A major part of the public school reform being pushed ahead by Chancellor Joel Klein and Mayor Bloomberg is the establishment of Parent District Education Councils to replace the 32 school boards. The US Department of Justice ruled that these new entities do not disfranchize minority groups and take away any of their voting rights. ARPE, a new parent group in New York City, says that this new structure will do just that, as PA/PTA parents will appoint parents to these new councils, and the election of PA/PTA Presidents in New York is not a democratic process.

The New York City Department of Education Argues For the New Structure:
On October 31, 2003, the New York City Law Department submitted to the U.S. Department of Justice the request for preclearance under Section 5 of the Voting Rights Act of the State Law establishing Community District Education Councils and the Citywide Council on Special Education. Section 5 of the federal Voting Rights Act provides that proposed voting changes in certain jurisdictions must be precleared by the Department of Justice to ensure that they do not have a retrogressive effect on any protected minority group.
http://nycenet.edu/News/NYCLaw.htm
The Law Department's preclearance submission follows an extensive process to devise a system that will honor the Voting Rights Act and be as parent-friendly as possible under the law. The submission incorporates careful consideration of the feedback received from parents, community members and elected officials during the public hearings held by the Department of Education in each of the five boroughs and consultation with various voting rights experts and the Justice Department. The submission demonstrates that the new law and regulations increase the opportunity for minority representation in community school district governance structures. In its submission, the Law Department is requesting expedited consideration.At the same time, the Department of Education also released final versions of its regulations for nominating and selecting the parent and student members of the Community District Education Councils and the Citywide Council on Special Education. The revised regulations address issues raised by parents and community members during a series of public hearings held in each of the five boroughs. Specifically, changes were made to offer a greater opportunity for parents and community members to learn about candidates for the Councils; to create formal opportunities for parents to inform their PA/PTA officers about their opinions of the candidates before selection occurs; to create a more convenient and parent-friendly selection process that will allow selectors to mail in or drop off their ballots; and to ensure that the voting rule provides for equitable representation of the parent population within each district and District 75.
Chancellor's Regulations D-140
Chancellor's Regulations D-150

In addition, the Chancellor created a new Citywide High School Council to complement the state governance law that provides for Community District Education Councils and the Citywide Council on Special Education. The creation of the High School Council responds to concerns heard at public hearings across the City that high school parents were not represented in the new governance scheme. Under the State law, high school parents are not eligible to serve as members of the Community District Education Councils. Press release announcing the Citywide High School Council and the Law Department's preclearance submission. As a result of the new governance law, minor revisions of Chancellor's Regulations A-660, C-120, and D-130 are required. Regulation A-660 (Parent Associations and the Schools) will be revised to provide for a uniform election process for PA/PTA executive boards. The revisions also will require that, at a minimum, all executive boards must consist of a president, secretary, and treasurer. Regulation C-120 (Disclosure of Financial Interests) will be revised to require nominees for Community District Education Council and the City-wide Council on Special Education to file a nominee disclosure form. (A similar requirement applies to persons who serve on community school boards.) Regulation D-130 (Political Activities in Schools) will be revised to prohibit nominees for Community District Education Councils and the Citywide Council on Special Education from accepting political endorsements and campaign contributions. (This prohibition has been required by the State Legislature.)

New York Times reporter David Herszenhorn ["Bias Feared in School Plan for Councils" December 1, 2003] discusses the non-representation of minority parents on PA/PTA Executive Boards:
"Schools without parent associations tend to be overwhelmingly minority, like P.S. 132 in the South Bronx,
where 99 percent of students are black or Hispanic. At some other schools, the students are mostly minority but the P.T.A. officers are predominantly white. And in schools with heavy immigrant populations, parents who are English speakers are far more likely to be P.T.A. officers, they said".

Parent Groups Argue Against the New Structure:

The E-Accountability Foundation believes that the Department of Justice must not allow the new Community Education Councils because the New York City Department of Education officials in charge of parent matters - Chancellor Joel Klein, the Chiel Counsel Mr. Chad Vignola, Deputy Mayor Dennis Walcott, Michelle Cahill and the Office of Parent Engagement - have made no effort to establish a democratic process for electing PA/PTA officers throughout the city. We have brought information about many schools' erratic and undemocratic processes to the above named people, and not one of them acted upon our requests to change the status quo and help non-white and/or non-english speaking parents have an equal opportunity to get elected to executive boards in their schools. The Booker T. Washington MS 54 PTA and La Guardia High School PA election frauds perpetrated by the NYC Department of Education are described under "Stories and Grievances", and give clear examples of irresponsability, lack of accountability, and awesome arrogance toward due process violations. Indeed, a School Board member told us that many parents believe the Chancellor was picked by Mayor Bloomberg because he had worked for the Department of Justice and could, therefore, have an "in" with the officials in Washington so that the reforms could be pushed through.

Testimony:New York City Department of Education Hearing of September 25, 2003
Proposed Chancellor's Regulations D-140
and Prospective Revisions to Chancellor's Regulations A-660
by
Carolyn Prager
Advocates for Public Representation in Public Education (APRPE, www.APRPE.com)

This testimony comments on three aspects of the Chancellor's proposed regulations D-140 and intended revisions of Chancellor's Regulations A-660:

1. the proposed process for selection of parent district education council members;
2. the structures and election procedures for PTA/PA, with particular reference to their impact on the selection of parent District Education Council members; and
3. the powers and responsibilities of District Education Councils as they call into question the proposed process for selecting parent district education council members.

