Dubious legal advice drove GATE lottery decision

By Carlton Larson

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.

Special to The Enterprise

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