UCD Law Professor Argues GATE Lottery Based on Dubious Legal Advice

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gateCurrent 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

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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18 thoughts on “UCD Law Professor Argues GATE Lottery Based on Dubious Legal Advice”

  1. B. Nice

    I’m unfamiliar with the laws regarding this issue but it seems that the the district is more vulnerable to lawsuits using a lottery system for placement. If I understand it correctly a child with highest score could potentially not receive a spot in the program? Could the parent of this child sue the district for not meeting the educational requirements of their child. (Maybe the district can address this by providing an IEP for this child.) While I’m not convinced one way or the other that self-contained GATE (or AIM) classrooms are the best model, not providing spots for the highest scoring kids seems wrong. If the district is going to offer this program then they should provide enough spots for every qualifying child.

  2. Mr.Toad

    “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.”

    Another solution would be to get rid of the test as a bar to qualification allowing any student who would like to try to participate in a high rigor program the opportunity to participate. Does anyone really think that a 90th percentile tester would water down the program. The problem with the program as currently structured is picking an arbitrary score and making it the hurdle that must be passed. There will never be a satisfying solution until we get rid of the test score as a dividing line.

  3. JustSaying

    As I remember, this whole business got started when the Russians got ahead of us and we looked for ways to get our smartest even smarter and more educated instead of being held back by the averages.

    But, something went off the tracks when we started feeling guilty about giving privileged education to the best and the brightest (B&B), the gifted and talented (GATE).

    To justify the special attention and expense, we added the concept that the unusually smart students (USS) need special education(SE) not to help them advance faster and more effectively, but because inherent in their measurable smartness is some kind of disability that inhibits their ability to learn.

    Once it was accepted that educators may invest extra in our smarties because they are–in a different way than the otherwise disabled–unable to learn in the regular environment, that opened the gates.

    We’ve now added a pile of “risk factors” that fuzz up the original targets of special educational focus. Economic disadvantage, environmental disadvantage, health problems, language or cultural disadvantage, and social and economic problems seem almost unrelated to identifying the most gifted and talented.

    Wouldn’t it be better to use the most unbiased, affirmative characteristics to measure smartness? Adding negative, “at risk” factors to the mix seems designed to offset testing bias. But it also confuses the objective and drags the program eligibility toward the middle, toward the less gifted and less talented.

    Obviously, the risk factor concept also adds potential for lawsuits. A new potential is added by the lottery concept. What would happen if the district pleaded budget problems and moved to a lottery for deciding which autistic students get into special education?

    I’m not sure how How are we going to keep ahead of the Chinese (PRC) if we go through all of this commotion trying to better educate our gifted and talented? Coming up with a meaningless collection of three words–Alternative Instruction Model (AIM)–is a waste and is counterproductive.

  4. wdf1

    Larson’s argument might be valid if you believe the premise that everything that is important to the decision can be determined by the standardized tests. But I think that premise is being called into question. It is also being called into question around No Child Left Behind.

    You can be a student who is brilliant enough to test well individually on standardized tests and be a GATE level student on that basis, but at the same time you can be a snotty, self-absorbed kid with limited social skills, leadership ability, creativity, and possibly a weak attention span. I say that because I think I was one such kid, and and only slowly recognized my limitations. (Yes, some here would probably argue convincingly that maybe I haven’t changed.) You can measure the ability to score well on a standardized test, but you can’t very well quantify those other components. There is far more to education than testable content or “brilliance”.

    I think what self-contained GATE proponents are missing is that there is pushback against the goal of quantifying everything that has to do with education. The view that if we apply a scientific, quantified data-driven approach, then we will get the best possible outcome. Or as if we simply apply a good business model with safe assumptions, then success will happen. I argue that the amount that is quantifiable in education is much less than we assume. Just as with science, the amount that we actually know is likely only a fraction of what is out there. Or with a business model, those “safe” assumptions really aren’t safe.

