Last week we published a column in which we publicly revealed what the San Francisco Unified School District and its attorneys have been saying privately for years: The district believes Lowell High School’s previous merit-based admissions policy violated state law, and believes it does not that this could be successful defend it in court.
While Mayor London Breed will soon appoint three new members of the Education Committee, those appointments will not change the legal stance of the district’s General Counsel, a stance that far precedes the three board members supported by an overwhelming majority of San voters last month Francisco were recalled.
Many of those voters were upset at the scrapping of Lowell’s merit-based admissions policy, and many apparently believed the recall was some sort of magic wand to bring Lowell back to his status quo. So it was not surprising that the response to our story was not charitable. It was more like the first three of Dr. Elisabeth Kübler-Ross: Denial, anger and haggling.
“Depression” and “acceptance” supposedly come next — but considering lawyers, politicians, political officials, angry parents and alumni are involved, they might not.
In the past week we’ve spoken to more people, received more documents, and produced more reports. Everything we’ve printed before is holding up. So, here it is again: Lowell’s previous merit-based admissions policy isn’t coming back. That is, unless the board of education specifically ignores the unequivocal advice its legal counsel has been giving — both verbally and in writing, in numerous closed meetings and memos on “anticipated litigation” — for years. In fact, former members of the Board of Education tell us they were informed by a previous counsel that Lowell’s policies were inconsistent with state law, and that was more than a decade ago.
The histrionic response to our story was another sad reminder that even well-educated people, including liberals, are increasingly unable to distinguish journalism from advocacy. The factual claims in last week’s column — that the district has long believed that Lowell’s past eligibility policy was legally vulnerable, and an explanation for it — are solid. This may not make readers happy, and you may have your own opinion on the District General Counsel’s legal opinions, but yelling (‘denial’, ‘anger’) at a journalist is of limited use.
The district’s statement today on the matter is tantamount to an acknowledgment that it does not believe it could have defended against a legal challenge to Lowell’s prior entry policy.
“Any decision to either restore or replace the Lowell admissions policy with a different admissions policy must comply with the requirements of Section 35160.5(b)(2)(B) of the Education Act, which specifically prohibits public school districts from making enrollment decisions based on the student’s academic performance,” SFUSD spokeswoman Laura Dudnick wrote in a statement to Mission Local after I asked about it last month.
It’s been a while since high school, but we can still do a little deductive reasoning here. If Lowell insists that his next policy must adhere to this education code, and if this education code “expressly prohibits” the use of academics as an enrollment criterion, and if Lowell has previously used it as a criterion, then it stands to reason that the district is implicitly declaring that it believes the previous policy violated this code (which again isn’t surprising, because that’s what it was expressly Statements behind closed doors going back years after years, both oral and written).
But let’s assume that this is a contentious legal position. It would be the district’s duty to determine once and for all what it can and cannot legally do in Lowell.
In fact, Mission Local has learned that years ago the district considered consulting with the attorney general or a judge about whether Lowell was in compliance. Ultimately, however, the district did not do so. Why not? A former school board member explained, “What if the answer was ‘no’?”
Instead, the district chose to remain in a legal gray area and pray that no one would sue.
And nobody did. But that’s no longer an option because, willy-nilly, Lowell got rid of performance-based approvals last year. And while that decision was voided due to the school board’s gross violations of open assembly laws, the district has decided to maintain lottery licenses through the 2022-23 school year.
But that also means that a “no” from the state or a judge is no longer nearly as important. It’s not the same as saying, “What you’re doing is illegal,” but rather “The thing you do Second hand do and no longer do? That was illegal.”
Therefore, the district should strongly consider consulting with the state or the courts. Because when the newly formed Board of Education decides what’s next for Lowell, it would be good to know what might be could come next
Having a solid legal basis is a good and necessary first step. And compared to what comes after, it’s child’s play: Next comes navigating the minefield of racial politics, tradition, justice, merit, and institutionalized racism.
