Millot: Sound Decision or Censorship at TWIE? (I)

"I have now heard the same thing from three independent credible sources - the fix is in on the U.S. Department of Education's competitive grants, in particular Race to the Top (RTTT) and Investing in Innovation (I3)."

Substantively, This Week in Education Editor Alexander Russo's determination to pull "Three Data Points. Unconnected Dots or a Warning?" last Friday and terminate my contract on Sunday turns on Andrew Rotherham's charge on his blog, Eduwonk, that I "call out senior government officials as corrupt on the basis of anonymous third party hearsay and no evidence." (Rotherham's emphasis.) The sentence above, the first of my post, lies at the core of his outrage.

This essay addresses the validity of Rotherham's three-pronged charge: Was my inclusion of "anonymous third party hearsay" unethical;" does Rotherham subscribe to the generally accepted meaning of "evidence;" and did I "call out senior government officials as corrupt?"

In a word, no.

This essay will be the first in a series, so I begin with my decision around noon Friday afternoon to write what was (for me anyway) a brief column on implementation of the RTTT and I3 grant programs, and specifically the question of transparency. Readers who know me from RAND, New American Schools, edbizbuzz, or my the column in TWIE, may have focused on my past more than my present. But I haven't made a secret of the way I've earned a living for the past six years, and it's directly relevant to my decision. In January of 2004 I started K-12Leads and Youth Service Markets report, an information service that covers federal, state and local grant and contract RFPs for commercial and nonprofit organizations providing goods and services around teaching and learning. It is literally my business to keep up to date on federal grants, and talk about them with my clients and the media.

It is in my interest that these kinds of competitions are both based on the merits rather than relationships, and perceived as such by providers of school improvement products, services and program. One of the biggest hurdles to marketing my services, especially to the entrepreneurs leading smaller businesses and nonprofits, is the belief that the RFP process is a sham, that contracts are "wired." Some may be sore losers, but I decided to draw on my experience with "indications and warning" from my Cold War days at RAND and elsewhere to see what I might learn from the open source data - the vast number of RFPs I monitor. Federal and State law and district practice vary widely, and some are much closer to best practice in government procurement than others. Over time I developed a list of worrisome indicators, for example: very short deadlines for very complicated projects, the use of a contract number rather than a descriptive title in an announcement, descriptions that seemed far more tailored and specific than required to do the job, the release of rfps the day before holidays likely to entice many people from their office for several days, and relationships between buyers and sellers. For a time, I reported suspect RFPs in my weekly reports. After procurement scandals in Texas and Maryland reporters called me to discuss the potential for a story in their locales, but "smoking guns" are hard to find, and disappointed providers fear retribution.

"Anonymous third party hearsay"

On Friday afternoon it struck me that I ought to write something about the unsolicited remarks on RTTT and I3 I have heard from contacts I consider responsible: two senior managers from organizations with stakes in the federal competitions, one from a reporter covering grants programs. They are people with every incentive not to make rash charges. All told me pretty much the same thing - based on their interactions with the Department they were not sure investing the considerable resources required to write these federal grant applications was wise because the winning organizations were already known to the department, and/or that in order to have a chance at winning they would have to bring those organizations into their proposal. I identified these individuals and organizations in my post.

None of these people would want their concerns made public, all feared the consequences of taking this head on. What I found striking about the conversations was the fact that they almost certainly arrived at their conclusions independently. I didn't prompt their remarks, they don't know each other, they work in very different segments of public education, they live thousands of miles apart, and their jobs don't leave them with vast amounts of time to follow internet debates on transparency. Yet their experiences led them to say the same things. This struck me as indication and warning, Not proof, but reason for concern.

The ethics of citing these people and stating their beliefs in writing depends entirely on how they were used. Employed as evidence to bolster a direct charge of corruption would be unethical. Used as one piece of evidence in an argument for for a perceived conflict of interest is not. The first case runs against the idea that a man has the right to confront his accusers. The second is meant to warn the man that he may have a problem. If writers could never rely on hearsay to provide warning, society would be denied the opportunity to head off problems before they become disasters, Yes, the allowance does make public officials uncomfortable, but it's the same policy rationale that limits the rights of public figures to respond to even very intense personal criticism. A century of court rulings have made clear that thing less would cripple free speech.

I'm leaving discussion about the objective of my post to last.

"No evidence"

Given the full content of my post, I have to conclude that Rotherham's definition of "evidence" is confined to the smoking gun: a memo laying out an illegal plan, an eyewitness to the meeting where the perpetration of corrupt practices was discussed, wiretaps to the same effect, a confession, or testimony where the perpetrator explains everything to a would-be victim while the district attorney hides behind the curtains. It's surprising how often this evidence does come to light, but there are plenty of people sitting behind bars based entirely on circumstantial evidence. A series of actions can be considered a pattern meeting all three standards of legal culpability - more likely than not, a preponderance of the evidence, and beyond a reasonable doubt. Indeed, under the Racketeer Influenced and Corrupt Practices Act, which can apply to agencies of the federal government, the evidentiary bar can be surprisingly low. In sum, "evidence" extends well beyond the smoking gun, the weight given to any evidence is a matter for those who receive it.

