Did the School Board Violate Noticing Requirements When It Voted to Radically Alter GATE/AIM?

Board President Alan Fernandes believes there was full compliance with section 54954.2, and that the notice provided far exceeded the minimum requirements of law.
Board President Alan Fernandes believes there was full compliance with section 54954.2, and that the notice provided far exceeded the minimum requirements of law.

The school board voted 4-1 to pass a motion, at nearly midnight Thursday, that one school board member says “effectively eliminates our GATE program as we know it.” Board Vice President Madhavi Sunder complained on Thursday night that “there was no notice to the public that today you are going to dismantle self-contained GATE as we know in the DJUSD.”

The Vanguard is contemplating filing a complaint of a Brown Act violation, as the Board agenda reads, “Approve staff recommendation to update (sic) the AIM Master Plan retesting policies in order to provide fair and appropriate opportunities for student AIM identification, one or more retesting options to be used in circumstances for which the universal testing may have hindered performance.”

The motion made by Board Member Susan Lovenburg said, “To provide more equitable access to the AIM program, move to eliminate the use of private testing to qualify students, beginning with students who would first be admitted to the program in the 2016-17 school year.”

It continues, “Further, direct the Superintendent to have staff review and recommend assessment protocols to be implemented in screening students beginning in the 2015-16 school year. The focus of assessment will be to identify students whose needs cannot be met in classrooms which fully implement best practices of differentiated instruction.”

“Assessment will take into consideration multiple measures… Recommended changes will be reflected in the AIM Master Plan to be approved by the Board,” it continued. “Further direct the Superintendent to develop a plan for the district which fully implements differentiated instructional practices in all classrooms.”

Ms. Sunder told her colleagues. “This is a done deal.” “This is a radical change that is being implemented,” she said. “We’re not asking will you discuss this and have a committee to look at in the fall… We’re implementing this without any public notice about this type of a major change in the DJUSD. I’m very disappointed about the process by which this type of major change is being offered here.”

However, there is some dispute over whether this constitutes a Brown Act violation. Board President Alan Fernandes told the Vanguard that the item was clearly noticed as an item for presentation, discussion and action.

During the discussion, Mr. Fernandes told his colleagues, “I don’t read this motion at all to be a dismantling of the AIM program as we know it. I do read it more in the vein of much how we handled other issues, we directed staff to report back to the board with recommendations that are subsequently approved by the board.”

The question with the Brown Act is whether the public could be reasonably informed that a possible action taken by the governmental body, in this case the DJUSD School Board, was forthcoming.

Board member Barbara Archer told the Vanguard that the item was noticed as a discussion on testing, and the motion put forth by Board Member Susan Lovenburg was on testing.

At the outset of the discussion, Board President Alan Fernandes suggested that the issue should come back as a specific meeting just on this issue. Toward the end of the discussion he would reiterate the point.

Indeed, he seemed to recognize there were potential problems with the noticing to the public when he stated, “For purposes of noticing to the public there is going to be another hearing on this prior to implementing for the 15-16 school year. I think that is important particularly in light of the fact that the recommendations that were presented tonight really were about as clear as mud.”

The Vanguard suggested that they simply walk back from the 4-1 vote taken on Thursday. Rescind that. And then notice a new meeting, at that point they could vote however they wished to proceed, but the public would have the opportunity to understand what the board was contemplating and speak to the issue prior to the vote.

Both Alan Fernandes and Barbara Archer seemed to feel this step was unnecessary. However, Mr. Fernandes added, “The bottom line is that this issue is coming back and I already said last night that when the issue comes back it should be a specific meeting just on this issue and I will be sure to make sure there is even more extra notice given.”

Madhavi Sunder said it wasn’t clear from the motion how the district will conduct AIM testing and admit students into self-contained AIM classrooms. She asked how many classrooms this would result in and the answer was not clear.

“I am not defining assessments… I am defining the outcome,” said Ms. Lovenburg. She indicated her belief that “we are over-identifying” AIM students.