Under the New York State governance law (A09113) passed in June, 2003, Community District Education Councils will replace current Community School Boards. The law replaces the one-person, one-vote general election system of Community School Board members with a selection process involving PTA and PA officers. District Education Councils (DECs) will have 11 members, 9 of whom will be parents "selected [emphasis added] by the presidents and officers of the parents' associations or parent-teachers' associations" (Section 3:1). The 9 parent members will serve two-year terms.

The law also instructs the Chancellor to write regulations:

1. insuring that PTAs/PAs have "uniform" parent-teachers' election processes and structures and
2. taking into consideration the student population and enrollment patterns of each district's schools in selecting the 9 parent DEC members (Section 3:8).

I. Selection of Parent District Education Council Members

The law provides the Chancellor with very wide latitude in formulating regulations to determine how parent-teachers' and parent associations (PTAs/PAs) shall participate in the selection of the 9 parent DEC members. The implementation methods the Chancellor has proposed for selecting parent members of the District Education Councils is less than optimal for many reasons, five of will be addressed below.

The proposed selection process for the parent members of the DECs:

1. includes elections that disenfranchise nearly all parents except for three PTA/PA officers per school;
2. gives disproportionate voting influence to PTA/PA representatives from schools with the smallest enrollments;
3. gives disproportionate voting influence to PTA/PA representatives from elementary schools;
4. decreases rather than increases the likelihood of compliance with legislative intent that there be equitable representation on District Education Councils; and
5. creates an unwieldy selection process.

1. Disenfranchisement: The Department of Education proposes to implement a selection process required by the law through a restrictive election process that effectively disenfranchises most parents. The State law replaces the one-person one-vote Community School Board elections with a 3 person per school selection process for the 9 parent members of each District Education Council. The State law does not require elections as part of that selection process. However, the Chancellor's proposed regulations not only require an election but also limit the electorate to 3 people per school who are PTA/PA officers. While State law gives PTA/PA officers a role distinctive from other parents in the selection of DEC parent members, the Chancellor's proposed regulations gives PTA/PA officers and only PTA/PA officers an exclusive role in voting for DEC parent members.

Critics of Community School Board elections have often pointed to the low participation rates of eligible voters. Ironically, proposed Chancellor's regulations will assure an even lower participation rate in District Education Council elections by reducing the eligible voters to 3 per school. It is true that only 3-5 % or so of approximately 3 million eligible voters voted recently in Community School Board elections. However, Community School Board elections were open to all registered voters and to all parents with children in the NYC public schools. The proposed Chancellor's regulations will enfranchise only 3,600 or so parents (PTA/PA officers) out of a more than a million with children in the New York City School system. This is .03% of all parents.

In addition to disenfranching the vast majority of parents, the proposed regulations give parents no other role in the selection process

2. Disproportionate Voting Influences: The proposed regulations distribute voting power in ways that will also disproportionately affect the voting influence of PTA/PA "electors" from schools of different sizes and different types. The proposed regulations distribute the same number of votes to representatives from small schools as to those from large schools, thereby minimizing the influence of parent electors (and indirectly of parents) in the largest schools. PTA/PA "electors" from schools with the smallest enrollments will have a disproportionately large voting influence on election outcomes. To the extent that the largest schools often enroll a greater percentage of minority students than do the smallest schools in many areas, this element increases the likelihood of a disparate influence on account of race in such districts.

Schools with only 100 students will have the same influence on selection and voting outcomes as schools with 2,000 students. Parent "electors" from schools with 2,000 students will, therefore, have a lesser influence on voting outcomes than parent "electors" from schools with 100 students. The issue is not theoretical. Region 10 in Manhattan is offered here as illustration of the larger picture citywide. Region 10 includes Community School District 3, 5, and 6. Individual school enrollments range from 192 to 1,058 in District 3, from 327 to 976 in District 5, and from 120 to 1,719 in District 6. (For additional school enrollment figures, see Attachment A's breakdowns of Region 10 districts and schools).

Differences in school enrollments will create extremely different ratios of parent numbers to PTA/PA electors in large and small schools. (The following example uses student enrollment figures from the Department of Education's enrollment figures in its "Preliminary FY 2004 Initial School Allocations" report. The number of students in a school represents a reasonable approximation of the minimum number of parents for that school.) For example, PS 210 in District 6 enrolled 210 students as of October, 2002. MS 52, also in District 6, enrolled 1,719 in the same period. The ratio of electors to parents would be 1 PTA/PA elector for only 40 parents at PS 210 compared to 1 elector for 573 parents in MS 52. Differences in enrollment numbers will create very different ratios of PTA/PA electors to parents throughout Districts 3 and 5, as well, (although not quite as extreme).

3. Disproportionate Influence of Elementary Schools: New York City school districts typically have more elementary schools than middle schools. By giving each school the same number of electors, the proposed regulations increase the likelihood that elementary schools will have a disproportionate voting influence in the selection and election of DEC parent members, thereby decreasing the likelihood of the equitable representation of middle school parents on District Education Councils.

For example, District 3 has 17 elementary schools but only 10 middle schools. District 5 has 9 elementary schools but only 4 middle schools. District 6 has 19 elementary schools but only 7 middle schools. In District 3, therefore, there will be 51 PTA/PA elementary school officers electing DEC parent members but only 30 middle schools electors. In District 5, there will be 27 elementary school PTA/PA electors but only 12 middle schools electors. In District 6, there will be 57 elementary school electors but only to 21 from middle schools. Since middle schools usually have far larger enrollments than elementary schools, the larger number of electors from elementary schools within district will also contribute to the disproportionate impact of smaller schools on the selection of DEC parent members noted in 2, above.

