District Has Spent Over $17 Thousand on Response to Office for Civil Rights Investigation


The Vanguard has learned that the Davis Joint Unified School District has $17,363.07 in legal fees pertaining to the Office for Civil Rights (OCR) of the U.S. Department of Education investigation regarding the racial impact of changes to the DJUSD AIM program.

DJUSD spokesperson Maria Clayton told the Vanguard, “OCR requested DJUSD provide data and information on a number of issues pertaining to AIM identification after an allegation of discrimination.  The district takes this request for information and the precipitating allegation seriously.”

She added, “While DJUSD staff has spent more than 15 months taking a close look at how students are identified for the gifted program and making specific revisions to processes and procedures for board of education review and action, the request from OCR is an official U.S. Department of Education request that calls for legal counsel and preparation, as this is a complex matter.

“As you know, our assessment of the AIM identification process continues this fall and we look forward to receiving any Department of Education comments on our program,” she said.

Ms. Clayton told the Vanguard that, at this point, there is no timeline for completion of the investigation.  “DJUSD is currently waiting for the OCR response. There is no specified timeline on when that might arrive and what next steps it may include,” she said.

That means that the $17,363.07 is likely to increase, with no clear end in sight.

Board President Madhavi Sunder and Board Member Susan Lovenburg declined comment, and Alan Fernandes did not respond to an email requesting comment.

It has been four weeks since the Vanguard first reported on this investigation – tipped off through the Yolo Leaks site, the Vanguard learned of the OCR June 16 communication to former Superintendent Winfred Roberson.

The allegations are laid out in the letter as: “The Recipient is discriminating against students on the basis of race/national origin by implementing policies and procedures that result in an underrepresentation of African American, Latino, and English Learner (EL) students in the Recipient’s gifted and talented program, known as the Alternative Instructional Model (AIM).”

Second, “The Recipient is discriminating against students on the basis of disability by implementing policies and procedures that will result in an underrepresentation of students with disabilities in the Recipient’s AIM program.”

In the letter, the OCR notes, “We have determined that the allegations stated above are appropriate for investigation under the laws enforced by OCR. OCR will proceed with resolution of the complaint.”

As the Vanguard has reported, the final AIM number not only saw a reduction from 146 down to 72 students, but the number of black and Hispanic students fell heavily.

Back in March, Madhavi Sunder, the board president, asked her colleagues, “Are the racial demographics acceptable?” She suggested we put a pause button on the 98th percentile

Barbara Archer would explain that she was “not ready to talk about the 98th percentile” issue. She also was not prepared to argue that the numbers of blacks and Latinos were unacceptable until the district had finalized numbers.

Alan Fernandes directly stated that he “doesn’t find the demographics acceptable,” but he did hear that the district was looking into ways to change it. He said he is not married to this approach and would be willing to support a change down the road.

Susan Lovenburg expressed concerns that “the protocol put in place hasn’t matched the diversity of the district” as she “hoped that it would.”

This spring, Ms. Lovenburg told the Vanguard, “I believe we are making good progress with reforms to the AIM assessment protocol, and I’m pleased we’ve been able to achieve some measure of consensus on the board in doing so.”

She reiterated, “I do have a concern that the protocol is not yet identifying an AIM cohort that matches the student demographic profile of our district.  I reject the notion that some races or ethnicities have a higher incidence of giftedness than others.”

Alan Fernandes told the Vanguard that, while he is “generally pleased with the AIM reforms relating to the elimination of private testing, transparency of the identification process, and the expanded use of multiple testing measures,” he has continued concern “about underrepresentation of the Black and Latino population.”

However, he added, “I am no less concerned about the impact of the identification process and the program on this population of students than I was even before our School Board unanimously passed these reforms.”

He told the Vanguard, “I do, however, believe that it is too early to make final conclusions of the policy as it has not been fully implemented, but certainly if adjusting the cut off disproportionately and negatively impacts any student population I would consider changing the test cutoff to ensure a better outcome for all of our students.”

Tom Adams, likewise, was hopeful for the new process with regard to consistency and transparency, but he added, “As for African American and Latino/Latina students, this is an ongoing concern and we will need to have the most appropriate assessment for identifying all of our AIM students. The AIM Assessment Team ensures a variety of educators are involved in the identification of students.”

This spring, the board was not willing to pause the implementation of the 98th percentile that would potentially further reduce diversity in the program.

The question is what the OCR will conclude in their investigation.

