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.

The consensus has been that the economy will continue to recover slowly but steadily unless Congress does something stupid, always a possibility, to mess it up.

BUT SURVEYS of economists by The Wall Street Journal and USA Today indicate that the recovery is strong enough to withstand even Congress.

And the possibility of an unexpected blow coming from out of left field, say a major depression in China or the European Union, seems to be steadily receding.

USA Today concluded, “Political paralysis in Washington won’t stall an economic recovery that’s revving up across the rest of the country.”

The Wall Street Journal was slightly more restrained: “After four years of crises, foreign and domestic, that threatened to plunge the U.S. economy back into recession, the road ahead at last looks comparatively free of roadblocks.”

Both surveys see the economy picking up by the end of the year, slowed but not stunted by the sequester. USA Today’s forecasters predicted the recovery “will accelerate late this year even without a deal by Congress and the White House to lessen the impact of automatic federal budget cuts.”

ECONOMICALLY, the year started strong but growth slowed to a current rate of around 2 percent. However, the Journal’s panel expects the GDP to expand 2.4 percent for the year. USA Today sees two quarters of 2 percent growth but a strong pickup in the fourth quarter and approach 3 percent by early next year.

The year began with a healthy first-quarter average monthly job growth of 206,000 jobs but that will tail off to 165,000 in this quarter and 172,000 in the next but pick up in the fourth quarter and average 200,000 jobs monthly next year. The Journal was less optimistic, its economists foreseeing average monthly job growth averaging of just under 180,000 for the next 12 months.

At that rate, it will take until mid-2014 to restore the number of jobs the country had at the outset of the recession. But all good economic news comes with a downer: The Brookings Institution says that, adjusted for population growth, it will take nine more years to return to the prerecession level of employment.

NINE YEARS of self-restraint is asking a lot from Congress. Maybe too much.

While The Davis Enterprise seems to be practicing the same anti-union rhetoric that has recently been prevalent in the Midwest, such as in Wisconsin, I would rather hear about the facts on the city of Davis bleeding red ink. Are the salaries and benefits of city employees the only cause of deficits or have have elected officials made political promises or decisions that current and recent former employees must be squeezed to pay for? For instance, please tell us how well the mayor and the City Council have managed the closure of the city’s former redevelopment agency the governor declared obsolete.

I for one am not interested in reading the results of The Davis Enterprise’s practicing a version of the Koch brothers school of journalism. The city’s problems will not be resolved by anti-unionism. A strong dialogue on issues would be helpful and the newspaper could help facilitate that.

Charles A. Lacy
Davis

A board decision that should have an immediate and lasting effect on the tenor of discussions is the program name change to Alternative Instructional Model, or, AIM. Hopefully, this will allow the community to focus more on the substantive issues affecting the district’s academic programs and help us move away from the battle of perceptions and rhetoric.

In this light, it was also encouraging to see that the scope of the AIM program review will be conducted more within the context of the full suite of magnet and other focused needs programs. There was talk about addressing these programs through the lens of an integrated “continuum” of educational options available to students across all grade levels, but especially at our neighborhood primary schools.

Perhaps most encouraging was the board’s direction to district the administration to start looking for immediate ways to improve the range of enrichment options available at the neighborhood schools such as with appropriate level math placements and other known opportunities for differentiated instruction. Kudos to the board for the progress made on these important questions.

A topic of immense community interest that’s bound to be on future board agendas is current class sizes. While there’s not much to debate here, the challenge will be in the how the district looks to achieve smaller class sizes with an improving fiscal horizon.

Chuck Rairdan
Davis

Peter Moyle, who has been studying the ecology and conservation of freshwater and estuarine fishes in California for more than 40 years, will be the speaker. His talk will begin at 7 p.m. Thursday in the Club Room at the Veterans’ Memorial Center, 203 E. 14th St. in Davis.

Moyle is a professor of fish biology in the department of wildlife, fish and conservation biology at UC Davis and is associate director of the Center for Watershed Sciences. He teaches basic courses in fish biology, wildlife conservation and watershed ecology.

CreekSpeak talks — about the nature, culture and history of the region — are free to Putah Creek Council members and open to the public. A $5 donation is requested from those who have not yet joined the council.