4. Legislative Intent and Equitable Representation: The proposed regulations decrease rather than increase the possibility of compliance with legislative intent. The Legislature clearly intended that the Department of Education implement the law in a way that would reach for equitable representation in District Education Councils. A09113 states that the Chancellor: "shall develop selection procedures for community council members which shall attempt to ensure membership that reflects a representative cross-section of the communities within the school district and diversity of the student population . . . [which] shall include consideration of the enrollment figures within each community district and the potential disparity of such enrollments from school to school within the district . . . " (A9113, Section 3:8.c).

The wording of the legislation more than suggests that the Legislature wanted the Department of Education to at least attempt to address student diversity and school enrollment patterns in the DEC parent selection process. Instead, the Department has proposed a selection and election system that gives the largest schools, in general, and middle schools, in particular, the least influence on voting outcomes. In addition, the proposed regulations have essentially downloaded all responsibility for attempting to assure equitable representation from the Chancellor to the local PTA/PA selection/election committees. The proposed regulations do not even provide for recourse through the Chancellor's office for appealing election outcomes that do not represent district diversity and school enrollment differences.

5. Cumbersome Selection Processes: The sheer size of the district selection PTA/PA "committees" (consisting of nearly 200 members, if not more, in some districts) lessens the likelihood that the committees will function effectively, especially since Chancellor's regulations does not define how they will be structured, how they will conduct business, or how they will undertake the specific tasks required by the proposed regulations within the allotted time period.

Where they do speak to committee activity, the proposed regulations create a cumbersome, time consuming, and unwieldy process for the selection of DEC parent members. Before voting, the selection committee of district PTA/PA officers must:
§ review nominees' applications,
§ must listen to five-minute presentations from each candidate, and
§ must discuss the relative merit of individual candidates.

Let's make some very minimal assumptions about the time involved. Let's assume at least 10 minutes to review a candidate's written application, at least 7 minutes to listen to a candidate's presentation (5 minute presentation plus two minutes between presentations), and 10 minutes to discuss a candidate's merits. This would entail almost one-half hour per candidate for the most cursory review. If 50 candidates self-nominate, this will require 25 hours of review, not including voting and break time. If 100 candidates self-nominate?

Will candidates be discussed in public session? Will all candidates be discussed by the committee as a whole? How will discussion take place among a committee of one hundred or two hundred or so people? Will votes be cast in public session? Etc.

The proposed regulations make extraordinary demands of time-bound individuals who already have multiple responsibilities as the parents of school age children and as officers of PTA/PAs. Further, as a condition of voting, the proposed regulations do not require any selection committee member to actually read nominee applications, to actually listen to nominee presentations, or to actually participate in or attend the discussion of candidates' relative merits before voting. True, the same may be said of voters in general elections. However, in general elections, electors have the opportunity to inform themselves of a candidate's merits before voting through a number of vehicles that do not demand their collective presence at a fixed place over a long period of time.

II. PTA/PA Election Procedures and PTA/PA Structures

Uniform PTA/PA Elections: The State governance law explicitly requires the Chancellor to "develop a process to ensure a uniform election process for parent associations and parent-teacher associations . . . [that] ensure uniformity with respect to timing of elections
and the structure and size of the body" (Section 3.8.a).

Election Uniformity--Uniformity in the timing of elections is desireable because it would assure that PTA/PA officers will be in place in time to serve as electors of parent DEC members. In principle, Chancellor's Regulations A-660 already provide for elections in May of each year but, in practice, the timing of PTA/PA executive board elections has varied widely. Additionally, several schools either do not have functioning PTAs/PAs and/or have not yet held elections as of this date. (In District 3, for example, the District's parent coordinator confirmed at the September 24, 2003 Community School Board meeting that 5 of 32 schools had yet to conduct their PA/PTA elections for this school year.)

Structural Uniformity--Uniformity in the structure of PTAs/PAs is desireable because it would assure that all PTA/PAs will have the same officers (a President, a Secretary, and a Treasurer) required in the proposed regulations for service on the district committees selecting parent DEC members. Again, Chancellor's Regulations A-660 already calls for the designated PTA/PA officers but, in practice, the number and title of officers in parent associations varies widely throughout the school system.

Until recently, the Chancellor's office has maintained that existing Chancellor's Regulations A-660 already met the requirements imposed by the new State law for uniform PTA/PA structures and elections. However, on or about September 16, 2003, the Department of Education indicated on its web site that it would make "minor revisions to Chancellor's A-660 . . . to provide for a uniform election process for PA/PTA executive boards". These revisions have yet to be made public and have not, therefore, been available to the public for comment during this cycle of required public hearings.

The Department of Education's recent notice of intent to revise A-660 indicates that the revised regulations will require uniform election dates in May. Effectively, the next cycle of PA/PTA May elections cannot take place until May 2004. This means that the Department intends to hold elections for District Education Councils parent members by this October 31, 2003, using PA/PTA electors who were not themselves elected in accordance with the mandate for uniformity in the State law. Since parent members of District Education Councils are to be elected for a period of two years, this means that the effects of revisions to assure uniformity in the structure and timing of elections of PTA/PA executive boards will not be realized in terms of the composition of District Education Councils until school year 2005-2006, at the earliest.

