edbizbuzz

As longtime edbizbuzz readers know, unless someone writing me prefaces their remarks with "not for publication" or "off the record," I consider it a letter to the editor. The main reason for this is that I do not blog for private conversations, but to promote public debate. Here is the exchange that went on between me and The Quick and the Ed's Kevin Carey of EdSector (minus typos) over the somewhat arcane issues around the Secretary of Education's authority to conduct the differentiated accountability program under NCLB Section 9401, and whether or not a Secretary would use that authority only where he or she has some kind of consensus around the policy. I post this to help readers come to their own conclusions.

Millot (March 27)

Kevin:

Strictly speaking, the Secretary is well within her legal rights.

Section 9401 very clearly permits her to waive any part of the law with very view substantive exceptions, and none relate to NCLB's key provisions.

You can read my post on the program and link to the relevant section here: http://blogs.edweek.org/edweek/edbizbuzz/2008/03/on_the_department_of_education.html

The submission of a pilot program proposal satisfies the technical requirement that states make a formal request. As a practical matter, any Secretary can simply spell out the waivers they would make in detail and then invite states to apply. Spellings has just been a bit general to see what happens.

So, in fact, the law does say "the Secretary of Education may at her discretion alter or ignore the previous subparagraphs" - whatever the rationale.

Both Paige and Spellings failed to make adequate notification in the Federal Register as required, but that's a technical violation.

See the IG report: http://www.ed.gov/about/offices/list/oig/whatsnew.html

I have been arguing for a repeal of the provision since at least April of 2005, for many of the reasons you note.

Fat chance then or now.

Looks like I'll need to do a posting on this.

Dean

Marc Dean Millot
Editor
School Improvement Industry
"Intelligent Services for Public Education's Thinking Edge"

Carey:

I updated the post, don't think it really changes anything though, this isn't a waiver process in the way those are generally implemented and understood, and of course a future secretary could not "just as easily" use the waiver process to kill SES, the whole point is that this only works if you've got consensus which there certainly wouldn't be in that case.

Kevin Carey
Research and Policy Manager
Education Sector
"Independent Analysis, Innovative Ideas"

Millot (March 28):

Kevin:

I disagree with you on both counts, but it's an arcane point.

Let me preface this with "I'm not trying to be snide with the following questions:"

Are you speaking as a lawyer or a political analyst? (I'm speaking as both)

Are you speaking with knowledge of waiver processes in other agencies, or just "custom and usage" in the Department of Education? (I've studied many)

However, if you'd like, I'd be happy to discuss this for readers by cross blog.

Prior to your email, I did post a comment on your posting on edbizbuzz, and because you've changed your original, I'm posting it too for readers' benefit.

FYI: my policy on changes to posts is that I feel free to do so until someone posts a comment.

Dean

Carey:

I'm not speaking as a lawyer, not that that matters. Surely you don't think that only lawyers are qualified to discuss the law? I've worked with enough lawyers and been involved in writing enough laws to know that's not true.

I'm speaking with knowledge of waiver processes in other agencies.

I'm not sure what's "arcane" about the point that, for all practical purposes, there is no way that the Secretary of Education could or would use the waiver process to eviscerate a portion of NCLB, SES, that was a major element of the negotiations over the bill in 2001, and that would create a huge outcry from influential members of Congress and industry groups. The odds of that happening are tiny to the point of being indistinguishable from zero. Surely that's obvious.

Millot:

Kevin, Andy:

Thanks to Kevin for getting back:

1. Actually, only lawyers are "qualified" to advise others on the law. Technically, the alternative is called "practicing without a license" and illegal, and why I spent years at law school and passed a bar exam. Of course there is free speech, so you are free to write whatever you want for the public at large. But to get to my motivation, I was asking only to see if you had an argument for your position based in law to which I might refer.

2. I guess we've had rather different experiences with the waiver of regulations outside the Department of Education - sometimes called "exceptions." The idea that they are granted across all agencies of federal, state and local government only/generally/usually/typically under circumstances of broad consensus would surprise many the professor and practitioner of administrative law. I'll just give one example from a never-ending stream found by Googling "waiver of federal law." ( See: http://www.sanfranciscosentinel.com/?p=9205)

In January, the President waived portions of the U.S. Coastal Zone Management Act under which a federal court prohibited the US Navy from the use of mid-range sonar in areas less than 12 miles off the California coast when marine mammals come within 2200 yards of a naval vessel. I don't have to explain in detail that there was no consensus on this among the various stakeholders, I'm sure President Bush would prefer widespread agreement, but the lack of it made no difference - even though he made a whole lot of powerful Democratic legislators very unhappy. A Democrat in the White House will undoubtably reverse this, and probably welcome an extension of the limits.

I would argue this story - and the hundreds like it that I could draw on from just this one search - offer the general rule in the waiver/exception process across government. However, if your experience argues that these are the exceptions, I welcome your contrary evidence. My point here is that political consensus is no prerequisite for federal waivers. More specifically the fact that a Republican Secretary of Education seems to have something (but not quite - remember AFT, Oregon, etc) like that for Differentiated Accountability is not an argument that waivers could not also be made by a Democratic Secretary willing to unsettle Republicans on the Hill.

3. What's arcane - in the sense of mysterious or esoteric - is that no one gives a damn how the waivers are made but you and me. I've already tried to cover your substantive political points here: http://blogs.edweek.org/edweek/edbizbuzz/2008/03/education_sectors_kevin_carey.html. I only wrote about your original post because I've been following NCLB Section 9401 for a long time, and saw it as an example of a problem in the law's administration.

