By Carlton Larson

The following article was published by the Davis Enterprise on May 19th.

When the Board of Trustees of the Davis school district voted to implement a lottery for GATE admissions, it relied heavily on the legal advice provided by the board’s counsel, who contended that the current method of GATE selection exposed the district to the risk of a lawsuit. As several board members suggested, the lottery seemed to be the only legally permissible option.

The underlying problem is that the number of students deemed GATE-qualified exceeds the number of GATE seats. GATE-qualified students are all students scoring in the 96th percentile or higher on a standardized test, as well as students with one “risk factor” who score at the 95th percentile and students with two risk factors who qualify at the 94th percentile.

The district defines risk factors as economic disadvantage, environmental disadvantage, health problems, language or cultural disadvantage, and social and emotional problems.

Under the prior placement policy, GATE classrooms were filled first with students scoring at the 99th percentile, then the 98th and so on down the line. Because the students with two risk factors and a 94th percentile score always came last, they were more likely not to be placed in a GATE classroom.

The board has refused to release any formal opinions prepared by its counsel, so my understanding of her legal objection to this procedure is based on what she publicly presented to the board. The argument appears to be this: The existing selection procedure risked a disparate impact on what the counsel termed “protected classes.” The students who qualified in part because of risk factors were less likely to secure GATE placement than those students who did not. According to the counsel, this consequence was unlawful, and the only solution was to implement a placement lottery from among all GATE-qualified students.

Unfortunately, this advice is almost certainly wrong. I approach this issue not as a GATE parent (I have no children in the Davis school system), but as a professor at the UC Davis School of Law, where I teach and write about, among other things, equal access to public education.

As I listened to the counsel’s presentation to the board, I could not believe what I was hearing. Four other UC Davis law school professors, including some of the nation’s most distinguished anti-discrimination scholars, were with me in the audience and they all agreed that the counsel had offered highly dubious advice.

There is obviously no explicit discrimination against students with risk factors, since many will score in the 96th to 99th percentiles. Indeed, promising students with risk factors are specifically sought out to be retested with a separate, non-verbal test called the TONI.

Approximately one-third of the students who ultimately qualify for GATE do so by scoring in the 96th to 99th percentiles on the TONI. Moreover, few, if any, of the risk factors constitute “protected classes” under federal or state law.

But even if they were protected classes, the counsel’s argument still would fail for the simple reason that it proves too much. If standardized test scores are an impermissible basis for GATE placement, surely they also must be impermissible for GATE qualification.

If counsel is correct, choosing a threshold of 94 percent with risk factors rather than 92 percent with risk factors also would be illegal, because of the disparate impact on students with risk factors. So would choosing 90 percent rather than 92 percent, and so on. The whole program would seemingly be invalid. But not just GATE — the use of the SAT in college admissions and the use of Advanced Placement tests to award college credit would be equally unlawful.

I often instruct my students not to leave their common sense behind when analyzing legal issues. If a line of argument leads to absurd results, it probably is flawed. The counsel’s analysis logically extends to any school program that has a limited number of seats. There could be tryouts for a school orchestra, but a lottery would be necessary to determine which violinist sat in the first chair. There could be tryouts for the varsity football team, but the selection of the starting quarterback would need to be made by lottery from among all qualified quarterbacks.

Counsel was asked about this specific example during the hearing, and although the answer was garbled, she seemed to say that in certain circumstances a lottery would be required for filling positions on a sports team. If this is the logical consequence of her argument, then the analysis has gone seriously off the rails.

One would expect that advice to drastically change the district’s placement policy would be backed up by some substantial legal authority, or even the experience of other school districts. But there is nothing in the United States Constitution, in federal statutory law, or in state law that requires or even suggests that an admissions lottery is required in the circumstances in which Davis finds itself.

No published judicial decision has ever held that a lottery is required to ensure non-discriminatory access to a gifted program. We like to think of ourselves as special in Davis, but it is surprising indeed to discover that the laws themselves operate differently here.

The whole issue arose from a complaint filed by a parent alleging differing treatment of two standardized tests (an easy problem to fix). It did not seek a lottery. The agreement by which that complaint was settled did not require a lottery either. Yet somehow the lottery emerged as a legal mandate to fend off potential litigation. Perversely, the lottery “solution” will generate precisely the opposite result — lawsuits filed by parents of children rejected by the lottery.

