School & District Management Opinion

Help D-Ed Reckoning and Edbizbuzz De/Re-Construct NCLB’s SBRR Provisions

By Marc Dean Millot — May 12, 2008 36 min read
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If you think the education evaluators’ debate over value-added models is arcane, this argument between two lawyers is about the legal meaning of two words - “based on” as in “based on scientifically based reading research.”

Fellow blogger and GW Law ’94 classmate Ken DeRosa of D-Ed Reckoning maintains that rules of statutory construction imply Congress intended that Reading First providers needed only to show phonics and claim their program had a relationship to a body of evaluation.

Edbizbuzz argues that some involved in drafting the Reading First provisions may have wanted that interpretation, but rules of statutory construction lead to the legally “better” interpretation of Congressional intent as requiring specific program evaluations.

If you agree with D-Ed Reckoning’s reasoning, Chris Dougherty was doing his job. If you go with the edbizbuzz position, he was off the reservation (and maybe the fall guy).

If you enjoy truly arcane wonk arguments, have some interest in the problem of statutory interpretation and the interaction of k-12 policymaking and law, or know something about the inside story of Reading First, you might find this interesting.

Moreover, you might have evidence to share and help resolve our disagreement.

We both want your input.

This exchange began with a comment from Ken DeRosa of D-Ed Reckoning on my following statement:

“In a very real sense most of the educational programs purchased with Reading First funds and implemented by teachers in the classroom were randomly assigned. “The meaningful test of program efficacy is as the program is intended to be offered on the market - comparing teachers who want to use the program with teachers who do not use it”. Most teachers did not have a say, they implemented what the district decided - and I must add that the Administration constrained district choice to disadvantage programs like Success for All and others that do have a favorable record of evaluation.”

D-Ed Reckoning (May 7)

“and I must add that the Administration constrained district choice to disadvantage programs like Success for All and others that do have a favorable record of evaluation.”

I think you meant to write that the “Administration [did not constrain] district choice to disadvantage programs like Success for All and others that do have a favorable record of evaluation.”

The three programs with “favorable records of evaluation,” DI, SfA, and OC, received only a tiny fraction of RF funding. Most of the funding went to large publishers whose programs did not have “favorable records of evaluation,” but whose programs met the statutory requirements of RF with respect to SBRR and the Essential Components of Reading Instruction.

This is consistent with Bob Slavin’s arguments, though it is clear he does not understand that the RF statutory language permits these unevaluated programs to receive funding adn does not limit funding to programs with favorable records of evaluation. This is also consist with the OIG’s findings which did not actually find any real violations of the statute, but merely potential violations and appearances of impropriety and conflict.


I probably should have referred readers to my several years of postings and podcasts on this topic.

Podcasts: http://www.siiwonline.libsyn.com/?search_string=reading+first&Submit=Search&search=1

Blog Posts: http://www.google.com/search?q=edbizbuzz+reading+first&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a

It seems we hold essentially the same position on the Interim Study. Where we differ is on some important details.

The sentence does say what I meant. In its approval of the Reading First funding the Administration did constrain choice so as to disadvantage programs like SFA.

As for what the SBRR definition meant in NCLB, basic rules of statutory construction suggest Slavin’s position is the legally “better argument.”

The first rule is to interpret laws in ways that are internally consistent across the statute. The decision to create a category called “research based” for Supplementary Educational Services (SES) implied a lower standard than for “Scientifically Based Research"or Scientifically Based Reading Research - and was the result of SES providers lobbying for a lower standard when they realized that they could not meet a standard based on program evaluation. This also suggests that at the time NCLB was passed, SBR was understood to mean program evaluation. This is certainly the most logical interpretation of the provision’s statement of specific requirements.

If Congress intended “scientifically based” to require only a developer’s reference to a body of relevant research - essentially the criteria employed to favor certain programs under Reading First - what lesser requirement wads implied by the lower “research based” standard? A second basic rule of statutory construction is to reject interpretations that yield absurd results. A standard lower than mere assertion of some relationship to a body of research cant be much more than absurd - but I"m ready to hear one. The least tortured reading of all three provisions taken together - RB, SBR and SBRR is that program evaluation applied to SBR/SBBR providers, and reference to a body of research to SES providers.