The Department also intends to hold these elections, using PTA/PA officers who were not elected by their respective parent association members, to perform the new function of district-wide electors for District Education Councils. This will be a new responsibility that is not included within any parent association current bylaws.

Chancellor's Regulations A-660 also currently permits each PA/PTA to determine in its by-laws the number of parents per family who may vote in a school PTA/PA election. The notice of intent to revise A-660 in accordance with the governance law does not include this item. Two-parent per family voting for PTA/PA officers discriminates against single heads of households, many of whom are minority and almost all of whom are female. This element of Chancellor Regulations A-660 should be revised to assure PTA/PA election uniformity as well as voting equity.

III. District Education Council Powers and Responsibilities

The New York State Legislature changed changed the composition of school district community governance bodies' membership but did not change the purpose, powers, and responsibilities of these governance bodies. The State Legislature gave District Education Councils the current powers and responsibilities of Community School Boards, in addition to restoring a former Community School Board responsibility to evaluate the District Superintendent. The Legislature also retained the same District Superintendents' powers and responsibilities that had existed before the new legislation.

In practice, however, the Chancellor's restructuring of the school system has already undermined legislative purpose in ways that defeat the very reason for which the Legislature created new local governance bodies as it did. By doing so, the Department of Education has called into question the reason for selecting parent DEC members and the context of their selection. At some point, the reason for having district school governance bodies and the process of their selection intersect, if only in the Department's apparent casual treatment of the State law.

Below are a few examples of how the restructuring has effectively negated the powers and responsibilities of District Education Councils provided for in State law:

1. Restricted District Superintendent's Presence in Community School Districts: Despite an out-of-court settlement reached between the Chancellor and several State legislators earlier this year that preserves community school districts and community school district superintendents, district superintendents are no longer real presences in their districts. This means that neither parents nor their representatives on District Education Councils will have meaningful access to their respective district superintendent. The District Superintendents are now district superintendents in name only. Their primary obligation is as to serve as one of many Regional Local Instructional Superintendents. This means that, in actuality, they spend very little time in their community school districts dealing with school district matters, in some cases not even maintaining a desk there. While the position of District Superintendent is still preserved in State law and was reaffirmed by this year's out-of-court settlement, the restructuring
has seriously reduced the powers and responsibilities of district superintendents. For example, district superintendents no longer appoint, mentor, or evaluate a district's school principals. Most important, they do not facilitate the writing of the District Comprehensive Education Plan (DCEP) , bring the DCEP to the school board or to the community for comment, or supervise and coordinate its implementation.

The Department of Education barely maintains the pretense that those with the nominal title of District Superintendent function as district superintendents in accordance with the State law. The Community Superintendents' "Areas of Responsibility" are those of a Local Instructional Superintendent responsible only for instructional programs (and not necessarily at schools in the district in which he or she also serves nominally as Community Superintendent).

2. Restricted District Role in Educational Planning and Evaluation: The Chancellor's restructuring has already taken away the two major tools available to Community School Boards to monitor and evaluate educational policy implementation and to evaluate the District Superintendent's performance. The first was review of the District Comprehensive Education Plan and the second was oversight of its implementation by the Superintendent.

Under the restructuring, the Regional offices will write and implement Regional Comprehensive Education Plans with district components, as happened already this year. District input this year was limited to an invitation to selected parents to a mass meeting "consultation sessions" outside the district or region at the end of August (understandably netting very few parents). The invitation was extended after the plans had been written by regional, not district administrators, with no community review or input. Despite the assertion that Community School Boards' "Areas of Responsibility" include "review of [the] District Comprehensive Education Plan," Community School Boards were not involved in the DCEP process this year, except to the extent that they were also invited to also send one member to the end-of-August to the Department of Education mass meeting to "review" a document already written outside the district and being implemented.

Going forward, district involvement, if any, in the DCEP is not assured. The ability of DECs to carry out their statutory responsibility for district educational planning, to monitor educational outcomes, and to evaluate the superintendent has already been compromised for this academic year and will continue to be compromised under the current policies and practice.

3. One-Year Tenure for District Superintendents: At the Assembly Education Committee's public hearing of September 15, 2003, Chancellor Klein publicly confirmed plans to rotate a new district superintendent into the position each year. The result will be no continuity in community district superintendents for district schools, for students, for parents, and for District Education Councils. Among much else, this renders meaningless the DEC's ability to exercise its legislated responsibility for the annual evaluation of the District Superintendent who will be on his or her way out of the district at the point of evaluation. It also calls into question the process of appointing District Education Councils by misleading interested parents to believe that they or their representatives will have powers and responsibilities provided for in law which they will not have in reality.

Asian American Legal Defense and Education Fund's Response to DOJ

December 10, 2003

Mr. Joseph Rich, Esq.
Chief, Voting Section
Civil Rights Division, Room 7254 - NWB
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Fax: (202) 616-9514


Re: Comment under Section 5 of the Voting Rights Act
Submission Numbers 2003-4040 and 2003-4041
Chapter 91, Laws of 2002 of the State of New York
Chapter 123, Laws of 2003 of the State of New York
Replacement of New York City Community School Boards
with Community District Education Councils

Dear Mr. Rich:

We are submitting this comment in opposition to the New York City Board of Education's request for preclearance of:
(1) sections 7 and 8 of Chapter 91 of the Laws of 2002 of the State of New York, relating to the abolition of community school boards; and
(2) those portions of Chapter 123 of the Laws of 2003 of the State of New York, establishing bodies to replace the community school boards.
We believe that the replacement of directly elected community school boards with "Community District Education Councils" (hereinafter, "CDECs") elected by officers of local Parent Association/Parent Teachers Associations (hereinafter, "PA/PTAs"), without stronger protections guarding the interests of protected minorities, constitutes a retrogression in the voting power of Asian Americans and other racial minorities, as prohibited by Section 5 of the Voting Rights Act.

