Maybe the worst bill in the education omnibus, HB 200—$3400 software plus laptops for preschoolers

An omnibus bill is a rotten, non-transparent method to pass legislation even if all of the bills contained are good. Not that I believe there commonly are 100% clean omnibus bills. Many of us have been frustrated when omnibus bills are used on the federal level and pork is stuck into a farm bill or an energy bill. Unfortunately, and in keeping with federal tradition, the only reason legislative leadership used the omnibus bill at the end of the legislative session last March was to lump some failed education bills in with eight stronger bills and pass them through with no scrutiny. Senator Stephenson claimed the omnibus was just to reduce confusion among the coordinating clauses in the bills. The point was made during the floor debate that the legislative staff has successfully coordinated hundreds of bills every session for decades. You can check the BS yourself by looking at the amended code sections in the original bill texts and then checking out the arduous cut-and-paste job done into SB 2.

HB 278 and HB 200 were probably the two worst bills passed in this dishonest fashion; both had failed floor votes in previous days precisely because they were illogical uses of education funds. I'll address HB 278 another time.

Let’s look at HB 200, the UPSTART program or “laptops for preschoolers” bill, and three puzzling aspects of its passage. (Lines 258-397 of the Omnibus bill, SB 2) It allocates $1,000,000 for the current school year to purchase instructional reading software for families, hardware and internet service for needy families, and for an audit on the program. The original had the same funding for the first year, but included $2.5 million more per year through 2014. The update included in SB 2 includes an option for the legislature to continue the program with no funding stipulated. (Update: Oops. I looked at the wrong bill and missed the actual costs. The bill allocates $1 million the first year and $2.5 million each year after that.)

1. First rotten aspect. The bill calls for a Request for Proposals (RFP) to find a contractor to provide a contractor with a laundry list of requirements, but the media reports from the very beginning explained the program as involving the Waterford Reading Software. My House representative also repeated to me both during and after the session that the Waterford software would be used in the program’s year trial. Where did that belief come from? Is it legal to already have a winner chosen before a RFP is even conducted? I recall hearing something in a recent session about a bill containing an exact copy of a company’s listed services. Is that what happened here? Why Waterford? Here’s the relevant language from the bill:

281 (3) The State Board of Education shall contract with an educational technology
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282 provider, selected through a request for proposals process, for the delivery of a home-based
283 educational technology program for preschool children that meets the requirements of
284 Subsection (4).
285 (4) A home-based educational technology program for preschool children shall meet the
286 following standards:
287 (a) the contractor shall provide computer-assisted instruction for preschool children on
288 a home computer connected by the Internet to a centralized file storage facility;
289 (b) the contractor shall:
290 (i) provide technical support to families for the installation and operation of the
291 instructional software; and
292 (ii) provide for the installation of computer and Internet access in homes of low income
293 families that cannot afford the equipment and service;
294 (c) the contractor shall have the capability of doing the following through the Internet:
295 (i) communicating with parents;
296 (ii) updating the instructional software;
297 (iii) validating user access;
298 (iv) collecting usage data;
299 (v) storing research data; and
300 (vi) producing reports for parents, schools, and the Legislature;
301 (d) the program shall include the following components:
302 (i) computer-assisted, individualized instruction in reading, mathematics, and science;
303 (ii) a multisensory reading tutoring program; and
304 (iii) a validated computer adaptive reading test that does not require the presence of
305 trained adults to administer and is an accurate indicator of reading readiness of children who
306 cannot read;
307 (e) the contractor shall have the capability to quickly and efficiently modify, improve,
308 and support the product;
309 (f) the contractor shall work in cooperation with school district personnel who will
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310 provide administrative and technical support of the program as provided in Section
311 53A-1a-1003 ;
312 (g) the contractor shall solicit families to participate in the program as provided in
313 Section 53A-1a-1004 ; and
314 (h) in implementing the home-based educational technology program, the contractor
315 shall seek the advise and expertise of early childhood education professionals within the Utah
316 System of Higher Education on issues such as:
317 (i) soliciting families to participate in the program;
318 (ii) providing training to families; and
319 (iii) motivating families to regularly use the instructional software.
320 (5) The contract shall provide funding for a home-based educational technology
321 program for preschool children for one year with an option to extend the contract for additional
322 years or to expand the program to a greater number of preschool children, subject to the
323 appropriation of money by the Legislature for UPSTART.

There is nothing mentioning Waterford at all. Why would the legislators know the winner of the RFP months before it even took place? (I wish I knew the status of that RFP and whether schools are using the program currently.)

Wow. The language requires the contractor to not only have a product that accurately measures the reading readiness of children who cannot read (Lines 304-306), but stipulates that the company must install the software, solicit families to participate in the program, and motivate them to regularly use the software.

