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The Letter From: A Detailed Statutory Analysis of "based on" in Reading First (I)

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This letter is an effort to demystify the arcane subject of statutory interpretation for people interested in federal education law. The subject is the Reading First program authorized by the No Child Left Behind Act. The implementation of this federal program is a matter of great controversy that cannot be understood without some grasp of the tools lawyers, courts and even legislators use to determine what the provisions of a statute actually mean.

The specific question at issue in the Reading First controversy is whether NCLB confined federal funding to programs and materials that were demonstrated to improve student learning by evaluation, or extended that funding to programs and materials that could claim a relationship to such research.

We all know that the latter approach was taken and that, among other things, providers disadvantaged by the implementation of the program argued this decision was both erroneous and one cause of their misfortunes. Since then, there have been a slew of investigations, a great deal of debate, and occasional statements by current and former government officials – all to clarify which interpretation is correct.

The Federal Approach to K-12 Education: More Politics than Policy

I hope this essay makes a case for my own view on the legal requirements of Reading First. More important, I hope it sheds some light on how statutes work for those interested in education policy. I have pointed out elsewhere that in politics, all evidence is created equal. In the campaign for the Democratic nomination Jeremia Wright’s remarks are no less relevant to the success of Barak Obama at the polls than the number of people covered under his health care program. In politics, if you want to know the real story behind some decision, you go first to the insiders.

In contrast, public policy recognizes relevant information, but takes the next step of assigning it some weight. Legal analysis of statutes goes still further, with very specific rules of evidence. Indeed, much of the information gleaned from insiders would be inadmissible in a court of law as hearsay.

I have argued that up to the passage of No Child Left Behind, outside of desegregation and the status of students with special needs, the federal approach to k-12 education was more a matter of politics than policy, and certainly more a matter of politics than law. Until No Child Left Behind (and its own section 9401 notwithstanding), beyond accounting for the use of funds, no prior authorizations of the Elementary and Secondary Education Act mandated anything of substance in the way of standards, curriculum, instruction, academic performance or purchasing. This was in fact the great criticism of the Improving America’s School Act passed during the Clinton Administration. Up until NCLB, the states and federal government negotiated ESEA implementation via process-oriented bureaucracies representing more or less sovereign equals, consistent with a more absolute view of our Constitution’s 10th amendment.

What Did NCLB Change?: Paper v. Practice

No Child Left Behind changed all this - on paper. Among other things, it directed the states to establish standards of student proficiency, means of measuring student performance, a pathway to 100 percent student proficiency, and a system of sanctions for schools and districts that fail to keep pace with the timetable. States were free to meet these requirements within broad parameters, but the requirements themselves were absolute, nonnegotiable.

What this Federal legislation did not do, and could not do, was change the preexisting culture. The same people, organizations and institutions that carried out ESEA before NCLB were responsible for implementing new law. Accidents resulting from the clash of the new law and the old culture were inevitable, even with extraordinarily strong leadership at the White House and Department of Education. In the area of standards and accountability, Margaret Spellings and Rod Paige played that role – they imposed the federal will on the states. And a good deal of today’s opposition to NCLB flows not from its substance and merits, but state and local resentment of this curtailment of powers and rights.

The larger question posed by the controversy over Reading First is whether Congress intended the Administration to apply the same kind of discipline imposed on states to the private sector market in products and services that support teaching and learning in the classroom.

No prior authorization of ESEA purported in any way, shape or form to limit what could states, districts or schools could purchase with federal funds – period. But in the years leading up to Reading First, educators, education policy wonks, and policymakers arrived at a consensus around the idea that educational practices and offerings untested through the same principles of evaluation that guide the sciences were a contributing factor to unsatisfactory student performance – and that this needed to change. In 1998 President Clinton signed legislation authorizing the Reading Excellence Act and the Comprehensive School Reform Demonstration Program, two grants activities that confined federal financial support for improvements in instruction leading to higher levels of student performance to products, services and programs developed in ways consistent with the scientific method.

The Provision in Dispute

The specific question at issue in the Reading First controversy is whether NCLB confined federal funding to programs and materials that were demonstrated to improve student learning by evaluation, or extended that funding to programs and materials that could claim a relationship to such research.