It is also worth pointing put that NCLB’s definition of scientifically based reading research does not reference phonics as a basis for the eligibility of reading programs to receive Reading First funding - certainly not in the definition of SBBR. The Department - or its employee Mr. Dougherty - made an arbitrary decision to apply that criteria, rather than pursuing NCLB’s intent to rely solely on the specific evaluations of specific programs.

I’m happy to battle this out in as much detail as readers would like, but only in response to arguments that have some basis in the legislative record, administrative law, or legal construction. Mere assertion won’t cut it, and the argument of what the law allows is a legal - not a political - argument.

Given that the OIG referred the matter of Reading First improprieties to the Justice Department in April 2007, I would not be so quick to assume that the office was not sufficiently concerned about illegality - even though it was not it’s job to make such a finding and so prosecute. Inspector Generals are inspectors. Other parts of the government decide on legality - especially criminal legality.

“Not illegal” may well be the second to last refuge of scoundrels. - and it’s an incredibly low standard of government service. The Secretary’s unambiguous disavowal of Dougherty may say many things, but it undoubtably indicates her agreement that his practices were poor management, inconsistent with the law and inappropriate, if not just plain wrong. The Justice Department may not have pursued Mr. Dougherty because what he did was not illegal, because while it was illegal they don’t have the evidence to prove it in court, or because they have prosecutorial discretion and don’t see the value of hauling haul him into court.

P.S.: There is one potentially killer legal argument for the Administration’s approach to SBR/SBBR/RB - the waiver power in NCLB Section 9401. However, it would be a post hoc rationalization as it was not cited at the time. At the moment, this is one of those times where Executive has decided not to act in comity with the Legislative. Congress is not going to take this to court when there is a strong likelihood that Democrats will win the White House in November.

D-Ed Reckoning

I agree with respect to the interim report, but I continue to disagree with your interpretation of the Reading First statutory language.

The first rule of statutory construction is to use the statutory definition for defined terms. SBRR is a defined term in section 1208(6). And the relevant statute for Reading first that calls this term is section 1202(c)(7)(A).

(The statutory language of section 1202(c)(7)(A) is clear and I analyzed it a year ago in this post.)

At one point the statute read in a manner consistent with your and Slavin’s interpretation. Funding could only go to reading programs having program-specific SBRR. But that wording did not survive the legislative process becasue it meant that funding would only go to the only three reading programs having program-specific SBRR -- DI, SfA, and OC, and might violate DoE’s prohibition against mandating specific curricula. The statutory language was lossened to read as it curently does “an eligible local educational agency ... shall use the funds provided under the subgrant to Select[] and implement[] a learning system or program of reading instruction based on scientifically based reading research that ... includes the essential components of reading instruction” (Emphasis mine) (ECRI is defined in section 1208(3))

The “based on” language is the operative language which allows RF funding to go to reading programs without their own SBRR research base, but could rely on the research base of other reading programs as long as they contaioned the statutorily required five ECRI found by the National Reading Panel and adopted in section 1208(3).

Reid Lyon and Bob Sweet, the drafters of the language, have stated as such:

“On the basis of the data summarized in these reports, Bob Sweet and I recommended that federal funding be contingent on program-specific evidence of effectiveness derived from studies employing appropriate research designs and methods.This criterion of demonstrated program-specific effectiveness was revised through congressional member and staff review and the negotiation process, resulting in less-specific language in the current law – to wit, that funding was contingent on states and districts showing that the programs, strategies, and methods they wanted funded through Reading First had to be based on SBRR.

“The intent of the law, however, remained the same. Federal funds could not be provided if states and local districts did not ensure that the programs they bought using Federal dollars covered all the reading elements established by the National Reading Panel and that the instruction delivered was systematic, direct, and explicit.

If your interpretation of the statute is correct, than about 95% of the RF funding clearly went to prohibited programs and would have been a clear violation of the law. Yet, there is no such finding in any OiG report, which is especially odd considering that this was a specific complain by Slavin.

Moreover, under this interpretation most of the OiG’s findings are baseless since they relate to DoE’s ties to DI which was one of the three programs that the RF funding should have gone to since it has program-specific SBRR. AS you most likely know, DI only received about 1% of Rf funding like SfA.

