Michael Klonsky posted on his blog these photographs of some of the Atlanta educators who were investigated for cheating; 11 were convicted and sent directly to jail to await sentencing (excepting a pregnant woman.) Superintendent Beverly Hall died weeks before the verdict was handed down. He said they were “taking the fall” for “Duncan’s Testing Madness.”

In an earlier post, I said that the lesson of Atlanta is “never never never cheat.” Don’t do it, don’t tolerate it.

But as I saw educators led away in shackles, as I saw speculation that they were facing 20 years in prison, I began to think again. Yes, cheating is wrong and should never be tolerated, but this punishment does not fit the crime. It is way too disproportionate to the charges. Some criminals get lesser jail sentences for murder and armed robbery. Since when did cheating in school become racketeering?

My thinking was nudged along by three important articles about this affair.

One was by Richard Rothstein. In this brilliant article, Rothstein argued that the 11 convicted educators were “taking the fall” for a thoroughly corrupt testing regime that set impossible goals and punished those who can’t meet them:

Rothstein writes:

Eleven Atlanta educators, convicted and imprisoned, have taken the fall for systematic cheating on standardized tests in American education. Such cheating is widespread, as is similar corruption in any institution—whether health care, criminal justice, the Veterans Administration, or others—where top policymakers try to manage their institutions with simple quantitative measures that distort the institution’s goals. This corruption is especially inevitable when out-of-touch policymakers set impossible-to-achieve goals and expect that success will nonetheless follow if only underlings are held accountable for measurable results.

There was little doubt, even before the jury’s decision, that Atlanta teachers and administrators had changed answers on student test booklets to increase scores. There was also little doubt that Atlanta’s late superintendent, Beverly Hall, was partly responsible because she had, as a state investigation revealed, “created a culture of fear, intimidation and retaliation” that had permitted “cheating—at all levels—to go unchecked for years.”

What the trial did not explore was whether Dr. Hall herself was reacting to a culture of fear, intimidation, and retaliation that her board, state education officials, and the Bush and Obama administrations had created. Just as her principals’ jobs were in jeopardy if test scores didn’t rise, her tenure, too, was dependent on ever rising test scores.

Holding educators accountable for student test results makes sense if the tests are reasonable reflections of teacher performance. But if they are not, and if educators are being held accountable for meeting standards that are impossible to achieve, then the only way to meet fanciful goals imposed from above—according to federal law, that all children will make adequate yearly progress towards full proficiency in 2014—is to cheat, using illegal or barely legal devices. It is not surprising that educators do just that.
And demanding that all students be proficient, by any date, was an impossible and incoherent demand. No Child Left Behind required that states make their proficiency standards “challenging.” But no goal can simultaneously be challenging to and achievable by all students across the entire achievement distribution. A standard can either be a minimal standard, which presents no challenge to typical and advanced students, or it can be a challenging standard, which is unachievable by most below-average students. Some states ignored the “challenging” requirement and lowered their standards so most students could pass a meaningless test. Others succumbed to hectoring by Secretary of Education Arne Duncan and his colleagues in the Bush and Obama administrations to raise their standards, essentially guaranteeing the cheating scandals that followed. Now, with tests coming online that are aligned with the tougher “Common Core” standards, along with new demands that educators jobs are at risk if all students don’t achieve proficiency, we can be sure that Atlanta’s cheating scandal will not be the last.

Rothstein notes that there have been many testing scandals in other cities, such as Baltimore, Washington, D.C., Houston, and Philadelphia, but no educators were indicted and convicted. He compares the Atlanta cheating scandal to the similar data-driven scandal at the Veterans’ Administration:

The most widely reported recent instance of this corruption was the Veterans Administration’s requirement that its staff schedule appointments within 14 days of a veteran’s request for one. That it was impossible to meet this standard because there were insufficient doctors to see patients within that time frame did not influence the VA to change its standard. So, systematically, nationwide, intake staff cheated, for example by reporting that patients had only called for an appointment 14 days before they received one, not the months that may have transpired. Many staff members also lied to federal investigators looking into the cheating; lying to investigators is a crime for which Atlanta educators were convicted, VA employees have not been similarly prosecuted. Instead of being put on trial, supervisors who permitted such practices have been allowed to resign.

There is another respect in which the VA scandal differed from the one in the Atlanta school district. VA supervisors permitted to resign did not take the fall for those ultimately responsible for enforcing the corruption-inducing standard. Last May, Secretary of Veterans Affairs Eric Shinseki, who had ordered that appointments be scheduled within 14 days, himself resigned because of the scandal. I offer no opinion about whether similar accountability would be appropriate in the Department of Education.

Another article that caught my eye was posted on Yahoo in the financial news. It made the point that our society has different justice systems: one for ordinary people, like the Atlanta educators, and another for the financiers who nearly destroyed our economic system.

