A judge’s dismissal of a lawsuit targeting major reading curriculum providers is sending a clear message to the K-12 industry: A federal court is unwilling to wade into the longstanding challenge of defining what products qualify as “research-backed.”
The lawsuit, filed last year, alleged that publishers and program creators committed false advertising violations by selling a research-backed balanced literacy approach to teaching reading — a curriculum that states have now broadly abandoned in favor of phonics-driven “science of reading” instruction.
The consumer protection angle of the legal challenge — which named major publishers HMH Education, Heinemann Publishing, and Greenwood Publishing Group — carried potentially major implications for education companies.
But U.S. District Court Judge Richard G. Stearns ultimately ordered its dismissal last week, saying the court was “not convinced” that the claims met the bar for educational malpractice.
The publishers were able to point to some research that supports their products, Stearns said in his order. While parents claimed the tide of evidence overwhelmingly backed the “science of reading” classroom strategies they favor.
That means the lawsuit was focused on whether or not the studies cited by the publishers are unreliable or flawed, or whether a literacy curriculum can be research-based if it doesn’t use phonics, the judge said.
Those are two questions the judge said he was not in a position to answer.
The court could not fault the publishers’ classroom materials without “delving into the merits of defendants’ approaches to literacy education,” Stearns wrote, “or calling into question the judgment of the professional educators who chose to adopt defendants’ literacy programs.”
The filing, and subsequent dismissal, is indicative of the tensions among parents, schools, and vendors in judging the overall quality of classroom resources.
And it underscores the ambiguity around what standards companies need to follow in claiming a product or service is backed by research.
Education companies need to understand why the court ultimately found the reading publishers’ defense of their products compelling. But they should also consider whether their products could be vulnerable to similar consumer-protection arguments, which are more common in other industries.
Accusation of False Claims
The lawsuit emerged in a fast-changing environment for reading instruction. Forty states and the District of Columbia have passed laws or implemented new policies related to evidence-based reading instruction over the last decade, an Education Week analysis found.
In some states, lawmakers have gone as far as to ban the use of a once-popular balanced literacy approach, known as three-cueing. That strategy encourages students to look at pictures for context when stuck on a word.
The group of Massachusetts parents alleged that their children’s ability to read was impacted by the use of balanced literacy products, when explicit phonics instruction was already widely considered critical to students’ success.
By continuing to promote balanced literacy as pedagogically sound, the parents alleged that the vendors knowingly misrepresented their products to increase their profits.
“For years, defendants hawked their defective goods and services to school districts throughout the country, including throughout the Commonwealth of Massachusetts,” the lawsuit stated. “This fraudulent and deceptive campaign has had devastating consequences.”
The idea that the responsibility for following best practices in teaching falls on publishers and researchers — rather than solely on the school districts that select curricula and train teachers — is relatively uncommon in the education space.
If the courts ruled in the parents’ favor, the case stood to create a new precedent that potentially would have restricted how companies market materials.
Other legal challenges filed on behalf of students questioning the continued use of balanced literacy practices, including a 2020 case that led to a $53 million settlement in California, took a more typical route of targeting the state agencies and districts that make curriculum decisions.
“[Consumer protection] cases are very hard to win, because there’s a very high bar in terms of educational malpractice,” said Derek Black, a law professor at the University of South Carolina.
“People have had this theory of education malpractice claims for a long time, but they just never get it all figured out.”
How Much Do Schools Value Research?
Publishers and researchers named in the suit argued that the filing called for the court to evaluate the quality or adequacy of an educational program or curriculum, a request they did not see as appropriate.
They also argued that the parents failed to make a legally plausible case that there was unfair or deceptive conduct by publishers, according to the motion for dismissal.
In addition, the publishers said in the filing that the relationship between students and publishers didn’t meet the legal bar for a commercial relationship required in a consumer protection case.
The judge’s decision highlights the murkiness around determining whether educational products can be fairly touted as research-backed — a fact that isn’t as straightforward in K-12 as it is in other fields.
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.
The promise of a foundation in research is also only one factor that district leaders consider when purchasing products.
EdWeek Market Brief nationally representative survey data has found that, while the majority of K-12 officials say academic or scientifically based research has a lot of influence over their decisions, the type of research they ultimately consider varies considerably.
When asked what types of research or evidence they’ve requested from vendors before a sale, the top answers from school and district leaders were data about the outcomes in their own district; usage data; and outcomes from a broad group of districts or schools.
Studies that reach a higher level of rigor, such as randomized or quasi-experimental studies fell much lower on the list.
Unresolved Questions
Despite the dismissal, there may be room for other legal challenges focused on similar questions about K-12 consumer protections, said Black, whose research focuses on educational law and policy.
It would take a ruling from a higher court to establish a strong legal precedent that education companies would be expected to follow, he said.
In this case, Black is surprised that the parents weren’t given more leeway to make the case that the publishers’ claims about their products’ research-basis were a misrepresentation.
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Just because there is some research a publisher can point to in support of their product doesn’t mean that their marketing didn’t misrepresent how effective the reading strategy is, or perhaps exaggerate its alignment to that research, he said.
“The idea that the court couldn’t have dug a little bit deeper doesn’t strike me right,” he said.
The lawyers representing the Massachusetts parents did not respond to EdWeek Market Brief‘s request for comment. They have not said whether they are planning to appeal the ruling.
When contacted by EdWeek Market Brief this week, HMH declined to comment on the case. In a statement released after the dismissal, Lucy Calkins, a Columbia University researcher who championed balanced literacy and was also named in the suit, said she was “thrilled” by the decision.
“The court rightly recognized that decisions about how best to teach reading should be made by educators,” she said.