Court of Appeals Reverses Previous Math Adoption Ruling

The Court of Appeals for Washington State has ruled that the School Board's adoption of Discovery math was not "arbitrary capricious or contrary to law." 

From the ruling:

Those challenging the Board decision bear a heavy burden, particularly because it was based on complex and technical factual matters at the heart of the Board's Arbitrary and capricious agency action is "wilful and unreasoning action, action without consideration and in disregard of the facts and circumstances of the case. Action is not arbitrary or capricious when exercised honestly and upon due consideration where there is room for two opinions, however much it may be believed that an erroneous conclusion was reached.

The Court found that the Board did not fail to give honest consideration to the "alleged deficiencies of the Discovering series". It went through, item by item, of the plaintiffs issues with the decision. One interesting item:

The challengers believe the supporters of the Discovering series lack credibility. But it is not the role of a reviewing court to weigh the credibility of experts.

A point I find lacking:

They argue that the evidence of declining test scores proves that ample education is not being provided for all students and that racial minorities are disproportionately damaged by inquiry-based math
But article 9, by its express language, places a duty only on the State, not on school districts.

Well, that's a little tortured, no? The districts exist because of the State and its laws about education.
I appreciate the effort that the plantiffs put into this challenge.  The Court points out that there is evidence for both sides that the Discovering math series could hurt or help student achievement in math.  Time will tell.


Greg said…
That is disappointing.

Adding to what you noted in the ruling Melissa, it strikes me as odd that, as discussed on page 10, the Appeals Court considers the Board being "aware" of strong negative evidence on the effectiveness of Discovery Math as being the same as giving that evidence "due consideration" before acting.

Here is the section of the ruling for that:

Arbitrary and capricious agency action is "wilful and unreasoning action, action without consideration and in disregard of the facts and circumstances of the case. Action is not arbitrary or capricious when exercised honestly and upon due consideration where there is room for two opinions, however much it may be believed that an erroneous conclusion was reached." Sweitzer v. Indus. Ins. Comm'n, 116 Wash. 398, 401, 199 P. 724 (1921).

Applying this standard to the record before us, we cannot find that the Board failed to give honest consideration to the alleged deficiencies of the Discovering series. The Board was aware that Harel and Wilson viewed the books as "mathematically unsound." The Board was aware that the state superintendent did not select the Discovering series as its final recommendation. And the Board was aware of anecdotal evidence that many teachers and parents have difficulty using inquiry-based math and find its methods ineffective. But the Board was also aware that other mathematicians viewed the books favorably. The adoption committee, including experienced high school math teachers among the district's own staff, recommended the Discovering series because it supported flexibility in instruction methods, including explicit mathematics instruction for struggling students.
Anonymous said…
It isn't tortured, it is pretty straight forward. Judge Spector's ruling was never going to stand, everyone in the legal community knew it was going to get shot down. The impressive piece was how quickly the Court of Appeals issued the decision after oral arguement (a couple of weeks). That is a sign that the orginal opinion was so flawed that it never had a chance to survive an appeal.

Anonymous said…
Right on LawDawg. Clearly Judge Spector had a personal axe to grind. I wish the district would counter-sue for legal expenses and put an end to the seemingly endless and witless lawsuits by citizen know-it-alls. There is more than one opinion. At some point, somebody has to actually make a decision.

Right Melissa, the judge adequately addressed the issue of declining test scores. You can't just point to a book and say, "Aha!There it is, the problem! That's whose fault it is."

Same with the teachers, right? Some would blame the teachers, others would blame the books. The point is, it's a huge burden of proof, and one Dan didn't make.

From the case:

The challengers also contend that given the evidence in the record of declining math test scores, the Board had no reasonable alternative except to disapprove the Discovering series. But the evidence was not that compelling. It was based on a different series of textbooks and did not attempt to rule out other variables. The record provides some support for the argument that the Discovering series will perpetuate and worsen the gaps in math achievement between high and low performing groups of students, but it also provides some support for the argument that it will help Seattle schools overcome those gaps.

On this record, there was ample room for two opinions.

Obviously right.

And no Melissa, time will not tell. No matter what happens with math test scores, or math achievement gap, time will NOT just tell the answer. It still will NOR be easy to ferret out which factors contribute to the future changes in performance. Somebody else could say it was all because of TFA, or any of a myriad of other issues.

-Get a move on.
dan dempsey said…
Check the Data from OSPI Spring 2010 Math testing for grade 10... year one of Seattle's Discovering...

Black Student pass rate in math at grade 10 declined to 12.5%

Limited English Speaking Student pass rate in math at grade 10 declined by 4.5% in a year when the state rate for ELL rose by 1%.

There is very little done in education by intelligently applying relevant data.

Great of the Court to confirm this fact for us all.

WA State Constitution Article IX section 1:

"It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex."


It seems the first action of all levels of government is to protect the government from the people. This ruling is great evidence of that.
dan dempsey said…
What ??? Where ???