While the District believes that Lowell’s previous merit-based eligibility policy was illegal, that does not automatically mean that a potentially legal policy that somehow involves merit cannot be worked out. Can San Franciscans sit down and engage in an honest and productive process to determine if this is desirable and what that might look like?
Or will we embark on the Kübler-Ross phases of San Francisco school politics: denial, anger, and haggling, followed by gossip and lawsuits?
So you remember the part about half a dozen current and former school board members who told Mission Local that over the course of many years they were specifically warned by the district general counsel that Lowell’s merit-based admissions policy was inconsistent with state law. and that the district would likely lose a legal challenge.
And you’ll recall that the law in question is California Education Code 35160.5(b)(2)(B), which the district must unequivocally adhere to when setting Lowell’s future enrollment policy.
But the Lowell Alumni Association produced a legal memo in December with a novel thrust: What if you not must comply with this educational code? What if performance-based approvals are okay?
There are two exceptions to Education Code 35160.5(b)(2)(B) that defenders of Lowell’s status quo uphold: Gifted and Talented Education Programs (GATE) and “specialty” high schools. Attorneys for the San Francisco Unified School District have roundly concluded that Lowell is neither, according to multiple sources as well as internal documents obtained by Mission Local.
While a great many gifted and talented students attend Lowell, there is something special about a gifted and talented program that involves specific forms and specific categorizations and funding sources. The notion that Lowell was or is a GATE program elicited laughter from current and former school board members and county officials. This seems like a semi-serious semantic game and the equivalent of trying to claim tax deductions by declaring a houseplant your dependent.
Lowell is also not, and never has been, a specialized school or program, according to the district. “Special schools” are not defined in 35160.5, but the state Department of Education lists examples such as adult education, Native American student programs, charter schools, homeless education, etc.
The Lowell Alumni Association memo doesn’t go into much detail on GATE. But it argues that Lowell is a specialized high school, largely due to its longstanding selective admissions process and the academic track record of its graduates.
Well, that’s an interesting memo, and we should all be proud of Lowell alumni like Stephen Breyer (and Bill Bixby!). But that’s an odd definition of a “specialized” school. For one thing, Lowell is by far the largest public school in the city, which doesn’t fit any traditional definition of “specialty.”
And although previous admissions standards were strict and students generally achieved academic success, they entered the same academic programs offered to students at other San Francisco high schools: Washington, Lincoln, Balboa, etc. Like Lowell, these are categorized as “Comprehensive school, not specialized.
In fact, there is a high school in the city where students study to do Participate in a specialized program: Ruth Asawa School of the Arts. The curriculum here is specialized: there are both scientific and artistic classes. And as a technical school SOTA is exempt from 35160.5, and is entitled to use selective eligibility criteria (but it must also be noted that SOTA’s selection process, an audition, is not a measure of “academic or athletic achievement,” the criteria prohibited by 35160.5).
Mission Local has learned that the district is aware of the Lowell alumni memo and its claims. And while the district declined to answer our questions about it, it clearly doesn’t believe the arguments in the alumni memo. The District does not believe Lowell is specialized, and does not believe Lowell has a grandfather or is otherwise excused from complying with 35160.5. This is easy to see, because on the contrary, the district insists that this code does apply in the future – and thus also in the past.
On Facebook, Lowell alumni have pondered whether their alma mater could retain merit-based admissions by converting it to a charter school. A very solid one timeline The article cited the possibility of Lowell becoming “a specialized or alternative school with focused or thematic instruction.”
Converting Lowell — again the city’s largest school with around 2,800 students — into a “specialist” institution would be a major achievement. It would require a new curriculum and entry requirements and many other things that would be difficult to accomplish before Lowell’s preliminary lottery process expires after the 2023 school year.
But it’s not clear that anyone really wants that. No one complains about Lowell’s curriculum; Rather, this appears to be a suggestion that the school should be transformed as a ploy to revive its previous admissions system.
This is a bit different, and realizing everyone’s intentions is a challenge for the future. A favorable outcome with respect to Lowell requires good faith participation by all parties.
It’s asking a lot. It is easy to foresee many “depressions” in the near future. “Acceptance” remains elusive.