In my view, the emerging edublog debate over the Department's transparency in RTTT and I3 has left one shoe dangling - if the decision process is being hidden, to what end? Or put another way, what do those who are not satisfied with the current state of transparency in the process fear the Department is going to decide substantively? The remarks of my contacts offered a view into one possible answer. The facts I laid out about in my post relationships among Department appointees responsible for the grants, the new philanthropy, and their grantees are circumstances relevant to the transparency debate.

I am not a niaive stranger to the implementation of discretionary federal grants. I was engaged in the Comprehensive School Reform Demonstration Program as COO at New American Schools, in the multi-million dollar Department grant that allowed me to form the Education Entreprenurs Fund. I followed and wrote about Reading First in edbizbuzz and in an Education Week Commentary. The Reading First example is relevant because the pattern is similar, and because those involved in RTTT and I3 are aware of the parallels and might reasonably conclude the pattern is similar.

"Call out senior government officials as corrupt"

I am responsible for the words I choose, adherence to generally accepted conventions of grammar, the sentences I construct, how I put those sentences together into paragraphs, and the order in which I present those paragraphs to readers. But I can only be responsible for the plain meaning of what I write. No author can be held responsible for the inferences of readers; certainly not the inference of one reader. The plain meaning of my first sentence "I have now heard the same thing from three independent credible sources - the fix is in on the U.S. Department of Education's competitive grants, in particular Race to the Top (RTTT) and Investing in Innovation (I3)" is beyond dispute. I heard these things from three people I consider credible; i.e., believable, trustworthy, reliable, plausible.

From here Rotherham makes the inference that I agreed with the three. Yet, nowhere in the post did I write I agreed with them. As a lawyer, I know that the appearance of a conflict can be just as damaging to confidence in government as an actual conflict. I explained facts that might lead them to believe it, I added a request that those with something to say for against the fears, and for or against the existence of those fears, leave comments to that effect at the bottom of my post.

The thrust of my comments was summed up in my penultimate sentence: Whatever is or is not going on at the Department, the principled response is for the Secretary to address the fears head on, explain how the feared outcomes cannot take place, and then make sure he and his people keep several arms lengths removed from the process. The plain meaning of this sentence is that I don't know if there is corruption, but I do know the Secretary should address the fears directly, and take actions to reassure the public that the process will be on the merits.

In the common law of torts there's the case of the "eggshell thin skull." If you engage in a fist fight, land a blow to the head that should only bruise - and only intended to land such a blow, but kill the man with the eggshell thin skull, you've committed homicide. There's no analogue warning authors against peculiarly sensitive readers. Writers are not responsible for offending the man with the "eggshell thin temperament," and certainly not when the man is not even in mentioned by the writer. Editors receive complaints from all manner of outraged observers and one telephone call doesn't generally serve as the basis for a serious editorial decision.

In this respect, the broader evidence of how other readers interpreted my post is relevant.

TWIE Editor Russo notified me that he had pulled the post around 5:20 Friday evening. Here's the complete email:

chase is still giving me the runaround but i'm putting a check in the mail tomorrow for the past two months -- no reason you should wait if the previous checks haven't gotten where they should.... more about blog stats, etc. as i can get them -- last but not least, i am taking down your post about the fix being in at the usde for reasons i can better discuss on the phone than here -- please call me at XXX-XXX-XXXX if you want to discuss. it's part of a larger, ongoing issue not at all targeted towards you or this post alone.... i appreciate your keeping this between us for the time being, though of course anyone who's already read your post or who has an RSS reader or a google cache can still see it.

There's nothing here suggesting he believed I accused anyone of anything. Given that I had complete editorial control of my posts, it's not like he had been part of an editorial process investing him in the defense of the post. His gut reaction was that this was really about , "larger, ongoing issue."

A review of reactions to my post across the blogs before it was pulled is also useful. Of the bloggers who commented, only Rotherham stated that I was accusing anyone of anything. Of the individuals who posted comments on the bloggers' posts only one agreed with Rotherham - on Eduwonk, and the site saw a brief debate with some commenter who took my post at face value.

Finally, over the weekend, Russo offered my post to his colleagues for comment and advice. He updated me on the results by email at quarter to four Monday afternoon:

checking in as promised, dean -- but no real news. i've been doing lots of temperature taking among media and industry types -- lots of aggravation directed at andy but i'm not getting a clear or strong response re upset at scholastic.

The defense rests

Russo did not pull the post on substantative grounds. There are no substantive grounds. TWIE's editor pulled it because of Rotherham's influence over a colleague at Scholastic, and that Scholastic employee's order to Russo.

Next: the pressure-cooker Rotherham created for Russo. Watch for me at EdNotes.

Note: I have a history of proving reader with the primary source information required to decided for themselves. But for one telephone call, all the "behind the scene" communications I engaged in over the course of this incident were via email. Later today I will release a complete record of these communications, and provide copies to the education press.