Are Charter Schools "Creaming" and Cropping Off" Students?

Charters leave many high needs public school students behind
By KYLA CALVERT, 5/11/09

On a recent sunny afternoon, students ran and shrieked in the playground of P.S. 46 tucked at the foot of the Polo Grounds Towers at Frederick Douglass Boulevard and 156th Street. A mural (see above) at the school’s front door shows a classroom of diverse children, raising their hands in eager anticipation. Bulletin boards in the hallways show off the students’ lively artwork.



In a neighborhood traditionally known for having some of the city’s most troubled schools, P.S. 46 stands out as an oasis of stability. For much of Principal George Young’s 16-year tenure, his school has clocked in high achievement scores. Most recently it received a “B” on the school report cards. The results for the state’s English Language Arts tests released May 7 showed more than 65 percent of the tested students at P.S. 46 scored at grade level or higher. Still, in the last three years, the school’s enrollment has declined from 840 to 714 students.



People aren’t having children as much as they were years ago,” Young offered as one explanation. But he is not convinced that childbirth rates alone account for the sudden dip. Some of these students, he believes, are drawn to the unusually large number of brand new charter schools that have opened in Manhattan in recent years. Of the borough’s 26 total charter schools, 22 are located in Harlem; 16 opened in the last four years.

Schools like P.S. 46 find it impossible to compete. “Charters have a highly organized promotional process,” Young said. “They are flooding the community with literature, there are people going to the churches selling their schools.”

Along with the declining enrollment comes a shrinking budget as well. Along with the students P.S. 46 has lost over the last few years, it has also lost more than $200,000 from its budget.

And money is not the only thing it leaving the school. Young and other principals believe that a disproportionate number of students who are noenrolling in the neighborhood’s charters are English language learners and lower achievers.

Young has no argument with charter schools, as long as they provide viable options. “But they shouldn’t be sending the message that all public schools are bad,” he said. “I know public school teachers who have gone out of their way to clothe and feed their students, to pay fees for college applications. These are the kinds of things people don’t know have been going on in public schools for years.”



At P.S. 76, on 121st Street, (pictured above) eight of the school’s 60 fourth graders from last year transferred to charter schools for the fifth grade. All of the eight students performed at grade level or higher on the state’s standardized math and reading tests.

It is not clear if charter schools are specifically recruiting more academically accomplished students or not. What many administrators suspect is happening, however, is that the public schools are left with more students who have greater needs than before, said Marie Vallone, one of P.S. 76’s assistant principals.

The New York State Department of Education’s School Accountability and Overview Reports released in mid-April support their hunch. According to the demographic data from the 2007-08 school year, Harlem’s charter schools are not serving students with the same level of need as the neighborhood’s zoned public schools. Two groups of students that often struggle to score highly on standardized tests–English language learners and those living in poverty–make up significantly smaller percentages of Harlem’s charter schools’ enrollment than they do at the area’s zoned schools.

The concentration of children in poverty remained higher in Harlem’s 45 traditional zoned schools compared to its charters. Last year, anywhere from 65 to 100 percent of students enrolled in Harlem’s zoned schools were eligible for free lunch, meaning their families qualified for public assistance.

By contrast, 10 of the 14 charters for which 2007-08 data was available had fewer than 65 percent of their students qualifying.

Citywide, 78 percent of the students enrolled in charter schools for the 2007-08 school year were eligible for free and reduced-price lunch, said Jeff Maclin, spokesperson for the New York City Charter School Center. Parents of students who are eligible for reduced-price lunch have slightly higher annual incomes than students who qualify for free lunch.

But no Harlem charter school had more than 71 percent of its students qualifying for free lunch, while 41 of the area’s 45 zoned schools had student bodies where 71 percent or more of the children were eligible.

The same trends were true when it came to English language learners. Last year, in 10 of Harlem’s 14 charters, only one percent or were children learning English. None of the 14 schools enrolled more than 10 percent of that population.

In 35 of the neighborhood’s 45 traditional schools, between 6 to 20 percent of students needed special English training. At P.S. 155 in East Harlem, 48 percent of the students are English language learners.

