Last week, we published a column publicly revealing what the San Francisco Unified School District and its lawyers have been saying in private for years: The district believes Lowell High School’s prior merit-based admissions policy violated state law, and does not think it could successfully defend it in court.
While Mayor London Breed will soon name three new Board of Education members, those appointments won’t alter the legal stance of the district’s general counsel, a stance long predating the three board members recalled last month by an overwhelming majority of San Francisco voters.
Many of those voters were angry about the elimination of Lowell’s merit-based admissions policy, and many apparently believed that the recall was some manner of magic wand to return Lowell to its status quo. So it was no surprise that the reaction to our story was not charitable. If anything, it resembled the first three of Dr. Elisabeth Kübler-Ross’ five stages of grief: Denial, anger and bargaining.
“Depression” and “acceptance” ostensibly come next — but, considering lawyers, politicians, political appointees, angry parents and alums are involved, maybe they don’t.
In the last week, we’ve talked to more people and obtained more documents and done more reporting. Everything we printed before holds up. So, here it is again: Lowell’s prior, merit-based admissions policy isn’t coming back. That is, unless the Board of Education explicitly ignores the unambiguous advice repeatedly proffered by its legal counsel — both orally and in writing, in numerous closed-door sessions and “anticipated litigation” memos — going back for years and years. In fact, ex-Board of Education members told us that they were informed by prior legal counsel that Lowell’s policy was incompatible with state law, and that was more than a decade ago.
The histrionic response to our story was yet another sad reminder that even well-educated people, including liberals, are increasingly unable to discern journalism from advocacy. The factual assertions in last week’s column — that the district has long believed Lowell’s previous admissions policy was legally vulnerable and an explanation why — are solid. That may not make readers happy, and you may have your own thoughts about the district general counsel’s legal opinions, but yelling at a journalist about it (“denial,” “anger”) is of limited utility.
The district’s present-day statement regarding the matter is a tantamount admission that it doesn’t believe it could have fended off a legal challenge to the prior Lowell entry policy.
“Any decision to either restore the Lowell Admissions Policy or to supersede it with another admissions policy must be consistent with the requirements of Education Code section 35160.5 (b)(2)(B), which explicitly prohibits public school districts from making enrollment decisions based on the student’s academic performance,” wrote SFUSD spokeswoman Laura Dudnick in a statement to Mission Local after I asked about this last month.
It’s been a while since high school, but we can still do a bit of deductive reasoning here. If Lowell insists its next policy must abide by this education code, and if this education code “explicitly prohibits” the use of academics as an enrollment criteria, and if Lowell was using them as a criteria before, then it stands to reason that the district is implicitly stating that it believes the prior policy violated this code (which, again, is not surprising, because that’s what it was explicitly stating behind closed doors, going back years and years, both orally and in writing).
But let’s assume that this is a debatable legal position. It would behoove the district to establish, once and for all, what it can legally do at Lowell and what it cannot.
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. But, ultimately, the district did not do this. Why not? The explanation given by a former school board member was: “What if the answer came back ‘no?’”
Instead, the district chose to remain in a legal gray area, and pray that nobody sued.
And nobody did. But that’s no longer an option because, for better or for worse, last year Lowell did away with merit-based admissions. And while that decision was invalidated because of the school board’s gross violations of open meeting laws, the district moved to keep lottery admissions in place through the 2022-23 school year.
But that also means that a “no” from the state or a judge is no longer nearly as big a deal. It’s not the same thing to be told “what you’re doing is illegal” as it is “That thing you used to do, and aren’t doing anymore? That was illegal.”
So the district should strongly consider consulting with the state or the courts. Because, when the newly recomposed Board of Education decides what comes next for Lowell, it’d be good to know what, conceivably, could come next.
Having a solid legal footing is a good and necessary first step. And, compared to what comes afterward, it’s a piece of cake: Next comes navigating the minefield of racial politics, tradition, equity, merit and institutionalized racism.
While the district holds that Lowell’s prior merit-based admissions policy was illegal, that doesn’t automatically mean a potentially legal policy somehow incorporating merit can’t be hammered out. Can San Franciscans sit down and engage in an honest and productive process to determine if that is desirable and what that might look like?