    On this basis, segregating students on the basis of a standardized test score makes about as much sense as segregating students based on height or family income. Perhaps you may find some apparent utilitarian results, but there will always be confounding exceptions, and those confounding exceptions will make any definition for segregation appear arbitrary.

    What teachers are able to do is make student observations along various parameters that are not accounted for in testing. So I tend to agree with Mr. Toad. Why not abolish the tests as the ultimate requirement and leave GATE/AIM available to students with teacher recommendation and space available basis?

  5. B. Nice

    “What teachers are able to do is make student observations along various parameters that are not accounted for in testing. So I tend to agree with Mr. Toad. Why not abolish the tests as the ultimate requirement and leave GATE/AIM available to students with teacher recommendation and space available basis?”

    While in theory I think this is a better way to assess student eligibility, I worry that it would lead to assertive parents insisting that their child be recommended for the program, leaving potentially more “qualified” children, with more passive parents, without a place. I fear that this would actually create a less diverse GATE/AIM population then exists now. I see the lengths some parents will go to in Davis to get their child into their perceived “best” program, (i.e.Spanish Immersion, Montessori, or GATE.) It scares me to think what teachers would be subjected too by some of these parents if they had the power to decide wether a child was GATE/AIM eligible.

  6. wdf1

    B. Nice: [i]It scares me to think what teachers would be subjected too by some of these parents if they had the power to decide whether a child was GATE/AIM eligible.[/i]

    That is a possibility, but I think it is probably better than standardized test alone, because the teacher can evaluate that test score in the context of other factors. And I think teacher morale would gradually improve if they were empowered to make professional decisions that one would think they’re trained to do. If an appeal is necessary, then maybe the school principal could be that person. As it is, teachers and schools tend to be told what to do and how to do it, almost down to the last minute, by legislative fiat. That’s where I think the dumbing down really occurs — most of the individual decision-making ability is taken away from the front lines.

  7. JustSaying

    wdf1, what does GATE provide that should not be available to those who test below, say, 90 percentile or who don’t meet the risk factors? My guess, as a no-longer-deeply-involved taxpayer, is there’s very little technique, resources, etc., applied to GATE education programs that wouldn’t also benefit the rest of our students. My concern is that they’ll be more and more battles like this one, mainly because everyone’s scratching around for scarce resources as we refuse to pay for great schooling. But, you know more about this….

    Your last comment suggests that we should pretty much turn over student evaluations to teachers who then would put student on the appropriate tracks (as designed by the school administration). Is that what you mean? That sounds a little like my days, when some of us skipped a grade in hopes we’d get challenged enough to focus on learning.

  8. B. Nice

    What is happening in GATE classroom that is so different then what happens in other classroom? From my limited understanding the curriculum is basically the same, they just move through it at a faster pace. For example my child’s friends 4th Grade GATE class just skipped 4th Grade math and moved directly into the 5th grade book. If kids are capable of learning at this accelerated pace they should be given the opportunity to. Don’t understand why the district does not provide enough slots for all eligible kids, regardless of how eligibility is determined. (and I agree with WDF1, that eligibility should be based on more then a single standerized test score).

  9. Mr.Toad

    Expand the program so that supply meets demand and let the parents decide in consultation with the schools if they want their kids to try. Keep the test for evaluating potential candidates so that parents who otherwise might not know the program might be in their child’s interest can become informed of options, Some won’t succeed and after some frustrating period of time will get out.

  10. B. Nice

    [quote]Expand the program so that supply meets demand [/quote]

    I think this is the approach the district should take with all of it’s special/magnet programs.

  11. Don Shor

    If you expand the AIM program to include all who want to be in it (or whose parents want them in it), you’d have to make another AIM program for those who really need it.

  12. B. Nice

    I think that AIM should be limited to kids who qualify, but there should be enough spots available to all who qualify.

    There are other options the district could offer for kids who don’t qualify or don’t want to enter the program, but still would like more of an academic challenge. One example is a magnet math school offered in the Ventura Unified School District: http://www.venturausd.org/mound/id2.htm.

