A Five-Decade Fight to Improve Housing Choices for the Poor

Originally published in CityLab on April 12, 2018.
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Yesterday marked the 50th anniversary of the Fair Housing Act, and in Chicago, there’s a man who has spent all 50 of those years fighting to preserve and expand the vision behind it. His name is Alexander Polikoff. He’s 91 years old, and although he’s virtually unknown to most Americans, he’s been almost single-handedly shepherding one of the nation’s most consequential civil-rights lawsuits for more than half his life.

Polikoff was the lead attorney on a landmark case in the 1960s, Gautreaux v. Chicago Housing Authority. It was the first major desegregation case concerning public housing. The lawsuit charged the Chicago Housing Authority and the federal Department of Housing and Urban Development (HUD) with violating the Constitution’s equal protection clause and the 1964 Civil Rights Act by concentrating thousands of public housing units in segregated black neighborhoods. It was named for Dorothy Gautreaux, an African-American public housing resident, community organizer, and activist.

Polikoff’s case made it all the way to the U.S. Supreme Court in 1976, and in the decades since he has overseen its settlement. That included a novel remedy: giving low-income Chicago residents vouchers to move into the suburbs. The nation’s first “housing mobility” program was born as a result of Gautreaux.

The results of these “mobility vouchers” were so unexpectedly positive that in the early 1990s, Congress decided to pilot an experiment dubbed “Moving to Opportunity,” which gave poor families in five cities similar opportunities to relocate to the suburbs.
Maryland’s Senator Barbara Mikulski ended up killing efforts to expand the pilot nationally when homeowners in suburban Baltimore County rebelled, but the debate over the promise and pitfalls of housing mobility has continued to this day.

The actual Gautreaux vouchers have ended (they ran from 1976 to 1998), but there is still an existing Chicago mobility program as a result of the case. And the Gautraeux lawyers, including Polikoff, are overseeing it in other ways—for example, by ensuring that new scattered-site developments of public housing aren’t racially concentrated.

Polikoff, a resident of the Highland Park suburb just outside of Chicago, works as a senior attorney at BPI, a public interest law firm. (Previously, he served as BPI’s executive director for nearly 30 years.) CityLab sat down with him to learn more about his life’s work—Gautreaux—and the mobility movement he helped to build.

I really enjoyed your book Waiting for Gautreauxwhich traces the history of your lawsuit from the early 1960s up to 2006. Looking back now, has anything changed, or do you wish you did anything differently?

There’s some things I wish I made clearer in the book. For example, we always run into people who say, “You know, this mobility voucher business. It’s not going to deal with very many people, so what are you pushing that for? We’ve got to do something about the communities they already live in.”

And you also run into people who say, “Your mobility efforts are interfering with choice.” Those two points of view come up all the time, and one thing I wish I had done differently was respond more clearly to those objections in the book, because they’re both thoughtless.

How so?

With respect to the choice issue, housing mobility proponents are not proposing it as the solution. They’re not proposing it as right for everybody. What we are saying is that while we continue—for God knows how long—attempting to deal with what the high-poverty communities need, and while we’ve worked to death for 50 years and we still don’t have a way to address it effectively, while we’re doing that, should we be denying families the opportunity to get out?

The answer is obviously no. We should be offering mobility as a piece of the solution for those people who want it.

Mobility is purely voluntary, and what they don’t understand is that we’re not pushing it as the answer, but as a humane necessity for the people who want it.

So I understand that housing mobility advocates stress that they’re not forcing mobility, that they recognize it’s a voluntary option that’s not right for everyone. But don’t you and others also say we need to dismantle the segregated ghettos?

Of course! My whole book talks about using that word—dismantling. And nobody is arguing that mobility is going to dismantle the ghetto. You’ve got to dismantle the ghetto even if no one ever thought of the idea of mobility. The two are on different planets.

You’ve been doing this work for a long time. Does anything surprise you any more?

Yes, I actually got a call out of the blue two weeks ago from a woman who is a member of the Vermont legislature. Why was she calling me? To thank me. She [grew up in] one of the first families who moved in the 1970s through the Gautreaux housing program.

