2+2=Litigation

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New front opens in the math wars



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Fall 2010 / Vol. 10, No. 4

Podcast: Josh Dunn talks with Education Next.


In February 2010, for the first time, a state judge overturned a school district’s choice of a high-school math curriculum. In May 2009, the Seattle school board in a 4–3 vote adopted the “Discovering” math curriculum. The Discovering series, which the Seattle district already used in elementary and middle schools, allegedly allows students to learn math principles on their own through “inquiry-based learning.” The texts and methods discourage “direct” instruction in which teachers teach students the best method for solving problems. Instead, students “discover” mathematical principles on their own through “cooperative learning groups” and by playing with objects. Students, no doubt to their delight, also begin using calculators early in elementary school as part of the series’ emphasis on using “technology to build conceptual mastery.”

When considering the curriculum, the board received conflicting evidence about the effectiveness of the Discovering series. The Washington State Office of Public Instruction ranked the series second out of four competing curricula, while a report from the Washington State Board of Education called the series “mathematically unsound.” The board also heard criticism from parents and expert reports about the series.

In response to the board’s decision, three plaintiffs—a retired high-school math teacher, a professor of atmospheric science at the University of Washington, and a mother of a high-school student—filed suit, calling the Discovering series deficient and dumbed down. The plaintiffs argued that the curriculum would widen rather than narrow Seattle’s achievement gap between minority and white children. One of the plaintiffs, Professor Cliff Mass, wrote in his blog, “Seattle Public Schools picked high school math books that are not only bad for everyone, but they are PARTICULARLY bad for the disadvantaged who don’t have extra cash for tutoring or whose parents don’t have the time or backgrounds to help their kids.”

In February 2010, Judge Julie Spector agreed with the plaintiffs in a terse three-page opinion devoid of any analysis. She simply asserted that the district behaved arbitrarily and capriciously and that there was “insufficient evidence for any reasonable member of the board to approve the selection of the Discovering Series.” The decision surprised both plaintiffs and the Washington education community. During the litigation, the plaintiffs’ attorney, Keith Scully, said winning seemed unlikely since “no judge wants to second guess the school board.” After the decision, the executive director of the state board of education, Edie Harding, said the decision was a “surprise” and that in Washington “the local board is always the prime decision-maker on curriculum.” Likewise, David Stolier, an assistant state attorney general, said that “the courts ought not to be making decisions about curriculum,” noting the state supreme court had ruled “it’s not the role of courts to be micromanaging education.”

There might be very good reasons to reject the curriculum. One can easily understand why parents wouldn’t want to expose their children to the faddish ideas afflicting the Discovering series. But there should be no mistaking what happened. The judge substituted her educational judgment for that of the school board, and didn’t bother to give an explanation. Her ruling then was far more arbitrary and capricious than the school board’s decision, even if it might have salutary effects.

The dispute in Seattle is a small, but significant, skirmish, in a growing debate over the lucrative and controversial textbook market. The Seattle school district is appealing Judge Spector’s decision. Parents have filed a lawsuit against the wealthy Issaquah school district since its adoption of the Discovering series; the similarly wealthy Bellevue school district is also facing a possible lawsuit. No doubt other concerned parents around the country will be following Washington’s lead. Prior to the Seattle case there appears to have been only one unsuccessful Plano, Texas, lawsuit over a math curriculum.

Supporters of the Discovering series, including its publisher, are not immune to the temptations of litigation. When the Washington State superintendent of public instruction, Randy Dorn, dropped the Discovering series from the recommended list of textbooks, Key Curriculum Press, the publisher of the Discovering series, unsuccessfully sued the state claiming, naturally, that his decision was arbitrary and capricious.

Regardless of the efficacy of “direct instruction” or “inquiry-based learning,” such pedagogical disputes are beyond the courts’ proper constitutional role and institutional capacity.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs.




Comment on this article
  • [...] Judges shouldn’t pick math curricula, writes Joshua Dunn, a University of Colorado political science professor, in the fall issue of Education Next. [...]

  • Chris says:

    Wow, a University Professor leaves out the fact that the Washington State Board of Education had found the Discovery series mathematically unsound? How convenient.

