A student uses Play-Doh to form the letters of his name during transitional kindergarten class at Malcolm X Elementary in Berkeley. Credit: Ximena Natera, Berkeleyside/CatchLight

Two years ago, the Berkeley school district settled a federal class action literacy lawsuit, resulting in a first-of-its-kind settlement that required the district to overhaul how it teaches reading, especially for students with dyslexia and dysgraphia. 

Advocates hope the settlement will bring meaningful change to struggling readers in Berkeley Unified and set a precedent for other school districts. But they claim progress has been slow and attorneys representing the families who sued say the district has breached the terms of the agreement.

The settlement, the outcome of a four-year-long legal battle between the district and a group of families that ended in 2021, tasked BUSD with improving its literacy curriculum and intervention strategies and implementing universal screening tests. It also assigned an impartial court monitor to assess the district’s progress and make reports twice a year to the school board. Last year, the school district was granted a year-long extension on what was supposed to be a three-year plan, extending the settlement until 2025. 

On Thursday, attorneys representing the families gave BUSD a notice of breach, a failure they pin on high administrative turnover and a lack of urgency on the part of previous administrators. The notice serves as a warning to the district, since attorneys have the option of filing a similar notice in federal court. One of the attorneys summarized the contents of the confidential notice for Berkeleyside.

Superintendent Enikia Ford Morthel declined to comment on ongoing legal issues but said the district is on track with implementing the literacy action plan and emphasized that an audit of how BUSD teaches literacy was a top priority. In a presentation about a new governance plan for the district in December, Ford Morthel said, in general, the district does not always employ evidence-based practices or make decisions based on data. 

Court monitor George Ellis has said that the district is making progress in the majority of tasks it’s been assigned with through the settlement, though gaps remain.

Deborah Jacobson, one of the attorneys representing the families who sued BUSD, said she has worked with three different superintendents, four special education directors and numerous associate superintendents since the case began.

“[They] all keep telling me, ‘We are on it. We understand the problems. We are working on this,” Jacobson said. “Then they come back and say nothing has happened.” 

Jacobson and some other advocates involved in the settlement say Ford Morthel and Associate Superintendent Jill Hoogenyk, both of whom started work this summer, appear more committed to changing literacy instruction than previous administrators.

“There is a new sense of urgency with the new administration and a new level of commitment,” said Jacobson.

The battle over literacy

National attention has been trained on literacy with a debate brewing over how much explicit instruction in phonics — learning the sounds of letters and syllables to decipher words — students need to become fluent readers. Like many school districts across the country, BUSD uses a popular approach developed by Columbia Teachers College Professor Lucy Calkins called “balanced literacy,” which emphasizes independent reading and student choice of texts.

Though Calkins’ “Units of Study” curriculum is still widely used, it has fallen under heavy fire in recent years by advocates of an approach called the “science of reading.” This approach includes far more explicit phonics instruction, rather than allowing them to also rely on pictures and guess-work, and includes more vocabulary instruction in later grades. 

The last decade has seen a marked shift in reading curriculum across the country. Twenty-nine states have passed laws requiring that the science of reading be used in public schools, but not California. Education scholars tend to agree that phonics instruction improves academic outcomes, though studies show improvements can be small and some still debate the question in research journals. 

The settlement agreement does not specify that BUSD use one kind of curriculum in the general education classroom, but it does require that the intervention strategies be “research-based” and that student outcomes be monitored to ensure what they are doing is working. 

Advocates who are part of the case join a growing group of involved parents in the belief that to fundamentally change outcomes, the science of reading should be adopted in full. 

Ford Morthel said she doesn’t “know if the settlement takes a side,” but said that, “call it what you call it,” BUSD is committed to providing all the components of good, research-based literacy instruction. “It is our work to continue to do better by our students, specifically regarding literacy,” she said.

As in many school districts, some BUSD students struggle to learn to read, numbers that break down by familiar demographics. This winter, 29% of students in kindergarten through second grade scored below or well below grade level on diagnostic reading tests, down slightly from 35% in the fall. Students with disabilities, Black students and English learners are struggling to read at higher rates, the numbers show. 

BUSD is also under state watch for placing disproportionate numbers of Black students in special education, which, according to the state of California, can only be resolved by improving general education. It’s a long-standing issue that advocates hope better literacy instruction and intervention can change.  