She and her sisters and her mother all moved from inner-city Chicago to the suburbs. They moved out there and lived for, I don’t remember exactly how long, four years maybe, and then they moved back because her mother felt she needed to spend her teenage years in an African-American community. But, she told me, those years out of Chicago made all the difference, and that’s why she says she’s the first African-American woman in the Vermont legislature.

How can we not provide something like that when we have the opportunity and the wherewithal to do so?

I see housing mobility as part fair housing, even though I know they began somewhat independently. Do you see those as part of the same movement today?

I do, but mobility is a small part of a much bigger picture. We could have a great housing mobility program, but if that’s all we had, it wouldn’t be anywhere near enough. And it’s partly because it isn’t right for large numbers of people, and partly because of the resource constraints. We’ll never have enough vouchers to make a difference, even if far more wanted to try it than I think will ever be the case. So it’s going to be a small, but vitally important, piece.

Why vitally important?

One, because of what I said before, about it being the right thing to give people who want it.

And two, because of the effect it can have on people’s psyches when they see poor African-American families having improved life chances and taking advantage of those improved life chances in opportunity—meaning white, affluent neighborhoods—and not bringing those neighborhoods down. Having a lot of examples of that is potentially significant.

It’s what Gunnar Myrdal called the “vicious cycle.” If all black people are kept in ghettos, where there’s high crime and high unemployment, and then we say, “Well, there’s someone committing crimes, not trying to work, and he’s black,” it paints a picture that that’s the way all black people are. It’s toxic, and it feeds on itself.

What is the state of housing mobility? Gautreaux was the first, but how much has it expanded? Are all housing authorities trying to do this now?

No, 99 percent are not. As of 2015 there were 15 mobility programs in the country, with seven of them coming from court-ordered settlements.

The two largest programs are in Baltimore and Dallas. Chicago’s is doing better than almost anywhere else except those two places, but it’s still very limited.

Why are there so few?

It’s because of the way HUD regulations are set up and administered. There is really a positive disincentive for housing authorities to do mobility right now.

HUD pays housing authorities administrative fees based on how many people they lease up. Well, it takes longer to lease up in an opportunity area, doesn’t it? It’s harder to do. So the more they spend money on trying to do mobility, the fewer lease-ups they’ll get for which they’d get paid administrative fees.

They really get hit twice—they need to spend more to try to do mobility, because the opportunity vouchers cost more, and then they’re also getting less back from HUD.

We could make it easier for housing authorities to do it, right?

Yes, HUD could.

What’s your relationship to the Gautreaux case now?

I’m still involved, and Gautreaux is a surprisingly active case. They tore down all the public housing high-rises and they’re replacing the high-rises slowly but steadily with mixed-income communities. But we’re seeing to it through Gautreaux that the public housing in the mixed-income communities is dispersed, and visually indistinguishable from the non-public housing. And that’s a lot of work.

Every two years we file complaints, because each one of these things must have a court order. Most of the time we work with the Chicago Housing Authority to reach an agreement, but occasionally we have a fight with them and go to the judge.

How are you feeling about everything after working on things for all this time?

I’m not optimistic, but I’m hopeful. I think the long arc of justice is a good metaphor, and I think post-Trump, maybe we’ll have an emerged progressive community. We’re moving so slowly, but in the right direction. This Trump period is a terrible setback, but I think history is going to view it as a big bump in the road.

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A New Type Of Bank Offers A Lifeline For Those Trapped In A Vicious Cycle Of Debt

Originally published in HuffPost on April 12, 2018.
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Three years ago Cynthia Tucker relocated from South Carolina to Raytown, Missouri ― a suburb just outside Kansas City ― to be closer to her children and grandchildren. To cover costs of the move, the 62-year-old widow took out a short-term loan. But her borrowed $675 quickly spiraled into a nightmare.

“By the time I thought I had paid over half the loan back, I realized I had gotten nowhere because it had already added hundreds of dollars on top of what I originally owed,” says Tucker, who believes that the lender failed to clearly explain the risks to her. “I thought I was making progress, but with these recurring charges it became so stressful.”

Tucker is not alone. An unexpected medical bill or an unplanned auto repair can toss many people into financial trouble, and 44 percent of adult Americans say they’d struggle to cover an additional expense of several hundred dollars. This is music to the ears of payday loan companies like the one Tucker turned to – voracious businesses that provide cash-strapped people with small, short-term loans, charging high interest rates and fees.