The OCR has asked the district to provide the following:

  • A narrative response to the allegations contained in this complaint, including a written explanation of the changes to the District’s Alternative Instructional Model (AIM) program for the 2016-2017 school year.
  • The name, title, office address, email address, and telephone number (of the individuals) designated to coordinate the District’s AIM program.
  • A narrative description of AIM services provided at District schools
  • Copies of all written District policies and procedures governing the nomination, referral, testing, evaluation, rescreening, selection and assignment of students for participation in AIM for the 2013-14, 2014-15, 2015-16, and 2016-17 school years. Include any forms used by the District.
  • A narrative description of each step in the screening, referral and identification process for the District’s AIM programs. Describe any committees/teams who participate in the process and the calendar of committee/team meetings.
  • What is the annual timeframe to make referrals for AIM consideration?
  • How do the committees/teams report to the District about identified students?
  • A description of each category under which students may qualify for AIM services or programs.
  • For each category under which students may qualify for AIM services or programs, include a description of each factor that is considered in making the decision and the relative weight of each factor (such as verbal and non-verbal tests, grades/report cards, standardized tests, teacher/staff recommendation, parent recommendation, portfolio assessment, IQ testing, creative ability, and any other criteria used for referral, evaluation, or qualification).

—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. ryankelly

      The way I look at this is that it is a good thing to have a third party that no one can complain about look at the process.  I think that it is money well-spent if it gives a clear decision on whether civil rights are being violated.

          1. Don Shor

            Judging by the OCR experience in Elk Grove and elsewhere, I’d say there is a near certainty that they will find DJUSD in violation. Compliance routinely involves hiring an Equity Consultant; one district I found online had a contract for such a consultant at $25,000/year for three years. I think it’s safe to say this whole episode will cost the district over $100,000 by the time it’s all said and done.
            A good question for the Elk Grove district would be how much it cost them to implement this.

  1. Jim Frame

    Without putting forth an opinion on the substance of the matter, I note that at $500 an hour (rough number) for legal counsel, $17k represents less than a week’s worth of attorney time.  Responding to a complex inquiry — one that involves a lot of data and the methodology behind its generation — takes time and money, even if it’s time and money we’d rather not spend.

    1. South of Davis

      Jim wrote:

      > Responding to a complex inquiry — one that involves a lot of data and

      > the methodology behind its generation — takes time and money, even

      > if it’s time and money we’d rather not spend.

      I would like to think that the AIM/GATE teachers are smart people who have the ability to “respond to a complex inquiry” why not pay them overtime (time and a half after 8 hours on the job) and have them do it vs. paying an attorney ~$500/hr ($1 MILLION/year).  In the rare case that the teachers (and administrators) are confused they can get legal help.

  2. South of Davis

    David wrote:

    > the final AIM number not only saw a reduction from 146 down

    > to 72 students, but the number of black and Hispanic students

    > fell heavily.

    Do you have the exact number (I’m not sure if “heavily” means 10 or 50)?

    1. Barack Palin

       the final AIM number not only saw a reduction from 146 down
      > to 72 students, but the number of black and Hispanic students
      > fell heavily.

      So did the number of white students.

  3. ryankelly

    I don’t understand why it cost $17K to describe the process.  But then I didn’t understand why it cost the City $198K to settle Plaintiff legal fees over our water system.


  4. Dave Hart

    The basic problem is the test itself which, like all so-called intelligence tests, reflects the bias of the test makers.  The federal Department of Education has never been charged with investigating these off-the-shelf tests that school districts use and maybe THAT should be the focus of the investigation.  Meanwhile, what district would have the financial wherewithall to develop their own assessment tools that would meet the goals of non-discrimination and sound educational theory?  $17K for legal fees which will eventually total more like $170K would be chicken feed compared to developing an assessment that isn’t biased.  I only wish the federal Deparment of Education would devote as much in resources to developing a truly objective assessment tool instead of trying to decide if local school districts are using biased assessment tools in a biased way.   But then, that would require action by Congress to direct the Department of Education to undertake such an effort with adequate funding:   That would violate local control!  Catch-22.

    I say eliminate the AIM program altogether and focus on individual educational programs for every kid.  Batch processing is so 19th century.

      1. Dave Hart

        How many kids are already engaged in independent study, home schooling approved by the District, etc.?  I don’t know the answer but I know it involves many or our youth in this community and those who complete such programs feel good about the quality of their education.  So, why would it NOT work here?

