In Part 14, found here http://www.diatribune.com/... and here http://www.dailykos.com/... , we reviewed the first half of the Inspector General’s final report of its investigation of Reading First, the presumed intellectual cornerstone of No Child Left Behind. Rather than finding that children were learning to read, however, the Inspector General found that Reading First administrators were learning to break and replace federal law with their own preferences. The pattern should ring familiar to former White House education advisor Sandy Kress, who broke and replaced Lyndon Johnson’s Elementary and Secondary Education Act with NCLB for George W. Bush, just before leaving public service to collect substantial earnings from the global lobbying powerhouse Akin Gump Strauss Hauer & Feld.
(To review the series from the beginning, click here http://www.diatribune.com/... or here http://www.dailykos.com/... ).
The Inspector General’s report was issued in September 2006, and with Sandy Kress long gone from being held accountable to the public, only Secretary of Education Margaret Spellings was left to answer questions from the media. Before we get to her contortions, however, we should review the second half of the IG’s report. The document itself remains available here http://www.ed.gov/... .
The report published only a handful of findings, but those findings were pithy. Federal law required the Department of Education and Reading First administrators to select an expert review panel to consider applications for funding from the states; the Inspector General found evidence that it didn’t do it. Instead, it created a screening process that opened up a host of conflicts of interest, naming experts who recommended that states adopt the experts’ own books and products for use in public schools. When the DOE created its own guidelines for a peer-review process, the Inspector General found that the department didn’t even follow its OWN guidelines for this process, even awarding federal grants to applicants who didn’t supply documentation required by law or the department’s own guidelines. And rather than using the federal government’s well-defined criteria for awarding federal grants under NCLB, the IG found that Reading First administrators created their own criteria, reflecting their own preferences for reading curricula, forcing states and applicants to jump repeatedly through hoops that even NCLB author Sandy Kress never created.
But the IG saved the best – and the most complex – finding for last.
Arguably, the first job of any federal agency administrator is to be knowledgeable of the federal law he or she is obligated to implement, and to implement the programs or policies of his or her agency in strict accordance with the law. If an administrator is ignorant of the law, he or she could be called unqualified to serve in an administrative role. If that administrator is ineffective at managing the agency’s work as the law requires, then he or she could be called incompetent. At the very least, no administrator of a federal agency or program would be expected to knowingly break the law, for that would be a criminal act. Further, no one would expect a federal administrator who knowingly broke the law to impede investigation of that behavior, or to respond with impunity when faced with evidence of his wrongdoing, for that would be contemptible of the law, the lawmaking body and its duly-empowered investigators.
Of course, we could be wrong in believing that the law applies to Reading First Director Chris Doherty as it applies to everyone else. While the IG is careful to refer to Doherty by his title throughout the report, it’s beneficial to the reader to know Doherty’s name, especially once Doherty’s email notes begin to appear in the IG’s evidentiary text.
What did the IG say were Doherty’s transgressions in "Finding 4"?
In the course of answering our objectives for the inspection, we found that the Department, acting through the former Assistant Secretary for OESE, the Reading First Director, and others:
Developed an application package that obscured the requirements of the statute;
Took action with respect to the expert review panel process that was contrary to the balanced panel composition envisioned by Congress;
Intervened to release an assessment review document without the permission of the entity that contracted for its development;
Intervened to influence a State’s selection of reading programs; and
Intervened to influence reading programs being used by LEAs after the application process was completed.
These actions demonstrate that the program officials failed to maintain a control environment that exemplifies management integrity and accountability. Congress was explicit about what it intended this program to achieve, how it was to be implemented, and what was to be funded. Congress provided specific legislative guidance on the application approval process, the composition of peer review panels (Title 1, Part B, Section 1203), and the respective roles of the SEAs, LEAs, and the Department (Title 1, Part B, Section 1202). Congress also spelled out an information dissemination role for NIFL. Title 1, Part B, Section 1207(a)(1) directs NIFL to "disseminate information on scientifically based reading research. . . ."
"...program officials tried to purposely obscure the content of the statute and otherwise took actions that seemed to disregard Congress’ direction and intent."
See, the federal government’s General Accounting Office issued "standards for internal control" in 1999. But these were not the first standards; they were issued by federal law in 1982 and have been updated regularly since then.
Writes the IG, "In the standards, GAO defines internal control as ‘[a]n integral component of an organization’s management that provides reasonable assurance that the following objectives are being achieved: effectiveness and efficiency of operations, reliability of financial reporting, and compliance with applicable laws and regulations’."