I'm happy to continue this discussion, but leaving it simply between the two of us by email doesn't really help our readers. As a general rule I consider all emails to me in the public domain unless the writer specifically notes otherwise up front, because I don't want to get engaged behind the curtain. See here: http://archive.edbizbuzz.com/blog/_archives/2007/5/27/2978845.html

I blog to encourage open debate and I'm happy to leave the decision to the public. I'm not really trying to convince you that your position is wrong or weak, so if you want to keep up the volley, please do so on edbizbuzz, or leave some way to post comments on the quick and the ed.

No hard feelings on my end,

Dean

Posted by Dean Millot at 7:49 PM | Permalink | Comments (0) | TrackBacks (0)

From "Industry Fragmentation (I): A Function of Emergence or Structure?"
School Improvement Industry Week, April 4, 2005.

Third paragraph from the top.

The terms “fragmented” and “emerging” are often conflated in discussions of the school improvement industry. In Competitive Strategy (1980), Michael E. Porter explains that while new industries can be fragmented, fragmentation need not be a function of age. The distinction is important - many providers’ profitability and investment potential depends on an assumption of scale that implies industry maturation based on consolidation.

“Usually fragmented industries are populated by a large number of small- and medium-sized companies, many of them privately held. There is no single precise quantitative definition of a fragmented industry... The essential notion that makes these industries a unique environment in which to compete is the absence of market leaders with the power to shape industry events.”

Especially if the school improvement industry’s “old Europe” of textbook publishing is set aside, those segments changing the practice of teaching and learning consist of a large number of small privately held providers. “Industry shaping power” lies almost exclusively with the federal government. To illustrate, no SES firm’s or group of firms’ actions could have anything like the effect of a Department of Education decision under NCLB Section 9401 to permit districts to restrict tutoring services to the specific students and subjects that caused a school to fail AYP (emphasis added.)

Porter provides nine explanations for fragmentation that are relevant to school improvement, including 1. “newness.” ”It takes only one of these characteristics to block the consolidation of an industry.”

2. “Low entry Barriers.” “Although a prerequisite to fragmentation, low entry barriers are usually not sufficient to explain it.... (They are) nearly always accompanied by one or more ...other causes.” For the most part, product development is not a significant barrier. Consider how quickly Platform Learning was funded, purchased curriculum and ramped up its SES tutoring operations. Ironically, in this emerging industry, the principal barrier to entry is reputation. The quality of products and services remains hard to judge objectively, so the perception relates to providers’ age, size, and marketing budgets, and even the “star quality” of its educational leadership.

3. “The absence of significant scale economies or learning curves in any major aspect of the business.” This is particularly true when the industry involves “inherently high labor content... high personal service content, or is intrinsically hard to routinize.”

4. “High transportation costs.” “They are effectively high in many service industries because the service is ‘produced’ at the customer’s premises.” The closer to the product or service is to the teaching-learning relationship, the more factors 3 and 4 are likely to apply - unless the service is entirely online. SES, CSR and professional development involve both factors to a high degree.

5. “Diseconomies of scale in some important aspect” of the business. These are especially likely when the service depends on “close local control”, “local image” and “local contacts.” Quality control systems and community relations don’t scale easily or well in school improvement services. In both cases, initial growth follows from informal systems of personal contacts. After the founders run through the “people they know” to fuel the growth of clients and staff, firms require formal systems to maintain consistency. Implementation exacts a high entry price and adds greatly to fixed overhead. Moreover, these systems undermine the flexibility that enabled the firm to take advantage of local opportunities in the first place.

6. Diverse market needs, 7. High product differentiation and 8. Local regulation, “driven by industries where buyers tastes are fragmented.” No one fights the standardization of products and services like educators. No other field of government contracts is so encrusted with federal, state and local regulation.

9. Exit barriers. When it is hard to leave an industry, marginal firms tend to stay. Moreover there may be players with goals that are not profit-oriented. Some businesses enjoy “a romantic appeal or excitement that attracts competitors who want to be in the industry despite low or even nonexistent profitability.” School improvement has an unusually high number of nonprofits providing close substitutes to for-profit offerings, socially motivated owners, part-timers, and sole practitioners.

The school improvement industry’s current fragmentation follows from several factors besides newness. Is the condition permanent or amenable to change? Next week: assessing the potential for industry consolidation.

Posted by Dean Millot at 8:52 AM | Permalink | Comments (0) | TrackBacks (0)

Education Sector’s Kevin Carey of The Quick and the Ed blog has written “Lawless Policymaking,” a long critique on the Department of Education’s pilot project on differentiated accountability.

I agree with the thrust of his commentary, but unfortunately Carey’s premise that the pilot “is not, in the strictest sense of the word, legal,” and that “there are no sections or subparagraphs that say the Secretary of Education may at her discretion alter or ignore” any of NCLB is, well, flat wrong. As someone who often argues that the Department of Education has ignored the legislation deliberately - for example, as it applies to Scientifically Based Research in general, and especially to Scientifically Based Reading Research under Reading First – I’d like to agree with him. However, “the black-letter law is pretty clear” that the Secretary is well within her legal authority.

(Since I posted this, Cary emailed me to advise he has updated his post. The update includes a link to my earlier post on the pilot, but not this one. His first Quick and the Ed post left no place for reader comments. To make life a bit easier on readers, I've copied his original post at the end of my post. Readers please note that I feel free to make changes to any of my posts until someone -anyone - has posted a comment. For one thing, that leaves me free to correct typos and the like.)

I’ve argued for the repeal of Section 9401 since at least April of 2005 precisely because it unambiguously permits her to waive virtually every provision of the law - with very view substantive exceptions, none of which are related to NCLB's key accountability provisions. (I’ve linked to the section in my own commentary on the pilot – What in retrospect I'll call “policy-free lawmaking,” and offer the key provisions below.) Every Secretary of every department implementing major legislation needs some waiver authority, but as one who wants to reduce the political risk of investments in the school improvement industry I’ve oppose the sweeping authority NCLB grants to any Secretary of Education.