It is also worth pointing put that NCLB’s definition of scientifically based reading research does not reference phonics as a basis for the eligibility of reading programs

I disagree. As I’ve pointed out above, section 1202(c)(7)(A) requires that any program receiving RF funding must contain the five essential components of reading instruction, another defined term -- section 1208(6) which reads:

The term ‘essential components of reading instruction’ means explicit and systematic instruction in—
(A) phonemic awareness;
(B) phonics;
(C) vocabulary development;
(D) reading fluency, including oral reading skills; and
(E) reading comprehension strategies.
(emphasis mine.)

That’s where phonics comes into play and DoE was proper in insisting that any program funded under Rf have systematic and explict instruction in phonics. This is why whole-language programs like Reading Recovery which have program specific SBRR (according to WWC at least) were properly excluded from RF funding.

Given that the OIG referred the matter of Reading First improprieties to the Justice Department, I would not be so quick to assume that the office was not sufficiently concerned about illegality.

Given that the DOJ has failed to act on OIG’s referral, I woud not be so quick to assume that DoE did anything illegal. The OiG reports clearly stated that no actual financial wrongdoing was found by OiG. See here and here.

Edbizbuzz (May 8)

Let’s let the readers decide for themselves now that they’ve heard the arguments.

Below, I’ve copied the relevant provisions governing the use of Reading First funds.

Section 1202(c)(7)(A)
with paragraph (2), a State educational agency that receives
a grant under this section shall make competitive subgrants
to eligible local educational agencies….

‘‘(A) REQUIRED USES.—Subject to paragraph (8), an
eligible local educational agency that receives a subgrant
under this subsection shall use the funds provided under
the subgrant to carry out the following activities:
‘‘(i) Selecting and administering screening, diagnostic,
and classroom-based instructional reading
‘‘(ii) Selecting and implementing a learning system
or program of reading instruction based on scientifically
based reading research that—
‘‘(I) includes the essential components of
reading instruction…

‘‘(iii) Procuring and implementing instructional
materials, including education technology such as software
and other digital curricula, that are based on
scientifically based reading research

Section 1208(c)(6)

‘scientifically based reading research’ means research that—
‘‘(A) applies rigorous, systematic, and objective procedures
to obtain valid knowledge relevant to reading
development, reading instruction, and reading difficulties;
‘‘(B) includes research that—
‘‘(i) employs systematic, empirical methods that
draw on observation or experiment;
‘‘(ii) involves rigorous data analyses that are adequate
to test the stated hypotheses and justify the
general conclusions drawn;
‘‘(iii) relies on measurements or observational
methods that provide valid data across evaluators and
observers and across multiple measurements and
observations; and
‘‘(iv) has been accepted by a peer-reviewed journal
or approved by a panel of independent experts through
a comparably rigorous, objective, and scientific review.

Section 1208(3)

The term ‘essential components of reading instruction’ means
explicit and systematic instruction in—
‘‘(A) phonemic awareness;
‘‘(B) phonics;
‘‘(C) vocabulary development;
‘‘(D) reading fluency, including oral reading skills; and
‘‘(E) reading comprehension strategies.

Section 1202(c)(7)(A) says that the funds must be used to purchase programs based on “scientifically based reading research” that incorporate the “essential components of reading instruction.” Those components include “explicit… instruction in phonics.” Scientifically-based reading research “applies rigorous, systematic, and objective procedures” etc etc.

I clearly stand corrected on my assertion that Dougherty made an arbitrary decision to employ the “phonics” criteria. He may have arbitrarily decided not to use other criteria, and he may have worked in arbitrary ways to disadvantage research-proven programs that included phonics instruction, but the law backed him on phonics.

The more important question is whether the best reading of “based on scientifically based reading research” is whether it 1) allowed providers to refer to such research or 2) required them to have it for their specific programs. On May 27, 2007 in edbizbuzz I wrote that the former was the interpretation selected by Department and/or Dougherty and that it is a possible interpretation. (http://archive.edbizbuzz.com/blog/_archives/2007/4/27/2909673.html) My position is that it is not the best legal interpretation, and so not the legally correct interpretation.

A plain reading has to start with recognition that “scientifically-based reading research” is a term of art, a label for a definition. What is contained in Section 1208(c)(6)(A) might just have easily been called “scientific evaluation” or, for that matter, “label”. In the former case, Section 1202(c)(7)(A) would have read “based on scientific evaluation”. Treating “scientifically based reading research” as it is intended in the law - a label - gets us past the apparent confusion of seeing “based” twice in the same sentence.