An estimated 2.5 million American households ― about one in 50 ― take out payday loans every year. A typical loan is $350 and costs $15 for each $100 borrowed. Given that more than 80 percent of payday loans are rolled over, or are followed by another loan within two weeks, it’s not hard to see how some of America’s most financially insecure can get trapped in debt indefinitely.

Proponents of the industry point to the lifeline payday loans can provide for people like Tucker.

But there’s a growing movement of alternatives aimed at better supporting those in need. Tucker, for example, turned to the Holy Rosary Credit Union, which paid off her payday loan and issued her a new one with a much lower interest rate. She eventually repaid the credit union and moved on with her life.

Like banks, credit unions offer checking, savings and loan services. But unlike banks, which primarily serve shareholders, credit unions are nonprofit entities set up by members and governed by a volunteer board. Importantly, they generally charge discounted loan rates and lower fees than traditional banks.

A new credit union is set to open this spring in Kansas City, following an eight-year fundraising effort. The WeDevelopment Federal Credit Union is a community development credit union that will differ from most banks and traditional credit unions by specifically focusing on those who have never had access to a bank, or who have been shunned by banks because of past financial trouble.

Community development credit unions “believe in providing individuals with second, third and fourth chances,” says Paul Woodruff, vice president of community development at a community development credit union based in St. Louis.

Kansas City is racially segregated, which means sharp differences in economic supports for different racial groups. In 2013, for example, 45 percent of the city’s black residents lacked access to a bank account or a financial institution.

WeDevelopment will be located in downtown Kansas City, near its second-busiest public transit spot, and is designed to serve residents in one of the most distressed parts of town.

Its operations will rely on interest earned from loans and investments, and moderate transaction fees. Those involved with WeDevelopment told HuffPost they cannot yet give specifics on interest rates, but say they will be competitive with banks. Organizers say they will pursue grants to supplement the cost of services like financial education training.

Woodruff’s team has been helping Kansas City leaders get WeDevelopment off the ground. More than 700 individuals have expressed interest in joining the new credit union, and organizers hope to sign up at least 1,500 members within its first year. Prospective members must live, work, or worship nearby.

“We want to help get people on the path to building credit, to building a secure banking relationship, to building wealth,” says Ajamu Webster, WeDevelopment’s board chair. He adds that community development credit unions are more than just a way for individuals to advance their personal goals. “There’s a social compact that comes with being a member,” he says. “They’re social institutions. This is a social movement.”

The Rev. Susan McCann, board president of the neighborhood advocacy group Communities Creating Opportunity, says community development credit unions are an important part of providing fair financial opportunities to all.

But even community-focused credit unions can’t replace the need to change state laws around payday loans, McCann says. Missouri’s lax payday loan laws allow lenders to charge up to 1,950-percent annual interest. Communities Creating Opportunity and other consumer advocates have been pressuring state lawmakers for years to cap the interest rate at 36 percent ― the maximum rate Congress allows anyone in the armed forces or their family members to be charged.

“Imagine if we can get two, three, four-thousand members in three years ― getting that many people who are tied to an institution that’s thinking about economic development,” Webster says. “This can become a community political force, giving us a new voice to influence what happens in our neighborhoods and the city.”

 

The Teachers’ Movement Goes Virtual

Originally published in The Atlantic on April 11, 2018.
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When West Virginia teachers initiated a nine-day labor strike this past winter, they secured national attention and a 5 percent pay raise. Oklahoma and Kentucky educators followed suit, with Arizona teachers threatening to do the same. Amid all this organizing was another strike threat, not previously reported, last week in California: between teachers in online classrooms and the organization that employs them.