As an educator, I am also deeply concerned by the policy consequences of the board’s decision, which include the real possibility that the highest-scoring students will be excluded from GATE classrooms entirely. The use of percentiles generally obscures the very significant differences in performance among the highest scorers on standardized tests.

The 2012 LSAT, which is used in law school admissions, is a good example. The test had 101 questions. Fifteen correct answers separated a student at the 26.1 percentile (45 correct) from a student at the 59.7 percentile (60 correct). But 15 correct answers also separated the 94.6 percentile (81 correct) from the 99.9 percentile (96 correct).

For elementary students, there is similarly a very real difference between reading two grades above grade level and reading 10 grades above grade level. The former student might benefit from GATE, but for the latter student, GATE is critical. The alternatives for that child are either intense classroom disengagement or skipping several grades, resulting in a classroom placement where she may lag socially and physically behind her classmates.

Under the old placement regime, this child would have been guaranteed admission to GATE; under the lottery, she may well be excluded entirely. It is inconceivable to me why any school system would exclude its most precocious students from its most challenging curriculum. It is not just educational malpractice; it is, quite simply, cruel.

There are serious and legitimate issues currently being debated about the size, scope and structure of the current GATE program. But the lottery issue is not difficult. It is not required by any sensible interpretation of the law, has significant harmful effects and should be abolished immediately.

— Carlton Larson is a professor at the UC Davis School of Law.

A discussion of the GATE program is on the agenda at the Board of Education meeting . The meeting will be held at Community Chambers, 23 Russell Blvd.

The agenda can be located here: http://davis.csbaagendaonline.net/cgi-bin/WebObjects/davis-eAgenda.woa/wa/showMeeting

We at Davis Excel are concerned that the Superintendent will request authorization from the School Board to expend resources to hire an outside consultant to evaluate the GATE program, even though the program has been repeatedly evaluated as recently as 2009–and without any discussion of the content of the prior evaluations in the GATE advisory committee.

Prior evaluations of the program have been performed either through outside competitive federal grants, or by the district staff itself, through surveys.

If the District moves ahead with hiring an outside evaluator, we need to insist on a neutral evaluator from outside the district.

GATE classroom opponents have repeatedly suggested that the program has grown too big. A review of the GATE program entrance criteria shows that the overall score criteria have grown more strict over time. This suggests that the Davis student population has changed over the years, as those qualifying has not fallen despite the stricter criteria.

The school district finally responded to our information request for demographic data of students identified into the GATE program. This data complements the data the district released a few weeks ago about the demographics of district’s choice programs. Click through to read all about it.

By Debbie Nichols Poulos

The following letter was published by the Davis Enterprise on April 12th. It is reprinted here with permission of the author.

The recent op-ed by Susanna Mould charging the GATE program in the Davis schools with operating on a false premise states its own false premise, and reveals what I believe is at the heart of the controversy.

I believe the self-contained GATE program has been unfairly and irrationally scapegoated. Although emotions run high, this should be a rational rather than an emotional issue.

Just because there is a “special program” in our schools does not mean we must characterize the students in those programs as “special.” This misrepresents these programs and contributes to the controversy.

Special programs are designed to meet the needs of students, whether students need athletic, instrumental, choral, dance, theater, special education or GATE support. We should all be able to come together and acknowledge our roles in either clarifying or obscuring the core issues. The core issue for me is meeting the needs of a diverse population of students.

Mould’s article provides insight into the role parents play in the controversy. Rather than students’ feelings, it seems parents’ egos are bruised when their students don’t get into GATE classes. Some parents are using the fact that their students qualify or do not qualify for GATE to either boost or squash their egos. This is not a necessary consequence; it is a choice these parents make. There is no reason whatsoever that students should feel “less than” because they don’t attend a GATE class. The same goes for the parents of these students.

Currently, whether a student is placed in a GATE classroom depends upon two factors: whether the student’s score meets the district’s arbitrary cutoff and whether the student’s parents decide to place her in the program. It would not be wise for parents to say to their students, “If you score high enough on this test you will go to the GATE program.” Instead, parents should say, “We want you to take this test so that we have more information about how to best meet your needs.” Parents should take responsibility for contributing to how students perceive their placements in regular or self-contained GATE classrooms.

