Vanguard Commentary: Why We Are Not Pursuing A Brown Act Complaint Against the District

Board President Alan Fernandes
Board President Alan Fernandes

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

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. Tia Will

    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”

    I am in complete agreement with the decision of the Vanguard not to litigate this matter for the reasons stated. The Vanguard has already done its job in this case which I see as to raise public awareness of the issue and to provide a forum for discussion which appears to have been quite lively although I have been “off the grid” for the majority of the conversation.

    I see the same issue as being at stake whenever the decision is made to litigate a matter in which those who suffer will be those who have no voice in the matter,  in this case, the children in the schools. I feel that a critical question that should be asked prior to deciding to litigate is will this action help, or harm the population that I feel is being poorly served. For that, I am proud of your choice and fully supportive.

  2. Don Shor

     It even looked like the motion had been typed out before hand and two of the Board members were looking at it as the motion was being made,”

    I think that bears further investigation, as well as the apparent decision to ignore or marginalize the AIM Advisory committee.

    1. wdf1

      Don Shor:  ...apparent decision to ignore or marginalize the AIM Advisory committee.

      Public comment, staff comment, and I think board comment at the June 4 meeting indicated that the AIM Advisory committee was as divided as the array of public comments.  That the AIM Advisory committee was unable to offer recommendations because of the level of disagreement.

      1. DavisAnon

        Don Shor is correct. The Board has made no attempt to communicate with, attend or otherwise involve the AIM committee in this discussion, and at least one Board member was outright disdainful of the work done by the Board in their discussion of the testing issue.

        1. wdf1

          DavisAnon:  The Board has made no attempt to communicate with…

          AIM Advisory Committee recommendations and communications were made to the board through Matt Best at the June 4 school board meeting (click on AIM Master Plan Recommendation).  Recommendations weren’t clear according to Trustee Fernandes,  who said, “clear as mud.”  AIM Advisory Committee member Elaine Talley was cited as noting that the committee was divided.

  3. ryankelly

    I find it absurd that you would even consider legal action over just the part of the motion dealing with differentiated instruction.  I don’t think any one has complained about this part of the motion.  If it is purely a matter of being a Brown Act issue, why no criticism of Sunder’s commenting at the last meeting, when Board member commenting was not on the agenda.  Sunder seems to be immune from any complaint here.

    The AIM advisory committee has been useless. From reading through their minutes, it appears that they have meetings once a month, have identified problems, but have not ever brought forward suggestions to rectify anything.  One example is a question posed about whether a child has ever been removed from the program when it is clear that the placement is a not a good one for the child. The answer was No.  Once the child is placed in GATE, they are only removed if a parent requests it, because to do otherwise would be too upsetting….for the parent.  Thte committee then moved on seemingly finding no problem with this policy.

    The staff have been directed to come back with a plan.  Is the committee meeting to discuss this and offer their recommendations?

    I read the agenda item, then read the study and tuned in to see what the Board would do with the information.  The only thing that surprised me was that change was finally happening.  I thought it would be the same old passing of the buck.  I support the Board’s actions in finally doing something to dismantle a tracking scheme that is divides out children at age 8 into gifted and non-gifted tracks.  The current parents may feel that this has snuck up on them, but we’ve been talking about this for many years.

    1. David Greenwald

      “If it is purely a matter of being a Brown Act issue, why no criticism of Sunder’s commenting at the last meeting, when Board member commenting was not on the agenda. Sunder seems to be immune from any complaint here.”

      Because the board took no action last week. Sunder was within her rights to make a comment or not make a comment, just as the public was allowed to make a comment. There was no motion, no action. Sunder will be criticized when the need arises.

    2. Davis Progressive

      ”  I don’t think any one has complained about this part of the motion.”

      you obviously didn’t watch the school board meeting this past week or two weeks ago.

      1. ryankelly

        Yes, I did.  What I heard was at least two teachers who took the time to come to the Board meeting to tell them, and the community, that they are already using differentiated instruction in their classrooms with good success and have taken advantage of training made available to help them in doing this, including teacher training for GATE identified students.