        1. DavisAnon

          I suspect that would only happen in families with parents able and willing to take on much of the responsibility for education and able to be at home during the day. Teaching intellectually gifted students is often not a simple task or for the faint-hearted and minority/low SES/kids of parents with less education would be those least likely to have their educational needs served well.

  5. MrsW

    I recommend a book review in June’s The Atlantic, which links two areas of concern for many of us.  It’s the role of housing insecurity in the achievement gap.  The article is entitled The Destructive Legacy of Housing Segregation.

    In another article, also in the Atlantic, the author observes: “Without strategies (from affordable housing initiatives to school-assignment policies) that also combat the economic isolation of so many African American and Hispanic students, the U.S. is unlikely to ever entirely close the racial and income gap in its educational performance.” http://www.theatlantic.com/education/archive/2016/05/education-inequality-takes-center-stage/483405/

    Davis needs housing.

      1. MrsW

        I don’t think the consequences would be negative.  Our city is not even 10 square miles.  We can easily integrate our children.  Any housing of any kind would help the children who live on our island, including affordable housing if it provides stable housing and is not a landlord’s racket, like the Royal Oak Mobile Home Park.  Building high-end housing would help, too, if it made stable housing available to low income families.

        My point is that stable secure housing has been shown to reduce the achievement gap.

  6. Misanthrop

    If the board had filled a third section with kids who scored at the margin as Fernandes and Sunder suggested, instead of holding the line at two sections as the majority decided, there would be no basis for the complaint and the money spent on lawyers could have paid for that third section. The board majority made a willful decision that resulted in a waste of precious taxpayer money. A decision that would result in spending money on lawyers when the easily anticipated complaint was filed. In that regard the majority of the Trustees failed in their fiduciary responsibilities to the taxpayers and the students.

    1. hpierce

      Respectfully, disagree.

      I strongly suspect the state action was deliberately provoked by a parent whose was excluded (and connected to folk in the State office) from AIM [or they perceived it was due to reduced program], and that the REAL reason had nothing to do with racial/ethnic/EL/disability status…

        1. hpierce

          Actually, I have no problem on this matter… you apparently do… I can accept that the apparent “racial imbalance” was due to a one year cycle, and is consistent, based on statistics, and the small population of data, with no harm, no foul.

          To say otherwise smacks of “social engineering” based on race/ethnicity, etc.  I’ll bet that if one “token” white was accepted, and everyone else was ‘minority’, you and the feds would not take issue at all… except if that student was from a well-educated family, in which case that spot should obviously gone to an economically/educationally disadvantaged student…

        2. Davis Progressive

          when i said you – i meant in the generic.  the problem here (avoiding the you pronoun this time) is that the district saw the results and proceeded anyway.  moreover they are structural, the tests they chose are not going to change the results.

      1. Misanthrop

        An old joke:

        A woman walks into a lawyer’s office seeking a divorce. “That SOB I want the meanest lawyer I can find.”

        The lawyer responds” There are two ways to do this. You can send your kids to college or you can send my kids to college. Which would you prefer?”

        The board majority chose to send the lawyers kids to college instead of compromising and spending the money on the kids they are responsible for educating. We are at $17,000 and counting.

    2. wdf1

      I think the district is in a rock and a hard place on this issue.

      There is evidence that before the recently implemented AIM policies of the board that there was very strong bias against students with parents who have no college education, and in favor of students who have parents with advanced degrees.

      What I have seen from advocates for self-contained GATE is an argument that there is under-representation of Latino students that needs to be corrected.  But what I see is a tendency to attempt to make that racial correction by relaxing standards so that more Latino students are identified who have parents with higher levels of education.  Yet there is a substantial population of Latino students who have parents with no college education.  What this leads to is exacerbating the disparity in the AIM/GATE program of students with college educated parents (with advanced degree) vs. students with  parents having no college education.

      As far as I know, the Office of Civil Rights does not yet track students based on their parents college education.  They should.

      1. quielo

        The recent moves with AIM have puzzled me. Rather than restricting the inclusion they could have expanded the inclusion without adversely impacting the class experience. Right now they are using a cut-off of an OLSAT8 score in the low 130s. Given what I see of the class I really don’t see why a motivated student with a score in the 115 (85th percentile) range could not keep up and contribute to the class. Many students who test into AIM may not want to participate and I read somewhere that only 70% of eligible students were actually attending but I need to check that figure.

        Likely they previous board was trying to get rid of AIM by raising the inclusion criteria year-by-year. Another good reason to get get rid of the curveh.