Recalling an earlier post on educational “research,” I searched around on the web for how the Waterford software works. The Waterford Institute is a non-profit organization dedicated to integrating technology into learning. They sell their early reading program through Pearson/Prentice Hall, a corporation dedicated to selling expensive software and textbooks to schools.

Here’s the Pearson order page I first found with impressive claims, rosy promotional literature, and “research” proving the efficacy of the program. Notice that none of the research here has any direct link to the program. They are a bunch of separate studies recommending different actions, and the program just claims to meet all 6 pages worth of objectives. There is no actual evaluation of the Waterford Early Reading Software.

As I searched further, I did find a page with some actual research of the program on the Waterford Site. It was tucked in a page citing the same long laundry list of other reading research they claim validates their program. I skimmed to evaluate the two actual effectiveness studies. The Waterford software receives high praise for its effects on low readers, and the studies appear at least decent, despite a few methodological concerns. (The higher quality study done for an educational journal has a much smaller sample and only lasts 6 months; the study by some advocacy foundation has a much larger number of students and lasts 3 years, but has issues with the testing procedures.) However, both studies specifically address the use of the software in a classroom setting and say that the teacher significantly affected the positive reading gains. There is no data available on using the program at home with pre-school age children and no teacher. The trial here in Utah could contribute to a study of that if someone is documenting the effort.

However, a troubling aspect of the site was the Terms of Use which expressly spell out that our investment is not guaranteed. I’m pasting into two separate paragraphs and the subheadings they fall under:

Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
b) PEARSON MAKES NO WARRANTY THAT (i) THIS SITE WILL MEET YOUR REQUIREMENTS, (ii) THIS SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THIS SITE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THIS SITE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS OR DEFECTS IN THIS SITE WILL BE CORRECTED.

Limitation of Liability
IN NO EVENT SHALL PEARSON BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE LOSS OF DATA AND/OR THE USE OR THE INABILITY TO USE THIS SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THIS SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THIS SITE; OR (v) ANY OTHER MATTER RELATING TO THIS SITE.

I can understand not wanting to be liable for hackers or inevitable small glitches, but there is no guarantee EVER that the site will be “accurate or reliable.” Pearson is not liable in any way for any matter relating to the site, even if the school is unable to use the site. Maybe this is “normal” legalese and means nothing, but I know I’d be concerned about signing a personal contract for a product with these provisos.

2. Second fishy aspect. Paul Rolly reported in May that Cap Ferry, former Utah Senate president and current lobbyist extraordinaire, was pushing the Waterford software’s use to the legislators. Another person with some knowledge of the bill called it “A solution looking for a problem.”

3. Third slightly rancid, but key, undisclosed fact about the Waterford Program. Waterford and Pearson charge $3400, plus an installation fee, for EACH computer the Waterford Early Reading Program is installed on.

Last summer, I called the 1-888 number that was the only contact information I could find on the Pearson website. I asked about purchasing the Waterford software and was given the number to a local representative. The site has improved since then and you can find his number directly on the Pearson site now. The rep. was very helpful and explained that the Waterford program was the top-of-the-line intervention for low-achieving readers and told me of some local elementary schools using the program.

We discussed cost, and each computer equipped with Waterford Early Reading would cost $3400 plus an installation fee. Multiple users can then use that computer, but that efficiency is lost when the computer is specifically provided for the home. There is a lesser program, Success Maker, which costs only $1150 per computer and another program, ELLIS, specifically geared to those students learning English as a second language for $1000 per computer. The Waterford software, while supposedly superior, costs three times as much as similar interventions.

At the end of our conversation, I asked the rep. if the state had purchased the software yet, and he got nervous. He said that it wasn’t for sure yet and quickly changed the subject.

If the $1,000,000 allocated to the program this year were completely spent on $3400 fees, we could provide 294 homes with Waterford Software. However, there is the undisclosed installation fee per computer on top of that, up to $75,000 of the million can be spent on auditing and evaluation, and at least some homes will be provided with newly purchased computers and internet service as well. I wonder if 200 homes provided with software would be an accurate estimation of how many will be served by this program this year? (Update: Many fewer homes would get the program the first year, while up to 600+ could be served in following years...probably...if my estimates are close. )

The software had better be good to justify a $3400+ pricetag for each program. I would like to know who originally proposed the idea for the bill to Rep. Last, what information Cap Ferry gave to the legislators, if other programs or reading interventions were discussed, what that research process looked like, what donations if any were given by Waterford employees to campaign funds, and what was said during the original debate of the bill. During the Senate debate of SB 2 on the second to last day of the session, Sen. Stephenson said it was as good as funding Head Start. I want to believe that the bill came about from a sincere search for reading remediation, and not to provide a corporate handout…but I’m awfully suspicious. Regardless, Cap Ferry’s client is no doubt finding his lobbying fees worth the expense.

