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