Ms. Lovenburg would later explain, “It is a significant change to the current program, and I think it is called for,” adding, “We are giving direction to staff” to develop a new plan for test and that plan will “be brought back to the board for approval.”

The next day Ms. Sunder, who repeatedly raised the issue of proper notice during the meeting only to have her concerns dismissed, told the Vanguard, “To base a midnight decision on dismantling the AIM program on a study that purports to show that AIM neither advances nor harms STAR results in the district is unwise. The entire state has rejected the STAR test as an inadequate measure of student progress. The last thing I would want to see in the DJUSD is the assessment — and subsequent dismantling — of programs if they fail to advance STAR test scores.”

The Vanguard and its attorney will review the noticing for the meeting and compare it against the motion that was passed by the school district. The easiest way to rectify the situation and to make sure the district is fully transparent is simply to rescind the 4-1 vote, re-agendize it, as Mr. Fernandes suggested, as its own meeting and take public comment and then act accordingly.

The process change will likely not affect the final outcome of the vote, as there were four board members in support, but at least the public can come out and know what the issue is about.

—David M. Greenwald reporting

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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50 Comments

  1. Tia Will

    hpierce

    It brought me my first weekend smile.

    Now, on a more serious note, I think David has this one right. The issue here is process, just as for me the issue of the MRAP was process. Major acquisitions and/or process changes should have an opportunity for full community notification and discussion prior to implementation. This is the heart of transparency and should apply equally to our school board as to our city council and departments.

    1. davis forever

      The headline of this article is misleading – the board did not vote to radically alter GATE/AIM at the June 4 meeting.  Due notice for the action taken was provided by item VII.b on the agenda, a staff recommendation to change the AIM identification process as currently described in the 2008 AIM Master Plan (which expired in 2013 and is being revised by the board, piecemeal, in a series of meetings over the last two years).  The board heard the staff recommendation, discussed it, and took public comment.  There was not a board consensus in favor of the recommendation.  A trustee made a motion to give board direction to staff indicating what the board would like to see in a new recommendation on the AIM identification process, with that new recommendation to be brought back to the board for adoption into the AIM Master Plan before the district begins another cycle of identifying third grade students for AIM qualification in fall of 2015.  The AIM identification process change, to be presented by staff on a future recommendation, will be vetted in the community when the time comes.

      1. Davis Progressive

        the title appears to be a question.  the standard of the brown act is relatively low and usually the board/ body can get away from a somewhat divergent motion if it somewhat related to topic on the agenda.  the problem here is that a reasonable person is going to have no way of knowing that the action taken by the board was going to occur.  they have the right make comments.  true the board will bring this back but it will have an air of fait accompli.  making major changes at midnight, that aren’t specifically noticed is an invitation to problems as don shor remarks.

      2. Don Shor

        This is misleading.

        davis forever: “A trustee made a motion to give board direction to staff indicating what the board would like to see in a new recommendation on the AIM identification process, with that new recommendation to be brought back to the board for adoption into the AIM Master Plan before the district begins another cycle of identifying third grade students for AIM qualification in fall of 2015.”

        Susan Lovenburg’s motion included the following: “Further direct the Superintendent to develop a plan for the district which fully implements differentiated instructional practices in all classrooms.”

        Differentiated instruction is a major change to GATE and was not on the agenda.
        Members of PAGE, the group that opposes the current GATE configuration, routinely proposed differentiated instruction as an alternative. If the board is making that change, it needs to be duly noticed to allow for public input. Parents who have children in GATE will want opportunity to weigh in on a revision of this magnitude.

        1. davis forever

          It is the “when it voted to radically alter GATE/AIM” words that are misleading and assume facts not in evidence (like, “have you stopped beating your spouse?).  As for differentiation, it is in the 2008 Master Plan and also in the Professional Development provisions of the strategic plan.  Also it is best educational practices – hardly a secret agenda.

          1. Don Shor

            As for differentiation, it is in the 2008 Master Plan and also in the Professional Development provisions of the strategic plan.