        1. Don Shor

          I wonder what percentage of teachers are taking advantage of that training. I do want to say that there are always good teachers who go the extra mile to ‘differentiate’ their students at every level. And this whole conversation must be incredibly frustrating to them. But I would love to ask them privately how many of their peers they feel would be appropriate to teach the spectrum from special needs to gifted — and still give the right amount of attention to those kids in the middle.

        2. hpierce

          Don… meant as a gentle chide…

          “… spectrum from special needs to gifted”. I opine that “gifted”=”special needs”.  I opine that they are not that different, as to ‘needs’.  They’re kids.  As are the folk in the middle of the bell-curve.  The more we focus on what could be called the ends of the spectrum, the less we focus on the true objective.  We need, IMO, to focus (multi-tasking) on the ENTIRE spectrum.

          1. Don Shor

            As noted before, my child was both GATE and special ed. I always considered them comparable as to their value and importance to that child’s learning. I think that it harms kids in the middle of the curve when you have significant numbers of kids at either end who need special attention.
            My other kid, by the way, was not tested for GATE nor would it have been useful or appropriate.

    3. Don Shor

      Board member commenting was not on the agenda.

      I don’t think board members ever need any special permission to state their opinions. I guess they can’t discuss action items or effect policy unless it’s been noticed, but there isn’t anything precluding an elected official from speaking. I could be wrong about this, and would like input from people who know Brown Act law better. It really seems that the board majority is hiding behind process, misusing process, and failing to clearly explain their guiding principles and goals.

       I support the Board’s actions in finally doing something to dismantle a tracking scheme that is divides out children at age 8 into gifted and non-gifted tracks.

      Thank you for making your position clear. What they are doing is dead wrong, in my opinion. Age 8 is exactly when children can and should be assessed for this and put into tracks that are appropriate to their learning styles. We’ve been doing that for generations. The only question is whether it’s better for some, most, or all of those identified to learn separately most of the time, some of the time, or all of the time. So I’m going to assume your statement that I’ve quoted is not absolute (based on prior discussions we’ve had). But what the board is doing could be very harmful to those who need GATE, is likely to be very unsatisfactory to those who want GATE, and will probably not benefit those who are not in GATE. So why are they doing it? And why do you and others care so much about it?

      1. hpierce

        Don… “eight” is not the ‘exact’ age.  I almost got kicked out of kindergarten at age 5 (barely), because I was reading Winnie the Pooh’ on my own [yeah, parents supported it], already had strong math skills, and the “professional teacher” thought I was too immature, because I ‘couldn’t keep up in the ‘Dick and Jane’ books (I was pages off when she called on me, because I was reading later pages, to see how the story turned out).

        She told the administrators that she thought I was either too immature, or possibly ‘retarded’.

        There are 7 year old kids in High School.  Rare, but it happens.  They do well academically, but there is a huge social divide.  “gifted” can equal “special needs”.

        Oh, and my parents only had HS education, and came from ‘blue color’ families. Except for my Aunt, I was the first member of the family to graduate college.

        1. jrberg

          This made me laugh.  When I was a kid (in the fifties, guys), my mother was frequently called in for parent teacher conferences because “I wasn’t paying attention.”  Nope – I was reading ahead, and had no clue as to where the rest of the class was in the book.  At the beginning of the ninth grade, my mother was told that I should pursue vocational (shop) studies only.  I survived, in spite of the categorization.

        2. hpierce

          jrberg… if you’re the guy who has served many years on the BAC, I need to contact you ‘off-line’, and we need to do coffee (again), or a beer, or something.  We have more in common than I thought.  Feel free to contact me @

          Glad I brightened your day.

          In Second grade, my parents were called in because the teacher believed I cheated, and had my parents do my homework.  I wasn’t using “2nd grade words”… they were “6th grade words”… Dad challenged back, “ask (the child) what the definition of any word used, means”.  The Principal did, and understood there was no ‘cheating’.  Dad would not allow me to use any word I didn’t know the definition of.

