and categories as used by the Department of Education for each particular cohort and year.

(3) Create an audit mechanism. As with any reporting bill, there are questions about enforcing accurate reporting. Because personnel at each of the 1,600 schools have discretion in selecting discharge codes for students, it may be difficult to judge the accuracy of the information that is reported to the Council. When former Comptroller Bill Thompson audited the discharge and graduation rates in 2009, his office expressed the difficulties in tracking discharges and transfers when each school maintained different sets of records, and some had no relevant records at all.

We therefore recommend that the bill require an automatic audit should the reported statistics exceed or fall below certain trigger points.

Conclusion
Intro 354, if enacted, will promote transparency in an area of education policy that can effectively hide the realities of educational outcomes by inflating the graduation rate. By providing discharge data to policymakers and the public, this bill will lead to more informed decision-making on educational policy issues, and will allow the public and legislators to conduct a serious analysis of students’ educational opportunities and the pressures that lead them to drop out. New York City students and parents deserve to know the whole truth about their school system. New York City voters deserve a complete picture of education policies and their results, not only statistics that the DOE selects for release.

We urge the Council to enact this bill, and to commit to enforcing its mandates in order to begin building a robust dataset on student discharges. In addition, we hope the Council will consider our recommendations for improving the bill.

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