            Differentiated instruction can be provided to GATE-identified students who choose to remain in their neighborhood schools. I don’t find anything else that suggests that differentiated instruction is being considered to replace self-contained GATE. Perhaps I misunderstood what you’re saying. In what context is it in the Master Plan?
            For others who may wish to read it: http://www.djusd.k12.ca.us/aimmp

            Also it is best educational practices – hardly a secret agenda.

            I know this assertion was made by PAGE and by supporters of two of the current board members. That doesn’t make it a fact. It’s an opinion. Those who are in and benefited from self-contained GATE/AIM would obviously disagree.

  2. zaqzaq

    Here is a comment on substance, not process.  The board directed the staff to develop a plan to implement differentiated instruction in all classrooms.   My understanding is that the current contract with the  teachers does not require them to do differentiated instruction in the classroom.   In other words every teacher would have to volunteer to conduct differentiated instruction which is more difficult and time consuming.  I also believe that the classroom size of 30-32 students is to large to properly conduct differentiated instruction.  If this was the direction that the board was going based on this research then why didn’t they include that in the new contract where teachers received a raise.  Is this some deal with the teachers that they will get an additional raise to do the differentiated instruction as a new bargaining point?  It seems rather irresponsible not include this requirement in the contract.

    Currently the gate kids complete the 7th grade math curriculum by the end of 6th grad.  I do not see it as practical to teach two different strands of instruction in the same classroom.  The teachers in our school naturally gravitate to the students that are failing or need more help than the ones that are succeeding.  In the differentiated instruction they are supposed to pay equal attention to all student to challenge the ones that are exceeding the standard as well as those who are following behind.  I do not see that happening in differentiated classrooms.

    There is also a training component.  Does the school district have the funds to introduce differentiated instruction training to all of the teachers?  They should not be doing this unless they are going to train and develop curriculum with different levels of instruction in each classroom.

    1. MrsW

      The teachers in our school naturally gravitate to the students that are failing or need more help than the ones that are succeeding. 

      This is the opposite of our children’s experience in AIM/GATE.  The GATE teachers gravitated naturally to the students who were succeeding and high achieving.  By junior high, you could feel the wind from the speed with which they abandoned the struggling students.  It was the non-GATE teachers who kept trying until they got it right for every student.

      1. MrsW

        There is also a training component.  Does the school district have the funds to introduce differentiated instruction training to all of the teachers?  They should not be doing this unless they are going to train and develop curriculum with different levels of instruction in each classroom.

        This is a terrible thing to say about our teachers and their qualifications to be teaching anywhere, let alone Davis.  Teachers (and the teachers who become administrators) graduate from their respective teacher’s colleges with a background in differentiated instruction and an expectation for diverse classrooms.  It’s Davis that has let a few teachers and administrators in key positions become a kind of lazy.

    2. wdf1

      zaqzaq:   My understanding is that the current contract with the  teachers does not require them to do differentiated instruction in the classroom.

      When teachers have students with an IEP (Individualized Education Plan) are learning in an environment of differentiated instruction.  Students who are English Language Learners have pullout instruction and usually have some accommodations through differentiated instruction in the regular classroom.  So teachers currently have to do differentiated instruction.

      1. zaqzaq

        wdf1,

        How is the IEP plan student’s participation in class differ from a traditional classroom or a gate classroom?  Is IEP home schooled?

        In the examples you cite how do you know that the teachers are using proper differentiated teaching techniques?  A few examples for a few teachers does not equate to an entire school district.  Right now a teacher can ignore high achieving students in a regular classroom because they have met the minimum standard and focus on bringing up those who are failing.  They cannot be forced by the school district to create lesson plans that challenge failing, middle of the road and high achieving students.  If they wanted to introduce differentiated teaching they should have included it in the contract that they just executed with the teachers and identified a training program.

        1. wdf1

          zaqzaq:  I was specifically addressing your contention that differentiated instruction is not a part of the teachers’ contract, therefore they don’t have to do it if they don’t want to.

