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'Action is different than promises': Plaintiffs allege Berkeley school district breached settlement agreement

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The class action lawsuit, originally filed in May 2017, claimed that BUSD failed to properly serve students with reading disabilities.


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FEBRUARY 27, 2023

Plaintiffs allege Berkeley Unified School District, or BUSD, breached a settlement agreement that the district reached with four families in 2021 regarding improvements to reading and literacy programs.

The class action lawsuit, originally filed in May 2017, claimed that BUSD failed to properly serve students with reading disabilities. The parties reached the literacy settlement agreement in July 2021, requiring BUSD to begin a comprehensive review of its general education literacy curriculum and start a research-based reading intervention for grades K-2, among other proposed improvements, according to plaintiffs’ counsel Deborah Jacobson.

Jacobson said the students and families considered BUSD to be in anticipatory breach of the agreement in December because they had allegedly failed to consider the terms of the settlement.

Jacobson added that this alleged breach is likely due to administrative changes over the last few years, and she is hopeful that the new administration will make the necessary adjustments to comply with the settlement terms.

“With the former administration I felt very pessimistic — I felt like we were going to have to open the case back up with a formal breach case in federal district court,” Jacobson said. “There have been a lot of promises made and now there is some hope.”

BUSD has not responded to allegations as of press time.

Impartial monitor George Ellis prepared semi-annual literacy improvement reports following the settlement to assess BUSD’s compliance with its terms, as well as “effective phases of implementation.”

As of November 2022, Ellis said BUSD was likely in the second “implementation” phase of improvements, having passed the first stage “exploration to installation.” The final phase listed is “innovation to sustainability.”

Ellis evaluated BUSD in terms of accountability, assessment, instruction, intervention and systems of support. He found BUSD to be in compliance with systems of support and assessment requirements, though lacking in instruction and intervention.

“This limited progress in the areas of Instruction and Intervention is understandable, considering that the successful establishment of Systems of Support and Assessments are prerequisites that lead to sustainable changes in Instruction and Intervention,” the report reads.

Although, BUSD parent and Reading for Berkeley member Lindsay Nofelt said the previous BUSD administration seemed like it wanted to check boxes rather than show true concern about literacy.

Nofelt added the main change following the settlement was the implementation of Dynamic Indicators of Basic Early Literacy Skills screening for grades K-2, and the district has many other actions regarding equity and literacy it aims to achieve. She said this foundational work has to happen first.

Megan Potente and Lori DePole, co-state directors of Decoding Dyslexia CA, have followed the literacy case since it began in 2017. DePole said delays in implementation may be a result of changes in leadership, but the current leadership have been around for six months and are “dragging their feet.”

Potente and DePole said they hope this breach warning is enough to inspire BUSD to take action.

“If you can identify early your kids that are struggling with literacy and provide them the necessary support in the general education classroom, you should see a decrease in how many kids ultimately are found eligible for special education,” DePole said. “The fact that this settlement also reflects the sanctions that are happening to Berkeley for its African American students, it should serve as a wake up call for Berkeley that the time to act is now.”

Jacobson said the literacy agreement was complicated and difficult to develop, because there are not many examples of districts in the country doing literacy instruction well.

She said literacy rates nationwide are “abominable” and should BUSD comply with the settlement, it could be setting the standard for other districts.

“Berkeley Unified School District has an opportunity here to be a leader nationwide, not just statewide, in teaching kids how to read,” Jacobson said. “They have this opportunity to be the model and there is that common goal that plaintiffs’ council, and the district, both share.”

Contact Ella Carter-Klauschie at 


FEBRUARY 27, 2023