" but it also provides some support for the argument that it will help Seattle schools overcome those gaps. "

I seem to have missed that..... apparently the high schools missed it as well ... check the 2010 data.

RBHS Black pass rate 3.9%
Cleveland Black pass rate 5.7%

Law Dawg is correct ...

Oligarchs win again ... no surprise ...
Republic still remains scoreless.

State Constitution remains a meaningless document for educationally disadvantaged learners.

Welcome to NSAP ... the next version of separate and increasingly unequal.
dan dempsey said…
Worth a read at the NY Times.....

Vern Williams the only k-12 teacher on the National Math Advisory Panel has a few well chosen thoughts on Math teachers and where this is headed.

Appropriately titled "Let Us Teach".
dan dempsey said…
YUP Students of poverty are definitely getting the short end of the stick as is pointed out in the Bob Herbert NY Times article:

"Studies have shown that it is not the race of the students that is significant, but rather the improved all-around environment of schools with better teachers, fewer classroom disruptions, pupils who are more engaged academically, parents who are more involved, and so on. The poorer students benefit from the more affluent environment. “It’s a much more effective way of closing the achievement gap,” said Mr. Kahlenberg."

Seattle has decided to use inappropriate instructional math materials and confine students to in many cases high poverty environments. The Courts tell us these are legal practices. I think the School Board hardly deserves congratulations on their recent legal victory. This victory will continue to allow them to inadequately serve educationally disadvantaged learners. The State Constitution is a complete Joke for the educationally disadvantaged student.
dan dempsey said…
Law Dawg and - Get a move on,

Any thoughts on the coming "NEWS" appeal?

Network for Excellence in Washington Schools.
ArchStanton said…
Yeah, that Article 9 bit is fairly outrageous. I'm sure that poor students, students of color, female students, and their respective advocates will be comforted to know that:

It is the state's paramount duty to make ample provision for the education of all children residing within its borders, "without distinction or preference on account of race, color, caste, or sex"

...and equally comforted to learn that the schools themselves labor under no such burden.

/So; after we finish re-segregating schools, do we put all the girls back in home-ec classes and the poor kids in shop classes?
Anonymous said…
Funny how people who love the most segregregated programs in the district for themselves, always complain about the school "resegregation". Integration is for everyone else. NSAP isn't making most schools resegregated as Seattle's neighborhoods are diverse.

ArchStanton said…
@Observer: It's hard for me to tell; are you trolling me in particular or just trolling in general?
Greg said…
Thinking about this ruling more, it is clear that appeals court set a very low bar on when the Board has fulfilled its oversight duties.

The essence of the decision is that it is trivially easy for the Board to perform its role in any decision-making process, almost any level of effort would suffice.

In that case, it would seem that the decision of this appeals court was made from the start.
Get a Move On, of course there are many factors to why students could do poorly in math. But if you see, across the board, scores remaining stagnant or falling within several years of a new math adoption, you do have the right to ask if the math materials are the problem (especially if both parents and teachers find them odious).

"NSAP isn't making most schools resegregated as Seattle's neighborhoods are diverse.

You might want to check the latest census. Not so much in the north end except in the far north.
Kate Martin said…
The lawyer for the district couldn't remember what NMAP means during his 20 minutes of oral argument. That was shocking and telling. If they just followed the recommendations in the National Mathematics Advisory Panel Foundations for Success recommendations - Dept of Education 2008 - we'd be fine. The decicion to not just do that does seem arbitrary and capricious in that light. NMAP calls for both explicit and constructivist methodologies in math instruction. Right now, vast numbers of kids can't do basic arithmetic and lacking mastery in those basic skills prevents a kid from being able to really access anything constructivist. They enter high school with those deficits and instead of continuing to instruct them in arithmetic until they're ready for more - if ever - they have zero remedial math programs in HS and it's all algebra all the time for freshman. That is truly insanity since we all need basic arithmetic and algebra is not something that can be taught to a student who can't do arithmetic. The previous post on racism is very much relevant here. NMAP is very clear about how to teach math to ELL students, students with learning disabilities, and special ed students, yet nobody follows it. Reasonable people may disagree, but certainly reasonable people do research and seek out the best of the best to guide their decisions. NMAP is one of those great guiding documents.
One question I have - is this the Sherry Carr daughter who went to KUMON? If she is somehow held up as the test case for whether the damn book works or not (which is silly because Sherry has a white affluent family paying for KUMON), we should definitely note whether sher daughter built her math skills through explicit instruction at KUMON. In lieu of KUMON I recommend folks check out Just $25 a year and you can help your kids build their mastery of basic math skills through explicit instruction without the high cost of a tutor or KUMON.
Unknown said…
Greg -- "it is clear that appeals court set a very low bar on when the Board has fulfilled its oversight duties." That's actually true -- it's the way our system is set up. Courts are a check and balance, they don't legislate. See LawDawg's comments @ 8:07.
Anonymous said…
No Archie, I'm commenting on your position. You're fine with segregation for yourself (presumably, becuase you're so deserving) but whine about it for everyone else. It's hard to take you seriously.

