April

12, 2013 Arne Duncan Secretary of Education 400 Maryland Avenue SW Washington, DC 20202 Dear Secretary Duncan: I write to bring a matter of grave and immediate concern to your attention. The Department of Education has advised us that the preference Success Academy Charter Schools (Success Academy) gives to English Language Learners (ELLs) likely violates the Federal Charter Schools Program (CSP) Grant we receive. Accordingly, the DOE has ordered us to stop spending our CSP funds effective immediately. The Departments position is both legally and morally wrong. Language barriers cause students from non-English-speaking families to apply at lesser than average rates. Consequently, Success Academy has for several years given a preference in its student lotteries to ELLs. In fact, New York State law requires us to make good faith efforts to enroll ELLs at rates similar to District schools. NY Education Law 2852(9-a)(b)(i); 2851(4)(e); 2854(2)(a). Given this provision of New York State law, the Federal Law governing CSP grants can easily be interpreted to permit an ELL preference. 20 USC 7221i(1)(K). The Department, however, is threatening to withdraw millions of dollars in federal support to penalize us for providing this preference. This is unconscionably bad policy, particularly at a time when there is a national concern about meeting the needs of immigrant families in this country. Moreover, it imposes a cruel Sophies choice on Success Academy. Either we must abandon our ELL preference, and therefore serve fewer students from this needy population, or we must cut millions of dollars from our program, which will harm most of all these very same needy students who most require the extra resources and robust programming Success Academy offers. Because we were recently advised of the Departments position, we have already told families that admissions granted pursuant to an ELL preference are subject to the Departments consent. However, if in fact we are actually going to deny admissions to students granted an ELL preference, it is only fair to those families that we advise them soon so that they can make other plans. We intend to do so on April 19th and to apply simultaneously to our authorizer to eliminate our ELL preference. While we do not wish to do so, the millions of dollars in funding that your Department is threatening to withdraw is a gun pointed at our head. We urge you to change the Departments ill-considered policy immediately before we are forced to take this drastic step. It will do untold damage to the charter school movement and

confirm the suspicions of many that we dont want to serve the most needy students. The fact that the Federal Department of Education is behind this push to ignore the needs of ELLs is something that many will rightly find both astounding and inconsistent with the Federal governments historic commitment to advancing civil rights. Sincerely, Eva Moskowitz Chief Executive Officer Success Academy Charter Schools Phone: 646-747-6202