Ken De Rosa of D-ed Reckoning (and, like me, GW Law class of 1994) has proposed the former interpretation, recognizing that it is not a readily apparent reading of the statute.

Because rules of statutory construction argue for choosing the obvious or simple interpretation over more tortured options, and for sticking with what can be gained from the text rather than - or before, referring to information outside of the legislation in question, he bears a heavy burden of evidence. What he’s produced amounts to statements by Reid Lyon and Bob Sweet about the legislative history.

This evidence is relevant, but its import must be weighed after accounting for at least four caveats.

First, the phrase “based on scientifically based reading research” or “based on scientifically based research” occurs well over 20 times throughout the Act, suggesting that its use in Section 1202(c)(7)(A) was typical, rather than special.

Second, words are changed in legislation all the time. Typically, when this occurs in order to create a specific meaning that the drafters want to see preserved in subsequent interpretations, there’s something in the written record to memorialize that intent - for the obvious reason that post-hoc rationalizations are a bit too convenient.

Third, Lyon was himself the subject of investigation and so his recollection is tainted by self-interest.

Fourth, Bob Sweet is also a partisan in the process, both as a Republican staff member and, like Lyon, a long time advocate of phonics.

De Rosa’s evidence would be a lot more persuasive if the intent of the wording was memorialized somewhere in the written legislative record, and if the story were backed by Democrats or other parties who had been engaged in the process. Since neither have been produced, I assume they don’t exist.

It is, of course, entirely possible that the change was made during the legislative process in such a way as to escape the attention of others so it might serve as the basis for an interpretation later, but that’s probably not an argument for the interpretation of a statute that most lawyers, courts or law professors would find terribly persuasive.

De Rosa has an argument, and maybe even the true story in so far as the intent of Lyon, Sweet and others are concerned. Nevertheless, statutory interpretation is not about what’s plausible or what some people involved in the legislative process wanted – it’s about the intent of Congress as a body. This is why statutory construction favors the most straightforward, least complicated interpretation, sticking as close to the words within the document - unless the evidence for a different, more complex reading is overwhelming.

Readers have to decide if De Rosa’s met his burden, because this matter is not likely to go to court.

D-Ed Reckoning

Nice. Clearly, the interpretation of the statutory language is ambiguous standing on its own. Sweet, Lyons, and Slavin all have a dog in this fight and no independent third party has confirmed what went on during the legislative negotiations. Having said that I think there is a way to shed some light on the debate in much the same way you’ve shed light on what went on in the SES grants. If you follow the money and understand what the parties were trying to accomplish, you’ll see that the interpretation I’m suggesting is consistent with what actually transpired and the Slavin interpretation is inconsistent. (Of course, it doesn’t help that the OIG and the media have gotten the story wrong.) So, that’s what I’ll post and I think after you’ve read it you’ll agree with me.

Edbizbuzz (May 9)


It’s probably worth pointing out that the interpretation of Reading First requiring providers to demonstrate the efficacy of their specific programs is not only that of Bob Slavin’s and other providers disadvantaged by the Administrations implementation - or mine. It is also the view of two of NCLB’s Democratic negotiators - Representative Miller (http://archive.edbizbuzz.com/blog/_archives/2007/4/23/2900800.html) and Senator Kennedy (http://archive.edbizbuzz.com/blog/_archives/2007/3/30/2847151.html) (and appears to be supported by Senators Lugar and Binghaman who have a long interest in serious evaluation of K-12 programs).

I note as well that Senators Gregg and Enzi and Representatives McKeon and Boehner have remained silent on this matter. They have not stepped up to back Sweat, Lyon, Dougherty or the Administration. It certainly would not cost them votes, so one can ask why.

I raise this primarily as a fifth caveat to Sweat and Lyon. If the Senate and House Education Committee now chairs/then ranking members don’t trump the testimony of staff and members of the Executive branch as to the intent of legislators, it certainly cancels it out.

D-Ed Reckoning

But that’s not what Miller or Kennedy ever stated in any prepared remarks or during the hearings. In fact, if anything, Miller was clearly of the opinion that DoE was preventing even more programs from receiving funding, implying an even more inclusive program. He trotted out a woman from the Kentucky DoE who agitated for funding for a non-phonics, non-SBRR whole language program. This was Miller’s poster child and that does not jibe with Slavin’s interpretation of the statute at all.

McKeon did make an attempt at defending what DoE had done at the hearing if you look at the questions he asked.