Just saying said…
Our principal also sent their own kids to Kumon...not exactly a strong endorsement for the District's program.
Anonymous said…
Right Melissa, the acheivement gap has been building and building for decades. It has been building through many different math teaching styles and math materials. I can't remember a time when there wasn't a building acheivement gap.

The court found the (and so have I) that the math materials support several ways to teach math. Teachers and experts testified that it was possible to teach using a variety of methods, and that that possibility was indeed a reason for it's selection in the first place. The court didn't have to decide why there was an acheivement gap. That wasn't the issue before the court. The issue was about the materials selection process. If there is a disagreement, it isn't capricious, or willful neglect, when there is a decision that may have had a different outcome.

If somebody wants to sue the district on behalf of underacheiving students, because they haven't gotten necessary instruction or remediation, that would be fine and great. Unfortunately, that wasn't this case.

Get A Move On
zb said…
I'll echo LawDawg's comment that it was highly unlikely that Spector's ruling was going to stand. As others say, the role of court review is highly limited (as they point out in the opinion, because of the separation of powers doctrine).

The data might show, in the end, that the choice of textbook was wrong, but it can't show that it was "arbitrary and capricious." It's a relief that the court didn't set standards that would cripple the ability of administrative bodies to make any decisions at all (even about a textbook, which isn't a huge one, as far as I'm concerned).

I also thought the court decision was very well written, cogent, coherent, and thorough. I'd love to know who wrote it (do these judges have clerks?).
Anonymous said…
No Greg,

The court listed the lengthy debate that went into the decision. The district did pick an actual curriculum. It didn't suggest that kids or teachers do something that had NO research backing it. Research isn't always conclusive. It didn't go with some fly by night thing, or decide on something that has never been used by many other districts.

But you are right. It is a very high bar to prove that a decision is arbitrary or capricious. That is exactly the high bar we want. We don't want every Tom, Dick, and Harry second guessing every decision the district makes because he didn't get to make it. Notable that the challenger ran for school board and was rejected because we, the voters, do not want him making those decisions.

The challengers have not met their heavy burden of showing that the Board acted arbitrarily, capriciously, or contrary to law.

Get A Move On
Charlie Mas said…
The legal bar for the Board is set very low - no doubt about that. The Courts don't second-guess legislative bodies. Remember that the Supreme Court ruled that an emergency is whatever the legislature declares to be an emergency - such as the possibility that Seattle could lose a major league sports franchise.

Likewise, the Court ruled that the Board only needs to have heard about the opposition to the texts to be regarded by the Court as having considered those facts and arguments. No lower bar can be imagined. It seems that be getting up and making the argument against the books, the opponents put this Court decision out of reach.

In the Weird Upside-Down Wonderland of this law, it is possible that the opponents of the adoption might have had a case if they had kept their mouths shut about the reasons to oppose the textbooks. Then they could argue that the Board never heard - or considered - the reason to oppose the adoption and therefore didn't consider them.

Or have I fallen through the looking glass?
Po3 said…
I would be interested to know how to find out if in fact Carr's daughter went to Kumon? And if so, when did she go to Kumon, before or after the adoption?
Anonymous said…
it is possible that the opponents of the adoption might have had a case if they had kept their mouths shut

Well of course!!!! If you're going to sue somebody, you don't go blabbing about all your reasons why. Even a nit wit knows that. And the endless blabbing itself meant that everybody had to consider the point, which obviated the challengers case in the first place.

Another Parent
Charlie Mas said…
Actually, a number of board members, including Steve Sundquist, claimed, at the time of the vote, that they did NOT consider the arguments in opposition to the adoption because he believed that he was only voting to approve the process and not the textbooks.
Michael H said…
Po3: Unless Carr reveals those details, or unless someone violates her right to privacy, that information is none of your business.
Dorothy Neville said…
IIRC, Carr did not mention Kumon in her comments re the HS math adoption. She mentioned something more vague about a daughter having math issues. She and her daughter got a sample lesson from the proposed material from a math coach. Both she and her daughter liked the lesson. That's what she said at the time of the vote.

More recently, during the annual disclosure of possible conflicts of interest, she announced that both her daughters have after school jobs at Kumon.
Anonymous said…
Court of Appeals Judges do have law clerks. Usually they are recent law school graduates who are at the top of the class and were on law review who clerk for a year or two. There are a few state and federal judges who also hire "life time" clerks, who are usually former clerks or attorneys who have strong appelate law backgrouns who work as a clerk as a career. Pay is less than what a top litigator would get, but it is a high quality of life and good benifits job.

Dan, I think the NEWS case won't be over until it reaches the Supreme Court. Hope that the NEWS folks keep winning.

Law Dawg
Get a Move on, I said nothing about the achievement gap. I'm talking specifically about math outcomes.

ZB, I agree it was a well-written decision in that for once, the average person could read it and clearly understand the issues and the arguments and the Court's decision.
ArchStanton said…
@Observer: I really don't want to go off-topic in this thread or make it about me so; let's take this discussion outside... er, to this other thread:

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