Section 9401 is styled in a way that suggests states must request waivers of the law, but a lot less time is wasted when a Secretary explains the kind of waivers she is inclined to grant and requests proposals. That’s precisely what Secretary Spellings did.

The Department's Inspector General has found that in the past both Paige and Spellings failed to give adequate notification of waivers in the Federal Register in the past. Something similar might be happening here, but these are technical rather than substantive violations of NCLB.

Perhaps I should also point out that while it may well be true that as Carey argues, waivers will be granted for the differentiated accountability pilot because “nobody objects,” that’s a strictly political assessment and depends in part on how one separates the somebodies from the nobodies.

There is obviously no formal rule that permits an agency head - or the Secretary of Education under NCLB - to grant waivers “using what amounts to an extra-legal, consensus-driven process"; nor is there a legal basis for “anyone (to have) standing (and so) derail it simply by saying so.” Moreover, there is no informal, political custom and practice to this end. In making decisions to exercise waiver authority, every agency head must balance political practicalities with policy preferences. Sometimes the big stakeholders in the decision agree. Sometimes they don’t. Sometimes there's a consensus; just as often there is not.

Which brings me back to my concern about Section 9401. Carey argues that “[i]f Senator Kennedy, Representative Miller, Representative Boehner, or any of the major interest groups hated the (differentiated accountability) idea, it wouldn't be happening.” Today "the only real objections (from the AFT, at least one chief state school officer and Fair Test - see here) have been 'it doesn't go far enough' (so) the process goes ahead."

That’s the political calculus for a Republican Secretary of Education in the spring of 2008. In the winter of 2009, a Democratic Secretary could just as easily choose to ignore Boehner, McKeon, SES providers and the school improvement industry in general, and I suspect one will. Then we will really see a “process of amending the law without going through the whole hassle of introducing bills, having votes, getting lobbied, etc. etc.”

But let's be clear, this is no violation of law; it's the usual politics of public education. And whether you are a Democrat or a Republican; whatever your position on AYP, SBR or SES; and wherever you come down on private sector involvement in public education, all share an interest in a clear, stable and predictable regulatory regime. Yet the meaning of NCLB provisions will remain unsettled until the Secretary's authority under Section 9401 is curtailed substantially.

SEC. 9401. WAIVERS OF STATUTORY AND REGULATORY REQUIREMENTS.

`(a) IN GENERAL- Except as provided in subsection (c), the Secretary may waive any statutory or regulatory requirement of this Act for a State educational agency, local educational agency, Indian tribe, or school through a local educational agency, that —

(1) receives funds under a program authorized by this Act; and

(2) requests a waiver under subsection (b)…..

(c) RESTRICTIONS- The Secretary shall not waive under this section any statutory or regulatory requirements relating to —

(1) the allocation or distribution of funds to States, local educational agencies, or other recipients of funds under this Act;

(2) maintenance of effort;

(3) comparability of services;

(4) use of Federal funds to supplement, not supplant, non-Federal funds;

(5) equitable participation of private school students and teachers;

(6) parental participation and involvement;

(7) applicable civil rights requirements;

(8) the requirement for a charter school under subpart 1 of part B of title V;

(9) the prohibitions regarding —

(A) State aid in section 9522;

(B) use of funds for religious worship or instruction in section 9505; and

(C) activities in section 9526; or

(10) the selection of a school attendance area or school under subsections (a) and (b) of section 1113, except that the Secretary may grant a waiver to allow a school attendance area or school to participate in activities under part A of title I….

(g) PUBLICATION- A notice of the Secretary's decision to grant each waiver under subsection (a) shall be published in the Federal Register and the Secretary shall provide for the dissemination of the notice to State educational agencies, interested parties, including educators, parents, students, advocacy and civil rights organizations, and the public.

Kevin Carey's Original Post:

So I went on vacation for a week and missed the whole differentiated consequences pilot project thing. Alas. But it's interesting to see it from a little distance. A few thoughts:

-- Posted by Kevin Carey at 4:41 PM

Posted by Dean Millot at 6:38 PM | Permalink | Comments (0) | TrackBacks (0)

(If you've been sent here from Kevin Carey's Quick and the Ed post "Lawless Policymaking," you were sent to the wrong post. My assessment of the Secretary's legal authority for the pilot - NCLB Section 9401, and the political significance of that authority can be found here. There would have been much less confusion if the Quick and the Ed accepted comments on its posts.)

On March 18, Secretary Spellings offered states in compliance with NCLB requirements the opportunity to propose pilot programs that might better target school improvement options to the specific reasons for a school’s shortfalls under each state’s current approach to Adequate Yearly Progress. The opportunity for "differentiated accountability" is quite open-ended, bounded only by clarity in the process for differentiating schools and in defining the interventions – especially for schools in restructuring status.

The Secretary suggested states should:

“think creatively about how to choose which schools will receive intensive help, as well as what types of intervention to provide…. For example, they may send their most experienced and effective teachers to work in the neediest schools - and reward them for doing harder work. They may decide to close some of the lowest performing schools. They may want to partner with the nonprofit and private sectors to develop new approaches.”

While no mention was made of Supplemental Educational Services, political resistance to that program was probably the most compelling reason for the Secretary’s offer. At least in principle, the pilot would allow a state to provide SES only to students in schools that missed AYP, who themselves were not able to demonstrate proficiency on their state tests. It might even permit a state to provide such students with services other than SES. If one starts from the proposition that schools would prefer to keep their Title I funding in-house rather than hand it over to the private sector, it stands to reason that many states will propose pilots that have such an effect. How far they will be permitted to go in this direction remains to be seen, but there can be no doubt that the pilot will shrink the addressable market for SES providers.

Some observations:

1. If the goal of NCLB is to leave no student behind, there are good policy reasons to target educator’s attention and limited financial resources on the students furthest from achieving proficiency.