          If you follow the above link for IEP, it is a component of federal law that is required to make school accessible for students who have one kind of disability or another.  In my case (perhaps also Don Shor’s) one of our children had a cognitive/processing disability.  There was no way he could keep up with the regular curriculum track by himself.  He had certain kinds of accommodations, like doing a portion of homework assignments rather than the entire assignment, and certain accommodations in group project settings to help him do a portion of the project that was manageable for him.  The list was longer, but those are a couple of things I remember that looked like differentiated instruction to me.

          I agree with Don’s comment that the ability and willingness to fully implement the IEP was variable among teachers.  There were teachers who were superb at it, and some who needed prodding.  But the overall strategy was to keep the IEP student in the regular classroom and not segregate them.  For him I could see that if he had been taken out of the regular classroom and put into another classroom, it would likely have negatively affected him socially.  It looks like he will graduate from college this year.

          Anyway, from my experience, it looked like differentiated instruction, and it seems like it’s required to meet accessibility requirements of federal law.  I have a couple of close friends who teach in other districts who tell me that differentiated instruction is par for the course for them, for a range of students, high achieving to ELL to IEP to whatever comes their way.  Just an anecdotal view, but it informs me that it exists and maybe common.

    3. Cat

      Hi,

      Differentiated instruction is a normal part of teaching-it’s also specifically a part of teacher evaluations.   To imply that Davis teachers wouldn’t  differentiate is to call into question the professionalism of teachers in the district-do you really think teachers don’t want to create meaningful  learning opportunities for all students and wouldn’t do it without specific contract language?

      You’re absolutely right, larger class sizes make it harder for teachers to give quality instruction and feedback to all students every day.     I just want to point out, though,  that this is an issue  for all students-not just AIM students.    I am a bit concerned that you see  to see  the classroom as a place where children are competing for resources-where a child who is struggling to understand a difficult concept is taking something away from your child.    Maybe the solution is to have smaller class sizes for every  child.

      I think what’s not being addressed here, is that AIM is an equity issue -over a third of Davis students are identified for the AIM program-and let’s be honest, most of them are middle to upper class whose parents can afford to have them privately tested.    While I absolutely agree that a percentage of the AIM population wouldn’t thrive in a regular classroom-most of them would.   Beyond some of the terrifying things that I have heard parents say about protecting their children from the “bad” children  or the children that “will hold them back”(i.e.  students who are not in AIM)- I think this is an opportunity for Davis to do some soul -searching.   Like-is it really humane that we separate children at such a young age-and create a tracking system that serves the function of prepping 30% of students to take  six AP classes at the high school?  Or what are we teaching our children when we constantly tell 35% percent of students how smart  they are-and then talk about the other 65% like they are at best obstacles and at worst bad influences to the other students’ chances at success?

       

  3. Don Shor

    “Further direct the Superintendent to develop a plan for the district which fully implements diffierentiated instructional practices in all classrooms.”

    Dismantling GATE at midnight before summer vacation without prior notice is much more than a process issue. If they don’t walk this back quickly I expect they’ll face calls for recall. Even the people who hate GATE can’t think this is the way to go about this.

    1. Don Shor

      “differentiated instructional practices” is the opposite of self-contained GATE. “Implementing differentiated instructional practices” = dismantling self-contained GATE.

      1. MrsW

        “differentiated instructional practices” is the opposite of self-contained GATE. “Implementing differentiated instructional practices” = dismantling self-contained GATE.

        When implemented properly, GATE classrooms are extremely diverse.

        It sounds to me like a correction to direction, not a whole new path. Like getting back in the bike lane after drifting into the street.

        1. Gunrocik

          This is a huge step in the right direction.  The Tiger parents aren’t going to like it — but this Board deserves kudos for doing the right thing for all the kids in the District.

  4. zaqzaq

    You think this is controversial just wait until they start requiring students participating in school sports to attend PE instead of being released for a study hall or let out of school early.  My prediction is that this will be the next midnight vote with no notice.