Here is the specific provision from NCLB Section 1202(c)(7)(A)

An eligible local educational agency that receives a subgrant under this subsection shall use the funds provided under the subgrant to carry out the following activities:
‘‘(i) Selecting and administering screening, diagnostic, and classroom-based instructional reading assessments.
‘‘(ii) Selecting and implementing a learning system
or program of reading instruction based on scientifically based reading research that—
‘‘(I) includes the essential components of reading instruction…
‘‘(iii) Procuring and implementing instructional materials, including education technology such as software and other digital curricula, that are based on
scientifically based reading research

Interpreting Meaning

What are we to make of this?

Before we get into any detail, it's important to understand that specific rules govern this exercise.

Literature permits, even celebrates, ambiguity. The capacity to suggest apparent and deeper meanings from a single phrase is one mark of a great writer. Politics values ambiguity as a way to paper over differences and defer substantive decisions to a later date.

The law abhors ambiguity. A system of justice based on an expectation that people will conform to legal norms implies clarity – especially in statutory law. Humans may seek ambiguity in other fora, but the law seeks to root it out. Unfortunately, the legislative process does not always oblige. Sometimes this is accidental. Sometimes legislatures deliberately paper over differences to leave the resolution of ambiguity the courts. Consequently, it is often possible to divine mutually inconsistent meanings from a statute’s operative phrase.

Because legal analysis permits only one meaning, one potential definition must be chosen over the other. A coin toss is one possibility. The arbitrary choice of some judge is another.

Instead, the American legal tradition argues for trying to determine which the legislature intended. This is complicated, given that the legislature is not a person, but two bodies, each with a collection of members, and the process involves many other people – including the executive branch - playing many roles over time. Over hundreds of years, and drawing on our legacy of English common law, American courts have developed a set of conceptual tools to identify this collective intent. Courts have employed these rules or “cannons of statutory construction” to provide some consistency and predictability of process, analysis and outcome over time. The Supreme Court, moreover, presumes “that Congress legislates with knowledge of our basic rules of statutory construction.”

Because it is a toolkit rather than a blueprint, results of statutory analysis are not entirely predictable, but the toolkit is preferable to the alternative roll of the dice or the whim of the court. The basic structure of statutory analysis makes a good deal of common sense. To simplify, it calls for starting with the words in question, and staying as close to them as possible before moving to more remote evidence offering some insight into meaning. If the analysis at one level implies one interpretation is better than another, the process should stop - unless the weight of more remote evidence compels otherwise.

Consequently, applying the usual meaning of the words in the sentence under review is preferred to referencing the surrounding text. Referencing the surrounding text is preferred to drawing on the entire statute. Basing analysis on the entire statute is preferred to drawing on similar statutes or the legislative record of the statute in question. The legislative record is preferred to other contemporaneous writings. Contemporaneous documentation is preferred to subsequent documentation. Documentation is preferred to oral testimony. The post hoc oral testimony of neutral parties is preferred to that of interested parties.

This approach is common sense. In trying to divine the intent of a body, the testimony of someone with an interest in the outcome provided after the fact is the most suspect evidence. Sticking as close as possible to the text, using principles of construction developed over hundreds of years is the most objective. And because this system is understood by legislators, it offers them some guidance if they hope to preserve or advance a particular meaning in the course of the legislative process

Applying the Rules to this Provision

What we have in the case of Reading First is a statute, and that means we have but one method of determining the meaning that guides its implementation – the legal approach of statutory interpretation. Other approaches may be revealing, but they do not bear on the Department of Education’s responsibility to carry out the law.

From here on, I’m going to proceed with a statutory analysis drawing on the rules of construction. Undoubtably there will be debate over the rules, the order in which I’ve chosen to apply them, etc. etc. I’ll admit that I’m no scholar of these canons, just a lawyer doing his best to apply the law to the case. And I’m trying to make a case for the interpretation that required providers to produce evaluations of the program. But I’m also trying to lay out as much as possible to help readers come to their own conclusions. As a consequence, I’m going to take this analysis through the entire process – from the text to the most remote statements – although I would argue that the analysis leads to a conclusion much sooner.

• Start With The Words Themselves.

"An erroneous interpretation of a statute by those charged with its enforcement cannot be permitted to override [the statute's] clear meaning. Volkswagen of America, Inc. v. Smit, 266 Va. 444, 454, 587 S.E.2d 526, 532 (2003)

In all cases involving statutory construction, the starting point must be the language employed by Congress and courts may assume that the legislative purpose is expressed by the ordinary meaning of the words used. American Tobacco Co. v. Patterson, 456 U.S. 63 (1982).

