Current district plans include the extension of a GATE Master Plan with the inclusion of a lottery to select among GATE-identified students, until a new plan can be developed. The name will change to Alternative Instructional Model program.
The question still remains as to how students will be selected into the program. Carlton Larson, a professor at the UC Davis School of Law, argues, “When the Board of Trustees of the Davis school district voted to implement a lottery for GATE admissions, it relied heavily on the legal advice provided by the board’s counsel, who contended that the current method of GATE selection exposed the district to the risk of a lawsuit. As several board members suggested, the lottery seemed to be the only legally permissible option.”
Professor Larson has no kids in the school. He received his law degree from Yale Law School, where he was an Articles Editor of The Yale Law Journal and a co-recipient of the Benjamin Scharps Prize for best paper by a third-year student according to the UC Davis Law School web page. After spending a few years at private practice, he joined the UC Davis faculty where he specializes in Constitutional Law, Legal History, Federal Courts, Criminal Law And Procedure.
He said he writes about, among other things, equal access to public education.
While DJUSD recently made some preliminary changes to the GATE program, most – notably perhaps is the name – this particular problem does not seem to change with the name change. The problem is quite simply “that the number of students deemed GATE-qualified exceeds the number of GATE seats.”
Those students who score in the 96th percentile or higher on a standardized test in addition to students with one risk factor who score at the 95th percentile and students with two risk factors who qualify at the 94th percentile are eligible for the program.
Professor Larson writes, “Under the prior placement policy, GATE classrooms were filled first with students scoring at the 99th percentile, then the 98th and so on down the line. Because the students with two risk factors and a 94th percentile score always came last, they were more likely not to be placed in a GATE classroom.”
He notes that the board has not provided any formal legal opinions on this policy.
He writes, it is his “understanding of her legal objection to this procedure is based on what she publicly presented to the board. The argument appears to be this: The existing selection procedure risked a disparate impact on what the counsel termed ‘protected classes.’ The students who qualified in part because of risk factors were less likely to secure GATE placement than those students who did not. According to the counsel, this consequence was unlawful, and the only solution was to implement a placement lottery from among all GATE-qualified students.”
“Unfortunately, this advice is almost certainly wrong,” he writes.
“As I listened to the counsel’s presentation to the board, I could not believe what I was hearing,” he writes. “Four other UC Davis law school professors, including some of the nation’s most distinguished anti-discrimination scholars, were with me in the audience and they all agreed that the counsel had offered highly dubious advice.”
He argues that there “is obviously no explicit discrimination against students with risk factors, since many will score in the 96th to 99th percentiles,” he said. “Indeed, promising students with risk factors are specifically sought out to be retested with a separate, non-verbal test called the TONI.”
He writes, “Approximately one-third of the students who ultimately qualify for GATE do so by scoring in the 96th to 99th percentiles on the TONI. Moreover, few, if any, of the risk factors constitute ‘protected classes’ under federal or state law.”
And he adds, “But even if they were protected classes, the counsel’s argument still would fail for the simple reason that it proves too much. If standardized test scores are an impermissible basis for GATE placement, surely they also must be impermissible for GATE qualification.”
“If counsel is correct, choosing a threshold of 94 percent with risk factors rather than 92 percent with risk factors also would be illegal, because of the disparate impact on students with risk factors,” Professor Larson argues. “So would choosing 90 percent rather than 92 percent, and so on. The whole program would seemingly be invalid. But not just GATE – the use of the SAT in college admissions and the use of Advanced Placement tests to award college credit would be equally unlawful.”
The professor continues that, “The counsel’s analysis logically extends to any school program that has a limited number of seats.” He suggests if applied across the board it might apply to any situation with tryouts including band, first chair, even the football team.
He notes, “Counsel was asked about this specific example during the hearing, and although the answer was garbled, she seemed to say that in certain circumstances a lottery would be required for filling positions on a sports team. If this is the logical consequence of her argument, then the analysis has gone seriously off the rails.”
While one might expect to see this analysis backed up by substantive legal analysis and authority, he argues, “There is nothing in the United States Constitution, in federal statutory law, or in state law that requires or even suggests that an admissions lottery is required in the circumstances in which Davis finds itself.”
He adds, “No published judicial decision has ever held that a lottery is required to ensure non-discriminatory access to a gifted program. We like to think of ourselves as special in Davis, but it is surprising indeed to discover that the laws themselves operate differently here.”
“The whole issue arose from a complaint filed by a parent alleging differing treatment of two standardized tests (an easy problem to fix). It did not seek a lottery,” Professor Larson continues. “The agreement by which that complaint was settled did not require a lottery either. Yet somehow the lottery emerged as a legal mandate to fend off potential litigation. Perversely, the lottery ‘solution’ will generate precisely the opposite result – lawsuits filed by parents of children rejected by the lottery.”
In conclusion he argues, “There are serious and legitimate issues currently being debated about the size, scope and structure of the current GATE program. But the lottery issue is not difficult. It is not required by any sensible interpretation of the law, has significant harmful effects and should be abolished immediately.”
—David M. Greenwald reporting