With friends like these…The Daily Herald sets a new—low—standard with June 1st editorial on the omnibus lawsuit

I generally like the Herald’s editorial page. They usually are well-reasoned and don’t usually seem to have an ax to grind, tweaking both conservatives and liberals at times. The exception is education. On that score, Jim Tynen, the editorial page editor, has some serious rightwing opinions, logic or evidence be hanged. Tynen explained that he was the driving force behind their old-fashioned, weeks-long series of pro-voucher editorials before the referendum last year which employed every possible justification for vouchers. It was like the early 19th century when a paper was explicitly “Whig” or “Democrat” and served as a propaganda organ rather than aspire to any pretense of objective reporting.


But Tynen and the Herald may have just raised…err, lowered the bar. Their latest masterpiece addressing the lawsuit against SB2, the education omnibus bill, literally made my jaw drop open in shock as I read it. That’s really what they’re going to argue? That is the Sunday edition editorial from this semi-major paper? Really?! All of that to say “Well you’re right. The omnibus was trashy and and unethical…but at least it wasn’t as bad as the US Congress.”

The editorial seriously has two points. It agrees with Sen. Stephenson that the suit is “political grandstanding” rather than a substantive violation of the state constitution, then admits that omnibus bills are generally bad policy, but concludes that SB2 should not be opposed because it wasn’t as bad as the national farm bill. And the real thing comes off even sillier than my little summary here. This is what happens when you are determined to write in defense of a bad decision, regardless of the evidence. Ouch.

And to make things worse, the Senate Site just proudly cross-posted this rhetorical question posing as an argument in favor of the omnibus bill. This is the justification they are going to make too? We’re “distasteful,” “not a model of clarity,” not any worse than Congress, “horse traders” and “political maneuverers,” and finally “not particularly appetizing, but not illegal.” Unreal.

I’m going to quote liberally from it, but here is another link to the whole editorial:

http://www.heraldextra.com/content/view/268497/57/

The text of the editorial is in italics. I will add my comments in parentheses.

Look to see if you can find any other arguments besides these two: the lawsuit should be disregarded because it is political rather than a true violation of law and this omnibus is not as bad as some others.

More than three dozen politicians and educators have joined a lawsuit against SB 2, a wide-ranging education funding bill. The plaintiffs say it violates Utah's Constitution. Article VI, Section 22 says (in part): "Except general appropriation bills and bills for the codification and general revision of laws, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title."
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It's true that legislative bodies can go too far with "catch-all" bills. The U.S. Congress is one of the worst offenders -- note the recent omnibus farm bill, which granted huge subsidies to millionaire farmers and also gave handouts to race horse owners. We'd say that's distasteful, but not unconstitutional.

(This is where my jaw started to crack open. The suit addresses the Utah State Constitution which has the language, “no bill shall be passed containing more than one subject,” and not the US Constitution. So their argument is since this dishonest, wasteful, “distasteful” tactic is not illegal for the national congress, that we should ignore that it is illegal under the Utah State Constitution?)
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At the beginning of the session, almost all observers agreed that Utahns were demanding action on education. That's Job No. 1 for any legislative body: respond to the wishes of the voters. So it's hard to criticize lawmakers for trying to address education.

(Huh?! I don’t find it hard to criticize using “the voters wanted action” as a justification for lying or breaking the law. And the legislative leadership started surreptitiously tabling all-but-passed bills as early as Feb. 14 once they saw that some of their pet bills were being defeated. They in effect prevented education from being addressed in a timely manner by holding hostage bills that could have passed weeks earlier.)

Well, then, is SB 2's title, "Minimum School Program Budget Amendments," clear according to the state constitution? We'd say it's not exactly a model of clarity, but neither is it obfuscatory. Omnibus bills always have title troubles.

(Would that sentence meet the same standard of non-obfuscation? Omnibus bills always have title troubles? I mean, just a guess here, but I would wager that is because they are about more than one subject that cannot be clearly expressed in a single title. I think the unclear title violation is a black-and-white case. If they had named the bill, “Nine fairly or very well-supported bills we hijacked to pass two unpopular rightwing bills and another popular one Senator Dayton stopped in committee after unanimous House passage because of a UN conspiracy theory, but is now trying to save face after catching national flak because of her uninformed comments, then you might have a fairly clear title. But a clear title would then inherently violate the ‘not more than one subject’ requirement of the state constitution. Darn that transparency clause! Also, notice they never argue that omnibus bills are helpful or necessary as Valentine and Stephenson have. It is taken for granted that they are unethical, but it’s OK because that’s normal for legislative bodies.)

