2+2 = litigation

Judges shouldn’t pick math curricula, writes Joshua Dunn, a University of Colorado political science professor, in the fall issue of Education Next.

In February 2010, a state judge overturned the Seattle school board’s decision to use the “Discovering” math curriculum. The adoption had prompted a lawsuit by a retired math teacher, a professor of atmospheric science and the mother of a high school student.

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 curriculum may be faddish and foolish, Dunn writes, but the judge was “arbitrary and capricious” in substituting her judgment for that of the school board.

While the Seattle school district is appealing Judge Spector’s decision, parents have filed suit to get the Issaquah school district to drop the Discovering series. Bellevue, another district with well-to-do and well-organized parents, faces a possible lawsuit over Discovering.

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  1. It is slightly referenced at the end of the linked article but it deserves more emphasis that the Washington State Board of Education had declared the Discovery math series as mathematically unsound.

  2. Chris is correct. 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.

  3. Adding only slightly to Barry’s point, “arbitrary and capricious” is a legal term of art. It is used when the decision of a board or agency is not based on factors that the board is legally required to consider. It isn’t a determination that the board’s decision is wrong; it is a determination that the process used to reach the decision was flawed, and that the process needs to be done over, this time considering the required information.

    I don’t know the details of this particular case, but, as an example, if the board held a hearing on which curriculum to adopt and heard some evidence in favor of Discovering and some evidence opposed, the board would be able to decide for or against Discovering without the decision being arbitrary and capricious. On the other hand, if the board held a hearing and there was no evidence in favor of Discovering, it would be arbitrary and capricious for the board to adopt Discovering.

    Or, adding a little more complexity, of one of the factors that the board was required to consider was the effect on student outcomes, and the board heard some evidence against Discovering, some in favor of Discovering, but no evidence that Discovering would improve student outcomes, the board’s determination would also be arbitrary and capricious.

    Again, the result is not that the board can’t chose Discovering; the result is that the board needs to have a hearing where all legally required evidence is considered.

    Note that this type of ruling only applies to boards, commissions, agencies, or administrative units which are charged with making a decision *according to certain criteria*. The criteria are usually established by state law.

  4. But “Discovering” is garbage. The Washington State Board of Education declared it garbage. Essentially the judge said “You people have to actually consider state criteria when selecting curricula. Didn’t you people even look at the fact that the state considers it garbage? Try again!” The judge didn’t pick a curriculum, she’s just requiring the school district to follow the rules for selecting one.

    Interesting that Bellevue is cited as a district looking at lawsuits over Discovering. Why is that interesting? Bellevue has 5 of Newsweek’s top 100 American high schools (http://www.newsweek.com/feature/2010/americas-best-high-schools/list.html). I suspect that the local Kumon and Silvan affiliates do a brisk business!

  5. It seems that schools are deliberately blind to the extend of private tutoring – including by parents – in their districts. They just don’t want to know about it, but the results enable them to continue making the kind of curriculum and instructional decisions they like (progressive) without paying much of a political price. The worst political price is usually the dreaded “achievement gap”, which they blame on poverty, racism, lack of social programs etc. That means that kids who could have learned reading, math and the disciplines (given strong curriculum and effective, efficient instruction) are left behind.

  6. Here are the details that confirm Peter W’s legal points…..

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

    The Board: “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:


    (#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.



    Judge Julie 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.

  7. In addition to Seattle Math action ……

    Litigation in Seattle is complicated by the Superior Court’s hesitancy to enforce state law. The District has failed to ever certify the transcript provided is “Certified Correct”. This shortcoming is now headed to a WA Supreme Court panel on September 7. Note the most recently filed piece came from the District on August 27: (due on August 26)


    Note on page three…. The claim is that this is complete and then a sentence later the appellants are told more evidence will be coming when it is practical to release it.

    As always there is no certification that any of this is a correct transcript of evidence as used by the Board to make a decision.

    The public has filed multiple appeals of School Board decisions:
    School Closures, New Student assignment plan boundaries, New Technology Network contract signing, One year extension of the Superintendent’s contract, NWEA Measures of Academic Progress testing.

    The District has never certified that any of the information provided is correct and three King County superior court judges has yet to old the Seattle School District accountable for the failure to satisfy the requirements of RCW 28A.645.020
    —– This is clearly an example of legislation from the bench.

    A hearing in regard to the recall petition for the recall of each of five of seven Seattle School board members will be heard on Sept 23.

  8. More on Seattle School Board recall…


  9. The judge observed that the Board had not considered all of the available evidence presented to them. If their elected Board members had done the necessary due diligence and served the community well, there would have been no need for a lawsuit or the expense. This was a last resort.

    I hope that school boards throughout the country take note. Math fads are slowing us down and will leave us in the dust of unemployment and offshoring.

  10. Applying the Value Added Model to Seattle’s Math Program that is the subject of the Litigation:


  11. 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. The court 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. 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.

    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.??
    Look for Legal Documents in Textbook Appeal

  12. If parents actually got a real choice in where their child attends school, then I suspect there wouldn’t be these kinds of lawsuits. They’d simply vote with their feet.