  5. Davis Progressive

    this whole thing is a code racial language anyway.  susan lovenburg is complaining that the there we are over-identifying aim students.  those “overidentified” aims students are minorities.  so she basically wants to go back to when gate was all white and teachers dismissed underperforming intelligent kids and intelligent kids of color and low means.  so if they want to end aim, then end aim.  i’m for that.  if you want to do this halfway measure and keep aim for privileged, high performing, white students, then i think this needs to be called out.

    1. Barack Palin

      if you want to do this halfway measure and keep aim for privileged, high performing, white students, then i think this needs to be called out.

      Why does everything always have to come down to race and white privilege?

      1. Davis Progressive

        it has been a few.  but she talks about less gate identified students, courtailing the retesting, that’s a recipe for reducing the number of children of color.

  6. aaahirsch8

    RE: Potential Brown act Process violations

    Whether the item description on the agenda fully explained its impact is a subjective judgement. If it was deceptive one would expect only one side would have representation at the school board meeting so only their views could be heard…or even more gross, that no one concerned with the issue was at the school board meeting.

    I have heard informally there were ten folks each from both sides of the idea at the meeting, but that is second hand knowledge. Our trusty Vanguard reporter, hopefully, was present, so maybe he can enlighten us if advocates from both sides of the issue were present provide perspective, especially advocates from those who favor the status quo which seems to be threatened by revision of the testing methods.

    Another thought: as I understand it, Under the law, only those harmed, i.e. who were not present, can bring a claim for a rehearing. Is that right? And if so, did the Vanguard have a reporter present?

  7. Gunrocik

    From Davis Forever:

    The board heard the staff recommendation, discussed it, and took public comment.  There was not a board consensus in favor of the recommendation.  A trustee made a motion to give board direction to staff indicating what the board would like to see in a new recommendation on the AIM identification process, with that new recommendation to be brought back to the board for adoption into the AIM Master Plan before the district begins another cycle of identifying third grade students for AIM qualification in fall of 2015.  The AIM identification process change, to be presented by staff on a future recommendation, will be vetted in the community when the time comes.

    As noted above, the board made a motion to give staff direction as to what they would like to see brought back to the Board.

    No final decision was made last night.  The decision was made last night as to what they would like to consider at a future Board meeting.

    Everyone will get to take another shot before the final decision.

    Would you rather they didn’t provide direction, and just left it up to staff to try and figure out what to do in the absence of a majority–and then have to go through all of this again next time?

    The Community now knows what direction the Board is interested in heading and the Community will have plenty of time to review and consider this well before it comes back for final approval.

    Democracy worked, and in my opinion the Board made the right choice for the children in this community instead of getting bullied (again) by the Tiger parents — Mahdavi needs to get over it!

    1. wdf1

      I generally agree with this comment of Gunrocik as to what I saw happen at the meeting, though I don’t embrace the snide comments of the last sentence.  The motion was to formalize staff direction to agendize action on the report at a future meeting.  The formal decision of policy was not made last Thursday, but will be made at a future meeting.

      I think this Vanguard article, as well as the headline of the Enterprise article, School board votes for changes to AIM program, ascribe more than really happened at Thursday’s meeting.  The motion asked the staff to come back at a later time to present what the AIM program would look like if private testing were ended.  The report presentation, and previous board discussions, have offered that if parents did not like the results of the school-offered AIM-identification testing, then they could find private psychologists to retest their kid, and seemingly a very high percentage of the time, their kid would qualify for the program.

      Here’s the link to the video archive of Thursday’s board meeting if you would like to see for yourself.

      1. Davis Progressive

        even if it’s not the final action, it’s still an action.  it would be like saying you could violate the brown act on the first reading of an ordinance because there’s always a second reading, that’s not how it works.

        1. wdf1

          What I see you saying is that you’d have to agendize a vote on whether to agendize an item that you want to vote on as policy.  You could be recursive about this to an extreme, i.e., agendize a vote on whether to agendize a vote on whether to agendize a final vote on policy.