The author, David Dayen of The Fiscal Times, writes:

One of the defining issues of this millennium has been the bifurcation of the criminal justice system, with one set of rules for ordinary people and another for elites. We’ve learned that justice is a commodity to be purchased rather than a universal value delivered without prejudice.

That’s the proper backdrop to the news of convictions in the Atlanta test cheating case. Eleven educators were found guilty of racketeering charges — something typically reserved for organized crime — for feeding students answers to standardized tests, or changing test sheets after they were turned in.

If you don’t remember these kinds of creative prosecution strategies during the financial crisis, that’s probably because no prosecutor ever used them. Teachers ordered to falsify tests and the superiors who demanded it, amid desperation to save schools from destruction, deserve no mercy from the court. Bankers who ran a criminal enterprise to engage in the largest consumer and investing fraud in world history deserve our thanks….

None of this excuses the misconduct, it sets a context for it. And it matches almost precisely what went on at every level of the mortgage market before, during and after the housing bubble. Mortgage brokers used Wite-Out and exacto knives to falsify income tax data for unqualified borrowers to get them into loans. They employed Coke vending machines as light boards to trace forgeries, putting people into garbage loans they didn’t purchase. The loans got sold to Wall Street banks, which routinely lied to investors, who purchased bundles of mortgages packaged into securities, by telling them that the loan quality exceeded underwriting standards.

When the loans predictably defaulted, mortgage servicing company employees were instructed to lie to customers, claim to have lost loan modification applications when they actually shredded them, and push customers into foreclosure, which maximized servicer fees. One set of workers at Bank of America testified that they received Target gift cards as bonuses for causing foreclosures among customers.

In the foreclosure process, these same companies, with help from “default services” specialists and “foreclosure mill” law firms, fabricated and forged the legal documents required to enforce the terms of the mortgage, because all that documentation was either lost or never recorded. Workers would sign each other’s names, use each other’s notary stamps, pretend to work for other companies, and assign mortgages from the company they didn’t work for to the one they did.

The job pressures faced by the Atlanta educators differed little from the job pressures faced by line-level workers at mortgage origination, securitization, servicing, foreclosure mill and default services shops across the country. In both cases, the workers performed their jobs under threat of termination. Supervisors watched everyone to ensure compliance. The fraud became institutionalized. And after a while, people stopped asking whether what they were doing was in any way legal.

So let’s see how the justice system dealt with these two cases. When mostly African-American educators at poor schools in Atlanta cheat on tests, they get the book thrown at them …..

“The darkly amusing part of all this is that the harsh sentence in the Atlanta case is seen as a necessary counter to the temptation to cheat caused by the testing regime. So prosecutors devote huge amounts of resources (the district attorney called it the most complex case of his career) and judges dole out long sentences, all to keep teachers in line. No similar deterrent has been created for the industry that sells Americans the most important financial product of their entire lives. We send messages to teachers; we send bailouts to bankers.

“You don’t have to consider the Atlanta teachers innocent to know something has gone terribly awry in the country when filling in bubbles on Scan-Tron sheets can get you 20 years, but stealing people’s homes and defrauding pension funds can’t get you indicted. The only way you could see what the justice system has granted bankers as in any way commensurate with what it does to ordinary people is if you grade on a curve.”

The third article, on Huffington Post, expressed even more astonishment at the contrast between the justice meted out to errant educators and the pass given to financiers who ruined the lives of millions of people.

Jason Linkins writes:

There’s really no doubt that those convicted did a Very Bad Thing — like, you know, The Worst Thing “since forever” OMG — if for no other reason than that their actions will scandalize other public school educators, who are currently described so frequently in media accounts as “embattled” it’s like their homeric epithet. The only people more demonized by political elites from either party are sadists who attempt to set up demented death-cult caliphates.

And sweet fancy Moses, did they ever lay the wood to those folks they convicted! Per the AP: “Over objections from the defendants’ attorneys, Superior Court Judge Jerry Baxter ordered all but one of those convicted immediately jailed while they await sentencing. They were led out of court in handcuffs.”

They took them out in chains! That’s hardcore. That’s humiliating. That’s a sight that will make other people think twice before committing similar crimes — it’s what real accountability looks like.

Linkins reviews numerous high profile cases in which bankers were not prosecuted because the are “too big to fail.” Their misdeeds were egregious, but they got a light slap on the wrist.

He concludes:

“In the end, I think that these Atlanta teachers have learned a lesson: Be a banker. Or a polluter. Or run a for-profit education scam. Or snooker people with predatory mortgage agreements. Or rip off people with penny-stock schemes. Or run a college sports cartel. Or create a super PAC. Or “torture some folks.”

“Just don’t ever change the answers on a standardized test.”