  • Barry Garelick says:

    It’s a bit more complex than Dunn makes it sound. The judge did not substitute her judgment for that of the school board. She ruled based on the fact that the school board failed to consider specific evidence, thus ruling that the decision was arbitrary and capricious. The court did not rule on the textbook or curriculum. Rather, it ruled on the school board’s process of decision making—more accurately, the lack thereof. The court ordered the school board to revisit the decision. Judge Julie Spector found that the school board ignored key evidence—like the declaration from the state’s Board of Education that the discovery math series under consideration was “mathematically unsound”, the state Office of the Superintendent of Public Instruction not recommending the curriculum and last but not least, information given to the board by citizens in public testimony.

    See: http://www.educationnews.org/ed_reports/53457.html

  • Danaher M. Dempsey, Jr. says:

    The author Joshua Dunn has missed several major points. The most important of these concerns RCW 28A.645.020.

    The Board is to: “shall file the complete transcript of the evidence and the papers and exhibits relating to the decision for which a complaint has been filed. Such filings shall be certified to be correct.”

    The Transcript provided consisted of 1100 pages all of which supported the Superintendent’s recommended “Discovering Series”. The appellants submitted 300+ pages of evidence that had been submitted to the Board prior to the Board’s May 6, 2009 decision. None of which was part of the administrative record used by the Board to make the decision.

    The District agreed to have this 300+ pages added to make up the complete administrative record of 1400+ pages.

    Note: the Board never used the complete administrative record to make their decision.

    See Spector’s decision here and note #4:

    http://www.box.net/shared/bffegztgh1

    (#4) The court finds, based upon a review of the entire administrative record that there is insufficient evidence for any reasonable board member to approve the selection of the Discovering Series.

    Here is the resulting order:
    The decision of the Board to adopt the Discovering Series is remanded for further proceedings consistent with this opinion.

    The Seattle Superintendent has quite a history with her rubber stamping school board.

    Is the author Joshua Dunn suggesting that the exclusion of evidence is acceptable even when such exclusion violates state law?

    ==========

    Note: the release of WA State test scores on 8/31/2010 confirm what the evidence supplied by the appellants predicted.

    http://mathunderground.blogspot.com/2010/09/test-results-in-math-and-seattle-needed.html

    ==========

    Judge Spector made a ruling based on the handling of the evidence and ordered the Board to remake the decision using all the evidence. The Seattle school Superintendent refused to let this happen.

  • Theodore M. Nutting says:

    I testified three times at school board meetings in opposition to the adoption of the Discovering series, and I sent other materials to school board members. The school district said, in effect, that the board did not even consider the information I presented. This happened to many, many others who presented information that opposed the proposal that the school district administration made to the board, which was based on a recommendation from an adoption committee that was deliberately constituted to come up with a recommendation for an inquiry-based series of textbooks.

    If the board won’t even consider the information presented that opposes the administration’s proposal, why even have a board? Of course the board needs to reconsider the proposal, based on all the information presented to it. That’s just what the judge decided.

  • concerned says:

    “The judge substituted her educational judgment for that of the school board, and didn’t bother to give an explanation.” WRONG!!! Did you even read the ruling? After considering the overwhelming evidence presented to the Board by local citizens, the judge’s ruling was that their decision must have been arbitrary and capricious to fly in the face of such evidence. Come on! Read the documents!

  • Math Advocate says:

    It is interesting to read articles about the Seattle lawsuit. A number of articles misrepresent the issues of the case as well as the findings of the court. With the possible exception of the school district’s documents, the legal documents in this case are straightforward and easy to read. The court’s decision is brief and clear. Item 2 in the Findings of Fact indicates the judge paid attention to the evidence in the case. The plaintiff in the case asked the court to remand the decision back to the school district for further consideration. Basically, they wanted the school district to consider all of the evidence, including the evidence they had but neglected to consider prior to making a decision. In this case, the judge did not overturn a school district’s choice of a high school math curriculum. The judge was very careful and aware curriculum decisions were not for the court to make, but for the school board. The court’s decision sent the curriculum selection decision back to the school district for further consideration to include all of the evidence. It did not overturn the district’s decision. The school district chose not to reconsider and make a decision based on all of the evidence they had. The judge did not substitute her judgment for that of the school board.

    The statement “The Discovering series, which the Seattle district already used in elementary and middle schools…” in this article is not a true statement. The Discovering series is a high school level math series. It is not the program used in elementary and middle schools.

