On June 4, 2015, at approximately 11:30 pm Susan Lovenburg, from a prepared motion, put forth a multi-part motion that was passed 4-1. It moved to eliminate private testing to qualify students for GATE/AIM beginning with those to be admitted in the 2016-17 year. It directed the Superintendent to have staff review and recommend assessment protocols to be implemented in screening students beginning in the 2015-16 school year.
Further, it directed the Superintendent to develop a plan for the district which fully implements differentiated instructional practices in all classrooms.
The Vanguard acknowledges that the move to eliminate private testing was sufficiently noticed, as it falls under the realm laid out in the agenda of updating the AIM Master Plan. However, the Vanguard continues to believe that, when the district moved away from the specifics of AIM testing and directed “the Superintendent to develop a plan for the district which fully implements differentiated instructional practices in all classrooms,” it was not noticed to the public and thus in violation of the Brown Act.
The Vanguard issued a low level request of the district – all they had to do is cure and correct. All that would have been required of the district was to rescind the vote on the motion taken at 11:30, then they could have proceeded to hold the public comment they did last Thursday and bring back the item for discussion in September, fully noticed for the discussion and changes.
Instead, the district refused to do that. A July 2 letter from DJUSD Attorney James Scot Yarnell argued that the motion regarding “differentiated instruct… was also properly referenced on the agenda. Differentiated instruction and assessment is a teaching methodology that involves providing different pupils with different avenues to learning in terms of: acquiring content; processing, constructing, or making sense of ideas; and developing teaching materials and assessment measures so that all students within a classroom can learn effectively. The agenda description ‘AIM Master Plan Recommendation’ was sufficient to inform members of the public interested in differential instruction that the Board would be discussing that subject in connection with action on the master plan, for AIM materials.”
Come on. How one can arrive at that conclusion is beyond me. But just to cover their bases, the district adds, “Even assuming for the sake of argument that the agenda did not refer to the differential instruction topic with enough specificity, the Brown Act specifically exempts certain ‘non-substantive’ matters from the agenda requirement.” In this case they argue in effect that, because all they do is direct staff to take bring back the issue, they are covered. So if the Board asked the staff to do a report on “teaching purple dinosaurs,” would it be permissible under the Brown Act? I’m intentionally being absurd, but you get the point.
The action by the district forced the Vanguard to make an unpleasant choice – we could litigate the matter or we could accept the findings. By litigating the matter, we would be taking resources out of the classrooms and away from the students. The very people we were trying to protect would be harmed by such an action. And the very people who did the original harm would be untouched by this action.
Given that we have raised the matter, and the district has been forced to defend itself publicly, we do not believe that pursuing this matter at this point is in the best interests of the students of this district. Therefore we will not litigate. It is unfortunate that the district did not undertake the costless action of simply walking back the vote.
We very much disagree with the district’s conclusions here.
It is worth noting that, earlier this week, the Davis City Council had an item that authorized the city to implement a JPA on the use of Measure O funds for a conservancy project. However, City Attorney Harriet Steiner told the council that moving to a general discussion of Measure O and acting upon it was beyond the scope of what was noticed.
Measure O, in fact, was at least listed in the agenda, but the city’s attorney was quick to prevent the council from moving beyond the scope. Unfortunately there is no such attorney sitting at school board meetings to prevent the board from inadvertently violating open meeting laws.
We very much disagree with the tortured reasoning of Mr. Yarnell, attempting to argue that a reasonable person – which is the standard of the Brown Act – would be aware that a discussion of differentiated instruction was in the works when the agenda briefly noticed an update of the AIM Master Plan.
Moreover, the idea that this was a non-action is also specious. I believe if we look at the totality of the circumstances here, we can see clearly that this is an action – and a major one at that.
The Superintendent two weeks ago announced, “In response (to the motion) I will be working with district staff to develop a plan to meet this directive. Our goal is to bring options back for Board consideration in the fall.”
But, while the Superintendent brings options back, major changes have occurred. While the Superintendent states, “All students currently enrolled in a self-contained AIM classroom are NOT affected by any possible changes to the AIM program,” the board majority voted 3-2 to deny renewal of the GATE/AIM coordinator’s contract. That by itself is a major change that belies the idea that no change has occurred.
As of June 4, 2015, “DJUSD will no longer accept private testing as a means to identify a student for the AIM program. Again, this does not have any effect on students who qualified as AIM identified prior to that date,” but it does make a major change in going forward.
The Superintendent takes steps to mitigate the change, assuring parents that the change in leadership does not mean that the AIM program is ending. However, those changes precipitated two hours of public comment at the end of June, and two weeks later on July 9.
Heema Govindjee-Merchant expressed disappointment with the decisions regarding the AIM program. “I do not understand why you have chosen not to reinstate Deanne Quinn as the AIM coordinator. By doing so you are not representing me or other AIM families with this decision. You have not given us any opportunity to give our opinion and it seems as though you have made your decisions before even coming to the meeting… I am very disappointed. I have lost my trust in you.”
She added, “AIM families are surprised and in fact shocked about the way in which you have voted. They are saying shouldn’t we be notified or surveyed about our experience in the program prior to the board making decisions that will define AIM and change the way it operates in the future.”
Christine Farnum expressed concern about the process. She said that she’s been paying attention to the school board meetings, but “I was completely blindsided by these two decisions, didn’t expect them, didn’t see anything about them on the agendas or have any reason to expect that the process for eligibility would be so drastically changed and that the coordinator would be eliminated.”
She added, “I’m not the only person that feels blindsided and whose trust in this and the board has really been shaken.” She said, “I know that GATE can be a divisive issue in our community. People feel like it creates a divide. These last two decisions have created a huge gap.”
Just how disguised were these changes? They were not readily apparent to a member of the AIM advisory committee. Last week, former candidate for school board Bob Poppenga argued that the AIM Advisory Committee was “effectively sidelined” during these discussions.
One of the members told the Vanguard that they were in attendance and were “expecting a focused discussion and take back considerations. Instead, a motion was made to radically change the program. This motion was made after public comment was closed. It was near midnight and the length of the meeting had already been extended twice. I was incredulous at was happening and felt helpless and unable to speak. I had no idea that action would be taken on private testing, identification, and differentiation.”
“I felt deprived of the opportunity to provide input on the moved items. These items were not on the agenda, not discussed and were so radical that It seemed like a well planned coup to get what specific board members wanted. I felt like this was set up and was planned prior to the meeting. It even looked like the motion had been typed out beforehand and two of the Board members were looking at it as the motion was being made,” they said.
By structuring the motion and meeting as such, the public was not expecting these particular issues to be discussed. As such, a highly contentious issue was approved without much in the way of feedback from the affected population. While they will later get to weigh in on the policy, the board side-stepped scrutiny and procedural projections.
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.”
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.”
As such, the Vanguard remains steadfast in our belief that the public process was short-circuited and that the Brown Act was violated. However, the refusal by the district to submit to cure and correct forced the Vanguard into a difficult choice and we chose to avoid what happened last year – when it was learned that the district spent $22,000 investigating whether the cutting of a volleyball player from the varsity squad was a retaliatory action by the coach.
In our view, we have better uses of scarce resources than to litigate this matter. And so we will be the ones that back down in the legal arena.
—David M. Greenwald reporting