2. In the context of negotiating a reauthorized NCLB, this Administration has taken a few cards away from a future Republican President. Up until the 18th, “Differentiated Accountability” was on the bargaining table. Those less inclined to a tough accountability regime will now pocket the Secretary’s concession, creating a new status quo. This was unhelpful to those (like me) who still support NCLB I.

3. For example, in the context of SES, differentiated accountability will ease the financial pressure on districts, but handing them this bargainining chip leaves them in a better position to press hard on SES providers currently limited value-added to student performance as an argument to kill the program.

4. Reactions to the proposal do suggest a split in the opposition to NCLB. Senator Kennedy, CCSSO Executive Director Whilhoit, and even NEA President Weaver accepted the offer as overdue but welcome. AFT’s Cortese, Fair Test, and Oregon Superintedant Castillo basically said too little, to late. Whether this gap can be exploited in a way that produces an NCLB II more like NCLB I rather than a gut job remains to be seen.

5. It's worth remembering that the waiver provision of NCLB I that gave the Secretary the legal authority to offer this pilot - Sec. 9401 (read it) , could just as easily be used by a future (Democratic) Secretary to kill SES outright. Rather than dampen the political risk investors face with firms tied to NCLB, the pilot underlines just how unstable the emerging industry really is. Indeed, I fully expect that a Democratic Secretary of Education will use this approach to amend the law de facto both before serious negotiations over reauthorization are renewed and as a means of pressuring Congress to pass a law more in line with a Democratic President's campaign promises.

Posted by Dean Millot at 11:45 AM | Permalink | Comments (0) | TrackBacks (0)

To appreciate where Supplementary Educational Services (SES) need to go, I believe we must proceed from first principles.

In market democracies, the economy exists to enrich the whole society. It is not a perfect system, indeed it is seriously flawed – except, to borrow from Winston Churchill, when compared to every other approach to economic organization mankind has tried to date. Profit is the means by which our society encourages individuals and firms to employ their capital for the general good – remember Adam Smith’s invisible hand. Regulation is the means by which society places limits on competitive impulses, replacing "buyer beware" with some sense of fairness in economic transactions.

For the most part, the idea that regulation must address a dual criterion of profit and fairness is transparent across the American economy. No one objects to the need to regulate pollution in industrial processes, assure product safely in toys or food, or police unscrupulous lenders in the home mortgage business. For the most part, we are only reminded of the need for such rules by reports of egregious violation.

So it really should have been no surprise that in creating a market for school improvement, No Child Left Behind (NCLB) would employ standards for both school performance in the form of AYP and school improvement provider performance in the form of Scientifically Based Reading Research (SBBR), Scientifically Based Research (SBR), and Research Based (RB) products, services and programs. For the common good, the law imposed a meaningful basis for accountability on state and local governments’ monopoly over public education. Accountability to Adequate Yearly Progress (AYP) opened up possibilities for the private sector to provide public education services directly to public school students. It also incentivized public schools managed by state and local government to purchase a better class of products and services for teaching and learning. To protect society from worthless offerings, and attract new private sector providers and capital into a preexisting market overshadowed by the major publishers, NCLB set some guidelines for the Department of Education to regulate in the area of educational efficacy.

The federal government pursued the AYP regulation with great vigor. It essentially dismissed regulation around SBBR, SBR and RB. As I pointed out last week, if the Department of Education had been serious in the development of reasonable standards for program evaluation, Supplemental Educational Service (SES) providers could not have more or less ignored it for so many years, and states would not have learned over the last year how to manipulate standards to dispense with their school districts’ competitors in the near future. If student performance truly matters, providers will deliver it. If it is not a priority, objectives like growth and profitability will move to the fore. If dominant players like school districts are allowed to use their market power to squelch competition by whatever means they can, they will. The Department’s job was to pursue SBBR/SBR/RB regulations to channel the natural impulses of providers and school systems towards ends that profit society. This Administration didn’t do its job, and the result is an SES program that may not survive the next election.

It has been incredibly difficult for this Administration to recognize how important regulation is to nurture a nascent school improvement industry that is vulnerable not only to a local government monopolies, but also to the k-12 education industry’s dominant providers. (For more on this go here.) Much of the resistance is ideological and experiential – for the most part we are talking about people who have spent their lives trying to deregulate a government monopoly. A lack of experience in the regulation of markets outside of education left this group unprepared to concede the need to set floors on quality as a means of attracting investment to goods and services aimed at replacing those offered by established providers. There was the Post Office-like legacy of political spoils in the Department - replacing what was in place with a new set of party loyalists. There was the impact of what appeared to be victory in the reading wars, favoring the broad concept of phonemic awareness, rather than the demonstrated effectiveness of specific products and services. In short, “the market” was given pride of place in political discourse, but - in an unfortunate but real sense - the left was uncomfortably close to the mark calling it simply a code word for privatization. Conservatives have had a vision for “tearing down this wall” of public school monopoly, but not for the development of the school improvement market required to leave no child behind. Simply put, NCLB I was far ahead of the Bush Administration’s learning curve.

If there is to be a meaningful future for SES, a reauthorized NCLB must address two shortcomings of his Administration’s policy on evidentiary standards. First, if there is to be a real market in school improvement, NCLB II must make up for years of lost time by assuring that the next Administration gives practical meaning to the terms Scientifically Based Research in regulations governing the purchase of school improvement products, services and programs. Second, and probably more important for SES providers, given the damage that has been done to the SES concept by governments’ and providers’ failure to take evaluation seriously, the program needs to proceed on an entirely new basis. I’ve addressed both in edbizbuzz and my podcast, School Improvement Industry Week Online. Portions of my postings are excerpted and hot linked below.

A useful standard of program efficacy from the October 24 School Improvement Industry Week Online:

Senators Jeff Bingaman (D-NM) and Richard Lugar (R-IN) have introduced S. 2118, establishing basic requirements for demonstrating the efficacy of products, services and programs purchased under No Child Left Behind. School improvement providers should endorse their efforts.