The City of New York (hereinafter, the "City") and the City School District of the City of New York (hereinafter, "City School District") have failed to demonstrate that these proposed changes to the New York City School Board elections are not retrogressive to protected minorities' voting rights. Accordingly, the Department of Justice should deny preclearance of these changes in the election process.


I. Background and AALDEF's Involvement in Voting Rights and Public Education Issues

The Asian American Legal Defense and Education Fund (hereinafter, "AALDEF"), founded in 1974, is the first organization on the East Coast to protect and promote the civil rights of Asian Americans through litigation, legal advocacy and community education. AALDEF is part of the Public Interest Law Center, a consortium of national civil rights organizations located in New York City, which includes the NAACP Legal Defense and Educational Fund and the Puerto Rican Legal Defense and Education Fund.

AALDEF has worked on voting rights issues since 1981, when we mobilized Asian American community opposition to the redistricting plan that divided New York City's Chinatown between two state assembly districts. We have since been involved in a variety of voting rights matters, including negotiating the first ever agreement by the New York City Board of Elections to provide bilingual materials and translators at polling sites in Manhattan's Chinatown, and submitting comments to the Justice department regarding the impact of various voting and redistricting changes on New York City's Asian American community.

Concerning community school board elections, AALDEF submitted comments to the Justice Department in 1998 opposing the New York City Board of Education's request to change the system of voting for community school board elections from the proportional representation, single-transferable-vote system to a limited voting scheme. Taking AALDEF's comments into consideration, the Attorney General denied preclearance of that proposed change.

In addition to its longstanding work in voting rights, this year AALDEF launched a new project addressing the needs of Asian American students in the public school system. Through this project, AALDEF is examining educational equity issues impacting New York City's Asian American community, with a particular emphasis on challenges that lower income and immigrant students - as well as their parents - face. Among other issues, AALDEF's education law project focuses on language access, opportunities for English Language Learners, school discipline and safety, hate violence, and post-9/11 racial targeting.

II. Retrogressive Impacts Upon The Asian American Community:
An Analysis Of The Replacement Of Directly-Elected Community School Boards With PA/PTA-Elected CDECs

According to the Census 2000 figures, there are 872,777 Asian Americans residing in New York City, comprising 10.9 % of the City's total population. Yet there is only one Asian American serving on the City Council (Councilmember John Liu of Flushing). Other than Mr. Liu, the only elected Asian American officials in New York City are community school board members. Currently, there are fifteen Asian American community school board representatives in nine different community school districts. One reason why Asian American candidates have been successful in community school board elections is because all Asian American parents of public school students - regardless of citizenship and English language ability - are eligible to participate and vote directly for their candidate of choice.

The State Legislature's plan, as implemented by the City and City School District, must comply with Section 5 of the Voting Rights Act (42 U.S.C. § 1973c). Section 5 places the burden upon the State to demonstrate that any changes to the method of voting in New York City School Board elections are nondiscriminatory in purpose and in effect. South Carolina v. Katzenbach, 383 U.S. 301, 328, 335 (1966). Section 5 prohibits voting changes that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise. Beer v. United States, 425 U.S. 130, 141 (1976). Thus, the State Legislature may not implement any action affecting voting that would make "members of a racial or language minority group worse off than they had been before the change." 28 C.F.R. § 51.54(a). Under Georgia v. Ashcroft, the most recent Supreme Court case interpreting the Voting Rights Act, this analysis must take into account "all the
relevant circumstances" and consider "the entire . . . plan as a whole." Georgia v. Ashcroft, 123 S. Ct. 2498, 2511 (2003).

The City and City School District present the following arguments in favor of the changes at issue:
1) minorities protected by the Voting Rights Act are a greater percentage of the parents eligible to vote for PA/PTA officers than the percentage of protected minorities in the community school board electorate;
2) this reform is part of a larger citywide plan to foster greater parent participation in the City's public education system; and
3) due to widespread voter apathy and lack of confidence caused by rampant corruption under the old system, actual voter turnout in for the community school boards was miniscule.

AALDEF supports reforms to invigorate community participation in elections for community school boards and to address corruption and patronage problems on those boards. However, the proposed plan to replace the directly elected community school boards with Community District Education Councils elected only by PA/PTA officers will make it more difficult for minority candidates to be elected to these bodies. The changes under submission include no mechanisms to ensure that limited-English proficient Asian Americans and other protected minorities will be able to participate in the PA/PTA candidate selection process. Further, the City and City School District's proposal does not fulfill the state mandate to ensure that officers voting on parents' behalf will elect candidates reflecting a representative cross-section of the district's parents and students, as had been achieved under the current system. Finally, the recent Supreme Court precedent in Georgia v. Ashcroft requires that the proposed changes must be seen in context as the last of a series of steps to erode community school boards' powers over a number of years. Id

As a result, racial minority parents will be "worse off" under the new scheme than they were under the old community school board system. For the Asian American community in particular, the creation of PA/PTA-elected CDECs threatens to eliminate all but one of the Asian American elected representatives in the City. This is precisely the type of retrogression that is prohibited by Section 5 of the Voting Rights Act.