Or will we engage in the Kübler-Ross stages of San Francisco school politics: denial, anger and bargaining, followed by fulminating and litigation?
So, you remember the part about half a dozen current and former school board members telling Mission Local that, over the course of many years, they were explicitly warned by the district’s general counsel that Lowell’s merit-based admission policy was incompatible with state law, and that the district would likely lose a legal challenge.
And you remember that the law in question is California Education Code 35160.5 (b)(2)(B), which the district unambiguously states it must 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 don’t have to adhere to this education code? What if merit-based admissions is fine and dandy?
There are two carve-outs to Education Code 35160.5 (b)(2)(B) that defenders of Lowell’s status quo cling to: Gifted and Talented Education programs (GATE) and “specialized” high schools. San Francisco Unified School District lawyers have flatly concluded that Lowell is neither of these, according to multiple sources as well as internal documents obtained by Mission Local.
While a great many gifted and talented students attend Lowell, a Gifted and Talented Education program is a specific thing involving specific forms and specific categorizations and funding sources. The notion that Lowell was or is a GATE program induced laughter from current and former school board members and district officials; this would appear to be a half-serious semantic game and the equivalent of trying to claim tax deductions by declaring a houseplant as your dependent.
Lowell, by the district’s own reckoning, is also not a specialized school or program, and never has been. “Specialized schools” aren’t defined within 35160.5, but the state Department of Education lists examples such as adult education, American Indian student programs, charter schools, homeless education, etc.
The Lowell Alumni Association memo doesn’t dwell much on GATE. But it does argue that Lowell is a specialized high school, essentially by dint of its longstanding selective admissions process and its graduates’ history of academic success.
Now this is an interesting memo, and we should all be proud of Lowell alums like Stephen Breyer (and Bill Bixby!). But this is a curious definition of a “specialized” school. For one thing, Lowell is, by far, the largest public school in the city, which doesn’t fit any conventional definition of “specialized.”
And, while its prior admissions standards were rigorous and its students generally enjoyed academic success, they were taking the same academic programs offered to pupils at other San Francisco high schools: Washington, Lincoln, Balboa, etc. Like Lowell, these are categorized as “comprehensive” high schools, not specialized.
There is, in fact, a high school in the city where students do take a specialized program: Ruth Asawa School of the Arts. The curriculum here is specialized: There are both academic and artistic classes. And as a specialized school, SOTA is exempted from 35160.5, and is entitled to use selective admission criteria (But it also warrants mentioning that SOTA’s selection process, an audition, isn’t a measure of “academic or athletic performance,” the criteria forbidden by 35160.5).
Mission Local has learned that the district is aware of the Lowell Alumni memo and its contentions. And, while the district wouldn’t answer our questions about it, it clearly doesn’t buy the alumni memo’s arguments. The district does not believe that Lowell is specialized, and it does not believe that Lowell is grandfathered or otherwise excused out of complying with 35160.5. That’s easily discernible because, on the contrary, the district insists that this code does apply in the future — and, by extension, applied in the past, too.
On Facebook, Lowell alums have pondered if their alma mater could preserve merit-based admissions by being converted into a charter school. A very solid Chronicle article noted the possibility of Lowell becoming “a specialized or alternative school with focused or thematic instruction.”
Transforming Lowell — which, again, is the city’s largest school, with about 2,800 students — into a “specialized” institution would be a haul. It would require new curriculum and new entry requirements and lots of other things that would be challenging to square away before the interim lottery process at Lowell lapses following the 2023 school year.
But it’s not clear anybody really wants this. Nobody is complaining about Lowell’s curriculum; rather, this seems to be a suggestion that the school should be metamorphosed as a ploy to resurrect its prior admissions system.
That’s a bit different, and discerning everyone’s actual intent figures to be a challenge moving forward. A positive outcome regarding Lowell will require good-faith participation from all sides.
It’s a lot to ask. It’s easy to foresee plenty of “depression” in the near future. “Acceptance” remains elusive.