Saying goodbye to Ken Noah and hello to an interesting lawsuit

By Marsha Sutton

The saying goes that nice guys finish last. But in the case of this nice guy, retiring superintendent Ken Noah comes out on top.

Noah, whose last day with the San Dieguito Union High School District is June 30, has been an ethical bellwether – not just in San Dieguito but with parents, board members and educators from surrounding districts, many of whom have looked to him for guidance and inspiration.

He’s demanded high standards of behavior from adults in the system and has skillfully managed to disarm critics, even turning some former adversaries into allies. He has also inspired colleagues and supporters with his uncanny ability to traverse treacherous ground without stepping in quicksand.

The public education system can be a bureaucratic nightmare with often upside-down values, a CYA mentality and human inertia that resists change with astonishing zeal.

But there is another side to the depressing aspect of this equation: those people behind the scenes whose purpose in life is to support and improve public education and help children become compassionate, educated, open-minded, curious, vibrant, contributing members of society.

Noah – a man of genuine integrity, honesty and commitment to student success – is one of the stars in local education who deserves recognition for never losing sight of the goal and using the highest degree of ethics as his guide. Challenging himself to always stay true to what’s best for kids has been his greatest virtue.

Personnel changes are inevitable, healthy for an organization and necessary for careers. But our gut reaction when a true leader departs is sadness and frustration.

You get to know these people and how they think and operate. And if we like what we see, their departure is met with trepidation and anxiety.

Even though he’s retiring after only five years leading San Dieguito, Noah leaves behind a culture and legacy that feels strong and lasting.

One of Noah’s biggest fans is incoming superintendent Rick Schmitt, who has pledged to continue Noah’s commitment to the strongest ethical standards and to put kids first in every decision. Schmitt will be a stellar leader, cut from the same cloth as his predecessor, so in many ways we don’t have to say goodbye to Noah after all.

Gratitude goes to Ken Noah for making the district a better place, and best wishes for many happy and fulfilling years of retirement.

Getting access to your child’s tests

When Schmitt takes over on July 1, one of the first challenges he will face is one of the more interesting lawsuits to come before the district in years.

After being frustrated by teachers who refused to provide copies of his child’s tests, San Dieguito parent and Del Mar resident Michael Robertson filed a California Public Records Act and is suing SDUHSD to release those exams.

His case is centered around the idea that if teachers allow parents to come to school, to their classroom, to review their child’s tests, then they’ve tacitly made the exams public information.

“A document can only be one of two things – either it’s public and everyone in the world can see it, or it’s private and nobody can see it,” Robertson said in an interview. “There’s no halfway in between.”

“The law is very clear on this,” he said. “If you take a document and you show it to the public, it’s now a public document.”

Robertson makes a distinction between the exams and each student’s answers. The test questions are what he claims are public.

The individual student’s scores and responses to the tests, however, should obviously not be made available to anyone other than the parents of that student, the same way confidential student records are required to be made available but only to the parents.

Robertson also said a public agency such as a school district can’t have a public document and then restrict how the public can view the document.

For teachers to say, “You have to look at it at this site and during these hours that are convenient to the teacher,” doesn’t cut it. “That’s not the way it works,” he said.

Requestors should be allowed to view public documents however they want: either copies or in person, he contended. “If they want a copy, they get a copy,” he said.

Parents should be able to access copies of tests, he said, because time in the teacher’s classroom is often inadequate, it is inconvenient to come to school only when the teacher is available, and away from school other family members or tutors can be enlisted to help the child.

Robertson is officially seeking the release of his child’s math exams, but he called this a strategic move that, if successful, will set a precedent and open the door for all exams from all coursework in the district to be made available in any form to all parents.

The risk of cheating

In the formal complaint filed May 14, Robertson contends that public information is being improperly withheld and parents have a right “to be involved in the education of their children and to take steps to effectively augment said education.”

The complaint states that San Dieguito refused to provide him with the copies he requested, and that the district’s “obligations to the wishes of one or more teachers” prevented the district from complying.

According to Mike Grove, SDUHSD’s associate superintendent of educational services, the matter is generally left up to individual teachers. He said some teachers send tests home to be reviewed and signed by parents, while others only make tests available at the school.