NCLB I was intended to hold the private sector accountable for its role in student outcomes by restricting schools’ use of federal funds to the purchase of products, services and programs whose efficacy has been demonstrated by “scientifically based research” (SBR). A plain reading of the definition in Section 9101(37) reveals that Congress wanted to end business as usual:

The term ‘scientifically based research’... includes research that— (i) employs systematic, empirical methods ... (ii) involves rigorous data analyses that are adequate to test the stated hypotheses ... (iii) relies on measurements or observational methods that provide reliable and valid data across evaluators and observers, across multiple measurements and observations, and across studies by the same or different investigators; (iv) is evaluated using experimental or quasiexperimental designs in which individuals, entities, programs, or activities are assigned to different conditions and with appropriate controls... with a preference for random-assignment experiments, or other designs to the extent that those designs contain within-condition or across-condition controls; (v) ensures that experimental studies are presented in sufficient detail and clarity to allow for replication or... the opportunity to build systematically on their findings; and (vi) has been accepted by a peer-reviewed journal or approved by a panel of independent experts....

When it comes to SBR, the Department has not only lacked vigilance, it has essentially ignored the law. The effects of this negligence have been hard on organizations whose business strategy rested on a belief that, at least when it came to purchases under NCLB, results will beat established marketing channels and brands. S. 2118 merely spells out standards for evaluation that define what legitimate school improvement providers have always done, will always do, and reasonably assumed NCLB mandated for everyone else.

SEC. 9101(37). RESEARCH PROVEN PROGRAM....

(vi) The median difference between program and control students across all qualifying studies is not less than 20 percent of student-level standard deviation, in favor or the program students....

Absent provisions that end research-free business practices, real school improvement firms will stay on the margins of supply. Expert debate and discussion may adjust S. 2118’s standards. Still, if school improvement is your business, you can back them in principle. If you can’t, what business are you in?

A new basis for SES from the May 6, 2007 edbizbuzz:

If the future of SES in NCLB is decided on "the merits" - demonstrated improvements in student performance to date, thus endeth the program. And with it much of an industry that depends on a single federal funding stream. Alternatively, if it is decided purely on politics, adversaries of SES and NCLB will never stop pointing out the “double standard” of holding schools accountable for student performance, but then taking money from those schools and giving it to private providers in general and SES providers in particular who need not show that they can make edcationally significant improvements in student test scores. Hillary Clinton’s equating of SES providers and Halliburton will become the cry of any Democratic contender for the presidency.

Research and evaluation to date suggests that tutoring is most likely to have an impact on student performance is when it is tied to the classroom closely. Moreover, to be honest, many providers would rather work for the district as a contractor than compete against it under SES. Indeed, this “pull out” educational model was the business model adopted by Sylvan Learning Systems' Contract Services Division for targeted Title I programs in the top 50 school districts long before SES was thought up. It was pretty successful against business and academic criteria.

A new SES program might have some of the features of the old Comprehensive School Reform Demonstration Program. Grant funds would be "fenced off" from Title I for districts with students not demonstrating proficiency in schools on the verge of “in need of improvement.” Districts might propose to use grant funds to involve one SES provider to maximize the strength of ties between student, classroom teacher and tutor, or multiple tutors to get more of the benefits of parental choice. The competition for grant funds presumably would improve the likelihood of "supportive operating environments," allowing the tutoring firms to focus on product development and refinement, including a better understanding of the kinds of programs best suited to different kinds of students.

Such a program would be smaller than the potential spending under today’s SES provisions in NCLB. But, as a practical matter, the market might be just as big and better concentrated - and perhaps more profitable, if for no other reason than marketing/customer acquisition costs would drop significantly. It would also be accompanied by ongoing research and evaluation at the provider and school levels. Rather than killing off an idea that doesn’t seem to be ready for prime time, it would allow the most promising SES programs an opportunity to survive and grow.

The downsides of this option are several. 1) SES providers will have to admit they are not ready for prime time, and they may not be able to muster sufficient political support for a transition to the new approach in a reauthorized NCLB. 2) When "the client" moves from many parents to one district, the market becomes a "winner take all" game and many providers will perish. 3) The ongoing research requirement will kill off more because districts will still be looking for the provider "best able/most likely" to improve student test performance. 4) Potential losers will try to prevent potential winners from making the move to the R&D program option, splitting the SES community.

Still, something like this approach is probably the best hope for SES providers and the SES segment of the school improvement industry overall. Current course and speed basically leads to a demonstration of failure. Putting the program in the "R&D" category moves it into a category where failures of performance are more tolerable as a means of long-term program improvement. Making the funds for SES available to districts puts them in control of SES providers, where they seem more comfortable and maybe even supportive of the SES idea.

For any of this to be implemented, we’ll need a cadre of activists in Congress, the White House, and above all the Department of Education – that favors a well-ordered market over any provider, program, philanthropic trend, or political connection. In short, we’ll need to change federal public education policy from campaign spoils to professional service.

Posted by Dean Millot at 8:01 PM | Permalink | Comments (0) | TrackBacks (0)

The Program Effectiveness Standard for SES Providers in Kentucky

From Monday's issue of K-12Leads and Youth Service Markets Report

Announcement: 2008 - 2009 SES New Provider Application Due May 2 (Mar 20) Department of Education, Kentucky

Their Description: Evidence of Effectiveness in Improving Student Academic Achievement (25 of 100 POINTS).... The applicant must provide a demonstrated record of effectiveness in raising student achievement in reading/language arts, mathematics, or both areas.... Please indicate whether you are applying as a newly created organization or as an established organization....

Newly Created Organizations...may not yet have established a demonstrated record of effectiveness....

My Thoughts:

1) As long as SES is in NCLB, solid evidence of program effectiveness will only become more important to SES providers.