    I watched the situation in Seattle develop. I often watched the videos of testimony before the board. Critical information was available, pointed out, yet ignored. The board clearly made an arbitrary and capricious decision when they voted to select Discovery math. ??The judge made a decision based on the evidence. This judge’s decision was not based on any arbitrary rationale. The judge was not deciding what kind of curricula could be used. The decision of the court sends the issue back to the school district to revisit the textbook adoption–with the adoption process possibly needing to be conducted again. The court is not in the business of making curriculum decisions for the district and clearly did not do so in this case. ??I have read a few legal briefs of cases filed against school districts/education systems. I was not impressed with what I read until I read the brief for this case. It made me sit up and take notice. It is good and presents a solid case. It is not easy when you have to make the case that the district’s decision was arbitrary and capricious. It was a strong case backed with a lot of evidence. I was also there in court. The plaintiffs’ lawyer did an excellent job of presenting the case. The lawyer for the school district had a weak defense and while she responded to the judge’s questions, she responded to but didn’t answer the questions that were asked. Read the legal documents for yourselves. It may be enlightening. The brief is a good clean read that lays the case out well The legal documents can be downloaded from the links on the left hand side of the seattle math group website.??

    http://seattlemathgroup.blogspot.com/

    Look for Legal Documents in Textbook Appeal

    The Issaquah School District did adopt the Discovering series. The article is correct on that count. No parents have filed a lawsuit over the adoption. The Bellevue School District adopted a different program and no parents have filed a lawsuit over the adoption. In both cases, the appeal deadline has passed.

  • The following was submitted as a letter to the editor:

    As the publisher of the Discovering Mathematics series, Key Curriculum Press agrees with Joshua Dunn’s conclusion in “2+2=Litigation” that “pedagogical disputes are beyond the courts’ proper constitutional role and institutional capacity.” The Seattle court’s ruling is unique and shocking in the sense that the courts are dictating school curriculum, a topic that should be left to parents and educators. This would be equivalent to the courts dictating to doctors how to practice medicine.

    Yet Dunn does readers a disservice by introducing a number of factual errors that should be corrected. The article states, “The Discovering series, which the Seattle district already used in elementary and middle schools,” and “Students, no doubt to their delight, also begin using calculators early in elementary school as part of the series.” The Discovering Mathematics series is a high-school math curriculum of algebra 1, geometry, and algebra 2 content. The elementary- and middle-school math curricula used in Seattle schools are not part of the Discovering Mathematics series and are not published by Key Curriculum Press.

    Additionally, Dunn writes, “Parents have filed a lawsuit against the wealthy Issaquah school district since its adoption of the Discovering series; the similarly wealthy Bellevue school district is also facing a possible lawsuit.” A lawsuit disputing the adoption of the Discovering materials in Issaquah has not been filed, and the Bellevue school district did not adopt the Discovering series; therefore, any lawsuit being considered would not involve the Discovering materials.

    We also take issue with some of Dunn’s characterizations of the curriculum. For instance, he makes the assertion that there are “faddish ideas afflicting the Discovering series.” It is difficult to balance the term “faddish” with the facts that Discovering Geometry has been used in schools since 1989 and the three-year Discovering series has been available for 10 years. Since the materials have been used in all 50 states, by more than 1200 schools, for over 10 years, we think Dunn should reflect on what he considers a “fad.”

    Jim Ryan
    Vice President of Marketing
    Key Curriculum Press

    (For more letters, please see http://educationnext.org/winter-2011-correspondence/)

  • The following is Joshua Dunn’s response to the letter above:

    If Mr. Ryan truly believes “pedagogical disputes are beyond the courts’ proper constitutional role and institutional capacity,” then his own company’s lawsuit against Washington’s Superintendent of Public Instruction appears quite peculiar. He is correct that the Discovering Series is for high school. The Seattle school district has been using a discovery-based math curriculum in the lower grades and clearly viewed the Discovering Series as an extension of those pedagogical choices.

    Regarding Issaquah, I am delighted to hear that the parents reconsidered their decision and chose not to follow the litigious example of both Key Curriculum Press and the Seattle plaintiffs. Finally, whether discovery-based learning is faddish, I suppose, is in the eye of the beholder. Since mathematics and how best to teach it have been subjects of inquiry for at least two and a half millennia (see, for example, Socrates’s use of what could be called “direct” instruction in Plato’s Meno), 1989 seems fairly recent.

