I'm not in the habit of watching too many of these congressional hearings, but I have witnessed a fair number of courtroom proceedings. There is no comparison. The congressional hearing is more like a kangaroo court than a legal proceeding. Most of Congressmen and women had no idea how to ask questions to elicit information from the witness. Many seemed content to mug for the camera and read speeches. It was clear that most of the Congressman on the education subcommittee had no idea of the issues surrounding Reading First.
Let me single out Congressman Miller as being particularly inept. This is especially surprising because according to Miller's bio, he's a lawyer. A lawyer that doesn't know how to take a deposition. Miler's idea of taking a deposition consists of reading a portion of the Inspector General's report in as dull and monotonous a voice, ask a, "so what do you think about that?" kind of question, give the deponent an opportunity to speak (sometimes at least), and then give his own opinion of the "facts" in an angry voice. We got more testimony from Miller than we did from any of the deponents.
Sadly, we are no closer to the truth now than we were before the hearing. We did, offhandedly, learn a few things, however.
- The Inspector General, Higgins, admitted that he had never looked into the question of Scientifically Based Reading Research (SBRR) or the Essential Components of Reading Instruction (ECRI). This is a critical omission. Reading First is a statute that was designed to exclude reading programs that were not based on SBRR and which did contain the ECRI. Reading programs were, in fact, excluded. That was the whole point of Reading First to fund the right programs and exclude the wrong ones. So, were any programs improperly excluded? We don't know because no one looked at the critical cut-off point, i.e., whether the excluded programs were based on SBRR and had the ECRI.
- Starr Lewis, Kentucky’s associate commissioner of education, was trotted out to give her tearfully story that she couldn't scam funding from Reading First for the controversial Reading Recovery reading program (and other whole language programs) and the fraudulent DRA testing instrument designed to show that Reading Recovery "works" even though the kids going through the program often can't read. This goes to the SBRR and ECRI issue. No one denies that Kentucky was denied Reading First funding. The issue was whether Kentucky was improperly denied. We don't know because no one has looked into the issue yet. Like, I said, kangaroo court.
- Then Lewis recounted how Kentucky was denied funding for their use of the bogus DRA testing instrument. Kentucky responded by adding DIBELS to the list of permitted testing instruments. DOE said not good enough, we're not funding DRA. Kentucky finally withdrew DRA and was funded. Does this represent a violation of the law? We don't know because no one has looked into the SBRR and ECRI issue yet. Do you see a pattern emerging? The sequence of events also doesn't necessarily represent an instance of DIBELS being forced on Kentucky. DIBELS didn't serve to remedy the problem caused by including DRA and we don't know if the inclusion of other testing instruments would have satisfied DoE because Kentucky never presented other testing instruments for consideration. If Miller was looking for a poster child for the Reading First scandal, Kentucky wasn't it.
- Then we have the conflict issue. Right off the bat this is a non-issue because Congress failed to included a conflict provision in the Reading First statute. But, DoE did, in fact, screen for financial conflicts. No financial conflicts were found. Higgins affirmed this. But, in his report Higgins substituted his own judgment for DoE's judgment by suggesting that DoE should have screened for "professional associations" with reading programs. This is a ridiculously broad standard which would have eliminated all the reading experts from judging what programs should have been excluded from reading First for failing to be based on SBRR and having ECRI. All the reading researchers have some professional tie to either phonics-based reading programs and whole-language reading programs and under Higgin's contrived non-statutorily-based conflicts standard all the reading researchers should have been excluded. Yeah, that's the conclusion we want to reach, exclude all the reading experts from being able to determine which reading programs qualified for funding.
- To avoid this problem, DoE made certain that none of the reading researchers would review the programs with they had some tangential affiliation. According to the former Reading First director, they modeled this system off of a previous reading program funding scheme which passed Congressional muster. And bear in mind, that for prior federal programs that doled out money, the old standard was to specifically exclude the collection of data. That didn't work out so well in hindsight, so we tightened up the rules a bit in Reading First. Apparently, Congress didn't realize what it was getting itself into. fair enough, they have the right to change their mind to avoid the "appearance of impropriety" that they believe that resulted from DoE's scheme for complying with the Reading First statute. But, such an ex post facto change doesn't exactly show that DoE was guilty of any wrongdoing.
- Making this conflict issue an even bigger non-issue, it came out of the hearing that less than 10% of the states even specified the actual names of reading programs in their Reading First applications. So even if there was a conflict with the reviewers, they had no way of knowing which programs the states were actually selecting. How could the "biased" reviewers have pushed specific programs on the states when practically none of the states even specified reading programs in the first place. There's a name for this in the law. It's called "harmless error."