At this point, we’re getting into the arcana of a debate that only you and I care about very much.

Here are the quotes to which I refer:

Rep. Miller (April 20, 2007)

“Rather than provide an even playing field on which high-quality programs could compete based just on the merits for business with the states, these officials and contractors created an uneven playing field that favored certain products,” said U.S. Rep. George Miller (D-CA), chairman of the committee. “Indeed, we know of examples where states were essentially bullied to use these products in order to receive Reading First money.”


Sen Kennedy (March 23, 2007)

“Today’s GAO report confirms that the Department failed to take appropriate steps to give States clear guidance and impartial assistance in implementing Reading First,” said Kennedy. “The report seriously questions the Department’s compliance with prohibitions in the law regarding directing local curriculum or programs of instruction. It also questions the basis upon which the Department is defining programs supported by scientifically-based research.”


My point is not whether what they said in the places I cite was true or even whether they contradicted themselves later. It’s simply to underline my that a lot of people might say a lot of things, but we need something far more compelling than post hoc competing quotes to inform the meaning of a statute - that’s all.

I’d really like to hear your views on Reading First as national k-12 education policy, because at this point I’m not sure what they are, and I’m sure many edbizbuzz readers assume you are with the major publishers.

D-Ed Reckoning (May 12)

You seem to undersatnd the ecomonic aspect to k-12 education and textbook selection. Explain to me why I’m wrong.

You said: “But the law permits an entirely different interpretation when it comes to what schools may purchase with federal Reading First program funds. In this instance, products and services need only be “based on scientifically-based reading research.” They need not actually be the direct product of that research or evaluated themselves. A close reading of the law allows a plausible albeit unreasonable argument for separating what’s offered in the Reading First market from education science.”

Which is exactly the same interpretation I have set forth. That this was the proper, albeit not the best from a scientific standpoint, interpretation is not unreasonable given DoE’s statutory prohibition against mandating curricula. If you read the emails uncovered by the OIG, you can see that this interpretation, however, made it difficult for DOE to enforce since every publisher was making their product out to to be based on SBRR. This difficulty was compounded by the fact that very few states actually listed specific reading programs in their RF applications. You did know that?

The question remains, if any provider could simply make the claim in marketing materials, who would determine what programs are based on scientifically-based reading research? The Reading First hearing of April 20 demonstrated that “the deciders” were government officials exercising incredibly broad discretion (i.e., political preferences, ideological prejudices and personal inclinations)

That’s right, the executive branch makes the rules/regulations/gets to decide the specifics for broadly worded statutes. This is what’s done at the EPA and many other executive departments.

the bi-partisan Porter-Obey Comprehensive School Reform Demonstration Program - a 1998 law also requiring schools to purchase “research-based” programs. In that case, the leading providers actually had program evaluations to support the efficacy of their (imperfect) offerings. Success for All was one of CSRDP’s leading programs. The Administration eventually succeeded in killing the program under NCLB.

Here you’ve given us a smoking gun that weighs against your interpretation. SfA was not the only program to be evaluated highly under CSRDP. The other program was DI. If the " bureaucratically savvy academics revolving around the University of Oregon” (that’s where DI comes from) who supposedly ran RF wanted to funnel money to funnel money to themselves, the CSRDP would have been a good vehicle. In fact, under your interpretation of RF, DI would have gotten much more of the RF pie along with SfA. So these bureaucrats would have preferred a stricter interpretation of RF along with Slavin. Instead, they enforced a looser interpretation of the statute in which they only got 1.5% of the pie. Why settle for $150,000 when billions wer at stake? When you can provide a plausible explanation for this reality, I might give your interpretation of the facts more credence.

In this context, the Houghton Mifflin is not so nefarious. Publishers were trying to rewrite their existing programs to make them consistent with the reading research (i.e., synthetic phonics and decodable text, not incidental phonnics and predictable text) to be eligible for RF funding (under teh looser interpretation) while keeping the programs palatable for the end-user (the book purchasers) who remained whole-language ideologues and would ultimately be the ones selecting the particular programs which were acceptable under RF. (BTW, this is why SfA and DI were not often selected, they are very prescriptive and not very palatable to the whole language ideologues.) States were also playing fast and loose with the RF, by paying lip service to SBRR in their RF applications and then truning around and permitting school districts like NYC to adopt non-SBRR whole language programs with a tacked on phonics component. This is what HM is complaining about in this email. HM is trying to seriously play by the rules and put out a reading program eligible for RF funding, but that’s all for naught if school districts are still permitted to adopt non-SBRR programs. HM is complaining that no one is going to buy their new program that they’ve been forced to change to comply with RF if DOE allows school districts, like NY, to get funding for non-SBRR programs which the school districts really prefer anyway.