Further, the City and City School District offer no analysis or figures to satisfy their duty of showing that at least as many minority representatives will be elected to the CDECs as there were on the old community school boards. As discussed above, fifteen Asian American representatives were elected at the last community school board elections in 1999. Nothing in the City and City School District's submission indicates that the new CDEC scheme will produce as many Asian American representatives. Although the submission points out that the percentage of protected minorities eligible to participate in PA/PTA officer elections is greater than the percentage of protected minorities within the old community school board electorate, we show below that this is not probative of eventual CDEC composition.

III. The City And City School District's Analysis Hinges On How Election Of CDEC Parent Representatives By PA/PTA Officers Might Work In An Ideal World, Not How It Would Operate In Real World Practice

The City and City School District rely solely on untested theory - without basis in experience and practice - to conclude that the transition from directly elected community school boards to CDECs elected by PA/PTA officers has no retrogressive effect on minority voting power. Because this reorganization ventures into uncharted territory, we must to some extent rely on theory to determine its effects. We do, however, know that many PA/PTAs are not representative of and do not meet the needs of minority parents - in particular, those who are not proficient in English. We also know that PA/PTAs do not even exist at some schools. David M. Herszenhorn, Bias Feared in School Plan for Councils, N.Y. Times, December 1, 2003.

In their submission, the City and City School District make no effort to show that minority parents in the covered counties actually have access to and participate in PA/PTAs. Rather, the proposed plan operates on the faulty assumption that all schools have functioning PA/PTAs, and that all minority parents - even those with limited-English proficiency - are able to fully participate in and be elected to positions of authority within them. By sidestepping the important issue of how PA/PTAs operate in actual practice, the City and City School District fail to meet their burden of proof under Section 5.

A. Many PA/PTAs Do Not Provide Adequate Language Access for Non-English Proficient Parents

In reality, lack of language access at PA/PTA meetings has impeded meaningful access and participation by parents who are not fluent in English (by contrast, as discussed below, the old community school board elections were covered by language access protections under the Voting Rights Act). Although non-English proficient parents are entitled to language access when receiving school related information and PA/PTAs are required to consider the needs of non-English proficient parents, AALDEF has received reports regarding lack of compliance in Brooklyn (Kings County) and Manhattan (New York County), which are covered under Section 5 of the Voting Rights Act.

In 2000, AALDEF received a complaint regarding lack of language access at PS 176 in Brooklyn (Kings County). Approximately 1 in every 5 students at PS 176 is an English Language Learner, and 11.5% of students there immigrated to the US less than three years ago. In the words of a Chinese American PTA member at PS 176, "I have seen Asian and Hispanic parent [sic] come to PTA meetings and sit and do not understand what is going on. PTA notices DO NOT come out in the translated languages . . ." The Chinese American PTA member - who was the sole minority on that PTA's sixteen member leadership team at that time - fought unsuccessfully for improved language access in 1999 and 2000. After taking the issue to the district superintendent (Vincent Grippo of District 20), he was told that there was no explicit language access requirement covering PTA meetings and that funding was not available for translation and interpretation. As described below, Chinese American teachers a
nd parents also reported a similar problem in 2001 at the Lafayette High School PTA in the Bensonhurst neighborhood of Brooklyn (Kings County).

A parent report verifies that non-English proficient parents continue to experience language access barriers at PS 176 PTA meetings. When a non-English proficient Spanish speaking parent attended a November 13th, 2003 PTA meeting and requested language assistance, a PTA officer responded she should simply learn English. According to one parent, all discussions at the PS 176 PTA are conducted solely in English. Although meeting notices - which are sent home with students - are generally translated into different languages, all other materials discussed and used at PS 176 PTA meetings as well as the monthly PTA newsletter are only available in English. At the PS 176 PTA's recent officer election in September 2003, all candidates' biographic statements were only distributed in English.

The continuing failure of PA/PTAs to comply with language access obligations does not bode well for the City and City School District's proposed plan. Without a mandate that explicitly spells out specific language access measures to be followed in PA/PTA meetings, during officer and nominating committee election procedures, and at candidate forums, it will be all too easy for PA/PTAs to shirk this responsibility by citing lack of funds and the absence of specific requirements - just as Mr. Grippo did with regard to the PS 176 PTA.

By contrast, language access protections in the old community school board
elections were set clearly set forth under Section 203 of the Voting Rights Act. 42 U.S.C. § 1973. Section 203 requires that the elections be fully accessible to Chinese and Korean American language minorities in Brooklyn, Manhattan and Queens. 67 Fed. Reg. No. 144, 48871-77 (July 26, 2002). The ballot, voting instructions, and all voter registration forms must be translated into Chinese and Korean. Interpreters must also be provided at polling sites to assist Asian-language voters. 28 C.F.R. §§ 55.16. Section 203 ensures that the opportunity to participate in school governance is accessible to limited-English proficient Asian Americans. Under the new proposal, there is no assurance that limited-English proficient Asian Americans will be able to participate in school governance. Indeed, the new proposal only enfranchises English proficient Asian Americans, a much smaller group, and thereby places Asian Americans in a worse position to be represented.