Grove said tests sent home can be copied and distributed, which for security reasons would require teachers to create new, secure exams continually.

The possibility of cheating and more work for teachers aren’t the only reasons tests are not always sent home. Often it’s because the exams are used throughout a department and shared among other teachers.

“They’re not comfortable sharing an assessment that other colleagues are using,” Grove said.

San Dieguito has no written policy on this issue, so Grove defines it as a practice and said it varies by department and by school.

However, he said if teachers don’t release copies of tests, parents and students have the right to review any exam in a supervised school setting.

“We tell teachers that they have to make the test available to parents and students if they don’t send it home,” he said. “There’s educational value in the parents being able to see it.”

Robertson said not only is there no district policy prohibiting tests from being sent home, there’s also no mention of the matter in the teachers’ collective bargaining agreement. In fact, Robertson interprets the teachers’ contract as giving the district the right to set education policy on this issue.

He references Article 14 of the San Dieguito Faculty Association, which gives the district the right to:

•Determine the kinds and levels of services to be provided, and the methods and means of providing them.

•Establish its educational policies, goals and objectives.

•Ensure the rights and educational opportunities of students.

California Education Code, section 49069-49072, would seem to bolster Robertson’s case. It reads in part: “Parents of currently enrolled or former pupils have an absolute right to access to any and all pupil records related to their children that are maintained by school districts or private schools.”

But, to Grove’s point, there is also this: “Each school district shall adopt procedures for the granting of requests by parents for copies of all pupil records pursuant to Section 49065, or to inspect and review records during regular school hours.”

“We do our absolute best to make [tests] available to parents and to be flexible,” Grove said.

Disclosure not required

No one at the district would speak directly about the case, referring all inquiries to attorney Dan Shinoff, of Stutz Artiano Shinoff & Holtz.

In response to the complaint, Shinoff filed a demurrer June 17 on behalf of San Dieguito that states in part that the California Public Records Act “has a specific express exemption for ‘academic exams’ and related materials.”

Government Code section 6254 reads in part that disclosure is not required of “test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination …”

“Academic examinations fall squarely within the exemptions of the CPRA,” the response reads.

A demurrer is a written response to a complaint filed in a lawsuit which objects to or challenges a pleading filed by an opposing party, and it asks for dismissal.

SDUHSD’s demurrer states that it “is not required to provide academic exams, test questions, scoring keys, or other examination data. This makes sense because academic records, including exams, are private in nature. … Mr. Robertson has requested copies of 10 of his son’s ‘math tests’ as well as the work performed in relation to each test. Such material is expressly exempt under the CPRA.”

The district’s response does state, however, that “parents should have access to their own students’ work in schools, including exams” and that the district provided Robertson access to inspect the math test materials he seeks but he “apparently is not satisfied with this access.”

Accordingly, the demurrer summarizes, “there is no legal requirement under the CPRA for the district to provide Mr. Robertson with copies of these tests. Mr. Robertson is not entitled to relief under the CPRA, and the court should therefore sustain San Dieguito’s demurrer.”

Robertson countered this position by claiming that a waiver is in effect after meeting with his child’s teacher at the school to review a math test. “Once you show a document to a member of the public, you’ve waived all exemptions,” he said.

Robertson and many other involved parents want to review how their kids are doing more specifically, not just get the grades. And one way is to examine tests and quizzes with your child sitting next to you, without time pressures or adjusting work schedules to teacher appointment times.

Robertson said existing practice, which he called teacher-centered and not student-centered, supports adults in the system rather than children, and restricts the ability of parents to stay involved and provide academic support for their kids.

“It’s about what’s best for the teachers and not what’s best for the children,” he said.

Even Shinoff seemed intrigued by the case. “It’s a very interesting issue,” he said.

We’ll see how this one plays out.

Jaffe returns

Lastly, and perhaps most relevant, is the news that David Jaffe is returning to San Dieguito to take the reins at Torrey Pines High School.

For those who don’t remember Jaffe from his years as founding principal of Canyon Crest Academy, his two-year absence has been sorely missed.

And for those students who didn’t get into Canyon Crest from the waitlist and are attending Torrey this fall as your second choice, you are in for a real treat.

Marsha Sutton can be reached at