          Same year, got in trouble with the teacher who had us write what we did over the summer.  I was a lazy kid, so I wrote that “I travelled in a Comet from Mercury, and went to Mars”.  Every word was true.  We had rented a Comet (made by Mercury), and visited the birthplace of my grandfather… Mars, PA.

          Yeah, always have had a slightly perverse sense of humor. That was genetic.

        3. jrberg

          Yes, guilty as charged.  Longtime BAC Chair, and now, through no fault of my own, Bitsy (BTSSC) Chair.  I’d be happy to buy you a beer, and any others of this community as well, and will be contacting you at your email addy.

      2. ryankelly

        If it were smaller and dedicated to children who truly needed it, then it would not be so divisive, but really it has become open to nearly any child with parents who have money and time to maneuver through the admissions process.  Now we have more students identified than spots and a lottery implemented.  What happens to that child that needs a self-contained GATE program, but didn’t win a seat in the program, because another child who is doing well in a regular classroom, scored in the 70th percentile on the OLSAT, no identifiable risk factors, but who has well-educated parents with money and time, moved in ahead of them.   I just can’t believe that people are defending this program – the way it has quickly expanded over years and the way it is being run.   Or why they are protesting any change that would offer an appropriate education to children in regular classrooms and leave the self-contained classrooms to those that really need it.

        1. ryankelly

          Yes.  This seems to be viewed as an part of an overall plan to dismantle or eliminate the program.  That’s what Sunder, Poppenga and his wife and others are spreading around.

          Then there is the District’s sole use of the CTONI test to serve as the re-test for students with all sorts of risk factors that the test was not designed for, which hasn’t been addressed.

          The direction I see the Board going in is to find a way to better identify GATE students who need a self-contained program, need that separation, as opposed to GATE and high-achieving students who don’t need to be separated out and can get an excellent education in their neighborhood school with creative programs and differentiated learning – like Davis schools were for many decades before GATE expanded beyond the two tracks at Valley Oak.   Students can be clustered to provide a critical mass of students to make differentiated instruction easier.

  4. Anon

    I doubt the Vanguard would win in any Brown Act legal challenge bc the Brown Act issue is just too murky.  However, I do believe the School Board, when they fired the AIM Director prior to public input about any changes to the AIM program gave the appearance of making a decision outside the public purview.  Undoubtedly this could give the DJUSD problems when it goes to ask for the continuation/increase in a school parcel tax.  It was not a smart move by the School Board, whether or not the Brown Act was technically violated or not.

    As to the AIM issue itself, I used to teach 8th grade and junior college, and have had three children go through the DJUSD schools.  IMO the easiest way to teach all children, whatever their issues, is to team teach and separate students more or less by ability level. What is interesting, when that method is used, is that very often the “slower” students end up nearly catching up to the “brighter” students.  This is because the teacher is given fewer students in the “slower” class, so the “slower” students can get more individualized attention.  The “brighter” students can be given enrichment programs to do on the side to keep their minds very active.

    Now this system is not without its problems.  I had a student come up to me one time and ask me, “I am in the dumb class aren’t I?”  My response was, “Every student learns at a different pace, but it does not make them dumb or smart.  The important thing is that everyone learn the material.”  Interestingly, my students, who were “slower” than all the other teachers’ students (as a beginning teacher I was not permitted to have the brighter students), scored higher than the other teachers’ students in a test as to whether students could go on to a more advanced class in high school.  I never gave up on any of my students, tried as best I could to accommodate each of their needs as individuals, and instilled in them the belief that they could master the material – and almost all of them did.

    None of my own biological children were in the AIM program, but one was in Transition Academy – which was a disaster, where all students, whether trouble makers or learning disabled, were lumped together and never tested for learning issues.  Trouble makers bullied the learning disabled students, and the teachers pretty much ignored both.  I did a ton of home schooling with all three of my kids – I could not wait for the schools to “get it right”.

