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April 12 , 2013 Arne Duncan Secretary of Education 400 Maryland Avenue SW Washington, DC

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 S chools (“Success Academy”) give s to English Language Learners (“ ELLs”) likely violates the Federal Charter School s Program (“CSP”) Grant we receive. Accordingly, the DOE has ordered us to stop spending our CSP funds eff ective immediately.

The Department’s positi on 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 pre ference 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 Yo rk State law, the Federal Law governing CSP grants can easily be interprete d 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 p reference. 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 Sophie’s 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 S uccess Academy offers.

Because we were recently advised of the Department’s position, we have already told families that admissions granted pursuant to an ELL preference are subject to the Department’s consent. However, if in fact we are actually going t o deny admissions to students grant ed 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 19 th and to apply simultaneously to our authorizer to eliminate our ELL pref erence. 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 Department’s 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 don’t want to serve the most needy students.

confirm the suspicions of many that we don’t want to serve the most needy students. The fact that the Federal Depart ment 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 government’s hi storic commitment to advancing c ivil rights.

Sincerely,

hi storic commitment to advancing c ivil rights. Sincerely, Eva Moskowitz Chief Executive Officer Success Academy

Eva Moskowitz Chief Executive Officer Success Academy Charter Schools Phone: 646 - 747 - 6202