I’ve been watching the k-12 industry since about 1990 - first at RAND Education. My knowledge of the publishers started with a good deal of market research from my New American Schools days - they were competitors - and that of our strategic consultants at the Parthenon Group, starting in the mid 1990s. A number from that team ended up in the strategic planning units of the publishers. Today I follow the firms websites monthly. But really, their behavior is pretty much straight out of the textbook discussion of mature industries. I also must confess to considerable insider knowledge of the NCLB legislation and most of the involved principals. SFA was a NAS Design Team for example.

My view of April 2, 2007 has evolved. On first impression, it was a plausible interpretation - that’s the sense I meant “permissible.” Since then, my view has evolved about whether it was the correct interpretation or a permissible loophole. (Blogs, unlike formal papers, must reflect an evolution of thinking - otherwise they are either ideological screed. I’m doing this to learn - why I immediately conceded your point on “phonics” when I probably could have come up with some face saving reason why you weren’t quite right. But why? You had the better argument).

Over the last year, I have focused more attention on the matter, applied more thinking about statutory analysis to the evidence I have seen, and come to the conclusion that while it was the intent of some drafters of the law; its not the correct interpretation of legislative intent for the reasons I laid out. I understand the “no mandated curriculum” argument, but that is really handled by coming up with a list. I’d be willing to take that to court - again, statutory construction rules would argue for a way to negate neither, and that approach does the trick.

I think you misinterpret my intent on “The Reading First hearing of April 20 demonstrated that “the deciders” were government officials exercising incredibly broad discretion (i.e., political preferences, ideological prejudices and personal inclinations.” Again, they “exercised” broad discretion, but the law did not really give that scope to them.

Again this comes back to whether the words of Sweat and Lyon trump the reading of a statute employing the rules lawyers should go to first. I don’t see enough evidence to move from the basics.

The CSRDP history - which I was involved in deeply - does offer evidence supporting your case, but again it’s outside the four corners of this statute, and there’s no record in writing about this in the Reading First history.

As for DI, its a bit more complicated, some UO-connected academics in that circle were consultants in the process and their non-DI textbooks were favoved. The DI crowd seems to have been less involved. I deconstruct this to some extent in a series beginning here: http://archive.edbizbuzz.com/blog/_archives/2007/6/7/3003656.html ENDING Here: http://archive.edbizbuzz.com/blog/_archives/2007/6/11/3015493.html

As for " settle for $150,000 when billions were at stake” - Dr. K was covering his own interests. His text was what he had at stake financially, but he was perfectly willing to carry water for others. I have absolutely no idea what other lobbying was ongoing, which is why I’d like a deeper investigation.

On reflection, one has to be struck by the fact that most everyone involved in this policy process in Washington believed the term scientifically based meant program evaluation, including the Department of Education. I went to the President’s first meeting on NCLB with 5000 of my closet friends at DAR Constitution Hall. I also attended to the Department’s initial briefing on RB/SBBR/SBR, which included Reid Lyon, Susan Newman and Valerie Reyna (start here). The briefing did not start with - “please disregard everything I’m about to say about the gold standard, because all you really have to do is reference studies that are related to what you plan to offer. Nor did they end it with that caveat. The briefings of reading programs sponsored by NICHD were classic double blind evaluations. This was the public face of the Department on Reading First and all research. Then Reading First hits the fan because of disgruntled providers investigation and we hear Lyon, Sweat, Dougherty, etc say there was another agenda, and that theirs was the real interpretation of the law. If the Secreatary had wanted to clarify this reading, she could have issued as much in some public form, and could even have done it through the 9401 waiver provision if she was concerned about the reading. But no, we have silence. The question is why?

