December 19, 2008
Dear County and District Superintendents, Charter School Administrators, and School District Principals:
The purpose of this letter is to share with county offices of education (COEs), districts, schools, and charter schools the recently adopted list of State Board of Education (SBE) Reading/Language Arts–English-Language Development (RLA/ELD) programs for kindergarten through grade eight (K-8). In addition, we are providing local educational agencies (LEAs) with information on instructional materials adoption requirements that are in the California Education Code (EC) and/or the revised California Code of Regulations, Title 5 (5 CCR). We trust that you will find this information helpful as your districts and schools embark on selecting materials from the 2008 RLA/ELD list in the coming years.
This letter contains information on the following: free instructional materials; definition of technology-based instructional materials; restrictions on publishers marketing instructional materials in California; prohibitions for school officials; and purchase agreement information. We are very grateful to the publishers who have submitted and developed programs to meet the rigorous California criteria and content standards, and are most delighted at the variety and number of programs that are available for LEAs to purchase.
On November 5, 2008, the SBE adopted a comprehensive list of five types of standards-aligned programs for LEAs to select RLA materials for K-8. The five types of programs are as follows: Program 1, RLA Basic; Program 2, RLA/ELD Basic; Program 3, Primary Language/ELD Basic; Program 4, Intensive Intervention RLA; and Program 5, Intensive Intervention for English Learners (EL). The 2008 RLA/ELD Adoption evaluation criteria called for publishers to design programs that emphasize increased vocabulary and language development oral reading fluency, writing skills, and improved assessments for students at all grade levels. Most importantly, there is a deeper focus on the instructional needs of EL students, students with disabilities, struggling readers, and students who use African American vernacular English. We are confident that the new instructional materials will assist in closing the achievement gap. The price list was posted immediately after the SBE took action on November 5, 2008; the list expires in November of 2015 when the next primary RLA/ELD adoption is scheduled. Publishers will have final print copies available for districts to start piloting and/or purchasing in February of 2009. The SBE adoption report will be posted on the California Department of Education (CDE)Web site at http://www.cde.ca.gov/ in the spring of 2009.
Publishers of instructional materials newly adopted by the SBE are required to inform the CDE of any instructional materials they will be offering to schools.
Section 9510(l) of the 5 CCR defines “free instructional materials” as instructional materials provided at no cost by a publisher to a COE, district board, elementary school, middle school, or high school.
Section 9527 maintains the requirement of the most favored nation clause; this provision requires publishers to provide any instructional materials free of charge in this state to the same extent as that received by any state or school district in the United States. In addition, publishers shall post on their Web site a list of any free instructional materials that they have agreed to provide to any LEA within ten days of entering into such an agreement. Publishers shall maintain this list on their Web sites through the next biennial price adjustment, which is every two years after an adoption year. Also, publishers are required to provide the CDE with the Web site address to their list of free instructional materials, and the CDE will post on its Web site a direct hyperlink to the Web site provided by the publisher.
Moreover, all materials that are offered to districts at no cost must be submitted for a social content review and approved at the state level. If a publisher offers “free materials” that have not been reviewed for social content at the state level, they may contact Nancy Plasencia, Associate Governmental Program Analyst, Instructional Resources Unit, at 916-319-0450 or by e-mail at firstname.lastname@example.org for further information on the social content review process.
According to statute, free instructional materials do not include digital video disc players, televisions, liquid crystal display projectors, laptop computers, and scanners. EC Section 60010(m) defines technology-based materials as follows:
“Technology-based materials” means those basic or supplemental instructional materials that are designed for use by pupils and teachers as learning resources and that require the availability of electronic equipment in order to be used as a learning resource. Technology-based materials include, but are not limited to, software programs, video disks, compact disks, optical disks, video and audio tapes, lesson plans, and data bases. Technology-based materials do not include the equipment required to make use of those materials.
This definition of technology-based materials has been in place since 1995, and often LEAs and publishers are confused as to what is allowable as free instructional materials.
Providing free trips or meals, paying for conferences or golf fees, or offering any other thing of value to school personnel are prohibited in California. This prohibition applies to all publishers of instructional materials, not just to publishers with materials on a state adoption list. Moreover, this prohibition is broadly conceived, applying to any inducement to directly or indirectly influence the adoption or purchase of instructional materials.
Under EC Section 60071 publishers have the following restrictions:
No publisher or manufacturer of instructional materials, nor any of his representatives, shall offer or give an emolument, money, or other valuable thing, or any inducement to directly or indirectly introduce, recommend, vote for, or otherwise influence the adoption or purchase of any instructional material. Under separate cover, the CDE will be sending a reminder to all publishers, so that they may inform their executive staff and sales representatives of these restrictions when marketing to California school officials.
School officials are prohibited from accepting gifts. EC Section 60072 states the following: “No school official shall accept any emolument, money, or other valuable thing, or any inducement to directly or indirectly introduce, recommend, vote for, or otherwise influence the adoption or purchase of any instructional material.” EC Section 60010(j) defines “school official” as including “any member of any governing board, any city, county, city and county, or district superintendent of schools, and any principal, teacher or other employee under his or her charge.”
Since violations of either EC Section 60071 by a publisher or EC Section 60072 by a school official are codified in California as misdemeanors, we would appreciate you sharing this information with your staff in order to ensure compliance with state law.
In negotiating purchase agreements with publishers to ensure timely delivery of materials, districts may levy fines on publishers for late deliveries.
Past practice has been for districts to assess the publisher an amount of up to $500 for each working day that the order is delayed beyond 60 calendar days up to a maximum amount of $20,000. If late delivery results from circumstances beyond the control of the publisher or manufacturer, the publisher or manufacturer has not been held liable.
We trust that you will find the information contained in this letter beneficial in your local efforts to select materials from the 2008 RLA/ELD Adoption. If you have any questions regarding instructional materials, please contact Tom Adams, Director, Curriculum Frameworks and Instructional Resources Division, at 916-319-0881 or by e-mail at email@example.com. You may also contact Veronica Aguila, Education Administrator, Instructional Resources Unit, at
916-323-4867 or by e-mail at firstname.lastname@example.org. [Note: the preceding phone number and e-mail address are no longer valid. Please contact the Curriculum Frameworks and Instructional Resources Division at 916-319-0881.]
Chief Deputy Superintendent of Public Instruction