So, adherence to the standards means an agency is doing business according to generally accepted standards and practices. An auditor familiar with the law governing your agency could glance at your books and recognize that you’re conducting your business appropriately. An Inspector General could breeze through them, checking off your good conduct page-by-page.
Or, as was the case in the Reading First investigation, not.
"The first element identified in the standards as affecting the control environment is ‘the integrity and ethical values maintained and demonstrated by management and staff’," the IG continues. "The directive states that one of the objectives of internal control is so that ‘Programs and operations are executed and resources are used consistently with agency mission and in compliance with applicable provisions of law, regulation, and government-wide policy requirements’."
"The directive also states that a major step in the internal control process is establishing management controls, including establishing and maintaining a control environment throughout the organization that sets a positive and supportive attitude toward internal control and conscientious management. A guiding factor of that control environment is that ‘management provides leadership to ensure integrity and ethical values are maintained and demonstrated by management and staff’."
Uh-oh. I interpret this to mean that Doherty, as the director of Reading First, had an obligation to set the tone by modeling "conscientious management," "integrity" and "ethical values."
It doesn’t take much imagination to predict that the Inspector General didn’t find much of that modeling.
As discussed below, the actions of the program officials demonstrated a lack of integrity and ethical values that created a control environment that allowed non-compliance with laws and regulations.
And there it is.
But one more thing, says the IG. "The DEOA, which established the Department in October 1979, describes the Federal-State relationship in education as follows: §3403(b) No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system...over the selection or content of...textbooks, or other instructional materials by any educational institution or school system, except to the extent authorized by law."
And, "Section 9527 of the ESEA includes a specific prohibition on endorsement of curriculum, which reinforces the language in §3403(b): ‘Notwithstanding any other prohibition of Federal law, no funds provided to the Department under this Act may be used by the Department to endorse, approve, or sanction any curriculum...’."
So, federal law says that no one at the Department of Education or its Reading First office can influence any state or local school district to adopt one curriculum over another, or one textbook or series over another, even one kind of pencil over another. Such behavior is prohibited by federal law. Moreover, federal law goes a step further to say that no one can spend federal dollars to do any of these things that are prohibited by federal law. Sounds like an airtight prohibition, right?
Not so fast, says the IG.
As discussed below, the Department Officials’ actions raise questions about whether they performed their duties to avoid these prohibitions.
The most embarrassing fact about the skill, the precision and the grace with which the Inspector General’s report takes apart Doherty’s ethics-challenged shop and builds the case against Reading First’s administration from Day One is that Doherty and his cronies inside and outside the Department of Education put so much into writing via email. Their arrogant ease made the Inspector General’s investigation simpler than it might have been.
Watch as the IG calls Strike One:
The Department Developed an Application Package That Obscured the Requirements of the Statute
In January 2002, the then Assistant Secretary for OESE worked closely with the Reading First Director in developing the application package to be provided to States. The package consisted of the application, the Reading First Criteria, which outlined the requirements each State application needed to meet to receive funding, and the Reading First Guidance. The Assistant Secretary for OESE planned for the Reading First Guidance to include language that was not in the statute and exclude language that was in the statute. After reviewing a revision to the Department’s draft of the Reading First Guidance, the Assistant Secretary for OESE wrote to the Reading First Director, "under reading first plan. i’d like not to say ‘this must include early intervention and reading remediation materials’ which i think could be read as ‘reading recovery’ [a reading program]. even if it says this in the law, i’d like it taken out." The subject phrase appears in the law twice.5
[Section 1202(d)(3)(A)(ii)(I) of the ESEA provides States with the option to use a percentage of grant funds to develop and implement a program of professional development for teachers that shall include "information on instructional materials, programs, strategies, and approaches based on scientifically based reading research, including early intervention and reading remediation materials, programs, and approaches. . . ." (Emphasis added.) Section 1203(b)(4)(B) of the ESEA states that State applications are required to include a description of how "the State educational agency will assist local educational agencies in identifying instructional materials, programs, strategies, and approaches, based on scientifically based reading research, including early intervention and reading remediation materials, programs, and approaches." (Emphasis added.)]
The Assistant Secretary for OESE later wrote, "i think we’ve lost our voice in this guidance, and returned to a business as usual, bureaucratic don’t say what we really want kind of voice."
The Reading First Director noted that the Guidance was as bold as it could be, given the law. He wrote: "The guidance – throughout – was written in a way that ED people, and then I, thought was the strongest we were able to make it, given the law....I do not want to seem insufficiently bold, but on many of the areas where you clearly want more boldness and different-ness, the summary of my on-going poll of ED insiders is "The law won’t let you do that, no matter what [the Assistant Secretary for OESE] wants/says."