- Finally, there is the related problem that many states choose not to use Reading First funds to purchase many reading programs. Even if a reading program has SBRR and ECRI out the wazoo (Hello, SfA) no state was obligated to select the program for funding. Even if DoE did improperly force state's to adopt specific reading programs (which there is no real evidence of them actually doing), less than 10% of states actually listed specific programs in the first place and many of them went and chose programs on their own after the application process. So we have this large disconnect between what DoE could influence and what state's could actually do. Supposedly, there are a few instances in which state's tried to pull a fast one by submitting an application that appear to show they would abide by the SBRR and ECRI requirements, but then funded whole language programs. You can't resolve this dispute within looking into the SBRR and ECRO provisions, and no one has yet to do that.
Those are the big issues and no light was shed on any of them in the hearing. There are some remaining minor issues that indicate sloppiness of the part of DoE but it's not clear if they represent violations of any law that amount to anything. In all the OiG reports you don't see any real violations anywhere just "potential" violations and "appearances of violations." This is probably why this scandal hasn't gained much traction outside of the sour-grapes whole language community which has been largely excluded under Reading First. It is this exclusion which has caused the raising of scores under Reading First.
Of course the media, still doesn't understand the story.
Wapo tries to spin it as a financial scandal:
The Justice Department is conducting a probe of a $6 billion reading initiative at the center of President Bush's No Child Left Behind law, another blow to a program besieged by allegations of financial conflicts of interest and cronyism, people familiar with the matter said yesterday.
The disclosure came as a congressional hearing revealed how people implementing the $1 billion-a-year Reading First program made at least $1 million off textbooks and tests toward which the federal government steered states.
Too bad even the OiG failed to find any real financial conflicts and that there was no evidence of actual "steering" of state selections over and above the proper exclusion of programs as required by the statute.
When Wapo does give us an example of a purported financial conflict, it turns out not be a valid one:
One official, Roland H. Good III, said his company made $1.3 million off a reading test, known as DIBELS, that was endorsed by a Reading First evaluation panel he sat on. Good, who owns half the company, Dynamic Measurement Group, told the committee that he donated royalties from the product to the University of Oregon, where he is an associate professor.
Two former University of Oregon researchers on the panel, Edward J. Kame'enui and Deborah C. Simmons, said they received about $150,000 in royalties last year for a program that is now packaged with DIBELS. They testified that they received smaller royalties in previous years for the program, Scott Foresman Early Reading Intervention, and did not know it was being sold with DIBELS.
I haven't been following the testing instrument part of the story as much as the reading program side, but my understanding is that Good, Kame'enui, and Simmons were panelists judging testing instruments. Apparently, the Early Reading Intervention which two of them are affiliated with didn't include a packaged DIBELS component until recently. SO clearly, there was no violation at the time of review in the absence of some knowledge that DIBELS was to be included in the future. That evidence has not yet been adduced.
Then we have the lurid innuendo concerning Good, who created DIBELS. Apparently, he's made some money off of his invention. When you enact a law designed to give out a billion dollars of funding, lots of people who own products that meet the law's requirements will benefit
by the law. There is no evidence of record that shows that Good forced any testing instrument on any state. The best the OiG found was this summary of the testing instruments that listed DIBELS as one of 24 possible testing instruments that were believed to be valid instruments.
And, the NYT points out that:
All three Oregon panelists said they had not ranked their own materials’ fitness for use under Reading First, and so had avoided any conflict of interest. And they said it was the quality of their programs, not direct or indirect pressure from Education Department officials, that explained their popularity.
All we are left with is the testimony of Miller who does not appear to understand that his quips don't count for much besides headlines.
In an interview after the hearing, Mr. Miller said: “This hearing made it pretty clear that there was a very incestuous relationship among a small group of people in the Education Department and among contractors. They were very clearly using this program … for profit.”
Even if all this were true, it still doesn't mean the law was violated. The law was designed to profit a small group of reading programs for the benefit of children who are struggling to read. The fact that some profited as intended does not mean there was a violation. Potentials and appearances don't necessarily rise to the level of violations in the absence of proof. Proof that Miller has so far failed to obtain.
Today's big news is that the Justice Department may get involved. We'll have to wait any see if some real lawyers can cobble together a coherent scandal from the shoddy facts we've been given so far. I'm predicting in the absence of any new findings, the existing "facts" are insufficient to show any real violations of law.