Once parents have test results, they are in a position to weigh all the factors: their child’s unique needs should be considered first and foremost, then neighborhood program vs. self-contained program, distance from home to each program, peer friendships, etc. There is no reason that just because a student meets the GATE cutoff she should automatically attend a GATE class. This attitude has added to what is perceived by some to have resulted in too many self-contained GATE classes.

Many GATE students can have their needs met in their neighborhood schools. Teachers work to design differentiated curricula to meet the needs of these and other high-performing students who need more breadth, depth or acceleration. So there are GATE students in both regular classrooms and self-contained GATE classrooms.

Some GATE students have needs that are more difficult to meet in neighborhood schools. Here is where GATE students who are underachievers, learning-disabled or very highly gifted can have their needs met. For some of these students, GATE classrooms are as much or more about social issues as about intellectual issues. The GATE student who may be marginalized, isolated and tuned out in a neighborhood program can find peers and feel “normal” for the first time in her school career in a GATE classroom.

I believe some parents look at placement in the GATE program as a status symbol. This is true of parents of students who both qualify and do not qualify for GATE classes. These parents do a disservice to themselves, their students and other GATE and non-GATE students.

Conversations among parents about who did or did not “get in” to GATE classes should stop. These conversations are fueling the fires of controversy over GATE and contributing to the notion that some students are “better than” others. It is important for all of us to acknowledge that there are many GATE students in regular classrooms throughout the district. So being placed in GATE or regular classrooms should not be a status game.

Mould makes the point that students who do not attend GATE classes are just as likely to achieve success in school as those who do. She’s speaking to parents of students who do not attend GATE classes when she says, “Your kids will receive an equally challenging and engaging elementary school education, and an identical education in secondary school.” For many GATE and high-achieving students this is true. For others, the self-contained GATE program is necessary.

It is important for all our students to find their niches, fit in with classmates and have their needs met. Parents are in the best position to make these judgments. They should not be made simply on the results of the GATE tests and the district’s arbitrary cutoff.

The district, too, should be looking at individual students’ needs, not just test score rankings, when determining whose needs are best met in GATE classes. An arbitrary test score cutoff diminishes the effectiveness of the district’s self-contained GATE selection criteria.

Also, it makes no more sense for the district to engage in a lottery for participation in GATE classes than it would to choose students by lottery for special education, athletic teams, Madrigals, Jazz Choir, the orchestra, band, etc. Parents and the district should be assessing the needs of the “whole child,” not just looking at a single test score.

– Debbie Nichols Poulos is a Davis resident and a retired Davis teacher of GATE students in both self-contained and neighborhood programs.

Davis, CA – March 26, 2013: Dr. Barbara Branch spoke to parents and educators at Pioneer Elementary on the needs of children identified as academically gifted. Her talk, entitled “You Can’t Fit A Square Peg Into A Round Hole: Helping High Potential Children Flourish,” focused on the educational and emotional needs of high academic potential children. Dr. Branch is the incoming Executive Director of the California Association for the Gifted with more than 40 years of experience as a former teacher and principal.

She emphasized that every child should learn something in school every day. This simple maxim poses a challenge for schools with heterogeneous classrooms that have to focus on teaching material that is already known to intellectually talented students, who are capable of performing academically well beyond their chronological peers. Like many states, California calls these students “gifted.”

Branch described the social and emotional needs of these children and how they differ in learning styles from their peers. She presented research and examples of why academically gifted students do best in self-contained classrooms. If a district has smaller numbers of academically talented identified students, then cluster grouping is the next best option. She pointed out that academically gifted children often tune out and disengage when they are left unchallenged in regular classrooms. She noted that a significant percentage of high school dropouts nationwide are intellectually gifted children, who were left unserved by the school system.

Branch agreed that no screening method is perfect but that using tests, recommendations by classroom teachers, the possibility of retesting for students that may be missed by one test, and an appeals process is a balanced method in identifying these children. She observed that having a high proportion of the students in the district identified as intellectually gifted is not unusual in towns like Davis.