    I would love to see our district offer more special programs like the above, giving families more options allows them to find the learning environment that best meets their child’s academic and social/emotional needs.

  13. Hmmmm...

    GATE was a horrible fit for my kids because despite their high test scores, they were not competitive high acheivers. Wish that other parameters were part of the decision making process, like personality and maturity. Some elmentary teachers are amazing but, as a program, we found that the GATE program was simply an accelerated cirriculum, accelerating faster as the years went on. Lots of worksheets. Lots of re-writing and do overs. Lots of sitting. Lots of peer pressure, so that by high school my kids thought they had to take AP Chemistry in 10th grade or they were “stupid”. Ironically, after returning to the “regular” classroom with our younger child we found the DJUSD teachers who were truly flexible and creative, able to reach many different kinds of students and who welcomed and expected diversity. The regular program has provided the AIM for our family.

  14. wdf1

    B. Nice: [i]One example is a magnet math school offered in the Ventura Unified School District: http://www.venturausd.org/mound/id2.htm.%5B/i%5D

    Link didn’t work for me, but I did finally figure out the intended website. DJUSD uses the same math curriculum as this school, [u]Everyday Math[/u].

    JustSaying: [i]Your last comment suggests that we should pretty much turn over student evaluations to teachers who then would put student on the appropriate tracks (as designed by the school administration). Is that what you mean?[/i]

    Yes. Using a standardized test score alone doesn’t exactly tell a parent if GATE/AIM is a good fit or not. Teachers may also identify ways in which a non-self-contained-GATE classroom environment might be a better benefit to a student capable of testing well on GATE identifying tests.

  15. B. Nice

    [quote]. DJUSD uses the same math curriculum as this school, Everyday Math.
    [/quote].

    According to their school description they, “The academic focus revolves around the Everyday Math curriculum, weaved throughout all subject areas.”

    What appeals to me about this type of model is that there is a consistent teaching philosophy throughout the school, which I don’t see in neighborhood classrooms in Davis, where teaching styles and approaches vary greatly from classroom to classroom. In my somewhat unrealistic public education fantasy, different elementary schools could offer different approaches/focuses to learning, even if it was a strand at each school, like Montessori at Birch Lane. Some focused on Math, some on language, some on art and music etc.

    FYI: I’m familiar with the Everyday Math, which I really like, and think is a great approach to teaching Math and critical thinking. ( I do sometimes struggle to decipher some questions when trying to help with homework though 😉

    Here is another link to Mound Elementary for anyone who is interested. Hopefully this one works: http://www.venturausd.org/mound/

  16. wdf1

    B. Nice: [i]What appeals to me about this type of model is that there is a consistent teaching philosophy throughout the school, which I don’t see in neighborhood classrooms in Davis, where teaching styles and approaches vary greatly from classroom to classroom. In my somewhat unrealistic public education fantasy, different elementary schools could offer different approaches/focuses to learning, even if it was a strand at each school, like Montessori at Birch Lane.[/i]

    I like seeing different teaching styles and approaches in the same school. A kid can move around through the grades and learn and figure out what arrangements and interests work well and what doesn’t and never leave the campus. It also allows teachers the freedom to be professionally creative.

  17. B. Nice

    [quote]wdf1
    I like seeing different teaching styles and approaches in the same school. A kid can move around through the grades and learn and figure out what arrangements and interests work well and what doesn’t and never leave the campus. It also allows teachers the freedom to be professionally creative.[/quote]

    I guess I’m thinking about it as more of a general philosophy on a programs approach to education, which could still allow for different teaching styles. From what I understand (my kids are still in grade school so I don’t have 1st hand knowledge) Da Vinci is a great example of this. You know regardless of what teacher your child gets they will be working in a technology based collaborative environment. Within this framework teachers have the freedom to be creative.

    To clarify I support neighborhood classrooms, but I do like the idea of adding additional specialized magnet programs in the elementary schools. Especially as another option to AIM.

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