        1. wdf1

          quielo:  Right now they are using a cut-off of an OLSAT8 score in the low 130s. Given what I see of the class I really don’t see why a motivated student with a score in the 115 (85th percentile) range could not keep up and contribute to the class.

          This is how the district defines “giftedness”:

          1. How do I know if my child is “gifted”?
          Certain characteristics are indicators of giftedness.  The most common myth—all gifted students are motivated and perform well in school—results in many students not being recognized for their potential.  Some indicators of giftedness include level of questioning, sensitivity to issues of morality and justice, understanding abstract ideas, making connections and establishing relationships between ideas beyond that of their age mates, having varied and multiple interests, demonstrating a sophisticated sense of humor, learning more quickly than their peers, being curious, having highly developed vocabulary, etc.  Adults in the lives of these children need to recognize that sometimes these behaviors are manifested at home and/or in school in a less than positive manner:  class clown, know-it-all, etc.…  Obviously, children are unique.  These are some of the more common characteristics used to identify giftedness. source

          It’s not clear to me that the OLSAT and other cognitive tests are measure for the full spectrum of characteristics described here — sophisticated sense of humor, ‘class clown,’ sensitivity to morality and justice, curiosity, varied interests.  If there is more to giftedness than what is being tested for, then discussing test score thresholds either way, higher or lower, is probably irrelevant.

          1. Don Shor

            then discussing test score thresholds either way, higher or lower, is probably irrelevant.

            Except that there is no other method available.

        2. quielo

          “If there is more to giftedness than what is being tested for, then discussing test score thresholds is probably irrelevant.” Largely agree and there is also the factor of whether the student and their parents want to participate in classes such as these. The OLSAT prioritizes language over math and therefore induces a gender bias. Do you know the gender breakdown of the current AIM program?

        3. MrsW

          “Except there is no other method available.”

          Not true.  Prior to universal testing, DJUSD used a nomination process that tended to be prompted by a child’s tbehavior and temperment.   Until recently, Palo Alto Unified School District (PAUSD) did as well.  They have suspended their program since it is no longer State funded, but this is how Palo Alto identified Gifted students in the past.  Here is the link: PAUSD gifted & talented eduction

          Identifying Gifted and Talented Students (Identification Process Suspended)
          The District’s identification procedures are equitable, comprehensive and ongoing. Formal identification for GATE begins in the spring of 3rd grade. Nominations may come from teachers, parents or others who know the student. Once students are nominated, a combination of multi-measures must be used to identify students as gifted and talented:

          Standardized test scores
          Checklists of Indicators of Giftedness
          Multiple Intelligences Checklist
          Teacher judgment, including class work and grades
          A non-reading test of cognitive processing skills (the Ravens Progressive Matrices),
          Individual Test scores
          Out of district data

          The GATE standards and the Ed. Code require us to use information from many sources before identifying a student for GATE. These standards do not allow us to identify based on only one of the above measures. Parents are notified by letter if their child qualified as a GATE student. Parents can request that their child not be identified.

        4. MrsW

          That’s an interesting pamphlet.  Thank you. I was just trying to point out that Davis’ test-only method isn’t the only method.  Acknowledging that Palo Alto no longer has the program, they still had an identification process that was multi-faceted. I also thought Palo Alto’s literature saying “The GATE standards and the Ed. Code require us to use information from many sources before identifying a student for GATE” was interesting, since that’s not true in Davis.

          1. Don Shor

            In theory, I guess that’s what the new assessment committee was supposed to do, but only after the testing.

        5. MrsW

          My nephews graduated from Palo Alto 15 or so years ago (so this is an old story).  They are identical twins.  One was nominated and one wasn’t nominated.  The OLSAT testing was only used to confirm the professionals’ judgement.  My sister felt like identical twins should be treated identically in matters such as GATE.  PAUSD only tested my second nephew because she advocated for it.  He actually had a higher test score than his brother. They both participated in the program.

    3. iWitness

      Again, here’s someone who still thinks that “the money spent on lawyers could have paid for that third section.” Misanthrop has been in on enough of this discussion to know better by now.  Since the AIM classes get no additional money, those students who were left out this year are still being educated in the district, just elsewhere, in other schools.  Fungible.  Maybe travel to school was a problem or they weren’t assessed for AIM by someone experienced enough to know what s/he was doing. They are still Davis children — getting an education that has been put through the blender by the current Board majority  — at no extra cost to the District, unless you count as educational expenses the District Office hiring policies to try to replace that one very part time former coordinator with all the expertise gained from 40 years of work in the field. It’s what happens in the classroom, not how much it costs, that makes the difference.  Offloading qualified GATE teachers to the regular classroom from the two closed sites, ignores their valuable experience in differentiation, their passion, and their previous success in providing GATE instruction at no extra cost.  Interesting that this should come up yet again — the all-purpose ruse that those smarty-pants kids get more money.  What only half of them still get, is more understanding from teachers and from classmates who learn like they do.  Enough already.