Students enrolled in virtual schools (sometimes called “cyber schools” or “virtual academies”) take their classes online. It’s a small phenomenon, representing less than 1 percent of students, but a fast-growing one. According to the National Education Policy Center, about 279,000 students enrolled in virtual schools in 2016, up from roughly 200,000 in 2012. Education experts have been concerned by the growth of virtual K-12 education, especially virtual charter schools, which are publicly funded and privately managed. U.S. Education Secretary Betsy DeVos has touted virtual charter schooling as a particularly ripe area for expansion, emphasizing its flexibility and potential to offer courses that a student’s traditional school might not have. But, in practice, virtual schools, especially charters, have tended to deliver significantly lower academic results than brick-and-mortar ones. “Academic benefits from online charter schools are currently the exception rather than the rule,” wrote the authors of a 2015 report from the Stanford Center for Research on Education Outcomes.

While some teachers gravitate to virtual charters because of the flexibility it offers, salaries can be low, and class sizes are, on average, much larger than in brick-and-mortar charter schools or traditional public schools. (Though virtual teachers don’t have to manage physical classrooms, large class sizes still equate to a heavier workload.) The overwhelming majority of virtual teachers are not unionized. But in 2014, educators at California Virtual Academies (CAVA), California’s largest network of online charter schools with more than 10,000 students and about 450 teachers, decided to create a union, California Virtual Educators United, under the umbrella of the California Teachers Association. After two years of legal battles, CAVA recognized the teachers’ union, and starting in September 2016, the parties began negotiating their first contract over salaries, class sizes, and other issues.

The negotiations represent an important test case of how educators might wield power in a future where online education becomes even more common. According to Brianna Carroll, a high-school social-science teacher in Livermore, California, and president of the teachers’ union, bargaining had been slow-going, especially in recent weeks, when negotiators hit an impasse over class size. Educators said the number of students under their supervision had spiraled out of control, with some teachers stuck overseeing virtual classrooms exceeding forty students, and demanded class sizes be capped. “Either you have teachers who are burning themselves out because they’re trying to meet the needs of everyone, or you aren’t meeting the needs of everyone,” Carroll told me. “It’s really one or the other.”

April Warren, CAVA’s head of schools, declined to comment on many details of the negotiations. “CAVA is dedicated to working together with CVEU to reach a fair and equitable settlement so that we may continue to build upon CAVA’s unique and special achievements in support of the students and families across California,” she told me in an email.

While virtual schools across the country face some of the same struggles roiling traditional public schools, namely decreased state funding per pupil even after local economies have rebounded since the recession, virtual teachers also have to reckon with a newer threat: the involvement of for-profit companies that seek to deliver profits to their investors. CAVA, for instance, is a nonprofit network, but its operations are deeply intertwined with K12 Inc., a publicly traded company based in Virginia. K12, founded in 2000 by William Bennett, the education secretary under Ronald Reagan, and Ronald Packard, a former Goldman Sachs banker, is the nation’s largest supplier of management services and curriculum for virtual charters. The company, according to Education Week, has built a powerful lobbying operation in more than 20 states.

While CAVA describes its schools as independent, Jessica Calefati of San Jose’s The Mercury News, who investigated the arrangement back in 2016, found tax records showing that K12 employees themselves had established more than a dozen online schools in California. CAVA contracts with K12 for all sorts of services: The company provides the schools’ curricula, oversees their budgets, trains teachers, offers technical assistance, and even handles media communications. Calefati wrote, “Accountants and financial analysts interviewed by this newspaper, including several who specialize in school finance, say they’ve never seen anything quite like the arrangement between K12 and the public online academies.” (A CAVA official called The Mercury News investigation a “gross mischaracterization” of the organization’s work.)

CAVA teachers say they organized a union in part to push back on K12’s corporate influence over their schools. “For so long it’s been focused on how to use this charter-school concept to turn a dollar, rather than how to use online tools to support more students,” said Carroll, the union president. “We’re really using the union to push CAVA to have different goals.”

The virtual charter network might benefit from some new goals. In 2016, then-state Attorney General Kamala Harris alleged that K12 and CAVA had used false advertising and inflated their student-attendance numbers to collect extra state funds. Harris also alleged that K12 had trapped the network in debt by saddling cava with an unfair contract. CAVA and K12 agreed that year to settle with the state for $168.5 million. K12 emphasized it had admitted no wrongdoing, and said the attorney general “grossly mischaracterized the value of the settlement just as it did with regard to the issues it investigated.” In an email to The Atlantic, the K12 spokesperson Michael Kraft disputed the AG’s characterization of the schools as indebted. Also in 2016, The Mercury News reported that fewer than half of  CAVA’s high-schoolers earned diplomas, and almost none were qualified to attend the state’s public universities. (K12 disputes this, noting the state does not always have reliable data for nontraditional schools with higher student mobility rates.) CAVA was also hit with a nearly $2 million fine in 2017 after California’s Department of Education found continued issues with attendance reporting and other practices. (CAVA disputed this, releasing a statement that CAVA schools “demonstrated they were consistently operating in full compliance with all state laws and regulations” and planned to appeal the financial penalty.)

