How would you feel if your bright child was denied admission to a public school gifted and talented program because another child, who had scored lower on the qualifying test, was accepted due to the other child having a sibling already in that program? You would probably feel angry. You most likely would be upset. You certainly would not feel good.
Yet precisely that unfair, weird, unmeritocratic situation exists today in New York City. Whether or not it is illegal, it is wrong, immoral and should be changed.
Here is how it works. Ever since at least 2008, the New York City Department of Education has used two assessment exams to evaluate children applying to G&T programs. For citywide programs, siblings scoring at or above the 97th percentile will be placed first, by percentile rank. For district programs, siblings scoring at above the 90th percentile will be placed first, by percentile rank. Only after all eligible siblings have been placed will non-sibling applicants be placed by percentile rank.
This process disadvantages non-sibling applicants. A non-sibling applicant for a citywide G&T program who scored in the 99th, 98th or 97th percentile would not be placed until all sibling applicants in the 97th percentile have been placed. For district programs, non-sibling applicants in the 90th or higher percentile would come after all sibling applicants in the 90th percentile.
If G&T programs were unlimited in size, perhaps there would be no complaint. But they are not. Space is limited and admission highly desirable.
This sibling preference policy has been controversial. In 2012 the DOE proposed to eliminate it, but the community opposed it and the proposal died. Such change is overdue.
We are all familiar with affirmative action of various types, but this one is different. It is one thing to champion racial and ethnic diversity in education, especially when it is necessary to make up for past historical wrongs. It is quite another to have an affirmative action program for siblings of bright children. Up to now at least, such siblings were not thought of as a group needing special protection at the expense of non-siblings.
But of course the sibling preference policy is not about siblings. It is about their parents. The sibling preference is, according to State Supreme Court Justice Alice Schlesinger, intended “to relieve city families with two or more siblings of the burdens and complications inherent in having the children attend two different schools.”
Schlesinger made her comment in an August 2013 decision turning back a challenge to the sibling preference policy. That case, B.R. v. Department of Education, was brought by parents of children seeking admission to the G&T program who called the admission process arbitrary and capricious and in violation of the Equal Protection Clause of the New York State Constitution.
In her ruling last summer, Schlesinger dismissed the case. She described as “wholly without merit” the parents’ attempt to classify non-sibling children as a “suspect” category “based on lineage” in order to warrant a higher degree of scrutiny. Instead, she ruled that the DOE need only demonstrate a “rational basis” for its admission policy. The court found, virtually without any analysis, that the sibling preference policy is an “educational policy” that falls with the DOE’s discretion.
“Although the policy and methodology may not be perfect, and although alternative policies and methodologies may exist that are more accurate in identifying and placing gifted students, petitioners have not established that the present policy is arbitrary and capricious or in violation of the law. Thus, their challenge must fail.”
The court’s conclusion does not withstand scrutiny. The purpose of the sibling preference policy is to benefit parents with more than one child. It is not an “educational policy.” It helps parents who might otherwise have to send their children to two different schools. But one child’s parents’ choice to take advantage of a G&T program should not bar another qualified child only because the second child has no sibling in the G&T program. Why does the convenience of the first set of parents take precedence over the second in terms of G&T admissions? On what “rational” basis?
If a sibling of a G&T student cannot get in on his or her own merit, then the parent has a choice: Either arrange for the children to attend two different schools, or withdraw the G&T student so both children can attend the same school. In no event should an otherwise G&T-qualified child be precluded from G&T education because of that choice. The parents, in exercising their freedom of choice, must decide whether they prefer the advantage of a G&T education for one child or the advantage of having both children in the same school. Having one child in a G&T program should not guaranty siblings also get in.
As for “suspect” classification, the court’s treatment is too facile. Discrimination based on family status can be “suspect” and illegal. There was a time not that long ago when the law denied illegitimate children many rights. No more. There was a time when spouses did not have the same legal rights. No more. Sibling preference is of the same ilk. It gives a fundamental legal benefit and opportunity to someone based on nothing more than the happenstance, over which the deprived child has no control.
I have no dog in this fight. I do not live in New York City. I have no school-age children or grandchildren in the city’s school system. I am unassociated with the case.
But from my perspective, as a citizen and a father and grandfather, I think sibling preference policy is at war with meritocracy. It undercuts the reason for the G&T programs. It is terribly unfair to the child who should be in a G&T program but is excluded because of it.
Daniel J. Kornstein is a partner in Kornstein Veisz Wexler & Pollard.