Citywide, less than 4 percent of charter school enrollees were English language learners last year, said Maclin.

Department of Education officials said charter schools need to work on correcting this disparity between the percentage of students learning English in their schools and the public schools. Melody Meyer, deputy press secretary for the Department of Education, said the department now requires newly authorized charters to provide a written plan for reaching out to the city’s non-English speaking students, in order to increase their enrollment.

While disparities between citywide charter and traditional public school enrollment are not as great, charters are not distributed evenly across the city. They are concentrated in neighborhoods like Harlem and the South Bronx, where the city’s poorest families live. Staten Island, the wealthiest of the five boroughs, will see its first charter school open in the fall.

Some Harlem residents believe the recent proliferation of new charter schools in the neighborhood has exacerbated divisions between neighbors over whether charters or public schools provide better opportunities for their children.

Results on the state’s English Language Assessment showed a higher proportion of charter schools’ students scoring at grade level or higher than students in the city’s traditional public schools. Charters’ critics argue it is easier to push scores higher when the schools serve populations that are not the same as those being served in the city’s zoned schools.

“I think it is pretty clear, if you have a population that is already higher achieving anyway that makes a big difference,” said Sam Coleman, a third grade teacher at P.S. 24 in Sunset Park, Brooklyn and a member of the New York Collective of Radical Educators. His organization has been part of a coalition of teacher’s groups organizing conferences and events to challenge school closings and the proliferation of charter schools across the city.

“You also have to look at how much time they spend doing test prep,” Coleman said. “You can get kids to get higher test scores without teaching them anything if you’re teaching them tricks. But, then you’re not teaching relevant content. I don’t think that charters having higher test scores means anything about the quality of education their kids are getting.”

Whether students attending charter schools really have access to better educational opportunities, the fact that there are not enough seats in these schools for the parents who want to enroll their children has led to emotionally-heated confrontations between charter and traditional public school parents in Harlem.

“We’re back to divide and conquer,” said Harriet Barnes, Harlem’s Community Education Council President, about the intense battles that raged this year over placing charter schools in public schools slated to be closed down.

“We have African-American parents in District 5 fighting against each other,” said Barnes, “so the Department of Education can do whatever it wants to do.”

Aside from causing divisions between residents, critics argue that charter schools run the risk of turning neighborhood public schools into places where high needs students are isolated.

Between the 2005-06 school year and last year, the percentage of students eligible for free lunch dropped slightly and the percentage of English language learners was nearly unchanged.

However, P.S. 194 and P.S. 241, two schools that were recently removed from the list of schools slated to close, have seen more dramatic changes. According to the current register information on the Department of Education’s Web site, English language learners now make up more than 24 percent of P.S. 241’s student body, up from 17 percent in the 2005-06 school year. Last year, 81 percent of the school’s students were eligible for free lunch, up from 72 percent the previous year.

At P.S. 194, 92 percent of the students were eligible for free lunch last year, up from 84 percent during the 2005-06 school year. Currently, just over 12 percent of the students are learning English, compared to 7 percent during the 2005-06 school year.

It is unclear what causes the differences in schools’ enrollment. “Traditional public schools may have stronger language programs in place, so charters feel no need to compete,” said Jeffrey Henig, professor of politics and education at Columbia University’s Teachers College. It is also possible that the area’s charter schools may not receive the federal funding for free lunch programs for families on public assistance. Without the funding, charters would have no incentive to encourage parents to complete paperwork verifying their income levels.

Maclin pointed to a recent study of New York City charter school lotteries by Stanford economist Caroline Hoxby that concluded that the city’s charters are not ‘creaming’ the most academically able students from the public school population. However, the pattern of Harlem charter schools enrolling fewer high-need students than the surrounding public schools was dubbed “cropping off” by researchers. Henig found the same pattern in his study of charter schools in Washington, D.C.