Last fall, faced with a stalemate with CAVA over salaries, workday length, and class size, the teachers authorized a strike: More than 90 percent of the 450-member union voted to back their bargaining team if it called for walking off the job. Shortly after that, CAVA administrators tentatively agreed to some new concessions, according to copies of signed agreements provided by the union: a pay raise, a shorter work year, and fewer employment duties, among others.

Still, the fight around class size remained unresolved. CAVA teachers argued that class-size limits would improve academic quality. Carroll said the charter network maintained during negotiations that caps would hinder their needed flexibility. (CAVA declined to comment on its position on class sizes.) When they were still unable to reach an agreement, following a two-day fact-finding mediation last week, union leaders announced they were preparing for a first-of-its-kind strike. A virtual-charter strike would have meant that all online classes would be canceled, and teachers would meet in person to picket at locations such as the CAVA offices in Simi Valley. The strike was to be held in late April or early May.

But the day after the teachers’ strike announcement, April Warren, CAVA’s head of schools, proposed a compromise resolution: Classrooms could be capped at about 30 students, according to a copy of the signed agreement provided by the union, and if a classroom were to exceed that threshold, the teacher would be compensated accordingly. The teachers agreed. “I think the strike played a huge role in helping us resolve this, because that’s what CAVA was constantly saying—‘well, we don’t want a strike,’” Carroll said. Warren declined to comment on the strike threat, but on Monday, she confirmed the parties had reached a tentative agreement and were “working on a timeline for full ratification.” A spokesman for K12 declined to comment.

Carroll says teachers at other virtual charter networks have been reaching out to her, intrigued by her and her colleagues’ union work. While the West Virginia and Oklahoma teacher strikes demonstrate how educators at traditional public schools can still assert formidable collective power, just 11 percent of charters in the United States are currently unionized, and among virtual charters, that number stands at 9 percent. There are several reasons for this: Most charter-school backers and funders take a relatively anti-union stance, asserting that unions will impede a school’s flexibility, and therefore its ability to deliver the best education possible for students. Unions have also been slow to organize charter-school teachers, long viewing them as scabs who threaten their livelihoods. Labor groups have softened their stance towards charter teachers in recent years, but tensions remain as unions continue to work politically to halt charter-school growth.

A successful contract negotiation for cava teachers, though, could help ignite similar efforts elsewhere. The anything-goes approach to virtual education has made it alluring to operators trying to cut costs or make a buck. But if their workers have any say in the matter, online charters’ freewheeling days may be numbered. That would be good not just for educators but for the students entrusted to them.

The Libertarian Who Accidentally Helped Make the Case for Regulation

Published in the April/May/June 2018 issue of the Washington Monthly
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Alex Tabarrok is no one’s idea of a big-government liberal. A libertarian economist at George Mason University, he’s best known for cofounding Marginal Revolution, one of the most popular economics blogs on the internet. A deep skeptic of government bureaucracies, he has written favorably of private prisons, private airports, and even private cities.

That’s why a study he co-published earlier this year is so noteworthy. When Tabarrok and his former grad student Nathan Goldschlag set out to measure how federal regulations impact business growth, they were sure they’d find proof that regulations were dragging down the economy. But they didn’t. No matter how they sliced the data, they could find no evidence that federal regulation was bad for business.

Economists—like politicians, arguing spouses, and, yes, journalists—tend to interpret evidence in a way that corroborates their existing worldview. And the dynamics of academia weigh against publishing findings that fail to support a researcher’s original hypothesis. But Tabarrok published his study anyway. That makes him something of a rarity.