  • Barry Garelick says:

    Could Mr. Dunn respond to the inaccuracies in his article pointed out by the others who chose to comment here rather than submit a letter to the editor? Particularly the fact that the judge did not substitute her judgment of what constituted a good curriculum but that the ruling was based on the process?

  • Joshua Dunn says:

    Mr. Garelick,

    Contrary to what you say in your first post, the judge clearly states in her opinion that the school board considered the state board’s decision that the Discovery series was mathematically unsound when making its decision. Thus, the board considered it and rejected it. That is not the same thing as ignoring it. Hence, if that was the basis for declaring the board’s decision arbitrary and capricious, the judge was simply saying, “In my judgment, they should have given this more weight.” Hence, she substituted her judgment for that of the board’s about how much value to place on the state board’s finding.

    Like I indicated in the article, I think there are very good reasons to reject the curriculum. I wish you well in your efforts to restore sanity to mathematics education.

    Best,

    Josh Dunn

  • Danaher M. Dempsey, Jr. says:

    Dear Josh Dunn,

    The fact remains that the Board did NOT use the complete transcript of evidence in making the decision. The information provided by the public, much of which was statistical in nature, was not used by the Board.

    The Judge remanded the decision back to the Board. The Superintendent Dr. Maria Goodloe-Johnson refused to have the Board reconsider its decision using all the evidence. The Superintendent clearly favors excluding evidence. In fact she occasionally tampers with evidence.

    The Superintendent is also the Secretary of the Board. She has on many occasions failed to meet the requirements of RCW 28A 645.020 which requires providing the court with a certified correct filing of the transcript of evidence used by the Board in making its decision within 20 days of the filing of an appeal of a school board decision.

    She apparently tampered with evidence to conceal her forging of a document in creating the 3-12-2010 Action Report for the $800,000 New Tech Network contract.

    Will the School Board continue to tolerate the Bad Acts of Seattle’s Superintendent?

    http://mathunderground.blogspot.com/2010/12/will-school-board-continue-to-tolerate.html

  • Joshua Dunn says:

    Mr. Dempsey,

    The judge does not use that as the basis for her decision. If it was the basis, it should/would have been in the opinion. Courts are not supposed to have secret reasons for what they do. Granted her decision doesn’t give any reasons for her judgment so maybe there’s something she wasn’t revealing. If that’s the case then I think her opinion would be even more outrageous than I initially thought.

    Also, I’m in no way defending the Seattle school board or superintendent. I suspect that would not want them in my school district. But whether they made the right decision is different from the question I addressed.

    BTW, I enjoy your blog. It sounds like Seattle desperately needs what you’re providing. As with Mr. Garelick I wish you all the best.

    Josh Dunn

  • Danaher M. Dempsey, Jr. says:

    Dear Josh Dunn,

    Thanks for your response.

    http://www.box.net/shared/bffegztgh1

    In the Judge’s finding of facts (above) number 4, she stated after a review of the entire administrative record there is insufficient evidence for……..

    The District agreed to allowing supplementation of the administrative record by agreeing to the court’s acceptance of the submission from Porter et. al. of over 300 pages of evidence. This evidence was apparently not considered by the Board; as the Board did not include it in the filing sent to the court as required by RCW 28A 645.020, if they had previously considered it.

    http://apps.leg.wa.gov/rcw/default.aspx?cite=28A.645.020

    It is now most apparent that the Board has for sometime (likely since around 2002) believed that they should listen only to the Central Administration and hired consultants and ignore the public in making decisions. This seems to me to be an arbitrary and capricious mode of operation. An acceptable mode for oligarchs but hardly suitable for use in a republic.

    It is painfully apparent that the superintendent has been lying to deceive the public and on 3-12-2010 produced an action report, a forged document, in further attempts to mislead. In addition in her position as Secretary of the School Board, she and her CAO submitted an inaccurate transcript of evidence to the court in which a draft memo, which she used to construct the action report was substituted for the original memo, which she had claimed to be using to produce the action report.

    The School Board has chosen to not have the Superintendent investigated for her several violations of state law.