B. Asian American Parents Have Faced Opposition To Their Involvement In PTAs By White-Dominated PA/PTA Leadership

Whereas Asian Americans participated in and enjoyed electoral success under the old community school boards, some Asian American parents have experienced opposition to their participation in PA/PTAs from white-dominated PA/PTA leadership. This is a crucial problem because these very PA/PTAs will be responsible for electing the CDECs under the proposed plan. In spring 2001, Chinese American parents at Lafayette High School, a racially mixed Bensonhurst school (in Brooklyn, Kings County), reported being shut out of elections for PTA officers as well as to an ad hoc new principal search committee. Chinese American parents reported that the PTA (the president of which was white, as is the case at many racially mixed schools ) did not adequately notify parents about the election process, failed to provide language access, and repeatedly attempted to nullify the results when a significant number of Chinese American parents were elected. Only with intervention by the Chancellor
's office and the local school district was a slate elected with a strong Chinese American presence. Incidents like these are likely to recur if we implement a system in which PA/PTA officers elect CDECs.

C. The City Department of Education's Larger Plan To Boost Parent Involvement Has Faced Serious Implementation Hurtles

The analysis put forth by the City and City School District emphasizes that the reorganization of community school boards into CDECs must be understood as part of a broader effort to boost parent involvement in the school system. AALDEF is in agreement with this larger goal and commends the City and City School District for its efforts to increase parent participation. However, even at this early stage in the process, many flaws in the plan's implementation are already evident. For example, a recent study by the City's Office of the Public Advocate found serious deficiencies in the availability of "parent coordinators" at many schools. Public Advocate for the City of New York, Waiting for Your Call: A Survey of New York City Department of Education Parent Coordinators by the Office of the Public Advocate (November 2003) (available at www.publicadvocate.nyc.gov/reports/parent 111403.shtml). The creation of a new parent coordinator position is a crucial part of the City
School District's plan to empower parents to get involved in their children's education. This challenge indicates that despite the Department of Education's good intentions, its goal of optimal parent involvement may yet be a long way off.

Other problems that have surfaced include parent complaints about lack of information from the City School District about scheduling changes this school year (including the addition of 50 minutes of classes each week and a decision to push back the first day of school by three days), demands to hire additional classroom aides or teachers instead of parent coordinators, and concerns that the parent coordinator position actually adds a new obstacle between parents and principals. David M. Herszenhorn, As City Goes Back to School, Bloomberg's Plan Faces Test, N.Y. Times, September 4, 2003. Elissa Gootman, In Gamble, New York Schools Pay to Get Parents Involved, N.Y. Times, August 30, 2003. An accurate assessment of this larger parent involvement effort requires consideration of these issues. Only then will it be possible to contextualize the proposed community school board reorganization with the broader changes occurring within the City School District.


D. The City and City School District's Proposed Plan Fails To Take The Above Challenges Into Account

The City and City School District's rosy assessment of the proposed indirect voting system for CDECs is based on a theoretical construction of how that scheme would work under the best of circumstances. For example, Professor Bernard N. Grofman, the political scientist who conducted the study upon which the assessment relies, acknowledges that his analysis assumed PA/PTAs existed at all schools. David M. Herszenhorn, Bias Feared in School Plan for Councils, N.Y. Times, December 1, 2003. As such, this analysis fails to consider the deficiencies - like the absence of a working PA/PTA structure at some schools, lack of language access within existing PA/PTAs, or even outright opposition within existing PA/PTAs to participation by protected minorities - that are bound affect the plan's actual implementation.

IV. The City's Proposed Chancellor's Regulations Fail To Ensure That CDEC Membership Will Reflect A Representative Cross-Section Of Each District's Community And Diverse Student Populations

The state legislation enacting the community school board reorganization under consideration mandates that the New York City Chancellor of Education promulgate regulations that ". . .attempt to ensure membership that reflects a representative cross-section of the communities within the school district and diversity of the student population including those with particular educational needs . . . " Educ. L. §2590-c(8)(c).

The Chancellor's implementing regulations (which are included in the City and City School District's preclearance request) merely delegate this responsibility to PA/PTA selection committees. Proposed Chancellor's Regulation D-140. The proposed regulations provide no guidelines for how the PA/PTA selection committees are to accomplish this, nor indicate whether parents may appeal election outcomes that are not representative and diverse.

In enacting this legislation to replace the community school boards with CDECs, the State Legislature specifically wanted to ensure that the elected CDECs are truly representative of parents and students in the community. Stronger Chancellor's Regulations to ensure adequate representation of protected minorities (and other diverse interests) on the CDECs are not only required under the underlying state legislation, but are critical to avoid retrogression of protected minorities' representation under the Voting Rights Act if the proposed plan is approved.

V. The Gradual Diminution of Community School Boards' Powers Over The Years Has Led To A Cumulative Retrogression Of Protected Minorities' Voting Rights

Furthermore, the gradual diminution of community school boards' powers, while not currently before the Department of Justice for preclearance, has had the cumulative effect of diminishing the value and impact of protected minorities' votes in community school board elections. Under the Supreme Court's recent ruling in Georgia v. Ashcroft, the plan currently under review must be considered within this broader context. Georgia v. Ashcroft, 123 S. Ct. 2498, 2511 (2003) (analysis under Section 5 of the Voting Rights Act must take into account "all relevant circumstances").

The City and City School District's submission states that the new CDEC's powers include all the present powers of the old community school boards, plus some new powers the old boards do not have. This point may be true, but it is important to note that the legislature has gradually stripped away much of the community school boards' authority over a course of many years. Powers that the State Legislature has taken from the community school boards include a role in negotiating contracts, the opportunity to participate in hiring district superintendents, and various budgetary powers.