Tabarrok came by his libertarianism early. When he was growing up in Toronto, his family would debate political and ethical issues over dinner every night. One evening the Tabarroks were debating the moral value of rock and roll. “I said, ‘Well, look at this band, Rush: they even quote this philosopher Ayn Rand in their songs,’ ” he recalled recently. “My mother said, ‘Oh yeah, you’d probably like her,’ and I felt embarrassed because I was using this in an argument and I actually hadn’t read any Ayn Rand before.” Tabarrok thinks his mother probably regrets her suggestion to this day.

Tabarrok made his way to the U.S. for graduate studies at George Mason, returning there as a professor in 2002. He now directs its Center for Study of Public Choice and is the economics chair at GMU’s Mercatus Center, a research institute heavily funded by Charles Koch and cofounded by Richard Fink, a former Koch Industries executive. The center, which boasts ties to prominent right-wing groups like the American Legislative Exchange Council, funds research to promote free-market policy solutions and the rollback of regulations. (Mercatus is Latin for “market.”) The Wall Street Journal has called Mercatus “the most important think tank you’ve never heard of.”

A few years ago, Tabarrok got a new toy to play with. Until recently, there was never great data available for researchers who wanted to empirically study the effects of regulation. But, in 2014, two other Mercatus Center research fellows developed a new public-use database called RegData, which captures everything published in the Code of Federal Regulations each year. Measuring regulation has always been surprisingly tricky, because when an agency puts out a rule, it can contain any number of new individual legal requirements. RegData addresses that problem by scrubbing the Code for key words such as “shall,” “required,” and “may not.” The theory is that this more accurately measures the number of regulations than simply counting the total number of pages in the Code, as past studies tended to do. RegData also uses artificial intelligence techniques to predict which industry each regulation will affect. The upshot is that, for the first time, economists could more confidently measure federal regulations over time and by industry. In theory, that would make it easier to build the case that regulations were hurting the economy.

For his first paper using the database, Tabarrok decided to analyze the effect of federal regulation on “economic dynamism”—a catch-all term referring to the rate at which new businesses launch and grow, and at which people switch jobs, lose jobs, or migrate for work. There has been a notable and somewhat mysterious decline in dynamism over the last few decades. The rate at which start-ups form is half of what it was forty years ago, the fraction of workers who bounce from one job to another—a sign of competitive labor markets—has plunged, productivity has slowed, and adult employment remains well below its early-2000 peak.

Armed with RegData, Tabarrok and Goldschlag set out to show that regulations were at least partly to blame. But they couldn’t. There was simply no correlation, they found, between the degree of federal regulation and the decline of business dynamism. The decline was seen across many different industries, including those that are heavily regulated and those that are not. They tried two other independent tests that didn’t rely on RegData, and came to the same conclusion: an increase in federal regulation just could not explain what was going on.

“I was pretty surprised that we just kept coming up with nothing,” Tabarrok told me. “I’m a free-market type of person, so it wouldn’t have at all surprised me to find that government regulation is causing decline in dynamism. Ideologically, it fits my priors of the way I would see the world, so, yes, I was expecting to find something.”

Tara Sinclair, an economist at George Washington University who studies labor market issues and didn’t have any connection to Tabarrok and Goldschlag’s study, said she would rank their paper as one of the most important to emerge thus far around regulation and dynamism. “In this space, in this research, there are a lot of advocates—and they can really make the data say lots of different things if you cherry-pick,” she said. “That they chose to report a result that was against their priors is really commendable.”

Indeed, the new paper undermines one of the most deeply held convictions of the American right, one that unites libertarians like Tabarrok with mainstream conservatives: that regulations inevitably impose “deadweight loss” on the economy and are therefore an enemy of economic growth. This idea has been a mainstay of Republican politics since the Reagan era, and the Trump administration has taken to deregulation with missionary zeal. In fact, it’s probably the policy objective that the administration has pursued most successfully—rolling back the Clean Power Plan, repealing net neutrality, freezing the fiduciary rule, and on and on.

The premise that regulations come at the expense of economic activity—that we must always make trade-offs between safety and jobs—is so pervasive that even the American left tends to accept it, defending regulations as necessary evils to promote other social goods. Yet there has never been strong evidence that these trade-offs actually exist. To the contrary, federal regulations have often driven growth and innovation, whether it’s fuel standards spurring new electric cars and solar energy, or the Dodd-Frank law causing an entirely new industry—financial technology—to appear out of whole cloth. (See Anne Kim, “Deconstricting the Administrative State,” June/July/August 2017.)