  5. Tia Will

    ryankelly and don

    Since I have no vested interest in this program, I feel that I can be fairly objective in relating my experience, not regarding the students themselves who are sorted into the program, but about the potential pernicious actions of their parents. While I understand that there are children such as yours Don who benefit from the program, I am strongly against private testing until your child gets in.

    When my daughter who was very academically advanced in elementary and middle school was of the appropriate testing age, she took the standard test and missed passing by a hair. I have always wondered if this was an accurate depiction of her capability, or if she did not put in effort since she did not want to go to Gate. So why, would we have her tested in the first place ?  She had been recommended to advance a grade twice by the time she was eight or nine, and her teachers felt she might be a good candidate for Gate. This was not the problem. The problem was a small consortium of parents with children at my daughters grade level, who along with their obviously coached children waged a major campaign to ensure that my daughter got testing. Under pressure, how much I did not realize at the time, she agreed to take the test…..just to see. When I became aware of the depth of the problem was when she did not test in, an outcome that she was happy with, and the same group of children and parents began their campaign to see that I got her private testing because everyone “knew” that she should be in Gate. To my daughter’s credit she stood strong and informed me that she was done testing and wouldn’t go to Gate even if she tested in, citing the pressure from her peers as one of the reasons that she didn’t want to go. The pressure reached a level that I considered harassment, and I actually had to go so far as to ask one parent to “stand down” on the issue and to stop her children from  pressuring my daughter.

    Gate seems to serve a valuable service for some individuals. However, I do not believe that it is true that in the previous form with the widespread private testing that it might not serve as a detriment both to some who test in, and for others who do not.


    1. DavisAnon

      Repeated private testing is impossible for at least the past 4 years. I cannot speak to what may have once occurred. At the June Board meeting, the current private testing policy implemented in -2011 was included in the materials. Each child, whether tested by the district or via private testing, is entitled to only one potential rescreen test per year. There is absolutely no exception to that rule. The time, date, and psychologist must be given to the district prior to any testing and no allowance is given for ANY changes or deviations from that. If the district would offer one rescreen to all children, there would be no private testing at all, but I suspect it may be too expensive as it’s currently  only offered to certain subgroups. I can’t speak to past decades, but this policy is currently very tightly enforced by the AOM coordinator Ms. Quinn (or was before the Board fired her).

      1. ryankelly

        Parents get around this by having their children tested starting in kindergarten and then having them retested every year until they get the result that they want.  The district would still make the children take the OLSAT before finally accepting the private test results when the child was placed in the AIM lottery for 4th grade.  Certain psychologists were favored, or at least recommended, over others due to perceived desired outcomes.


        1. DavisAnon

          If that’s the case, the fault lies with the psychologist and the district (AIM coordinator) needs to be made aware. I believe there were certain psychologists whose testing results were called into question by the coordinator due to questionable practices in the past.

    2. hpierce

      Tia… if someone is “on the bubble” (if you’ve ever used a level) it doesn’t really matter.  GATE/AIM, and “special ed” is about the “outliers”… first and second deviations.  ALL children, whether near the mean, or out at the first, second (hell, third) deviations should have the parents, school distict, general society looking out for their interests.  Period.

  6. Tia Will


    Agreed. But that does not affect the point that I was making that there was and I suspect still is an implied elitism around the Gate program that can be used by both parents ( who presumably can take care of themselves) and children, who are often less skilled at handling peer pressure that can adversely affect those not selected for the Gate program. In the specific instance that I was discussing, the Gate identified neighbor children were telling my daughter than if she didn’t go to Gate, she wasn’t as “smart” as they were. I doubt that they arrived at this conclusion without some superiority being implied by some adult, in this case, their mother. My interpretation of Don’s comment was that he did not feel that there were serious consequences for those not selected by the process which allowed for private testing followed by a lottery. I am not so sure that this is true because of this “elitist” perception which used to exist and I suspect still does.


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