The Reading First Director also acknowledged that he expected State officials to review the Guidance closely to see that it was in accord with the statute.
He added: "[I]t has been suggested to me that the Guidance may be the most problematic place to put some of your suggestions for increased boldness. Why? Guidance is the official place where the State people with the closest readings of the law will go to see where ED has overstepped what the law lets them say. In remarks to groups...or face-to-face meetings about what the Review Panel will/won’t accept the opportunities for BOLDNESS and, perhaps, extralegal requirements are many."
And did Doherty KNOW that he was breaking federal law by sending states this "guidance" that said what federal law DIDN’T say? The Inspector General finds pretty compelling evidence that he knew he was breaking the law: Doherty’s own written words.
In the Pre-reading notes document, the Reading First Director wrote: "OGC could likely have concerns with the overall, near-unrelenting aggressiveness of this application...the law does not really require what we are quite literally requiring in our (aggressive) application. Such examples are manifold and OGC may catch some, many or all of them. We have not highlighted them to OGC, of course, and we don’t know how many they’ll focus on. On some issues, we may be able to dodge a little by moving some ‘Meets Standards’ points to the ‘Exemplary,’ but if we do that too much, the result is a less bold application and decreased chances of overall success. We’ll need your muscle with OGC on these points across the board."
This "Pre-reading notes document" that gave guidance to applicants across the nation turned out to be pretty significant, partly because of the kinds of information Doherty chose to give applicants and the kinds he chose to withhold from applicants, but partly because he wrote down so much of his rationale for including and excluding that information.
The IG found that
Ultimately, the Department determined that the Reading First Guidance would be used as a means of appearing to comply with the requirements of the statute. In the Pre-reading notes document, the Reading First Director wrote: "[T]here are things in the Guidance that are not in the application – for strategic reasons – because we did not want to remind all applicants of their existence so prominently...but we felt we had to compromise, i.e. put in the Guidance, in some places where the law makes certain things un-ignorable."
The Reading First Director illustrated this strategy by providing the following examples in the Pre-reading notes document: Page 19, [Section] F-2, 2 b. [of the Guidance] "Providing expanded opportunities to students in kindergarten through grade 3 who are served by eligible local educational agencies for receiving reading assistance from alternative providers." We make absolutely no mention on this opportunity in the application, because we don’t like it and don’t want to open the door to this, but it is in the law and needs to be addressed somewhere reasonably official – like the Guidance – as a "best" compromise. FYI.
Also, Page 19, [Section] F-3:
Are there any required priorities for funds reserved for State use? Yes. A State educational agency shall give priority to carrying out the activities described in Question F-2 for schools that are among the schools served by eligible local educational agencies with the highest percentages..." Again, my belief is that this is a potential back door though [sic] which some money could flow in unwanted directions, and therefore this required priorities for funds reserved for State use element of the law is NOT NOT [sic] in the application, but we have to reflect that we know it exists somewhere, so that place is the Guidance. FYI.
That’s just Strike One. By the time IG’s gets to Strike Two, it’s found its stride AND found plenty of evidence – in more of Doherty’s own words – that Doherty and company deliberately acted in contravention of Congress’s intent:
The Department Took Action With Respect to the Expert Review Panel Process That Was Contrary to the Balanced Panel Composition Envisioned by Congress
Congress, through Title 1, Part B, Section 1203(c)(2)(A) of the ESEA, envisioned an expert review panel with equal representation from the Department, NIFL, NAS, and NICHD. As we reported in Finding 1A, the Department nominated a majority of the individuals serving on the expert review panel. Additionally, 15 of the 16 subpanels had a majority of Department-nominated panelists and none had the balanced composition envisioned by Congress.
Now, this bit is particularly damaging, so it’s best to break it up and absorb it sentence-by-sentence. Remember how federal law prohibits the endorsement (by a federal agency) of any one curriculum or set of products? Here’s what the Inspector General found:
The Reading First Director took direct action to ensure that a particular approach to reading instruction was represented on the expert review panel.
Direct Instruction (DI) is a model for teaching that requires the use of Reading Mastery, a program published by SRA/McGraw-Hill, to teach reading.
The Reading First Director formerly served as the Executive Director of the Baltimore Curriculum Project, which has implemented DI in Baltimore City schools since 1996.
The Reading First Director personally nominated three individuals who had significant professional connections to DI to serve on the expert review panel.