Not that Tabarrok himself has become a booster for regulation. He doesn’t think much of government’s ability to spark innovation through setting standards; the first thing he did when he last bought a new shower head, he said, was remove its federally mandated flow restrictor. Nevertheless, his research has convinced him that Trump’s aggressive deregulatory agenda is unlikely to reverse the trend of declining dynamism.

If federal regulation isn’t behind the dynamism die-off, then what is? Tabarrok’s paper suggests that economists need to look elsewhere. Eli Lehrer, head of the pro-deregulation think tank R Street Institute, argues that some of the most burdensome regulations are state and local—zoning, building codes, occupational licensing, and the like. Tabarrok and Goldschlag agree that more attention should be paid to the potential effects of non-federal regulations.

But a more likely explanation—one that has been gaining purchase among both think tanks and elected Democrats—is rising corporate concentration. (See Gilad Edelman, “The Democrats Confront Monopoly,” November/December 2017.) The trend of declining dynamism since 1980—along with wage stagnation, rising inequality, and a host of other ills—has tracked a parallel rise in monopolization, as the economy becomes increasingly consolidated in the hands of a few giant businesses. As New York Times columnist Eduardo Porter put it recently, “By allowing an ecosystem of gargantuan companies to develop, all but dominating the markets they served, the American economy shut out disruption. And thus it shut out change.”

This hasn’t happened by accident, but is, rather, the result of deliberate decisionmaking, beginning under Reagan, to dial down the enforcement of antitrust law. In other words, it is a consequence of deregulation, not overregulation.

Tabarrok said he’s open to the theory that consolidation has hurt dynamism, but deeply skeptical that antitrust enforcement can fix it. So he may not become a liberal lion anytime soon—and that’s all right. He deserves praise for his willingness to publish findings that go against his priors and, if not his ideological agenda, then at least the agenda of the people who help pay his salary. These debates get tough because it so often feels like there are warring studies on each side. If more people are willing to stand by research findings that go against their own camp, debating public policy will be a lot more worthwhile.

Donald Trump and the GOP Are Expanding a Controversial Obama-Era Public Housing Program

Originally published in The Intercept on April 2, 2018.
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The most recent spending bill passed by the Republican Congress and signed into law by President Donald Trump includes a massive expansion of a controversial program called Rental Assistance Demonstration, or RAD, which privatizes public housing to preserve physical housing units. Despite the program’s threat to public housing in general, beleaguered affordable housing advocates have reacted with cautious approval, even as a government watchdog recently affirmed their long-term concerns, finding that the Department of Housing and Urban Development has insufficiently monitored the program and may be exaggerating its benefits.

In a 72-page report issued on March 22, the Government Accountability Office concluded, among other things, that HUD has not sufficiently monitored tenants’ experiences; has not ensured tenants can exercise all their rights; has dramatically exaggerated the amount of private capital generated through the RAD program; and has not done enough to ensure the long-term affordability of the units. The report issued five recommendations to improve the program, all five of which HUD said it agrees with.

Many affordable housing advocates are open to RAD, which works by allowing private companies to rehabilitate and manage public housing in exchange for tax credits and subsidies, but they have voiced concerns for years about what they consider to be wholly insufficient oversight for the federal program and potential risks for low-income tenants. GAO has now affirmed some of those fears with an independent assessment, yet lawmakers are moving to expand the program, accelerating the upending of traditional public housing.

At least one member of Congress has been skeptical of the program for years. “I have long expressed concerns that the conversion of public housing, under RAD, will risk the long-term affordability of this important housing resource and this GAO report serves as confirmation that RAD is in desperate need of reform,” Rep. Maxine Waters, D-Calif., said in a statement about the GAO assessment. Waters, the ranking member of the House Financial Services Committee and one of the most outspoken critics of RAD, sent a letter to GAO in 2015 requesting a formal review of the program. A year earlier she had sent a letter to former President Barack Obama asking him to reconsider his RAD support, saying she believes it “may very well do more harm than good in diminishing a crucial public asset.”

