Reading curricula that emphasize context over phonics are again under legal fire from parents. But this time, publishers are being sued over their role in distributing the programming.
In a recent lawsuit, filed in Massachusetts, a group of families are alleging that the materials their children relied on to learn to read were falsely marketed as research-backed, when a growing body of science suggested they weren’t best practice.
Ultimately, the parents argue, those materials “undermined the future of students” across the state, and the producers of the resources failed to warn their customers of the “defects” in their products.
Until now, the legal fallout from the national “science of reading” movement — which has seen states and school systems replace the longstanding whole-language approach with step-by-step, explicit phonics instruction — has included a handful of lawsuits that target districts and state departments.
The Massachusetts case, however, is novel in its approach, naming not only program creators — Lucy Calkins, Irene Fountas, and Gay Su Pinnell — but the colleges of education with which they are affiliated, and the publishers who sold their work: HMH Education, Heinemann Publishing, and Greenwood Publishing Group.
The case raises important questions about what exactly “researched-backed” means and who gets to define how the term applies to academic resources.
As a result, the outcome of the case — and the debates it inspires — has implications for all vendors in the K-12 space, industry experts say.
Here are four big-picture takeaways from the lawsuit for education companies.
1. There’s the Potential for the Legal Challenge to Grow
The Massachusetts parents are seeking class-action status, which would allow for other families to join the lawsuit.
Currently, two parents from separate families are named in the suit. They are asking for punitive and compensatory damages and a court order requiring publishers to “warn schools and families” about their literacy products.
And it’s an approach that some say could be replicated in other states.
Over the past decade, 40 states and the District of Columbia have passed laws or implemented new policies related to evidence-based reading instruction, an Education Week analysis found. A handful of states, including Ohio, Indiana, and Florida, have gone further, banning one of the methods originally used in Calkins’ curriculum — three-cueing.
The lawyer representing the Massachusetts parents told EdWeek he’s “open-minded” when asked if the firm, Catalyst Law, will pursue similar suits in other states.
However, some legal experts are skeptical whether their challenge will be successful in court and gain traction elsewhere.
“There are real downsides to using the legal system alone as the main way for addressing … the use of ineffective curriculum and programs,” said Ashley Jochim, a consulting principal at Arizona State University’s Center on Reinventing Public Education. Proving liability is a high legal bar that may be difficult for the parents to reach.
“Judges are trained to settle matters of law, not matters of science,” Jochim said.
The publishers have not made a public statement or filed a legal response to the lawsuit yet, which has been transferred to federal court. HMH declined to comment.
2. The Impact on Vendors Could Be Significant
When lawsuits are filed on behalf of students and families in K-12 education, those cases have historically leaned on provisions in state and federal law meant to ensure equal treatment or access to public schools, said Derek Black, a law professor at the University of South Carolina.
It’s much less common for legal challenges to turn on a consumer protection angle, which focuses on the fairness of business practices, as the Massachusetts case does.
The lawsuit essentially raises the question of whether publishers are legally liable for the quality of the books or curriculum they share with students, said Black, whose research has focused on educational law and policy.
If the parents win, the case could set a historic new legal precedent for companies and greatly restrict how they market materials.
“If what they allege was validated in court, this lawsuit would have the largest impact on education curriculum in the history of the United States,” Black said. Many providers of academic resources would likely be much more cautious about making “research-based” claims, he said.
Black is skeptical, however, that the case will succeed because doing so would assign sweeping liability to providers of academic materials.
Regardless, the lawsuit breaks new legal ground by offering a different type of legal action in K-12 — one focused more on vendors rather that trying to compel education policy changes.
It appears that the plaintiffs are “trying to move beyond the traditional legal levers for trying to push education reform or accountability,” Black said.
3. The Case Asks: What Does ‘Research-Backed’ Mean?
Determining whether educational products can be fairly touted as researched-based isn’t as straightforward as it is in other fields.
In medicine, for example, it’s possible for researchers to definitively find whether a drug does what it promises. It’s therefore easier to fact check a company’s claims that a medicine is backed by research.
In education, it’s more common for there to be competing research, conducted with different degrees of rigor and producing different results, on important questions about the best way to teach children. The findings often vary by academic subject, grade level, and the circumstances in which a product is used.
And determining the effectiveness of academic resources is much more difficult when the data being used to measure results is student performance. Researchers typically seek to control for a variety of factors that can impact students’ academic outcomes that have nothing to do with the quality of a curriculum.
“Publishers and districts really struggle with: What is defined research? What is codified? What is stable? And what do we know about evidence-based practice?” said Eric Hirsch, the executive director of EdReports, a nonprofit organization that reviews instructional materials with the goal of improving them.
The level of research, evidence, and what is considered best practice for different academic strategies is always evolving, he pointed out.
In general, there’s been a movement over the past few decades by federal and state education officials to set higher research standards for educational products and programs.
Federal lawmakers, for instance, have sought to more clearly define what high-quality research related to learning looks like by establishing four tiers of evidence in the Every Student Succeeds Act.
But there’s only so far those definitions can go.
“It’s always the case that a product works in one setting and not another, and it works better when it’s implemented with fidelity,” said Marguerite Roza, a research professor at Georgetown University and director of the Edunomics Lab, which conducts research on school finance.
“There are so many variables that probably insulate most vendors.”
The reading resources being challenged in the Massachusetts case are outliers in a number of ways, Roza said.
First, the whole-language program had a big influence within the districts that adopted it, Roza said, in that it outlined an entire philosophy for teaching reading that required a high level of commitment by teachers to the prescribed methods.
That’s notable because it arguably make it easier to draw the line between the whole-language materials and how students’ scored on reading exams, Roza said. Most other academic materials don’t affect how teachers work so fundamentally, and therefore they are more likely to represent one factor among many contributing to students’ performance in a subject.
Second, there’s a substantial amount of research backing the approach to reading favored by the plaintiffs. Some of that research base was described in a federally-backed effort known as the National Reading Panel, which published findings in 2000.
“There’s a case to be made to go after the Lucy Calkins approach because there was a lot of real harm done,” Roza said, referring to the claims made by the parents. “I think that application is not going to be as easily cross-walked on to other things.”
4. Some Legal Precedent Could Protect Publishers
Cases alleging consumer fraud in other sectors of the economy offer insights on the legal protections that education companies may have against claims of misleading marketing, said Black, the law professor in South Carolina.
Legally, there’s a level of false claims that are acceptable because consumers understand it’s “puffery,” he said. Take, for example, a restaurant that claims to have the world’s best coffee. Customers aren’t fooled and understand it isn’t literally true.
To breach that standard, parents would have to prove that publishers intentionally lied in a way that deceives the public, Black said.
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Lawyers may also argue that vendors have what is legally known as a “learned intermediary,” he said, meaning that their product runs through an expert before reaching consumers.
In the Massachusetts case, school districts — and specifically the administrators and teachers working in them — could be those intermediaries.
“Our schools are supposed to be experts in using curriculum, right?” Black said. So the case could be made that “it’s on them to make some of these judgments.”