“There was no evidence of charter schools ‘creaming’ the most affluent kids from the public school system in D.C.,” said Henig. “But there was evidence of schools cropping off the highest expense students. These are students who are going to tend to need more counseling, have problems with absenteeism and are going to be more likely to cause disruption to the classroom as a result. If schools are going to meet the needs of these students, they will either have to raise or divert funds to provide those services instead of directing that spending to the classroom.”

While some neighborhood schools achieve impressive results on standardized tests with high-risk student populations, doing so is not without its difficulties. Schools with high concentrations of children with multiple risk factors including poverty face numerous obstacles.

“In a public school that loses higher achieving students and students who speak English as their native language what ends up happening is that you end up with a classroom that is full of kids who are struggling in one way or another,” said Coleman. “It turns into a tracking system, where charter schools are just the higher track. It’s great for the charter schools’ students, their teachers and their parents. But, it isn’t like they are creating smaller class sizes or hiring more teachers to support those struggling kids.”

Harlem Success Academy Wants You

NYSED Public School Choice
New York City Charter School Center

Alternative Public Schools: Charter Schools and Beyond

Mayor Mike Uses SS tactics to Get Rid of Opponents Like Gerry Esposito

Shame on you, Mr. Bloomberg.

May 16, 2009
About New York
A Heretic to the Gospel of Bloomberg
By JIM DWYER, NY TIMES

A half-hour late, Gerry Esposito hustled into the Fort Washington Armory one rainy day last month. Inside, Michael R. Bloomberg, the mayor, was speaking to a group about new ways for people to volunteer in the city.

A mayoral appearance is less government in action than stage management; liturgy without Scripture but with scripts.

And as Mr. Esposito, the manager of Community Board 1 in Brooklyn, was to learn, there was to be no deviation — even a faint hint of one — from the Bloomberg catechism.

Mayoral aides had police officers from the intelligence division ready to escort Mr. Esposito, in his fourth decade of government service, directly out of the building, on suspicion of heresy.

As he came into the lobby, he spotted a familiar face, Carolyn Sanders-James, a mayoral aide who works with community boards in Brooklyn.



“Hi, Gerry,” she said.

“Hi, Carolyn,” he said, and Mr. Esposito later recalled thinking it odd that, given his own tardiness, she was still in the lobby, and not in the armory’s track and field arena, where the mayor was speaking to 1,000 people.

Mr. Esposito turned to the sign-in table. As he leaned over, he said, he felt a tap on his shoulder. This is how Mr. Esposito remembers the exchange:

“Gerry Esposito?” the man said.

“Yes,” Mr. Esposito said.

“Don’t bother looking for your name,” the man said.

“Excuse me,” Mr. Esposito said. “Who are you?”

His name was George Torres, another mayoral aide, who worked with community boards in the Bronx.

“You’ve been disinvited,” Mr. Torres said.

“Why?” Mr. Esposito said.

“You know what you did,” Mr. Torres responded. By Mr. Esposito’s undisputed account, Mr. Torres said he had been barred on the orders of Nazli Parvizi, the city’s commissioner for community affairs. Ms. Parvizi did not respond to a request for comment, but the mayor’s office said officials had decided that Mr. Esposito was a threat to order.

“He was coming to protest and disrupt the event,” said Marc La Vorgna, a spokesman for Mr. Bloomberg. “Anytime there is intelligence that an individual wants to disrupt an event, that information is circulated and appropriate measures are taken.”

What was this intelligence?

Several days earlier, Mr. Esposito had sent an e-mail message to the other 58 community board managers in the city, the last bastion of local government. The boards have yearly budgets of $189,000 each, but they face the same cuts of 5 percent as most city agencies.

All community board managers had been invited to the mayor’s presentation in the Fort Washington Armory, but Mr. Esposito said he suspected that more than a few would skip making the trip to Upper Manhattan.

“Perhaps we should attend to let our voices be heard about the cuts!” he wrote in his e-mail message. “What do people think?”

That is the entire text of the message that the mayor’s office took to be a signal of his plans to disrupt the event.

In 1977, Mr. Esposito became the manager for Community Board 1 in Brooklyn, which covers Williamsburg, Greenpoint and Bushwick. This year, he announced that he was running for a City Council seat.