I’ve worn a lot of hats in my life. As a policy wonk, I would have picked up on the “refer to” concept if it had been stated at either meeting or in any fora I attended. As a lawyer, words matter to me and I have monitored every Washington policy website monthly since 2004 - and the Department’s weekly. As an intelligence analysts, small changes are signals. I saw, heard no such words, until Slavin’s complaint of July 2005 http://www.siiwonline.libsyn.com/index.php?post_id=139615. If this was indeed intended policy, it would have been stated as such formally in some way shape or form beforehand. At a minimum, it does not help the case of those who argue for the “referred to” reading that this position was never stated publicly until after Slavin complained.

Do you have a connection with HM? Yours is a plausible reading of the email, again not the only one. I’d love to have more evidence.

D-Ed Reckoning

Thanks for taking the time to hash all this out.

Let me preface all this by saying that at this point my interest in Reading First is from a legal standpoint and a future policy standpoint. But I am a complete outsider to this dispute, I have no industry ties, and don’t have any inside info or an axe to grind. I do understand how economics works and how the interests in Reading education are aligned and I’ve been able to piece together the motivation behind the players. But, my real interest is in good education policy going forward and how to avoid the problems that RF had. You seem to be the only one besides me who is actually looking at the statute and you have industry ties, i.e., access to facts not yet in evidence. Plus, you are making an independent evaluation of what’s going on, as opposed to acepting the media narrative.

Fundamental I think we both agree that RF would have been a better, more effective law if a strict interpretation of SBRR were followed. But, wishing that were so, does not make it so. We have to look at what was permissible under RF to determine who acted appropriately and who didn’t. Our dispute centers around whether a looser interpretation was a permissible or desired interpretation. That’s an interesting legal question that we lawyers get excited about, but my real concern is the ultimate policy question. What went wromg with RF and how do you avoid it next time.

This is why it is important to determine whether there was a scandal in the first place with resptect to RF. If DoE was acting appropriately, then the fault is with the statute and the authority given to DoE. If the looser interpretation is proper, than it appears that DoE acted appropriately but were hamstrung by the poorly drafted statute and the historic prohibition against mandating curricula into not being able to prevent hostile state DoE’s from adopting non-SBRR whole language programs and from permitting funding of new untested phonics programs. I would have rather seen SfA funded more, but it’s easy to see why few state DoE’s selected it given the availablity of less prescriptive reading programs.

I don’t believe that there was a “scandal” given the facts uncovered by the IG and assuming that the looser interpretation was a permissible interpretation. There were some some minor technical violations that may have led to improprieties, but the IG failed to find actual violations where Rf funding was steered to those it shouldn’t have been or away from those it should have, given the facts and my presumption. We expect partisans to be in the executive branch and we expect them to act like partisans. Statutes should be drafted to take this into account and the discretion given to the executuve branch.

What it boils down to, is that I think the statute is at fault. Given the reading wars and the idealogues on both side, it should not have been surprising that that RF was going to be gamed by everyone involved. Thats’ what happened and to an extent DOE was caught in the middle with a vague statute, questionable authority to determine which programs complied with the statute and which didn’t, and partisan politicians ready to pounce on the aggressive action needed to enforce the law.

Maybe their was wrong doing by DOE, but clear wrongdoing is nit apparent in any actual facts I’ve seen, given a loose interpretation of the statute. You mention Dr. K as an example, but I’ve yet to see any specifics as to his involvement in authorship and funding decisions that directly implicate him. I only see vague generalities, like the ones you’ve alluded to which don’t preclude alternate reasonable interpretations. It is possible that they were all carrying each other’s water, but those facts are not yet in evidence, and would be a scandal if found.

Getting to the heart of the matter is crucial for future policy considerations re how to structure future grant programs to avoid the problems encountered in RF.

Feel free to post anything I’ve written.


I see we are headed in the same direction as a matter of policy.

I tried to address the multi-layered nature of the RF implementation problem in the series I noted in my last post, and hope you’ll get a chance to read it.

I have no great love for SFA as a program - its too prescriptive for me, but it has as good a record for results as anyone. I’d send my kids to an Expeditionary Learning school. I entered the k-12 world as an investor looking for what works with no prior history in the ideological, personal, and philosophical battles. My role first was policing grants spread out among eight different outfits - I loved all my children - and then making loans, equity investment and joint ventures to a much broader array of organizations - and overseeing an even broader quality review process of providers. In all this evaluation was an important part of due diligence around interviewee’s financial sustainability. I remain thoroughly agnostic, but driven by results.