2) Ironically SES is at the bleeding edge of evidence-based market regulation - all should watch it.

Posted by Dean Millot at 7:03 PM | Permalink | Comments (0) | TrackBacks (0)

Two from the Feds: Why Sole Source? Why Not Watersheds?

From Monday's issue of K-12Leads and Youth Service Markets Report

First Announcement: Sole Source Notice - Education Policy Working Group on Education Systems and Accountability Due May 5 (Mar 21), United States Department of Education

Their Description: The Department of Education intends to make a sole source award to the National Research Council (NRC) of the National Academy of Sciences (NAS), located in Washington, DC, for the establishment of a new Education Policy Working Group on Education Systems and Accountability....

The NRC has been determined to be the most responsive and has a unique capability to meet the Department’s needs.

My Thoughts: I doubt the NRC is the only institution capable of performing this work. Let the points of contact know: Alessha Mason, Contract Specialist, Phone 202-245-6736, - Sylvia Reid, Contracting Officer, Phone 202-245-6214, Fax 202-245-6278

Second Announcement: Bay Watershed Education and Training Program Due April 18, National Oceanic and Atmospheric Administration

Their Description: NOAA Bay Watershed Education and Training (B-WET) is an environmental education program that promotes locally relevant, experiential learning in the K-12 environment. Funded projects provide meaningful watershed educational experiences for students, related professional development for teachers, and helps to support regional education and environmental priorities in the Pacific Northwest, the northern Gulf of Mexico and New England. These new geographic areas are intended to build upon on the successes of the existing B-WET Programs in the Chesapeake Bay, California, and Hawaii.

Eligible applicants are K-through-12 public and independent schools and school systems, institutions of higher education, community-based and nonprofit organizations, state or local government agencies, interstate agencies, and Indian tribal governments.... While applicants do not need to be from the targeted geographical regions specified in the program objectives, they must be working with target audiences in these areas.

My Thoughts: The Department of Education is hardly the only federal agency with an interest in k-12 education and youth. Even beyond the Department of Defense and Indian Education programs, federal agencies issue grant and contract RFPs for everything from product development to straight teaching and learning.

Creativity is required, but differentiating yourself from your rivals is a creative enterprise. The only way to move into these funding streams is to apply and compete. I see them as one way to add work with existing clients.

Posted by Dean Millot at 6:56 PM | Permalink | Comments (0) | TrackBacks (0)

Edbizbuzz readers can explain the fears and hopes:

First, the facts. Most SES providers do satisfy the parents of their students -but, why not, the service is free. Studies have established “statistically significant” improvements in student performance; i.e., they can attribute higher student test scores to tutoring. But, so far and in general, the size of these improvements is not educationally meaningful.

Second, the politics. Six years without demonstrations of efficacy that are both statistically significant and educationally meaningful have strengthened the arguments of those who opposed SES when it was still part of the negotiations over NCLB. With Democrats in control of the House and Senate, and objective reasons to hope for a Democrat in the White House, teachers unions, school boards, superintendents, and state boards have every reason to believe the SES program will be curtailed severely, perhaps to the point of a mere nuisance.

Third, the bottom line. Addressing SES providers last month, Rep. Buck McKeon, the House Education Committee's ranking Republican, could hardly have been more discouraging when his best guess for the likely future was bounded by something close to the draft NCLB produced by Chairman Miller if a Republican becomes President, and “you will be laying off people” if a Democrat wins the White House.

If you are an SES provider, you might well be planning to lay off employees even if a Republican wins in November. If you are opposed to SES, there is every reason to press for a delay of NCLB reauthorization until after the election. Moreover, opponents can use McKeon’s admission to cut the legs out from under the arguments of moderate Democrats like Miller that SES must be part of a reauthorized NCLB. McKeon's prognosis implies that Republicans understand that they will lose significant ground on SES.

I favored NCLB’s SES provisions in 2001. Students in schools that are not making adequate yearly progress towards 100 percent proficiency in key subjects against standards chosen by their states as measured by tests chosen by their states, need help that their schools have been unable to provide, and they need it immediately. School system administrators need the threat of competition, including its financial consequences, to overcome intertia, including their own. I understood why conferees agreed to hold large scale tutoring to a lower evidentiary standard than other, more mature school reform programs.

But I don’t see competition or private sector involvement in public education as an end in itself. I favor the SES program solely as a means of raising student achievement, and I suspect most people without a direct financial stake in public education share my view. If tutoring offers an educationally significant increase in student performance at a reasonable price, I’m for it. If after spending over $1000 per student I have to use a magnifying glass to see the improvement over letting students do nothing, I don’t think I’m the only reasonable person who might be skeptical about the program’s value.

Yes, schools have students for the whole day, and SES providers might have them for four hours. But that’s an “apples to fruit basket” comparison. An “apples to apples” approach would assess hours spent on math and/or literacy in school vs. after-school tutoring on the same subjects. One estimate of the combined in-school total at the elementary level is on the order of eleven hours per week. Under NCLB, tutoring services are intended to supplement classroom instruction rather than compete for it, so presumably SES providers reinforce classroom teaching by adding roughly 33 percent to time on task.

The question is, given the allocation of 10-plus percent of total spending on a student to SES tutoring, what’s a reasonable amount of improvement in student performance to expect from an additional 33% of time on task? I posit that mere statistical significance is not a sufficient payoff to the taxpayer. We need educational significance at least equal to what we might get from any other comparable expenditure on a school improvement program.

I have not stopped favoring markets, nor have I ended my support for an SES program in NCLB. Nor do I discount the effect of administrators bent on making it as hard as possible for SES providers to do business on school districts' and states' home turf. I still believe kids need help that schools can’t always provide - and ASAP; that private sector involvement can meet the need effectively; that school districts will ultimately improve under competitive pressure; and that under the best of circumstances six years isn’t long enough to effect substantial change in a system with dysfunctional features that have been in place for several generations. I do believe that, properly managed, the SES program would have a much better record than the one we face.

