Sunday Commentary: DJUSD Board Makes a Bold Move, But Should They Have Waited?


The issue of the DJUSD GATE/AIM program has long been contentious and divisive in this community. The Vanguard is not going to weigh in on the merits of the program, as we believe both sides raise legitimate concerns – both with the current program and proposed changes to the program.

Instead, we believe that, while final action has not been taken on the proposal, the vote should have waited until a specially agendized meeting with full notification to the public about the issues could be held. The public deserves nothing less than to get a full hearing on these issues.

The question about whether the board violated the Brown Act is an interesting one. The board has substantial leeway, however, the law here is instructive, in that the agenda must contain a brief description of each item of business to be transacted. Generally, this is not to exceed 20 words.

According to the California Attorney General’s guide to the Brown Act, “The purpose of the brief general description is to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or participate in the meeting of the body.”

It is difficult to tell what the item synopsis is on the agenda. The requested motion is to “[a]pprove staff recommendation to update 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.”

It goes on, “Additionally, the Superintendent is seeking Board input regarding the priority topic(s) for the 2015-16 school year.” These include: “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.”

The question is whether a reasonable person would know that such a radical change to the program was coming based on the description. This is the point that Board Vice President Madhavi Sunder raised when she said, “There was no notice to the public that today you are going to dismantle self-contained GATE as we know it in the DJUSD.”

The courts have determined that standing is fairly broadly defined. We have the 2003 case out of Orange County (McKee v. Orange Unified School Dist., 110 Cal.App.4th 1310 (Cal.App. 4 Dist.,2003)) where a taxpayer and resident from L.A. County would file a “petition for writ of mandate for an injunction and declaratory relief based on school district’s alleged violation of notice and open meeting provisions of the Ralph M. Brown Act.”

The court in Orange County denied the petition due to lack of standing. It was appealed and the appellate court ruled that the “taxpayer, as a citizen of State, was an ‘interested person’ under Act and, thus, he had standing to sue school district for alleged violations of Act, even though he was not resident of county in which school district was located.”

There were multiple portions of the instant motion. In our conversation with Madhavi Sunder, her biggest procedural concern was the second portion of the motion, which states, “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.”

The first part of the motion, which seeks to eliminate the use of private testing, would be noticed under the superintendent’s request for input regarding “additional limitations on private testing.”

But once the issue gets into differentiated instruction and “developing a plan for the district which fully implements differentiated instructional practices in classrooms,” we have to question whether there was adequate notification. In fact, the word “differentiated” does not appear on even the expanded agenda page.

One legal question is whether the wording, which essentially directs staff to come back with a policy, gets them off the hook.

However, the analysis we see is that “no action can be taken on items not on the agenda” with exceptions of:  Brief responses to public testimony; Requests for clarification from or references of matters to staff; Brief reports on personal activities; When there is an emergency; When two-thirds of the legislative body agree there is a need to take immediate action on a matter about which the body could not have been aware earlier.

The board here goes beyond simply directing matters to staff, by advocating specific policy changes rather than simply asking staff to come back with a policy recommendation on differentiated instructions practices.

There are questions as to how big a change this actually is. Board President Alan 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 key here is that differentiated instruction is a major change to the AIM program and was not agendized. Differentiated instruction can be defined as the manner in which a teacher modifies the core curriculum and designs strategies which addresses the unique needs of gifted students.

There is a tendency to see this as an alternative to a self-contained GATE program. Again, we are not arguing the merits of whether this approach is preferable, only that what the board voted on and approved marked a major change in direction that should have been properly noticed.

If the district did violate the Brown Act they have the option to “cure and correct.”

The Vanguard suggests 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 seem to believe that this step is 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.”

Our view is let us make this as transparent as possible. GATE/ AIM has always been an issue of controversy, so anytime controversy arises, the best step is to make sure any changes are fully transparent, have full community notice and discussion, and then make the vote that the governing body believes is most appropriate.

In our view, that did not happen on Thursday night and many were caught off guard with how big a change occurred – including a board member. If a board member was caught off guard, imagine how citizens in the community must feel.

Let us correct this procedurally by walking back the vote and re-doing the process.  If the Vanguard challenges this, the district will have to defend action on “differentiated instruction” when there was no mention of that on the agenda.  Maybe a judge will agree – but why take the chance?

—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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  1. Doby Fleeman

    Interesting procedural questions – no doubt- but the principal thrust of the current vote appears directed at giving staff the green light to share their professional opinions and recommendations concerning how to best administer the duties  and responsibilities with which they are charged – i.e. prividing the best learning environment to serve their broad community of learners.

    When is the last time the community heard  directly from staff on this profoundly important discussion?

    This is such a politically charged issue with such an outspoken community of advocates for the status quo – how do we ever expect to get honest feedback from those on the line and responsible for delivering on this critically important charge?

  2. aaahirsch8

    As it stands now, we have a “tracking program where 1/3 of student body qualify for AIM/gate track, but only 60% (?) get in due to space limitations. That is grossly unfair is that there is no plan to “enrich” learning for the 40% who ‘qualify” for AIM (15% total school population?) but don’t get in and are “main streamed.”

    It must be remembered that the “theory” that was used to start gate/aim was:  that there are some kids who learn dramatically different than “normal” kids therefore need to be in a separate class room. But when 1/3 of the student body qualifies using the current testing one wonder what “normal” learning style really is.