As for why schools did not purchase it, I see the problem a little differently. SFA was doing between $40-60 million in revenues in the five years before RF was phased in and CSRDP was phased out. (When I ran the Education Entrepreneurs Fund they had a $1 million term loan with us.) SFA requires a 90% faculty vote before they will contract. Moreover, the SFA business model is based on recurring (annual) purchase of student materials , schools cannot implement the program without the student materials - and once they get in the groove of using it, teachers like knowing what they will be doing every day, and find it incredibly hard to switch out.

Given this and SFA’s long history of providing schools with hans on guidance on funding streams - initially from Title I to Title I school wide, then to CSRDP, and so to RF. Other things being equal, I would have expected schools to simply switch funding streams rather than programs. That didn’t happen, to the point of SFA losing $20 million year. At roughly 75K per school per year, that amounts to a loss of over 250 schools with staffs that previously voted SFA. That’s just too big a drop to explain with disatisfied customers, given the history or continuation over some 15 years.

Unlike most other providers SFA had a deep on-site relationship with its schools - not just its districts, and the story of why the renewals were not happening - pressure - was getting back to headquarters. Because Slavin was as close to the discussion about SBBR, SBR and RB as anyone, and because he has extensive contacts with the relevant staffs on both sides of the aisle, I find it implausible that he would go public with this matter in 2005 if he believed the argument you favor had any validity. This I why I wrote the Editorial I noted earlier. He has competent counsel, he has the political contacts, he has the subject matter expertise, he has the history of the evaluation idea in multiple laws. He and Nancy are just not wackos, they are very calculating people. He’s just not the kind to waste time on a [point he cant win.

As it happens, I also like the Voyager programs, although they have been implicated - I think somewhat unfairly. I am not a fan of the major publishers programs because they are essentially evaluation free.

D-Ed Reckoning

I think you are right on the policy and we are headed in the same direction.

I did take a look at your series. And need to take a closer look.

I have no great love for SfA either. It is prescriptive for a good reason--the same reason why all the reading programs that get results with at-risk students are persriptive -- without the prescriptiveness they would not get implemented with the fidelity needed to ensure positive results. Good reading programs are an orchestration of minute details which must be followed closely -- more details than the five elements found by the NRP.

Actually, SfA’s results with at-risk students is not so great. Slavin is a good researcher; but not a great designer of curricula. To the extent that SfA is successful it is because he copied the early (critical) levels from the DI reading programs. But Slavin has the SBRR he needs and his program deserves to be in wider use.

I send my kids to the local public school here in Swarthmore, PA. There is much in the way of nonsense taught, but generally the children of doctors, lawyers, and college professors are gnerally immune to much of this educational malpractice. I put my thumb on the scale by going over some DI lessons (I got from Ebay) after school to make sure they are actually learning what I want them to.

It sounds like we have a similar history pre-education. I disregard all the hype and looked only at the results and drew my own conclusions therefrom. I have been dissappointed by the small number ofprograms/interventions that have real evidence of effectiveness.

Thanks for the info on Slavin and SfA. It jibes with what I have heard, but you know more than what i’ve heard, so some of it is new. Waht does not make sense is why DOE would be applying pressure to prevent SfA from getting funding. My undersdtanding is that SfA is a phonics-based program using decodable readers at the early levels and would not have been an excludable program under the looser interpretation of RF. Moreover, Slavin has failed to produce any positive evidence of this pressure and has been unable to convince anyone who was pressured to step forward to support him. (That should not be a problem after the IG reports.) Plus, to the extent that Slavin initiated the complaint in the first palce, I find it odd that IG basically ignored his complaint and found a different scandal involving the DI consultants who were unable to steer RF to the DI programs (market share shrunk if anything) and who were the only other group along with Slavin who would have benefitted under Slavin’s interpretation of the statute. (Did you know that Slavin approached Zig Engelmann, the creator of DI, to join him in his complaint? Zig refused even though the loose interpretation was to his detriment and Zig was a critic of the loose interpretation himself.)

So I’m not sure why SfA lost marketshare. Maybe it was pressure. But I’d like to see some evidence. Or, if we’re going to speculate, maybe RF took the decisionmaking with respect to funding to a higher level in the state than those who selected SfA at the district level and these higher-ups excluded SfA at the state level, while DOE turned a blind eye, so long as whole language/balanced literacy programs were selected. We don’t know yet because the IG investigation ended before they found any facts of any actual financial wrongdoing.

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