Suit Is Planned Over Policy to Hold 3rd-Graders Back
By ELISSA GOOTMAN, NY TIMES, August 5, 2004

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The NAACP Legal Defense and Educational Fund is seeking plaintiffs for a possible lawsuit challenging Mayor Michael R. Bloomberg's much-debated new policy to hold back third graders largely on the basis of their standardized test scores.

According to an e-mail message circulating throughout the city and printed in Our Time Press, a Brooklyn newspaper, the group is seeking third graders of all races who scored at Level 1, the lowest of four categories, on at least one of two standardized tests and are in danger of having to repeat the grade.

"The lawsuit will seek to prevent the city from using a student's performance on these tests as a basis for retaining that student," the message says.

The new policy, in which children who score at Level 1 on one or both of their citywide tests, in English and math, are automatically at risk of being held in the third grade, is one of the most controversial elements of Mr. Bloomberg's effort to improve the city school system.

Since the policy was announced, in January, it has been softened significantly with the addition of an appeals process that takes children's class work into consideration. But that has not comforted all critics, who argue, among other things, that holding children back could harm them more in the long run.

The Department of Education said that 8,921 third graders were at risk of being held back under the new policy. Many of them are finishing up a special third-grade summer school program and will retake the tests on Monday and Tuesday.

An additional 1,510 third graders learned earlier this summer that they would be promoted based on their class work, despite scoring at Level 1 on at least one test.

In a brief statement, the legal fund said it "has been exploring possible litigation challenging the City of New York's new policy" on third-grade retention.

"Both the City and Department of Education have been notified of our interest in this issue and we are in discussions with potential plaintiffs," the statement read. "At this time, we have not made a final decision about whether or when to file a case."

The statement did not speak to why the organization was pursuing the case, but in general, any policy affecting the city public school system will significantly affect black and Hispanic children, who together make up 72 percent of the system's 1.1 million students.

Deputy Mayor Dennis M. Walcott, however, said he believed the new policy would ultimately serve black and Hispanic students well and that he found it "ironic" that the NAACP Legal Defense and Educational Fund would consider challenging it.

"What we're talking about is really raising standards for our children and making sure that our children are able to be proficient and be able to compete as adults in society, and that's what the LDF is about," Mr. Walcott said, referring to the legal fund. "The promotion policy is about making sure we provide a foundation for our children to be able to compete."

Sam Anderson, education director of the Center for Law and Social Justice at Medgar Evers College, said he was helping to find plaintiffs for a lawsuit but declined to say how many had come forward.

"Look at the reality of who is failing, who is being left behind in the city of New York public schools," he said. "First of all, you have something like 85 percent of the student population are students of color. Then when you look into it a little more closely, you see Latino and African-American students are at the bottom rung of the grades and testing scores, consistently from the third grade onward."

David Mark Greaves, a publisher of the Our Time Press, said he got a copy of the e-mail message asking potential plaintiffs to come forward and printed it in his newspaper.

The appeal for plaintiffs was also posted on the Web site of Class Size Matters, a parent advocacy group. The Web site also posted a flier.

It read: "Parents of Third-Grade Students: Is your child in danger of being held back? Do you feel that your child had enough time to prepare for the tests? Do you feel it is fair to punish a child for not knowing what s/he has not had a chance to learn? A lawsuit is being prepared to challenge New York City's third grade promotion policy."
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July 19, 2004
RETENTION LAWSUIT

Exciting and important news! The NAACP Legal Defense Fund has decided to intervene legally to block the Mayor's 3rd grade retention policy. We need your help identifying potential clients -- i.e. parents of third graders who have been told that their child might not be promoted to fourth grade next year, based on his or her scores on the standardized tests.

More information on this lawsuit and the ideal client(s) follows.

There is also a flyer in English and in Spanish that you can distribute to parents or post in a central location.

Please forward this information to every relevant list serv and any parent, educator, advocate or community activist you know who might be interested in helping us find interested parents.

If you might be interested in serving as a client yourself, please call the lead lawyers, Anurima Bhargava or Elise Boddie, whose contact info is below and on the flyer-- or if someone would prefer to talk to a non-lawyer, you can always email me at leonie@att.net or call me at 917-435-9329.

If you are a 3rd grade parent who is uncertain about participating, and would like to find out more about the lawsuit first, you should be sure to contact us as well. Full confidentiality is assured.

Thanks -- and please forward this message to others!

Leonie Haimson
Class Size Matters
www.classsizematters.org
leonie@att.net

From: ANURIMA BHARGAVA [mailto:ABHARGAVA@NAACPLDF.ORG]
Sent: Friday, July 16, 2004 2:58 PM
To: leonie@att.net

Subject: Request for Assistance: Third Grade Testing Policy

THIRD GRADE TESTING CHALLENGE

The NAACP Legal Defense Fund is preparing a challenge to New York City's third grade testing policy. As you may know, this policy - which was instituted this past spring amidst much confusion and controversy -
requires all third graders to pass an English Language Arts and Mathematics Test before they can be automatically promoted to the fourth grade. The lawsuit will seek to prevent the City from using a student's performance on these Tests as a basis for retaining that student in grade.

We need your assistance in finding and screening plaintiffs for this lawsuit as soon as possible. Who are the ideal plaintiffs?

1. African-American, Latino, Asian, and white students who scored at Level 1 on one or both of the exams
given in April AND were NOT otherwise promoted through the appeals process in June;

2. who, based on his/her portfolio of classwork/assessments, attendance, etc., would have been promoted
to the fourth grade under the original promotion policy;

3. preferably, who attend school in Districts 5 (Harlem, NYC), 7 (South Bronx), 9 (Concourse, Bronx),
13/16 (Bedford-Stuyvesant, Bklyn), 17 (Crown Heights, Bklyn), 19 (East New York, Bklyn), 23 (Ocean
Hill/Brownsville, Bklyn). Other possibilities are: Districts 6 (Inwood, West Harlem, NYC), 12 (Crotona),
and 32 (Bushwick, Bklyn).

What information do we need from these potential plaintiffs?

Student's name
Name of school
Any information about the quality of the educational environment at the school
A copy of any classwork performed by that student during the school year or a student's report card or
any other summary information indicating that the student would have been eligible to be promoted to
the fourth grade (Note: this is very important)
Contact information (parent's home and work # and email address, if available, and best time of day to
contact)
Copies of any correspondence that the student or his/her parent had with teachers, the school or the
Department of Education about the third grade testing policy.

For additional information, please contact the following attorneys at the NAACP Legal Defense & Educational Fund:

Elise Boddie, (212) 965-2234, eboddie@naacpldf.org
Anurima Bhargava (212) 965-2784, abhargava@naacpldf.org

Thank you for your assistance!