The Reading First Director selected these three individuals to serve on a total of seven of the 16 subpanels and one of these individuals to serve as the panel chair on five subpanels.
These three individuals were collectively involved in reviewing a total of 23 States’ applications.
A Baltimore City Public Schools official contacted a Department official to express concern that two panelists were involved with or employed by DI and questioned whether those two panelists indicated their connections to DI on the conflict of interest form.
In May 2002, the Department official forwarded this information to the Reading First Director who passed the concerns on to one of the panelists in question as a "Confidential FYI." This panelist replied: I suspect that [the Baltimore City Public Schools official’s] assumption is that USDE must be warned that there may be DI infiltrators and that somehow USDE knows how dangerous that can be. You may remember that [the Baltimore City Public Schools official] is a whole language (now called Balanced Literacy) proponent.
The subsequent e-mail response from the Reading First Director suggests his intention to ensure a DI presence on the expert review panel: "Funny that [the Baltimore City Public Schools official] calls me to inform that there may be some pro-DI folks on my panel!!! Too rich!"
The panelist then asked, "Does he know who you are? Past and present?"
The Reading First Director replied, "That’s the funniest part – yes! You know the line from Casablanca, ‘I am SHOCKED that there is gambling going on in this establishment!’ Well, ‘I am SHOCKED that there are pro-DI people on this panel!’"
Shortly before this exchange, a Department employee reported to the Reading First Director that the Department had received a question from a member of the media about the panel composition. The response by the Reading First Director suggests that he may indeed have intended to "stack" the expert review panel.
The employee stated: "The question is...are we going to ‘stack the panel’ so programs like Reading Recovery don’t get a fair shake[?]"
The Reading First Director responded, "‘Stack the panel?’...I have never heard of such a thing....<harumph, harumph>[.]"
A few days before the Department publicly announced the panelists it had chosen to serve, one of the Department-nominated panelists contacted the Reading First Director and shared his strong bias against Reading Recovery and his strategy for responding to any State that planned to include Reading Recovery in its application.
The Reading First Director responded: "I really like the way you’re viewing/approaching this, and not just because it matches my own approach :-), I swear!"
This individual later served as the panel chair for the subpanel that reviewed Wisconsin’s State application and in response to the State’s plans to use Reading Recovery, he included an 11-page negative review of Reading Recovery in his official comments on the application.
Around the same time, Reid Lyon, the former Chief of the Child Development & Behavior Branch at the NICHD, advised the Reading First Director, the Assistant Secretary for OESE, and the Senior Advisor to the Secretary at the time that one of the panelists had been "actively working to undermine the NRP [National Reading Panel] Report and the RF initiatives." Lyon further stated, "Chances are that other reviewers can trump any bias on her part."
In a written response to all of the people involved, the former Senior Advisor to the Secretary stated, "We can’t un-invite her. Just make sure she is on a panel with one of our barracuda types."
The statute envisioned that the expert review panel would be balanced with representatives from the Department and three other named organizations. In fact, virtually all of the subpanels had a majority of Department-nominated panelists. Against this backdrop, the actions of the Director and the former Senior Advisor to the Secretary become particularly problematic.
Additionally, the first element identified in GAO’s Standards for Internal Control in the Federal Government as affecting the control environment is "the integrity and ethical values maintained and demonstrated by management and staff." The apparent intent of the Reading First Director to include and to give a significant role to panelists who reflected his personal preference in reading programs; his specific encouragement to a panelist who held views similar to his on Reading Recovery; and the intention of the former Senior Advisor to the Secretary to control another panelist raise significant questions about the control environment in which the program was being managed.
Strike Three is just as dense a matter, but I’ll try to abbreviate. It’s valuable reading only for the documented – and scary – exchanges between Doug Carnine, the reading researcher, and his former professor and present Director for the Individuals with Disabilities Education Act (IDEA), Ed Kame’enui. The twists and turns in their email conversation – and the subject matter of this finding by the IG – really requires your own reading without my condensation. Again, the text can be found online at http://www.ed.gov/... .
And with three strikes so fatally delivered, a fourth is hardly necessary. Yet, the IG uncorks a fourth:
The Department Intervened to Influence Reading Programs Being Used by LEAs
After certain States completed the application process and received funding, the Reading First Director became aware that certain LEAs in these States were using the Rigby Literacy (Rigby) and Wright Group Literacy (Wright Group) programs. The Reading First Director worked closely with a Department staff member, a former expert review panelist, who undertook a review of both of these programs.