Although protected minorities have been successful at voting for their candidates of choice at school board elections, the erosion in community school boards' authority has diminished what these representatives - once elected - are able to accomplish on the boards. Thus, this erosion of community school boards' powers has led to a cumulative retrogression in the electoral rights of protected minorities - or at least in the value of those rights. The CDEC plan currently under submission must be examined against this backdrop and seen as the final step of this prolonged process. Furthermore, AALDEF has received reports from community leaders that this diminution of powers has been a disincentive for some qualified Asian candidates to participate in community school boards. Thus, the City and City School District's proposed plan is the last in a series of changes that have gradually yet steadily diminished protected minorities' voting rights. Such retrogression is impermis
sible under the broad analysis mandated by Georgia v. Ashcroft. Id.

V. Conclusion

The City and City School District have argued that there will be no retrogression under the proposed plan because of the large percentage of minority parents eligible to elect PA/PTA officers and nominators. But this argument fails to consider factors that might prevent many minority parents from actually exercising their right to participate in PA/PTAs. These include outright opposition to their participation by white PA/PTA officers, lack of interpretation (at PA/PTA general meetings, as well as officer elections and CDEC candidate forums) and lack of translation (for meeting notices and agendas or ballots at officer elections).

AALDEF is concerned about the plan to replace the community school boards with PA/PTA-elected CDECs because it threatens to eliminate Asian American representation at the only level of government service in which Asian Americans have obtained a modest degree of electoral success. As discussed above, we believe the new indirect voting system, without more safeguards to ensure full participation by protected minority parents, will make it difficult for Asian American and other minority candidates to be elected.

Furthermore, the Chancellor's proposed implementing regulations fail to satisfy the state mandate to ensure that CDEC membership will reflect a representative cross-section of each district's community and diverse student populations. More specific requirements in this regard are needed in order to avoid retrogression of protected minorities' voting rights in the event the plan is approved. Finally, the proposed scheme to disband community school boards and replace them with PA/PTA elected CDECs must be seen in context as the last step in a prolonged process to strip the community school boards of any meaningful power.

In order for the Justice Department to preclear the proposed plan, the City and City School District must demonstrate that the plan is not retrogressive. As shown above, the new indirect CDEC voting scheme diminishes the power of racial minorities to elect candidates of their choice. Thus, the City and City School District have not met their burden of proof. We therefore urge the Justice Department to deny preclearance to the proposed changes replacing the directly elected New York City community school boards with CDECs elected by PA/PTA officers.

Sincerely,
Margaret Fung Khin Mai Aung Glenn Magpantay
Executive Director Staff Attorney Staff Attorney
Youth & Education Voting Rights Project
Project

FROM: Carolyn Prager:
On May 13, 2004, the DOE revised Chancellor's Reg. D-140 regulating the selection of parent members of the Community (District) Education Councils. The revisions supercede those of January 14, 2004 which provided the basis for pre-clearance by the US Department of Justice.

The revised regulations provide for a run-off in the case of a tie or an insufficient number of nominees being selected by the PTA/PA officer selectors who cast votes.

The May 13 revisions, however, make two significant changes in the "selection" voting process:

1. In the run-off elections, PTA/PA selectors cast only ONE vote each, instead of TWO.
2. If all seats are not filled as a result of the run-off, the independent agent managing the selection process (KPMG) will determine the winner (s) by lot.

The January 14, 2004 regulations implemented the voting system approved by the US Department of Justice. That system included a "limited voting system" whereby each PTA/PA selector would cast TWO votes. In the DOE's own words, the limited voting system was "designed to ensure equitable presentation
of the parent population within each district, and compliance with Section 5 of the Voting Rights Act" (footnote 3,revised regulations).

The Department has changed horses (yet again) in mid-stream. The question is really the extent to which they are still in compliance with Section 5 of the Voting Rights Act. Considering that over 66% of the 32 school districts have had to conduct run-off elections, this is a serious concern.

On May 25, 2004 the NYC DOE changed Chancellor's Regulation C-37 regulating the selection of community district superintendents. The revised reg. supersedes that of November 20, 2003 which superseded that of ...., etc.

Under the revision, the Regional Superintendent will recommend "a" candidate and will "consult" on that candidate "with the district's Presidents' Council as well as a representative of the UFT, the CSA and DC 37.1." The Community District Education Council is not mentioned in the consultation process, even
though State law gives the CDEC's the responsibility for evaluating the district superintendent.

The relevant portion of the text is copied below.

CONSULTATION WITH PARENTS AND STAFF
The Regional Superintendent shall propose a candidate for community superintendent and shall consult with the district's Presidents' Council as well as a representative of the UFT, the CSA and DC 37.1
Such consultation shall include convening a meeting at which the members of the Presidents' Council and the employee representatives listed above have the opportunity to meet and talk to the candidate,
and to provide feedback to the Regional Superintendent. III.

SELECTION AND APPOINTMENT
Following the consultation set forth in Section II, the Regional Superintendent shall recommend a candidate for community superintendent to the Chancellor. If the Chancellor accepts the recommendation, he shall appoint the community superintendent. If the Chancellor rejects the recommendation, the
Regional Superintendent shall propose another candidate, and the procedures set forth in Sections II and III shall be repeated.

Carolyn Prager
APRPE
Advocates for Public Representation in Public Education