    1. MrsW

      DJUSD’s administrative team now has a  Differentiation Specialist.  Her name is Niki Reina-Guerra. Ms. Reina-Guerra taught in an AIM classroom at Willet.

      On thier DJUSD AIM website, within the “Elementary AIM Process” document, the district directs parents to ask quesionts of Troy Allen Director of Curriculum, Assessment and Learning.

      1. DavisAnon

        Reina-Guerra did teach for at least a few years in an AIM class but never even became AIM-certified as far as I know. It seems a poor choice for the district to choose her for the position when she is supposed to be supporting teachers who are AIM-certified. Likewise, I do not believe Troy Allen has any specific AIM experience.

        The district’s choice to put people in charge of this program who do not have either the dedication to this program or the experience and skills of the former coordinator tells parents they do not respect their concerns for the educational and social difficulties their children face. The Board majority was clear in their disdain for parents’ and teachers’ concerns and dissatisfaction over the changes being made to the program and its leadership.

        Susan Lovenburg made the motion to change the program and, despite some lip service, hasn’t done a thing to rectify the train wreck she created. She’s spending plenty of time playing the role of “concerned” Board trustee at all of the Back To School nights this week though. I’m sure the fact that she’s up for re-election(!) plays no part in her decision to show up to all the classrooms – especially since I’ve never seen her there when she wasn’t up for election (and no other trustees are participating).

        I wonder if any non-incumbent candidates (Granda and Poppenga) are being given the same opportunity to go and speak to all the parents in each classroom at each school?? If not, this smells to me of abuse of the power of her position with the election just over two months away. Kudos to Fernandes for not taking the same approach.

        1. wdf1

          DavisAnon:   I’m sure the fact that she’s up for re-election(!) plays no part in her decision to show up to all the classrooms – especially since I’ve never seen her there when she wasn’t up for election (and no other trustees are participating).

          Actually, I have seen Lovenburg show up at plenty of school-related events such as Back to School nights, even when she wasn’t immediately up for re-election.  In that respect, I have found her to be one of the better trustees/candidates for direct engagement and participation.  I think that has been a strength of hers as a candidate.

          In a related way, Trustee Sunder took a tour of all the school sites when she was a non-incumbent candidate, so I don’t see why any candidate couldn’t take time out to see how things work on the ground and meet with staff and constituents.  I can see that someone could have been cynical of her for doing that (perhaps someone like yourself?), but I applaud anyone making the effort for direct engagement.

    1. DavisAnon

      Point well taken. I should have said GATE. But people already seem so confused about what AIM is that I try not to mix up my alphabet soups of abbreviations.  I personally think it’s bit of a a silly thing to change to AIM from GATE (the properly accepted educational term), but some people were incensed at the insinuation that it meant their non-GATE child was lesser because of it (the “all children are gifted” discussion).

  7. ryankelly

    Way to stir the pot, David.  Can’t help but feel that this story is politically motivated to stir up an otherwise fairly boring election.   If we’ve learned anything, we learn that responding to complaints is expensive.  I wonder how much money has been spent responding to Harrington’s and Eileen’s lawsuits and complaints about city planning.

    1. DavisAnon

      wdf1, I think it’s great when any of the trustees come to school events to support the students. Back To School Night, however, is the public chance for teachers to meet all the parents and set expectations that are so important in getting the year off to a good start for your student. I also think as an incumbent up for re-election in a few weeks, she should be especially mindful of not using school events as an advantage for meeting with parents that other non-incumbent candidates cannot participate in.

      I am glad you have had positive interactions with Lovenburg, as I and many other parents have not. I have met a significant number of parents who felt so demoralized by the way they felt she ignored their concerns that they decided any future attempts to share their concerns with Board trustees were hopeless. This is the opposite of ‘parent engagement’ that the district says it fosters.

  8. quielo

    Being on AIM parents mailing lists I can tell that “demoralized by the way they felt she ignored their concerns” is an apt description of the sentiments expressed on the list.

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