Branch noted that before the 1980s, some policies did not allow students with learning disabilities to be placed in intellectually gifted programs. These “twice exceptional” children are now being served within gifted programs, and should continue to be served within these programs.

Branch spoke about distinctions that are made between intellectually gifted students and high achieving students. Students identified as intellectually gifted have a different way of processing information and need greater depth in the curriculum. High achieving students also need in- depth leaning instruction styles to be properly served.

Branch’s talk was sponsored by community organizations Davis Excel (www.davisexcel.org), New Star Chinese School (www.newstar.davis.ca.us), and Vanar Sena Pathshala (www.davisvsp.com).

Branch invited all to visit her web site for research information, the slide presentations and other material of interest to parents. www.drbabs.wikispaces.com and www.diigo.com/user/drbabs

Reminder: Dr. Barbara Branch will speak at 7 p.m. Tuesday at the Pioneer Elementary School multipurpose room, 5215 Hamel St. in Davis. Her talk is titled, “You Can’t Fit a Square Peg Into a Round Hole: Helping High-Potential Students.”

Dr. Branch retired from a 35 year career in the Sacramento City Unified School District and is a consultant who supports school districts as they develop their education plans and programs and who speaks to parent and teacher groups. She teaches professional development courses in two Certificate Programs for educators. She is also the incoming executive director of CAG, the California Association for the Gifted, an organization dedicated to meeting the academic and social-emotional needs of students based upon sound evidence.

The event is open to all interested individuals. A question-and-answer session will follow her presentation. Light refreshments will be provided.

Davis Excel is saddened by the news of another forged signature. Our intent with the petition was to simply provide a way for the community to show support for the GATE classroom program. We deplore the forging of signatures. When we learned of forged statements, we immediately removed those statements from the petition. Further, in an effort to find the person/people who committed the forgery, we requested IP addresses related to the forged statements from Change.org, but Change.org refused to deliver them to us. Davis Excel does not know who committed the fraud, nor do we know or understand the motive. We very much appreciate the efforts of those defrauded to obtain information leading to those responsible.

For clarification, the petition was distributed before we learned of the widespread fraud and misuse of the petition. We would never knowingly distribute fraudulent statements and apologize for inadvertently doing so. Additionally we requested on March 5 that the entire petition be deleted from the Change.org website and were informed that same day that Change.org was in the process of deleting it, but Change.org was delayed in doing so. Fortunately, Change.org has finally removed the petition. We are very sorry that an online forum we created was used in a way that harmed families in our community.

[Download the event flyer (pdf)]

Dr. Barbara Branch, Incoming Executive Director of the California Association for the Gifted, with 35 years of experience as a former teacher and principal, is giving a presentation on Tuesday March 26th, at 7pm, in the Pioneer Elementary School MPR. Her presentation is titled “You Can’t Fit A Square Peg Into A Round Hole: Helping High Potential Children Flourish.”

This event is free and open to the public and is sponsored by DavisExcel, New Star Chinese School, and Vanar Sena Pathshala.

Davis Excel is saddened that an open forum on a website was used to falsely attribute signatures and comments to people in our community. This represents behavior that we believe is entirely out of place in civil discourse. Of the 384 signatures on the petition, we are aware of 10 that were falsified, a small percentage, but enough to undermine the petition. The falsehood compromised the integrity of what should have been an open and honest effort to give our community members a voice.

When we learned of what happened, we took immediate steps to rectify the situation and ensure the petition’s integrity. We asked Change.org to delete the signatures that community members identified as false, but Change.org’s policy states that signatures can be deleted only if the signatory contacts Change.org directly. So we e-mailed every person whose name was on the petition to give them the opportunity to remove their signature.

Before we assume that online petitions are worthless, we might keep in mind that people sign paper petitions without being asked to produce identification. And newspapers routinely publish letters to the editor submitted via an online form without authenticating the letter.

We are disheartened that the false signatures distracted from our effort. We have now asked Change.org to remove the petition from its website. When it closed, the petition had attracted some 384 signatures. The fact remains that hundreds of members of our community strongly support the continuation of a successful program that has been part of Davis education since 1980.

We encourage those interested in public education to join us as we seek to help ensure that Davis public schools offer opportunities for excellence for all.