This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.
Pennsylvania’s investigation of possible cheating on state tests in Philadelphia is entering its second year with no results announced and with little information about its scope and depth.
So far, no area educators or school officials have been publicly charged with wrongdoing. Both the School District of Philadelphia and Pennsylvania’s Department of Education (PDE) have vowed to take disciplinary action, but those actions can take place behind closed doors.
Of 53 District schools deemed to have suspicious statistical patterns of wrong-to-right erasures over a three-year period, the state has directed the cash-strapped District to conduct its own probe of most of them. And while PDE has paid some $750,000 to get help from a private law firm, the District is relying on pro bono legal help.
The latest estimate for the investigation’s completion, from the District at least, is sometime in December.
Secretary of Education Ronald Tomalis has said that some 100 educators statewide – presumably including some from Philadelphia – would be sanctioned for their role in tampering with test booklets or other violations of test security. Department sources have said that there have been confessions.
But unlike in Atlanta, considered the gold standard of such investigations, the PDE, the state’s Office of Inspector General, the District and the private attorneys helping them are proceeding without subpoena power.
Robert Wilson, who helped lead the Atlanta investigation, said that this is a major impediment.
“It’s an essential power you have to have in order to find the truth in these situations,” he said. “Of 1,500 interviews we did in schools, we never had one teacher or principal admit wrongdoing” in that setting.
“We had to have subpoena power to get them to a location of our choosing, out of the environment they were comfortable in,” he said. “Only then we began to get people to tell us things.”
Documents show that, from the beginning, PDE anticipated resistance from schools, including lawsuits. It hired the law firm Pepper Hamilton LLP last fall, initially to help it with litigation.
“External investigations are slated to begin shortly and we anticipate litigation related to those investigations,” reads the rationale for a $250,000 contract signed in October 2011 with Pepper Hamilton, available on the state website.
Later, it says PDE anticipates that “some schools may resist PDE’s investigation, and litigation may ensue.”
PDE spokesman Tim Eller did not respond to questions about what prompted those fears and whether any litigation was actually filed.
A second contract with Pepper Hamilton, signed in December for $200,000, was to help conduct the investigation itself. That contract was amended in the spring to add $250,000 and extend it to June 2013.
Between October 2011 and June 2012 at least a dozen Pepper Hamilton partners, associates and paralegals worked with PDE attorneys and the Office of Inspector General on the case at hourly rates ranging from $180 to $460, according to invoices for the firm obtained under the state Right to Know law. While portions of the invoices were redacted by the state, it appears that most of the legal work has involved schools in Philadelphia, both District and charter, as well as the Chester Community Charter School.
The law firm also worked on investigations in the Reading and Hazleton districts.
Pepper Hamilton was first hired by the state four months after the Notebook uncovered and reported the findings of a forensic analysis showing widespread statistical irregularities in 2009 testing, and two months after Tomalis announced he was ordering an analysis of wrong-to-right erasures for 2009, 2010 and 2011.
In Philadelphia, Pepper Hamilton is working with the state primarily on the “Tier One” schools – 11 of the 53 District schools with anomalies the state considered most severe.
PDE asked the School District to investigate the second and third tier schools itself.
To conduct its investigation, the District has relied on pro bono help from the law firm of Morgan, Lewis & Bockius LLP. Its investigation didn’t start in earnest until this fall.
The state also allowed at least two of the four area charters with flagged test results to conduct their own investigations (see Info is scarce on cheating probes at 4 area charters).
Wilson, from Atlanta, said that such self-investigation is rarely fruitful.
“If you are going to investigate a school that has a wide standard deviation from the norm, you have to interview everybody in that school, and that includes many times the custodial staff,” said Wilson. “In order to do that, it takes a large number of trained people. … You can’t do this with first- and second-year associates.”
In Georgia, Gov. Sonny Perdue at first asked Atlanta and other districts to explain the statistical deviations that a forensic analysis had uncovered.
“The Atlanta system formed a blue-ribbon commission and hired a large accounting firm to do the interviews,” Wilson said. “They couldn’t begin to handle it. They didn’t have enough trained people to do the interviews, it didn’t go deep enough, and they didn’t have subpoena power.”
Perdue then ordered a state probe with full subpoena powers.
“We had two separate law firms, myself and another person were appointed special investigators; at one time we had 70 people” working full time, Wilson said. “These interviews didn’t take 10 minutes, and many had to be done again and again.”
They made their findings public in a 400-page report implicating 178 people at 44 schools over a period as long as 10 years. The probe contributed to the retirement of longtime superintendent Beverly Hall and sent a strong message that producing high test scores by any means necessary was not acceptable.
More than 120 of the implicated Atlanta educators retired or resigned, and 10 were terminated. A few contested the charges, and some of those have been reinstated.
The Pepper Hamilton invoices indicate that the firm’s lawyers studied Atlanta and researched whether Secretary Tomalis had subpoena power and other tools that could compel schools or individuals to cooperate, as well as “litigation strategy.”
PDE’s Eller did not respond to detailed questions regarding the scope of the investigators’ power and how it might hamper getting results.
Sources close to the investigation here indicate that it has been marked with uncertainty over how to handle educators who admit to wrongdoing or are accused of it by eyewitnesses. Short of that, it is hard to bring any disciplinary action.
Andrew Porter, dean of the University of Pennsylvania’s Graduate School of Education and an expert on testing, said that from what he has seen so far, Pennsylvania hasn’t had the tools to do the kind of probe that would sanction wrongdoers, send a strong message that cheating won’t be tolerated, and minimize it in the future.
And even if the state never sorts out the current crop of suspicious scores, Porter recommends that it establish clear, consistent testing protocols for every school.
“I wouldn’t just do it at the places that look suspicious. I would want a good, solid, secure protocol throughout,” Porter said. “I would expect oversight, and random visitations, I’d put in a hotline. … It creates a larger, systemic climate of oversight and concern to make sure that the data have integrity. That’s the kind of culture that we need to create, so that people don’t think about cheating.”