The Texas state school board has approved a last-minute rule change that requires publishers to beef up on phonics in their 1st grade readers or risk losing some of the $91 million market in the nation’s second-largest textbook-adoption state. The change has publishers crying foul, as they contemplate legal action against the board for what they say is breach of contract and scramble to print additional materials to bring their products up to the new standard.
At its Nov. 5 meeting, the state board endorsed a change to guidelines that had been sent to publishers nearly two years ago. Those guidelines had called for “engaging and coherent texts” in which “most” of the words were “decodable,” meaning easy to sound out, in line with phonics instruction. At the publishers’ request for clarification of the word “most,” state education officials said that at least 51 percent of the words must be decodable. Publishers then began developing and publishing materials to meet that requirement, in addition to the other 111 standards outlined in the state standards.
Breach of Contract?
But in September, as the board began discussing which books conformed to the guidelines, Geraldine Miller, the vice chairwoman, argued that the textbooks should include more phonics instruction. Acting on her recommendation, the board subsequently voted 10-5 to change the word “most” to “80 percent.”
“There is no research to support a percentage, but there is enough evidence to tell you that ... more phonics is better than less phonics,” she said last week. “The publishers knew how important [phonics instruction] was to the state board of education, and they should have come to [the board] if they wanted [a definition].”
Will Davis, a 10-year veteran of the board, voted against the measure, saying it was “grossly unfair, arbitrary, and inappropriate.” Mr. Davis, a lawyer with an expertise in statutory requirements, believes the board broke the law by changing the rules right before it was to decide which textbooks belonged on the state-approved list. In Texas, districts receive state money to buy books on an approved list.
“The publishers go and spend [millions of dollars] to get these books ready to submit to use, and then the state board, immediately before it’s supposed to take action, said suddenly it wants to change” the wording of the contract, Mr. Davis said last week. “The publishers have a right to be upset, and if they sue us, they’ll win.”
A state textbook committee determined that books by five publishers—Harcourt Brace, McGraw-Hill, Scholastic, Scott-Foresman, and SRA Open Court—met the original requirements, but none of them matched up to the new standard, according to an evaluation by the Texas Education Agency. An outside consultant hired by the state board also found the texts lacking in sufficient phonics-oriented material.
But in an unexpected turn of events, some outspoken critics have weighed in with their own assessment of the texts and have urged the TEA to re-evaluate them. “Board members should insist on more accurate decodability figures from TEA,” Mel Gabler of Longview, Texas, wrote in a letter to the board. He has become nationally known as an opponent of perceived left-wing bias in textbooks for decades. “TEA’s lowball numbers do not tell you how good the good programs really are and how much the bad ones need to improve.”
No Recouping on Price
Meanwhile, publishers were struggling to come up with an action plan—which they were to submit to the board late last week—to produce printed supplements that would boost the percentage of decodable words in their reading programs. The publishers estimate the revisions will cost $25 million or more, according to Joe Bill Watkins, an Austin lawyer who represents the Association of American Publishers, based in New York City.
But Ms. Miller claims the cost to publishers will be much lower than that, because they can print small paperbound books with a high degree of decodable words to go along with the existing readers.
Publishers will not be able to pass on the additional costs to schools because the state has established limits on book prices. The board will make its final decision on the texts in January.
"[The board] put a gun to our heads,” Mr. Watkins said. “The publishers as a group invested more than $100 million. If they are put on the nonconforming list ... nobody will buy their materials. This process was totally unfair and probably illegal.”