Is the bill about "one subject"? Defenders say yes -- education. The bill ranges from a major appropriation ($2.5 billion for the Uniform School Fund) to a host of lesser matters, including the powers of the State Charter School Board, various education programs, school transportation funding and more.

But all of them deal with education.

(By this argument, mandatory sentences for gun crimes, raises for high-performing judges, funds to laptops for state lawyers featuring a non-compete contract for expensive software from a group Cap Ferry lobbies for, a clarification of the division of funds between state and municipal courts, and a resolution to name the courthouse for Ronald Reagan could all be included in an omnibus entitled “Court Related Budget Amendments.” Could the legislators just step back and look at this from uninvested eyes and see how ridiculous their argument looks?)

Let's look more closely at the bill. Does it hide items in a huge package that no human being can reasonably read? No. The bill is not enormous. It runs a mere 40 pages printed out, which isn't haiku but isn't too bad as laws go.

(See the formula—it isn’t __________ [good example], but it’s not __________ [bad characteristic or example]. Unconvincing in general, but then using haiku to try and tell us a 40 page bill isn’t tough to read and understand is getting weird, especially when they omit that it was an empty bill until the last two days of the session and that the Senate only debated 5 of the 12 component bills in their rushed debate while the House managed one amendment on the last day of the session.)

Numerous news accounts about the bill have been published since it was cobbled together. Those reports seem fairly clear and complete; so Utahns had some notice about what was in it.
The bill was passed in the last few days of the Legislature, but last-minute bills are normal for all kinds of legislative bodies.
So, all in all, we don't see what all the fuss is about.

(Immerse yourself in the logic. Newspaper articles about the omnibus bill in the weeks and months since the session ended were fairly clear and complete (and we'll accept that at face value for the sake of argument), therefore two days was enough for Utahns and legislators alike to read, understand, and fully discuss the bill. It’s just common sense people! And notice once more the refrain: everyone is doing it (omnibussing) so why can’t we?)

It's a mundane political fact that when a wide range of measures are packaged together, a give-and-take process to secure votes follows. And it is easier to pass almost any measure in an omnibus bill than as a stand alone. No surprise here.
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The plaintiffs are right about this, but they'll have to recast our entire political system to change it. Horse trading is a normal part of politics.
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To this we can only say that sometimes -- not always, but sometimes -- political maneuvers do lead to good policy.

(Everyone does it and sometimes it’s good!)

It's been said that this lawsuit is more political than legal, a charge disingenuously denied by the attorney for the plaintiffs. If you were to view a few dozen plumbers unclogging drains or installing hot water tanks, you'd have no hesitation in saying they were engaged in plumbing. Here, seeing a few dozen people trying to reverse an action of the legislature, we have no hesitation in saying they are engaged in politics.

Do they propose an alternative? Do they say the Legislature should have passed a separate law for each section of SB 2, so that each is about "one subject"? We figure the bill could be easily divided up into 170 clauses, which is a lot of laws. Surely the plaintiffs don't mean that.

Then what do they mean? How do they define "one subject?" So far, we haven't heard.

It's been said that one should never watch two things being made: sausage and laws. SB 2, like the federal farm bill, might not be particularly appetizing, but that doesn't make it illegal.

(So by the plumbing comparison, understand that it impossible to justly oppose anything the legislature does, even if it appears to you mortals that they blatantly violated the state constitution. They can’t be wrong; you’re just “grandstanding.”

And the 170 laws argument is just stupid. C’mon Tynen. (And Bramble--in which he argues that you will now have to review every bill passed, challenged or not, and especially—veiled threat—those that benefit the education community. Translation: Don’t cross us or we’ll take your funding away. Just ignore the constitution. Nothing to see here folks. Just keep moving.) No one has claimed the 12 (One source says 13) original bills violated the constitution on their own. Over half of those would have easily passed weeks before the end of the session if they hadn’t been yanked to hitch failed laptop and charter school funding to them.

And do they really want to make repeated comparisons between SB2 and the federal farm omnibus bill? It seems like that weakens their case considerably. Again, the case will be judged on what the Utah Constitution allows, not just the national one.)

There you have it folks. I’m not sure if uninvolved people are actually paying attention to the nuances of the bill, but please remember who is for this bill and who is against. The same people blatantly spinning this unconstitutional bill as legal are the same ones who snuck some extra wording into the amendment of the voucher funding last year, and then righteously and indignantly thumped their chests about following the law when the State School Board correctly delayed implementation by a few weeks until the Utah Supreme Court squashed the dirty attempt at circumventing the process. Seems like a pattern is developing. Will the same scenario have to be played out again?