Kareem Weaver, who sits on the Oakland chapter of the NAACP and has been heavily involved in the settlement, describes literacy education as a civil rights issue.

For Jacobson, the old ways of teaching reading “have been shown to not work for kids with reading disabilities and those that don’t come from a language-rich environment.” She said this tends to impact students who are learning English and Black students. 

Court monitor says plan is challenged by high administrative turnover, staff mindsets

Per the settlement agreement, BUSD has a few key goals designed to improve literacy outcomes, designed around what’s called a multi-tiered system of support that is intended to improve the primary literacy curriculum as well as intervention practices for students who are at risk of reading disabilities and already diagnosed with disabilities.

So far, the district has taken partial steps in the right direction, according to Ellis, the court monitor and director of UC Berkeley’s California Reading & Literature Project, which provides professional development around reading to teachers. 

Of the 35 distinct tasks required of the district, Ellis reported that the district has completed four and are on track with 18. They have yet to begin two and are approaching in 11 more.

For instance, the district assigned Dibels reading assessments to students and Wilson Reading Systems, a new intervention program aligned with science of reading standards, but has not yet developed a system for assigning targeted intervention based on how students score or trained teachers on how to implement the curriculum. 

Jacobson said the missing tasks are fundamental to implementing the action plan effectively. 

“This literacy improvement plan is predicated on the building of a multi-tiered system of support. Those tiers are not in place yet,” Jacobson said. Setting up those tiers, she said, would require BUSD to develop a better system for sorting students based on need and then tailor instruction and intervention depending on their reading levels. 

Ellis has also criticized staff attitudes toward the settlement agreement. In June, he described staff talking about the settlement as a legal burden, rather than an opportunity to improve instructional practices for struggling readers. “The messaging I’ve been hearing is, ‘We’re having to do this because of this lawsuit,’” Ellis said. “If we’re starting from a deficit mindset, and we’re thinking of this as a punishment, the plan will not be successful in the classroom.”

One of the biggest challenges to effectively implementing the plan, Ellis told the school board in June, is administrative turnover. “Berkeley Unified is not unique in this situation,” Ellis said. “When there’s turnover in leadership, it’s really hard for a multi-year plan to be successful.”

In November, he also dinged Berkeley school board directors for knowing too little about the settlement agreement and failing to put sufficient pressure on the district to adhere to the changes. “It’s clear to me that not all board members have read through the settlement agreement, and I think that’s key,” Ellis said at the November school board meeting.

At the last meeting, Ellis seemed hopeful that new leadership was setting a different tone about the settlement. 

Last year, “there seemed to be just a general lack of urgency in this work,” he said, but Ford Morthel and Hoogendyk seem to have made implementing the literacy action plan requirement by the settlement more of a priority. 

Ellis will present the next monitoring report to the school board in May.

Settlement agreement’s impact could reverberate

The stakes are high for the settlement agreement, which could set a precedent for other districts facing legal pressure or voluntarily considering changing their curriculum.

“If this was implemented correctly and with fidelity, [BUSD] could serve as an excellent role model, example district for other districts to follow,” said Lori DePole, co-director of Decoding Dyslexia, a grassroots organization advocating for students with dyslexia. 

Weaver said the settlement should serve as a wake-up call for districts. “The fact of the matter is, they’re violating federal law by not giving students a free and appropriate education,” he said. “[The settlement] allows a legal foundation and precedent for similar actions to be taken. It means people aren’t going to keep playing patty cake with the districts if you don’t do what you’re supposed to do.”

Advocates said the results of Berkeley Unified’s settlement agreement could mean more families resort to legal means to change their schools’ approach to literacy, or, they hope, that districts will voluntarily change their practices.

On the other hand, Weaver said, the settlement won’t change people’s hearts and minds about reading instruction. “It’s not going to help you win hearts and minds. People believe what they believe, they’re going to do what they’re going to do.” 

Real change, he says, comes from cultural shifts that start at the top with school district leaders.

Ally Markovich, who covers the school beat for Berkeleyside, is a former high school English teacher. Her work has appeared in The Oaklandside, The New York Times, Huffington Post and Washington Post,...