“Of course I’ve campaigned with prior mayors to increase the community board budgets,” he said. “But I wasn’t going to the mayor’s meeting with a bag of tomatoes.”

HE did arrive with a sign, folded and wrapped in brown paper, that said things like, “Where is the ultimate in volunteerism? The community board. An asset to NYC and its longest-proven civic engagement model. Keep CBs fully funded.”

He offered to leave it with Mr. Torres, but was told that he had to go.

“He showed up with a protest sign, with intent to disrupt,” Mr. La Vorgna said. “He was stopped at the door and not admitted. He was shown to a demonstration area. It’s normal protocol.”

The mayor’s presentation, on April 20, concerned the creation of a community service program. The city is collaborating with the AmeriCorps Vista program, a kind of domestic Peace Corps. As it happens, Mr. Esposito served in the Peace Corps and with Vista as a young man.

“It was like an arrow to my heart when the cop escorted me out the door,” Mr. Esposito said. “When we got outside, he said he was sorry, that he was just doing what he was told.”

E-mail: dwyer@nytimes.com

The Lilly Ledbetter Fair Pay Act of 2009

U.S. President Barack Obama (C) hands Lilly Ledbetter a pen after signing the "Lilly Ledbetter Fair Pay Act during an event in the East Room of the White House January 29, 2009 in Washington, DC. The Lilly Ledbetter Fair Pay Act was recently passed by congress granting equal pay to all women. (Photo by Mark Wilson/Getty Images)

The Fair Pay Act of 2009, S. 904, introduced in the Senate on April 28, 2009,
would amend the Equal Pay Act (EPA) provisions of the Fair Labor Standards Act (FLSA) to prohibit employers from paying lower wages for jobs dominated by women or minorities than paid for jobs dominated by men, if the jobs are equivalent. The legislation defines the term "equivalent jobs" as "jobs that may be dissimilar, but whose requirements are equivalent, when viewed as a
composite of skills, effort, responsibility, and working conditions." The

legislation would also prohibit discrimination against an employee or any
other person because the employee discussed his or her own wages or the
wages of any other employee. Additionally, the legislation would expand the
EPA by permitting the recovery of compensatory or punitive damages.
The legislation would also require employers to provide reports to the EEOC that include information disclosing the wage rates paid to employees in each classification, position, or job title, including information with respect to the
sex, race, and national origin of employees at each wage rate in each
classification, position, or job title. However, these reports shall not include
any employees' names.

The legislation has been referred to the Senate Committee on Health, Education, Labor and Pensions
An identical bill, H.R. 2151, has been introduced in the House of Representatives.

The Lilly Ledbetter Fair Pay Act of 2009:
President Obama's First Signed Bill Restores Essential Protection Against Pay DiscriminationBy JOANNA L. GROSSMAN
Friday, Feb. 13, 2009

Using a different pen for each letter of his name (to maximize the number of souvenir pens available for those involved in the bill's passage), President Barack Obama signed the Lilly Ledbetter Fair Pay Act into law on January 29. (It became Public Law No. 111-2, 123 Stat. 5 (2009)).

That the nation's first African-American president was signing his first bill into law marked an important civil rights moment, but the bill itself marked another. Former President Bush had preemptively refused to sign such a law when it was first proposed almost two years ago, just as he had with a variety of other pieces of anti-discrimination legislation. (I have written in a previous column about Bush's preemptive strike against the Employment Non-Discrimination Act, for example, which would have banned employment discrimination on the basis of sexual orientation.)

President Obama's decision to proudly sign the Ledbetter Act thus signals not only more robust protection against pay discrimination, but also the potential for further improvements and expansion to our nation's civil rights laws. As Obama declared in his speech at the Ledbetter signing, the bill sends "a clear message that making our economy work means making sure it works for everybody."

The Supreme Court Decision That Made the Ledbetter Act Necessary

In May 2007, the Supreme Court issued its decision in Ledbetter v. Goodyear Tire and Rubber Co. The 5-4 ruling undercut the ability of employees to seek redress for pay discrimination under Title VII, the main federal anti-employment-discrimination statute.