The simple sentence here is that [A]…local educational agency “shall use the funds…. selecting… a program… that includes the essential components of reading instruction…. or procuring materials… that are based on scientifically based reading research.”

The confusing words are “based on scientifically based reading research” Does this mean that the program or materials must have been subjected to scientifically-based research, or that they need to embody that research in some demonstrable way?

• Determine If There Is Ambiguity

"Language is ambiguous if it admits of being understood in more than one way, refers to two or more things simultaneously, is difficult to comprehend, is of doubtful import, or lacks clearness and definiteness." Gillespie v. Commonwealth, 272 Va. 753, 758, 636 S.E.2d 430, 432 (2006)."

At least on its face, this sentence is difficult to comprehend. What is particularly confusing is the appearance of “based on” and “scientifically based” in the same sentence. This suggests, at least on first impression, the possibility that Congress intended that evidence once (or more) removed from a program that included the essential components of reading instruction, or such materials, would qualify for federal funds.


• Apply Basic Rules of Grammar

The rules of grammar are presumed to be known to the legislature (get cite)

What do rules of English grammar tell us about the how the words “based on” interact with the term “scientifically based reading research” in this sentence fragment?

“On” is a particle, part of the verb “based on.” “Scientifically based reading research” is a noun, and the direct object of “based on.” The phrase “based on scientifically based reading research” is a dependent clause in the larger sentence, because although it contains a subject and predicate, it does not express a complete thought.

• Look to Definitions in the Statute

In the absence of a definition, courts construe a statutory term in accordance ordinary or natural meaning. FDIC v. Meyer, 510 U.S. 471 (1994).

“Scientifically based reading research” is not merely a noun, but a proper noun. According to grammar proper nouns carry no meaning other than as a label for a specific object. In this case it is a “referential” label chosen by Congress for the basic activities described and defined in Section 1208(c)(6) below.

Section 1208(c)(6)

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

• Give Titles and Headings Limited Weight

A title or heading... being only “a short-hand reference to the general subject matter involved” and “not meant to take the place of the detailed provisions of the text".... Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528 (1947)… Thus, a heading may shed light on the section’s basic thrust (Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 529 (1947); Intel Corp. v. Advanced Micro Devices, Inc., 124 S. Ct. 2466, 2478 (2004) (quoting Trainmen) or on ambiguous language in the text, but it “cannot limit the plain meaning of the text,”179

Basic grammar, recognizing that “scientifically based reading research” is a label, gets us past the apparent confusion on first impression of seeing “based” twice in the same sentence. It resolves the presumed ambiguity and reveals a plain meaning to Section 1202(c)(7)(A).

[A]…local educational agency shall use the funds…. selecting… a program… that includes the essential components of reading instruction…. or procuring materials…, that are based on research that applies applies rigorous, systematic, and objective procedures to obtain valid knowledge relevant to reading etc etc.

• Avoid Absurdity

If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity. Holy Trinity Church v. United States, 143 U.S. 457 (1892).

"The Court has stated the related principle that "the plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction." Statutes should not be interpreted in ways that produce absurd or irrational consequences. Op Att ’y Gen. No. 01-032, March, (2001) Citing: Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934), Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983), McFadden v. McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449 (1952); 1993 Op. Va. Att ’y Gen. 192, 196, and opinions cited therein.

In my view, the story ends here. If this is the grammatically correct interpretation of Section 1202(c)(7)(A), the plain meaning would be clear to the disinterested reader – schools drawing on Reading First funds would have been confined to programs that had their own evaluations. The other reading might have been possible, but no one could argue it is not strained in comparison. And strained meanings are not plain meanings.

In my view there are only two ways to rebut this finding.

• Demonstrate how the rules of construction I have applied, or similar rules based entirely on how to interpret the words in, or directly related to, Section 1202(c)(7)(a) – including rules of grammar - might lead to a different but equally plausible interpretation.

• Provide enough additional evidence – not any evidence, but evidence with enough weight to demonstrate that Congress intended something different than my interpretation. The more contrary evidence that can be drawn from steps in the statutory analysis closer to my stopping point, the stronger the case for rebuttal.

Next week: I know that others disagree and draw on evidence gleaned from rules of construction well beyond the core concept of plain meaning. So, for the sake of debate, I’ll keep going too.

Marc Dean Millot is the editor of School Improvement Industry Week and K-12 Leads and Youth Service Markets Report. His firm provides independent information and advisory services to business, government and research organizations in public education.


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