APS cheating scandal, the unanswered questions

Some local prosecutors are befuddled by some of DA Paul Howard’s choices

Now that former Atlanta Public Schools Superintendent Beverly Hall and 34 co-defendants have all been booked and bonded out on charges of taking part in a massive cheating conspiracy, what happens next?

Well, it’s what usually happens: a lot of second-guessing and speculation. Having spoken on background to a few prosecutors, defense attorneys and former school board members, I’ll lay out several of the big questions that have come up in the past week since the indictments were announced. Don’t, however, expect any easy answers.

  • Why was bond initially set so high for the defendants? So far, this is the big head-scratcher. Until she showed up at the Fulton County courthouse and her attorneys negotiated with prosecutors, Hall’s recommended bond was $7.5 million. I say “recommended” because, while the D.A. can suggest a bail level, it’s ultimately set by a judge. Paul Howard’s office even called for indicted teachers to pony up a cool half-million or sit in the clink. I’ve yet to talk to anyone who believes this was a good strategy. First off, it wasn’t necessary in order to persuade the defendants from talking publicly about the case—which, as far anyone can figure, appears to have been the main rationale, because the judge can impose any conditions, including gag orders, that he or she sees fit. Instead, by showily threatening defendants with an impossibly high bail more befitting a drug kingpin or contract killer, Howard may have evoked sympathy for the accused cheaters. One former D.A. told me that setting the proper tone at the beginning of an important, highly visible case can be vital. If so, it could be that Howard has gotten off on the wrong foot.

  • RICO laws are powerful, but is there really enough evidence here to convict Hall? In all the AJC’s admirable reporting, there’s been no “smoking gun” where the superintendent is concerned. Likewise, the indictment describes the APS as having a top-down culture that rewarded cheaters and punished whistle-blowers, but doesn’t allege that Hall gave explicit orders to make it so. To be convicted under RICO, the accused needn’t have broad knowledge of the overall criminal enterprise; it’s enough to have played a small role in a wider conspiracy. But it must at least be proven that the accused was cognizant that he or she was contributing to something illegal. The murky results of the 2006 Bill Campbell federal corruption trial proved that juries are sometimes unwilling to connect the dots, however obvious, unless prosecutors can produce a damning tape, video or a sufficiently convincing eyewitness.

  • Why weren’t top Hall lieutenants like Kathy Augustine indicted? Good question. Most observers are guessing that Ms. Augustine, who served as the enforcer during much of Hall’s reign of terror, has turned state’s evidence and could attempt to provide the aforementioned smoking gun for prosecutors. For now, Howard isn’t saying.

  • We understand getting tough with top school administrators who ruined people’s careers, but what’s the point of indicting so many teachers? That’s a question we heard over and over again. Even veteran prosecutors weren’t convinced it was a good strategy to lower the boom on the rank-and-file, who arguably were just trying to keep their jobs. On the other hand, as the AJC reported, few legal observers believe the D.A. has any intention of actually bringing all 14 teachers to court—at least as defendants. Some speculate that Howard is using indictments to pressure a few holdouts to flip on their superiors.

  • If the APS did falsify test scores, then it arguably defrauded the federal government by pocketing around $1 million in No Child Left Behind incentives and other grants it didn’t earn. Could there be another shoe to drop in the form of federal indictments? Probably not, says a former federal prosecutor I spoke to. First off, the feds likely don’t need to pursue a criminal case in order to claw back some or all of that money. And, second, since the feds are more focused on locking away drug kingpins and contract killers, they probably aren’t going to bother with local school administrators.

  • Finally, if we at least accept that the 90-page indictment shows that Atlanta’s school kids were cheated out of a decade’s worth of real evaluation and verified educational progress, how do we make sure it doesn’t happen again? Funny thing is, for all the sturm und drang that took place in 2010 after the school board’s rogue vote to depose Chairwoman LaChandra Butler Burks, there’s been no real change to the system’s reporting structure, which arguably enabled Hall to do the things that might land her in prison. After Hall was recruited to the APS by the Metro Atlanta Chamber in 1999, the business community used its influence to persuade the school board to cede more and more of its authority to the superintendent’s office. With the help of legislation sponsored by then-state Sen. Kasim Reed, the system’s general counsel and CFO no longer answered to the board, only to the superintendent. I understand the reasoning behind that change was to streamline operations, de-politicize the system and help recruit top administrative talent, but in the wake of the CRCT scandal, the Atlanta community would be missing an opportunity for reform if it didn’t revisit the balance of power between its elected school board and its appointed superintendent.