The case began when Lilly Ledbetter -- now a sort of folk hero, but then a production supervisor at a Goodyear plant in Alabama -- took early retirement in 1998, after being involuntarily transferred to a less-desirable job on the production floor. Six months earlier, she had filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging various forms of sex discrimination. When her case eventually went to trial, a jury concluded she had indeed suffered illegal pay discrimination on the basis of sex. (Her salary was as much as 40 percent lower than that of the lowest-paid male supervisor.) A $3 million award from the jury was reduced to $300,000 in accordance with Title VII's damages cap. However, this award was taken away on appeal.

On appeal, Goodyear successfully argued that Ledbetter's claims were time-barred because the discriminatory decisions relating to pay had been made more than 180 days (the limitations period under Title VII) prior to the date she filed her charge with the EEOC. The U.S. Supreme Court ultimately sided with Goodyear.

The Issue Ledbetter Presented, the Court's Precedent, and the Ruling's Effect

The issue presented by the Ledbetter case is when pay discrimination claims must be brought in order to be timely. Title VII provides an incredibly short statute of limitations – 180 days (or 300, in some states with an agency that shares work with the EEOC). Goodyear argued that the 180 days runs from the date of a pay decision setting a discriminatory wage, while Ledbetter argued that it also runs from the date of any paycheck that contains an amount affected by a prior discriminatory pay decision (the so-called "paycheck accrual" rule).



The Supreme Court opted for the former approach, thereby limiting employees' ability to challenge pay discrimination unless they both learn about it and challenge it very quickly. The majority in Ledbetter declined to consider whether a "discovery" rule might be used to extend the statute of limitations for discrimination that is unknown to the employee. (A "discovery" rule holds that the statute of limitations does not begin to run until the employee discovers the violation at issue.)

Before the Court's decision in Ledbetter, most federal courts and the EEOC had followed the paycheck accrual rule, based on an earlier Supreme Court decision, Bazemore v. Friday that had seemed to countenance it. All members of the Court joined Justice Brennan's separate opinion in that case, in which he wrote: "[e]ach week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII."

The majority in Ledbetter was focused, however, on a more recent ruling, Amtrak v. Morgan, in which the Court had held that "discrete acts" of discrimination must be challenged within 180 days of their occurrence. Amtrak rejected the "continuing violations" doctrine, under which some courts had permitted plaintiffs to challenge a series of related acts of discrimination, as long as at least one had occurred within the 180 days prior the filing of an EEOC charge.

Doctrinally, what Ledbetter did was apply Amtrak to pay discrimination claims – ruling that pay decisions would start the clock ticking immediately as it would with discriminatory firings. In a prior column written with Deborah Brake, I explain how the Court misapplied its prior precedents to reach this conclusion.

The effect of this ruling was made clear by Justice Ginsburg's dissent: "Any annual pay decision not contested immediately (within 180 days) . . . becomes grandfathered, a fait accompli beyond the province of Title VII ever to repair." In other words, an employer could pay a woman less than her male counterparts for her entire career, and openly admit that the reason for doing so is because she is female, as long as the decision to set the discriminatory wage happened at least six months earlier. This rule placed untenable burdens on employees and circumvented Title VII's substantive protection against pay discrimination.

At the close of a dissent she read from the bench (as Justices do when they feel especially strongly about a case's holding), Justice Ginsburg exhorted that "[o]nce again, the ball is in Congress' court." She was clearly referring to the Civil Rights Act of 1991, which had overturned a spate of Supreme Court decisions adopting stingy readings and narrow interpretations of Title VII and other civil rights statutes.

Congress Heeds Justice Ginsburg's Call: The Ledbetter Fair Pay Act of 2009



Although Ledbetter dealt with a rather technical rule, it promised significant adverse effects for victims of pay discrimination. In order to prevail on a pay discrimination claim after Ledbetter, a victim had to quickly perceive that she has suffered discrimination and promptly report it. But that is a rare occurrence in the typical case, and surely discrimination law should address the typical cases where real-life plaintiffs suffer discrimination, not just the rare ones. As Deborah Brake and I have written in an earlier column, there are many obstacles to bona fide victims' perceiving discrimination generally, and pay discrimination in particular. The Court's rule thus effectively immunized employers from Title VII liability for pay discrimination in many cases.