    Washington is among the most restrictive states when it comes to recall sufficiency.

    RCW 29A 56.110
    http://apps.leg.wa.gov/rcw/default.aspx?cite=29A.56.110

    The King County superior court believes there is case law that extends well beyond the written recall statute (above) and requires that intent must accompany misfeasance and/or malfeasance and/or violation of oath of office for a recall filing to be ruled sufficient.

    Look for recall filing #3 against certain school board members in the near future over this matter and a few other items.

    Again thank you for you reply. I look forward to further communication.

    Dan

    from The Math Underground Blog

  • Joshua Dunn says:

    Mr. Danaher,

    Given the comments about the board on here and other sites like yours, I am a bit suspicious that those 300 pages would have made a difference. It sounds like the board heard plenty of testimony about the problems with the Discovery series (see for instance Mr. Nutting’s comment above about testifying numerous times before the board). As well, I’m not certain what could have been in the 300 pages that would have carried more weight than the state board’s decision to label the curriculum mathematically unsound. Do you think it would have made a difference if in fact they did not consider it?

    Regarding the ruling, to overturn the decision of an elected body in one sentence with no explanation of why the decision was unreasonable is bizarre and in my opinion an abuse of judicial power. If it was those 300 pages, say so and explain why they are important. If it was the state board’s decision, explain why it should carry more weight than the school board’s judgement.

    It does sound like there are significant problems in Seattle and it certainly brings to mind Twain’s quote about school boards. I’ll keep my eye out for recall effort.

    Josh

  • Danaher M. Dempsey, Jr. says:

    Josh,

    Friday December 17, 2010:

    An appeal of the school board’s decision to contract with TfA will be filed in Superior Court. Look for possible action in Federal Court in early 2011.

    The school board has already had an appeal filed over their approval of the MAP testing contract.

    It was made known today (12-15-10) that Brad Bernetek, the head of Research, Evaluation, and Testing, has submitted his resignation. His last day of work will be Jan. 7, 2011.

    http://seattleducation2010.wordpress.com/2010/12/16/seattle-schools-data-guy-brad-bernatek-has-resigned-a-casualty-of-17-percent-gate/

    He and the Superintendent were the subjects of 17% gate.

    The Superintendent gave an 88 slide PowerPoint on Wednesday for a Board Work Session update on her strategic plan, “Excellence for All”.

    I am working on a response to it.

    The Presentation :
    http://www.box.net/shared/pra0l6bbes

    My Response (thus far):
    http://www.box.net/shared/8q3cntl268

    WA State had $208 million coming from Sen. Patty Murray’s multi-Billion dollar ed bailout package.

    School Districts had already calculated how much they would be getting, as this was being fast tracked to prevent layoff both for second semester and next year.

    The Governor and the Legislature had a special meeting and put the entire $208 million into the General fund.

    From the Tacoma News Tribune comes ……

    State snags money meant for school jobs

    Congress threw school districts a lifeline. State government yanked it away.

    http://mathunderground.blogspot.com/2010/12/state-steals-208-million-from-local.html

    Cheers,

    Dan

  • Joshua Dunn says:

    Dan,

    Thanks for the updates. I had not paid much attention to 17% gate. I will be using that one in my research methods class to illustrate the fraudulent use of statistics. That really is a special one and you see lots of these when studying education policy. Maybe they were using inquiry based math.

    Josh

  • Barry Garelick says:

    Josh,

    You might be interested in the Amicus Brief filed for the appeal of the court’s decision, found at:

    http://www.box.net/shared/vkmvi4qz62

    Barry

  • Ms. Very Stupid says:

    The discovering math book is perhaps one of the worse text books I have ever seen! I am a parent with a child who is using this book. When I tell you that I have NEVER seen anything like this book, please believe me! It is absolutely ridiculous. You CANNOT read through the book without having access to the Internet because the book leaves out key words and asks you to go look them up online! What? What happens when a parent does not have Internet access? What happens when you don’t have a computer in your home? This text book is horrible! 100% horrible. Textbooks usually have the answers to some of the problems in the back of the book. This text book actually has the word CutiePie! in the area where it is supposed to have answers. What? This is a math book not a game! I’m talking about the 10th grade Geometry book. It is beyond bad. Horrible!

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