    While the “winners” in the lottery to get in might benefit, its is then grossly unfair for the other kids who qualified but don’t get in–and no accomodation for them is made in the “mainstream”.  The school board is right in trying to address this …part of this is a critical look at the testing to determine who really needs differentiated instruction vs is just a ‘quicker learner”.

    I personally have some concerns ALL kids are bored sometimes in their classes…even the mainstream. I hope the climate survey being designed by the district start giving the student and parent a voice in the quality of the class room experience instead of only relying on academic testing.

    Those who want to continue the existing program as is should have prepared argument to justify tracking ALL the brighter kids, (??) by increasing the AIM tracks, and why that is the best of the entire school program–i.e. not just good for the “bright” kids, but all kids as compared with other alternatives for differentiated instruction.

    NET: When this item come back before the board, they should looking at the three alternatives that address the current unfairness in the status quo:

    – AIM stream for a much narrower group of students who really need differentiated instruction and an IEP would not work.,

    – Larger AIM program based on Ability group Tracking for all that qualify, not just those who “win the lottery” to get into current “rationed” AIM streams.

    – Individualized instruction within the mainstream class

    1. wdf1

      Hirsch:  Those who want to continue the existing program as is should have prepared argument to justify tracking ALL the brighter kids, (??) by increasing the AIM tracks, and why that is the best of the entire school program–i.e. not just good for the “bright” kids, but all kids as compared with other alternatives for differentiated instruction.

      More fundamentally, those who want to continue the existing program as is should have prepared argument to justify why current private testing policy for AIM qualification is fair and acceptable.  That is the main issue that was discussed on Thursday.

    2. Dave Hart

      Hate to beat a dead horse, but I also agree.  My older son was in GATE in the mid-1980s and our younger son, who is in some ways even more “gifted” did not score as well and was not admitted.  It brought to mind the question of why the same classroom experience could or should not be provided for the entire District.  I am most troubled by the hyperbole of Sunder talking about ending GATE as we know it.  I am reminded of another recent School Board member who had a personal agenda and quit when things didn’t go her way.

    1. Don Shor

      I think at this point it might be useful to have Susan Lovenburg clarify the intent of her motion. It was midnight and the whole thing seems to have been pretty muddled. Perhaps her intent was to clean up the testing process (which was on the agenda), perhaps reduce the overall percentage of Davis students identified/enrolled in AIM — and have the district plan for the consequent increase in need for differentiated instruction in some classrooms (which was not on the agenda).

      I think David has this right about process: they need to walk this back. We’re really talking about two or three different things here.

      If in fact the intent was to dismantle self-contained AIM and go full-bore to differentiated instruction, well, that will be a donnybrook.

      1. Matt Williams

        I concur again with Don. Regardless of how the process unfolds from this point forward, there is going to be at the very least one more opportunity (more than one if the walk back happens) for the public to express its thoughts about how AIM and GATE will operate in the future.

        There will certainly be members of the public who will come to the next meeting with a very clear sense of what they want to see happen, and they will come armed to express their feelings in open political forum. However, there are many members of the public whose minds are not made up. Susan Lovenburg clarifying the intent of her motion is essential to both groups, but especially those whose minds are not made up. Without knowing what is on the table (or what is being taken off the table), is essential to making any informed decision. Not knowing what is on the table is attempting to make a decision on a foundation of sand.

        With that said, Mr. Hirsch’s suggestion goes beyond simply informing the interested parties in a political decision. His analysis and alternatives look at the situation with a professional eye, not just a political eye. His three alternatives also illustrate the importance of School District Staff in helping the decision makers make a professionally-informed, optimal decision. Choosing between Mr. Hirsch’s three alternative is no simple task. Certainly the choice will have its political components (after all the Schol Board is an politically elected body), but hopefully the most important elements of the decision will be in the interests of professional management of the school district, and will be informed by the best possible information from the professionals who work for the school district … and Susan Lpvenburg clarifying her motion would be a major step toward professionalism not politics.

        I’m less concerned about whether the vote needs to be rolled back. There are a lot of similarities between the School Board vote and the first vote the Council made moving the Cannery CFD forward. In both cases, in order for either the School Board or the Council to move forward, Staff needed to weigh in with important details in order to move to the next step. The details that Staff provides will determine whether the School Board has enough information to either finalize their decision or ask Staff for more information. If Mr. Hirsch’s assessment is accurate, I don’t see any way (short of a purely political decision process) that the School Board will be able to confirm the elements of Susan Lovenburg’s motion as School District policy.

          1. Matt Williams

            Functionally I disagree. Legally you may be right. If Staff sees the situation much the same as Mr. Hirsch does in his comment, there is no way (in my opinion) that all the issues will sataifactorily and professionally get addressed in a single meeting. The scheduling of additional meetings will make the noticing issues with respect to the first meeting moot. The first meeting will have become only part of a multi-step professional-analysis process leading up to an as yet unknown decision, rather than the first part of a two-step political decision.

        1. davis forever

          I agree with Hirsch for the most part.

          As one slight caveat, it should be noted that differentiated instruction is part of the Strategic Plan adopted over a year ago, which says: “Strategy 1 – We will develop, implement, and assess a Professional Growth System, consistent with our mission and objectives, focusing first on social-emotional intelligence, differentiated instruction, and inquiry-based learning.”  The Strategic Plan has no “exemption” for AIM-identified students, and moreover teachers of self-contained AIM classes frequently tout the benefits of differentiated instruction, which they utilize daily.  Lovenburg’s motion to include the priority for differentiated learning as part of the AIM program design is not surprising, nor is it a sudden move in a different direction for those who have been paying attention.

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