The history of evaluation in SES was hardly inevitable, but has been entirely predictable. With one plausible exception, it has followed the course of every market-based school reform since 1990. Over time, advocates and leaders of independent charters schools, Education Management Organizations (EMOs), Charter Management Organizations (CMOs) and SES providers have employed precisely the same set of talking points: “Please let us get started before asking how we are doing;” “You know, this is hard, there are no silver bullets;” “We’re about to start a study, but what’s the right measure of effectiveness for our unique offering - and do test scores truly capture our real value?;” and finally, “Evaluation doesn’t really matter to our future; it won't be interpreted fairly, and it won't change anyone's mind.”

As one who has had some kind of a direct role in each of these efforts, I find this repetitive story disheartening; very hard to stomach; and more than a little hypocritical (particularly when it is familiar to anyone with knowledge of public education and public school reform prior to 1990). The poor performance of the existing public schools as measured by test scores or improvements to test scores and the promise of doing better is the reason these reforms were adopted. It is precisely because I believe in the complete phrase "market-based education reform" that I find efforts to change the scorecard unacceptable. Substituting one set of ineffective providers for another is not education reform; it's just a transfer of wealth.

In each case, only after criticism about the lack of evidence jeopardizes continued political support from the responsible middle do advocates and operators get serious about evaluation. By then they have lost much of the benefit of the doubt enjoyed when the reform was first implemented. As a result, the inevitably problematic reviews are not interpreted as signs of progress and ongoing improvement, but as evidence of another in a long series of questionable reforms. Those who support real reform move onto the next new thing, opponents breathe a sigh of relief, and educators become even more cynical.

The one plausible exception to this more than twice told tale is Comprehensive School Reform. Just as today, a handful of foundations acting in concert are the only game in town for those pursuing the nonprofit Education Management Organization model for charter schools – the CMO, New American Schools (NAS) bankrolled the development of most Comprehensive School Reform providers. The difference is that NAS based its investment decisions on a clear set of design specifications contained in an RFP; built serious independent evaluation into the program development and dissemination process; published those results throughout the its life; and insisted that its design teams create their own means of ongoing evaluation.

The difference in outcomes is pretty obvious. When it comes to legislative matters, the charter movement is on hold. EMOs are as far out of favor as an education investment can become. CMO’s have been stumbling along with the public more or less in the dark on matters of cost/effectiveness. Most national and many regional SES providers live in fear of their future. By comparison, several years into the Comprehensive School Reform Demonstration Program (CSRDP), most NAS Design Teams had a record of evaluation that independent experts at what became the What Works Clearinghouse and other institutions considered promising. Ironically, it was not the blob that killed CSRDP, but a Bush Administration that wanted to replace it with Reading First. Nevertheless, most NAS Designs Teams are still in business and are serving or have served literally thousands of schools.

There's a lesson here. NAS held its providers accountable for educational outcomes from the very start. It opened the stove to look at the cooking again and again and again. The evaluation reporting process was almost always behind actual improvements in programs, actual outcomes were often less than what NAS hoped to see, but truly poor performers were dropped, there was constant improvement across all designs, and the value of continuous improvement was built into Design Teams' organizational processes and so their corporate cultures.

At the end of the day, there was sufficient evidence for schools to justify doing business with these organizations despite the end of the special federal funding stream. And on a school-by-school basis, when a building's administrators are facing the need for improvement, this evidence often outweighs opposition based on politics or ideology. Other school improvement organizations lacking such evidence have a much harder time persuading school boards, administrators, principals, teachers to divert from their course, however well they recognize an impending crisis.

The fact is that SES has been poorly managed by the Department of Education. Had the federal government been serious in the development of reasonable standards for evaluation, providers could not have more or less ignored it for so many years, and states would not have suddenly learned how to manipulate standards to dispense with school districts competitors in the near future. Absent government management, markets are like Hobbes’ state of nature, where life is nasty, brutish and short. If student performance truly matters, providers will deliver it. If it is not a priority, objectives like growth and profitability will move to the fore. If dominant players like school districts are allowed to use their market power to squelch competition by whatever means they can, they will. Government’s job is to corral and channel competitive impulses towards ends that profit society. This Administration simply didn’t.

Next: If there is to be a meaningful future for SES in NCLB II, it must address these shortfalls in government policy. Some suggestions.

Posted by Dean Millot at 7:38 AM | Permalink | Comments (1) | TrackBacks (0)

Nancy Van Meter is Deputy Director, Office of the President, American Federation of Teachers.

Without knowing Alan Carter, Vice President of the Education Industry Association and CEO of the tutoring provider, University Instructors, Inc., I can’t tell if he is sincere or “shocked, shocked” when he laments that Republican Congressional leader Buck McKeon recently warned SES providers that their business survival hinges on “election results” rather than evaluations proving that SES contributes to raising “academic achievement.”

After nearly eight years of George Bush’s “War on Science” it’s hard to take at face value anyone who expresses surprise that policy decisions in Washington – on climate change or afterschool tutoring - are made based more on political grounds than scientifically based research. Carter seems so confident that the evidence on the effectiveness of SES would lead to its reauthorization. He says SES providers are under attack not because they “aren’t effective” but because opponents in the education world are just plain hostile to private for-profit companies. If entrenched education interests hate you, he implies, it doesn’t matter how good your results are. Carter blames the amorphous education establishment for not giving for-profit providers a “fair shot” at proving their value. He suggests that SES entrepreneurs should strive for results that meet scientifically based research and research based targets in the future, but asserts that the current discussions are “red herrings” designed to distract SES providers from building their businesses the old fashioned way.