In e-mail correspondence with the staff member regarding the Wright Group, the Reading First Director stated: "Beat the [expletive deleted] out of them in a way that will stand up to any level of legal and [whole language] apologist scrutiny. Hit them over and over with definitive evidence that they are not SBRR, never have been and never will be. They are trying to crash our party and we need to beat the [expletive deleted] out of them in front of all the other would-be party crashers who are standing on the front lawn waiting to see how we welcome these dirtbags."
The Reading First Director forwarded the above e-mail to Lyon and stated: "Confidential FYI. Pardon in-house language I use...with fellow team members and friends. Do you know—on the QT—if anyone has done any good review of the Wright Group stuff, to date? We have beaten Maine on Rigby and this is cut from the same cloth. We are proceeding, of course, but if you knew of a good piece of work dissecting The Wright Group’s stuff, it could further strengthen our hand." Lyon responded that he would obtain this information and added, "I like your style."
In response, the Reading First Director stated, "Additional firepower...may help us make this a one-punch fight."
After reviewing the programs, the staff member provided the Reading First Director with notes and talking points critiquing these programs. The Reading First Director used this information to convince States using Rigby and Wright Group to change programs.
In an e-mail to Lyon, the Reading First Director wrote, "I spoke to Fred Carrigg [the former New Jersey Director of Reading First]...with a roomful of others on their end and they are HALTING the funding of Rigby and, while we were at it, Wright Group. They STOPPED the districts who wanted to use those programs."
In a later e-mail to Lyon, the Reading First Director stated: "As you may remember, RF got Maine to UNDO its already-made decision to have Rigby be one of their two approved core programs (Ha, ha – Rigby as a CORE program? When pigs fly!) We also as you may recall, got NJ [New Jersey] to stop its districts from using Rigby (and the Wright Group, btw) and are doing the same in Mississippi. This is for your FYI, as I think this program-bashing is best done off or under the major radar screens."
In a formal letter to Carrigg, the Reading First Director did not specifically name Rigby and Wright Group as not being aligned with SBRR. The Reading First Director wrote, "It appeared that New Jersey had not fulfilled its responsibility to ensure that all LEAs and schools selected to participate in Reading First...would implement comprehensive reading programs that are fully aligned with scientifically based reading research."
At this point, the IG’s report offers specific details about the applications submitted by Massachusetts, North Dakota and Kentucky, pointing out that "LEAs in all three of these States selected reading programs that were later questioned by the Reading First Director or his assistant."
In Massachusetts, Reading First Coordinator Cheryl Liebling admitted to the IG "that she contacted the districts and suggested a change, telling the districts that the Reading First Director had concerns about their programs. The district using Wright Group elected not to change its program, even after Liebling’s recommendation. This district eventually had its funding taken away. The three other districts agreed to change to other programs and all three districts continue to be funded."
In North Dakota, despite warnings from Reading First Coordinator Gail Schauer that, essentially, refusing to toe Doherty’s line would cause them to lose funding, three schools opted to continue using the Rigby Literacy Program. The IG writes, "Schauer informed us that given a choice between receiving Reading First funds or continuing their use of Rigby, the three schools opted to stay with Rigby. All three lost their funding after the first year of implementation."
And in Kentucky, Doherty himself told state officials not to use Reading First funds to implement the Rigby Literacy Program and the Reading Recovery Program. When state officials asked him to put that request in writing, he challenged them instead to defend the two programs to him.
The IG reports, "The State officials subsequently provided support for the programs in writing, but they informed us that they did not receive a response from the Department. A State official informed us that the districts in question are still using Rigby and Reading Recovery. Despite the Reading First Director’s assertion that these programs were not SBRR, when the State provided documentation to support the use of the programs, the Department did not respond. The actions taken by the Reading First Director again call into question whether his intervention in these circumstances violated provisions of the DEOA and NCLB that prohibit the Department from exercising control over the curriculum or program of instruction of any school system."
With these findings of fact laid out, the IG offered a series of recommendations to the Department of Education, and the Department of Education responded to them. The IG’s recommendations and the DOE’s response will give us enough to read in Part 16 of our series. Stay tuned.
And to review our progress, click these links, cross posted at Daily Kos and Diatribune:
Bush Profiteers collect billions from NCLB, Part 1
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 2
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 3
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 4
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 5
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 6
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 7
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 8
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 9
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 10
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 11
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 12
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 13
http://www.diatribune.com/...
http://www.dailykos.com/...
Bush Profiteers collect billions from NCLB, Part 14
http://www.diatribune.com/...
http://www.dailykos.com/...