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Judge Finds California Textbook Guidelines Illegal

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The California Board of Education violated state law by adopting its own guidelines for selecting textbooks, a state judge has ruled.

Over the past few years, the board has used such guidelines in widely publicized efforts to implement substantial curricular reforms. Because of California's large share of the textbook market, these changes have pressured publishers to revise materials used nationwide.

But Superior Court Judge James L. Long, acting this month in a case brought by an author whose reading textbook was rejected in 1988, ruled that the board failed to follow the state's Administrative Procedure Act in setting its adoption guidelines. That law requires state agencies to solicit public comment on proposed policies and procedures, and to submit changes to the office of administrative law for review.

"Although the legislature may not control or dictate which textbooks and instructional materials the board ultimately selects and may not deprive the board of its power to adopt textbooks," Judge Long ruled, "the legislature has authority to regulate the way in which the board operates in exercising its adoption power."

Judge Long's statement of decision will be followed by a formal ruling in coming weeks after negotiations with lawyers.

In his statement, the judge said his ruling would declare the "policies and procedures, standards and evaluation instruments" used by the board to review reading textbooks "void and ineffective."

He also said he would order the board to adopt new regulations that comply with the Administrative Procedure Act and that require data on the effectiveness of materials.

Joseph R. Symkowick, general counsel for the education department, said the board will appeal the ruling. Because the state constitution empowers the board to adopt textbooks, he argued, its adoption policies for reading--and for all other courses--should not be subject to administrative review.

"We don't mind following the apa," he said, "but we don't think in the area of textbook adoption we can have another agency reject [our guidelines] based on substantive standards."

Jay-Allen Eisen, a lawyer for the textbook's author, Siegfried Engelmann, said he hopes the ruling will force the board to alter its guidelines for evaluating reading textbooks.

"The board will have to deal with a number of things it has not done, publicly at least," Mr. Eisen said. "It will have to construct a reading program based on verifiable data showing what works and what doesn't."

"If they do a proper job," he said, Mr. Engelmann's book "stands a fair chance of being adopted."

Reading Adoption

Led by Superintendent of Public Instruction Bill Honig, California officials have made their textbook-adoption process the focal point for implementing curricular change.

In 1986, for example, the board rejected all mathematics textbooks submitted for adoption. Mr. Honig argued that the books failed to emphasize problem-solving, a key theme of the state's curricular framework in that subject.

The following year, the board adopted a controversial framework for English and language arts that stressed "real literature" over step-by-step drills. The board acted despite criticism that the framework represented an untried theory. (See Education Week, Sept. 14, 1989.)

Mr. Engelmann's distar Reading Mastery program, published by Science Research Associates, was among the 7,000 items submitted for adoption under the framework. But, following a public hearing, the board's curriculum commission decided not to recommend it for adoption. In October 1988, the board placed the distar program on the list of materials disapproved for use in California schools.

Although districts may use a portion of state funds to purchase materials not adopted for use statewide, Mr. Eisen noted, the board's action makes it unlikely districts will choose to use the distar program.

No 'Chaos in Schools'

In filing suit to challenge the adoption process, Mr. Eisen said, Mr. Engelmann did not seek to throw out the results.

"We didn't want to cause chaos in California schools," he said.

But, he said, his "ultimate goal is to reopen the competition" under new regulations that follow proper procedures and that take into account programs' effectiveness.

But Mr. Symkowick said if the board loses its appeal and rewrites its regulations, it will file suit against the office of administrative law if that body forces the board to change its textbook-selection guidelines.

"We can't have a non-constitutional body substantively tell the board its criteria for adopting textbooks is no good, when the board's authority for adopting textbooks is in the constitution," he said.

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