Within just a few weeks of the Ledbetter decision's issuance, the House Education and Labor Committee convened a hearing as a first step toward considering whether to take corrective legislative action to correct the Court's interpretation. Congress ultimately considered two versions of a bill to restore the paycheck accrual rule – the Lilly Ledbetter Fair Pay Act, and the Fair Pay Restoration Act. However, a Statement of Administration Policy from the Bush Administration promised a veto of any such bill. Congressional efforts thus stalled through the end of that administration, despite strong support for such a bill in Congress.

A new version of the bill, the Lilly Ledbetter Fair Pay Act of 2009, was introduced in the Senate on January 8, 2009. It passed 61-36, after supporters successfully fought off hostile Republican amendments. It then passed the House, five days later, by a vote of 250 to 177. President Obama signed the bill into law two days later.

How the Ledbetter Fair Pay Act Changes the Law – And Affects Age Discrimination and Disability Discrimination Victims as Well



The Ledbetter Act is narrowly focused on undoing the damage wrought by the Supreme Court's decision. Among Congress' findings was that the Ledbetter ruling "significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades."

The new law adds a provision to Title VII, which provides:

"unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

The amendments also apply to other anti-discrimination laws like the Age Discrimination in Employment Act and the Americans with Disabilities Act, which borrow Title VII's limitations period. The Act is made retroactive to May 28, 2007, the day before the Court issued its ruling in Ledbetter.

In effect, the Act takes a broad view of the employment practices that trigger the limitations period under Title VII. There will certainly be litigation over the meaning of "other practices", but the law's application to straightforward pay discrimination claims is clear. Employees will still face obstacles to enforcing their substantive rights against pay discrimination – lack of knowledge of disparate pay or its causes, cognitive obstacles to the quick perception of discrimination, as well as fear of -- and insufficient protection from – retaliation. But the Ledbetter Act makes sure that employees are not additionally hampered by the Court's crabbed interpretation of Title VII's already-short limitations period.

The Ledbetter Act may also affect another case currently pending in the Supreme Court – AT&T v. Hulteen. In that case, argued in December, plaintiffs have challenged AT&T's system for setting pensions when workers have taken leave. The plaintiffs are employees who took pregnancy-related disability leave before the enactment of the Pregnancy Discrimination Act in 1978. They received less seniority credit than workers who took leave for other temporary disabilities, which means that when they retire, they will receive lower pensions than will those other workers, despite similar work histories. Like Ledbetter, this case involves the proper treatment of employment practices that result in discriminatory compensation levels. Arguably, the Ledbetter Act makes the later pension-setting decision a new act of discrimination – one that can therefore be timely challenged today. At this juncture, in light of the new law, the Supreme Court should remand the case for analysis of the effect of the Ledbetter Act.

A Victory for Working Women – Though Not for Lily Ledbetter Herself

In sum, while the Lilly Ledbetter Fair Pay Act is not a panacea for all that ails federal anti-discrimination law, it is an essential step in the right direction – toward the promise of equal work opportunity for all. As President Obama noted in his signing speech, the bill honors women like Lilly Ledbetter who have worked hard, have been treated unfairly, and have stood up for the principle of equality. Sadly, and ironically, Ledbetter herself will receive no compensation at all as a result of the law passed in her name. Her jury verdict remains vacated, and the ultimate judgment in Goodyear's favor remains final and unappealable. Yet Ledbetter can know, at least, that her fight will make the world just a little bit better for the working women who follow in her footsteps.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University and is currently a visiting professor of law at Vanderbilt University. She co-wrote an amicus brief in the Ledbetter case with Deborah Brake, Professor of Law at the University of Pittsburgh. She also attended the Presidential bill signing of the Lilly Ledbetter Fair Pay Act. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.