          I saw the vote as a way to clarify the interest of the board so that staff knows what to prepare.  For less contentious issues I have seen the staff informally poll the board for direction.  Because this was a more contentious topic, I saw the vote as a mechanism to clarify agreement around a statement that reflected majority opinion.  The actual agendized item was

          Approve staff recommendation to udpate the AIM Master Plan retesting policies in order to provide fair and appropriate opportunities for student AIM identification, one or more retesting options to be used in circumstances for which the universal testing may have hindered performance.

          Additionally, the Superintendent is seeking Board input regarding the priority topic(s) for the 2015-16 school year
           *Review and Update the Screening Process (implementation of Risk Factors)
               *Additional limitations on private testing (clarified and/or new language)
               *Adjustment of eligibility score (considering the impact on underrepresented)
               *Impacts of the Lottery/Placement Procedures
               *Number of sites
               *Junior High School AIM program/High Achieving program

          source

        2. Davis Progressive

          they could have just asked staff to come back with a recommendation for the more fundamental changes to the aim program than were agendized.  if you watch the comments by alan fernandes, he seemed to recognize that the staff recommendations were in his words “clear as mud.”

        3. wdf1

          DP:   if you watch the comments by alan fernandes, he seemed to recognize that the staff recommendations were in his words “clear as mud.”

          And I agree.  This is one of the most divisive issues in our community with respect to the school district.  The AIM/GATE Advisory Committee couldn’t provide any clear recommendations to the staff because it is divided, and DJUSD being a public run entity, has to discern what the public interest is on the issue, i.e., what does the public want.  And it can’t begin to discern the will of the school board without a discussion in open meeting, per Brown Act.

          That motion was about as clear a statement as you’ll get from the board about that issue.

          And of course it is far from the final word, but it is moving the conversation along.

  8. Gunrocik

    Well said, wdf1.

    While it is a divisive issue, I believe that the silent majority is on the side of the majority of the School District.  I believe the District has been held hostage by a very small but vocal minority of the population that has imposed their will on the rest of us for far too long.

    1. Don Shor

      held hostage by a very small but vocal minority of the population that has imposed their will on the rest of us for far too long.

      Was your child forced into GATE at gunpoint or something? I believe it’s voluntary.

  9. Napoleon Pig IV

    The Lovenburg cabal is at it again. How can “we the people” elect such losers in an educated town like Davis? Why do we have a school board with only one independent and intelligent member in a town of so many smart and supposedly enlightened people? Nancy P. must have been grinning all day about this “leadership.”  Oink!

  10. MrsW

    wdf obseved “DJUSD being a public run entity, has to discern what the public interest is on the issue, i.e., what does the public want.” 

    I am reacting to the “what does the public want” observation.  The way I understand democracy–in a democracy, what the public NEEDS is an informed capable citizenry.  Public school is a critical ingredient to the recipe because “citizens” is everyone.  As a parent/community member/worker/taxpayer, I have expectations of public school, based on this understanding.

  11. sos

    The Davis school board has no intention of ending the AIM program, but they do intend to deal with several issues that the community has grappled with for years. They want a program that is flexible enough to include all advanced learners, not just some. They want an admission process that is administered consistently and legitimately…no multiple tests for some and single test for others…no using a test designed for writing-impaired (blind, dyslexia) to admit 70% of the students after they failed to qualify on the first test. And no private classrooms in the public school system except for students who cannot learn in the regular class (autism spectrum, blind, deaf). While advanced learners may learn better in a classroom without slower students, full inclusion, or students with serious behavior issues, is it right that my student is given a classroom without these issues, but my neighbors “B” student is not. Parents who want a say in what the future AIM program looks like, need to be honest about what has happened to the current AIM program.

    1. Napoleon Pig IV

      A majority of the Davis school board are clearly morons. If you want to know why there isn’t room in AIM classrooms for all who are qualified, ask the pretender who occupies the post of superintendent, or maybe the inept attorney the district paid to write him a custom legal opinion. Oink!

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