Dismissing skeptics of SES as zealots is an easy way to get around the lack of evidence six years in to the program without responding to legitimate issues. The law states that SES must be “high quality, research-based, and specifically designed to increase student academic achievement” (Title 1, Section 116 (e) (12) ( C )). In NCLBworld, every thing is judged on whether it improves student achievement; SES doesn’t get a pass on the accountability because it’s a “market-based reform.”

But SES providers are in a bind. The program has built in limitations, both in terms of how much effect it may have on achievement given the limited amount of hours offered annually and how difficult it is to measure whether test score improvements are attributable to SES or other school initiatives. Paradoxically, some of these limitations are explicitly included in the law or regs by market-friendly SES promoters to insure the lowest possible barriers to entry for providers, such as no requirements for a specific number of hours or no requirements to use highly qualified teachers. And states receive no additional funding for monitoring or evaluation of SES to help parents or policymakers determine if providers are succeeding in raising achievement.

In the GAO study of 2006 37 of 49 states indicated that it was seriously or moderately challenging to determine the effectiveness or quality of SES providers. The USED may have thought it was doing SES supporters a favor by producing descriptive reports and case studies rather than commissioning a national evaluation of whether SES raised student achievement.

One analysis of SES in 30 states found that only two rigorous studies had been completed analyzing the impact of SES on achievement score gains since the program began, with mixed results. The Minneapolis study found that students receiving SES did not perform as well as the matched samples. In Chicago, researchers found that students who received SES made greater learning gains than students who did not receive SES.

Recent headlines from Wisconsin aren’t very promising either. Study finds tutor plan lacking Federally funded program doesn't show better results.

Perhaps Carter’s post was part of the strategy of the SES providers. They are working to paint their critics as zealots; and lower the public’s expectations for what SES is supposed to accomplish. The Education Industry Association website has an updated fact sheet which cites Steven Ross, Director of the Center for Research in Education Policy at the University of Memphis, on SES: “No one should expect 30 to 40 hours of after-school tutoring during the course of a school year – the equivalent of one week of classes – to magically boost student scores on standardized state tests.”

Posted by Dean Millot at 1:55 AM | Permalink | Comments (2) | TrackBacks (0)

Why Such Short Notice for a Major Department of Education RFI With Small-Business Potential?

From Monday's issue of K-12Leads and Youth Service Markets Report

Announcement: Professional Development Module Due March 20 (Mar 10), U.S. Department of Education

Their Description: The U.S. Department of Education’s, 21st Century Community Learning Centers (21st CCLC) program is a State formula-grant program authorized under Title IV, Part B, of the Elementary and Secondary Education Act....

All interested parties are encouraged to respond to this Request for Information with a brief capability statement outlining the necessary knowledge, skills and abilities in meeting Department of Education requirements by March 20, 2008 close of business EST. If two or more small businesses are identified and determined by the Contracting Officer to be capable of successfully meeting contractual objectives, the Department of Education will set-aside this procurement for small-businesses.

My Thoughts: Have problems with how this RFI was issued? The time line is not exactly encouraging for small organizations. Here’s the Point of Contact: Thurl Frazier, Contract Specialist, Phone 202-245-6187, Fax 202-245-6278, Email Thurl.Frazier@ed.gov (cc: Sylvia Reid, Contracting Officer at sylvia.reid@ed.gov).

Posted by Dean Millot at 9:12 AM | Permalink | Comments (0) | TrackBacks (0)

Will Response-to-Intervention (RtI) Go Mainstream?

From Monday's issue of K-12Leads and Youth Service Markets Report

Announcement: Reading Interventions Professional Development to Support Response to Intervention, State Board of Education, Illinois Due April 3 (Feb)

Their Description: School districts, charter schools, and public university laboratory schools... that serve kindergarten through sixth grade are eligible to apply if they have a reading improvement program(s) currently in place and employ staff who hold the endorsement for either reading specialist or reading teacher or are qualified under State Board of Education rules to serve as either a reading specialist or reading teacher.... Priority consideration for funding will be given to applicants with the highest percentage of below-level readers or those that did not make Adequate Yearly Progress in reading for school year 2006-07.... Approximately $900,000 will be available for grants in FY 2008. It is anticipated that nine grants will be awarded.....

(How) The proposed budget is cost-effective.... (10 points)

My Thoughts: Expect the RtI approach, and its products, services and programs to serve many students not covered by IDEA. (See here.) Whether the funding will move from IDEA to Title I, vice versa, or at all, is another question.

Posted by Dean Millot at 9:06 AM | Permalink | Comments (0) | TrackBacks (0)

Alexander Russo noted a March 14 story in the New York Times describing plans for a charter school in New York City that plans to pay its teachers at least $125,000 per year. As it happened, I read the same story on The Equity Project Charter School some time earlier and requested a copy of their business plan. Russo’s post prompted me to leave a comment on his This Week in Education website.

Here’s the post, somewhat revised:

Andrew:

I've asked for the business plan to review the organization's assertion below:

"TEP (The Equity Project) has created a sustainable and conservative financial model that allows the school to compensate its teachers appropriately without relying on outside private funding.[ii] It accomplishes this primarily through cost savings that result directly from the tremendous quality and productivity of its teachers."

I have yet to hear back.

I was responsible for due diligence on many investments in k-12 nonprofits, and have written frequently on individual charter and CMO finances.

Some examples:

• Quantity Counts: The Growth of Charter School Management Organizations (Center on Reinventing Public Education)

• Are Charter Schools Getting More Money into the Classroom? A Micro-Financial Analysis of First Year Charter Schools in Massachusetts (Center on Reinventing Public Education)

• What Has Become of the Charter Idea? (I-VII) (School Improvement Industry Week Online), starting here.

• CMOs Won't Work As EMOs (School Improvement Industry Week Online)

Consequently, I'm skeptical about the accuracy, special circumstances and/or sustainability of TEP’s cla