RAD was one of a number of affordable housing programs to get a boost in the omnibus spending bill that Congress passed last month. The Obama administration first launched RAD seven years ago, and the program now boasts support from Democrats and Republicans, including HUD Secretary Ben Carson. It was conceived to address the biggest problem facing the nation’s 1.2 million public housing units: $49 billion in backlogged repairs and maintenance, leading to a permanent loss of 10,000 apartments every year.

Under the program, public housing authorities across the country are able to submit applications to HUD with requests to transfer all or some of their public housing stock to the private sector. If their applications are approved, they then negotiate RAD contracts, which are designed to renew every 15 to 20 years and require private developers to keep the units affordable for low-income tenants in perpetuity. Technically, all public housing tenants should be able to live in the private units if they want to, though housing advocates say this “right of return” is not always enforced.

Given the federal government’s refusal to sufficiently fund public housing — even Congress’s new $800 million investment in public housing rehabilitation will only make a small dent in the needed repairs — RAD supporters say privatizing the units is the best way to preserve the physical units over the long haul. Six years ago Congress authorized just 60,000 units, or 5 percent of the nation’s public housing stock, to be “converted” through RAD. Since then, Congress has repeatedly raised that capped number, most recently in the new omnibus bill, which bumps it from 225,000 units up to 455,000. In other words, 38 percent of the nation’s public housing has already been authorized for transfer to the private sector.

The federal government’s track record in privatizing public housing certainly warrants concern: When HUD launched a program in the 1990s to convert public housing units into mixed-income developments, the feds intentionally shrunk the number of affordable units, and thousands of tenants were permanently displaced. Another federal program launched in the late 1960s gave private developers tax credits and subsidies to build affordable housing, backed by 30-year mortgages. When those mortgages started to be paid off, many developers kicked out poor tenants and converted the buildings into middle-class and luxury housing.

HUD officials say they’ve studied their historical mistakes and have worked hard to design RAD in ways that will specifically avoid these past pitfalls. Indeed, RAD comes with a more robust set of tenant protections than other federal housing programs, but enforcement of these rights has been lacking to date. Last October, the National Housing Law Project sent a letter to Carson outlining a host of RAD oversight concerns, some of which were corroborated this month with the release of the long-awaited GAO assessment. For example, public housing residents who paid a flat rent are supposed to be guaranteed a phase-in of any rent increase under RAD exceeding $25, but GAO noted that HUD has not been tracking things like “changes in rent, as well as relocations or displacement of individual households.”

Tom Davis, the director of HUD’s Office of Recapitalization, which oversees the RAD program, told The Intercept that he finds the GAO report useful, but not too damning.

“One of the takeaways from the report is that given the scope of what they were looking at, their recommendations were really narrowly focused, and their recommendations were for things we have been already working on,” he said. “Their feedback is helpful, but these are also pretty on-the-margin kinds of critiques. We have tried to learn from history, and we think we have a pretty good scheme to avoid the risks to affordability.”

One of the findings of the GAO report was that HUD exaggerates how much private capital RAD generates. The federal housing agency claims that for every $1 in public money spent, RAD leverages $19 in private funds, while GAO estimates $1 in public money yields just $1.23 in private funds. Davis said the disparity results from a difference in methodology.

“We chose one methodology, the GAO chose another one, and we don’t think theirs is the best indicator of the impact of the program,” Davis said. “Theirs is legitimate, but we think ours is as well.” Their disagreement centers on issues like whether money that comes from private banks in anticipation of federal tax credits should be considered public or private dollars.

GAO also conducted some tenant surveys, reporting that RAD residents across its 14 focus groups said they had very mixed experiences in terms of transparency and assistance.

Davis said focus group data can be helpful in “identifying concerns” for HUD’s consideration, but noted the hazards of relying on anecdotal information. He pointed to a more formal survey HUD has commissioned on tenants’ RAD experiences, which will be released in late 2018 or early 2019. “A rigorous social science survey based on the evaluation of a statistical pool of participating tenants will give us a really strong sense of whether RAD is working for residents or not,” he said. “I think those lessons are going to be really important, so we’re really looking forward to that study.”

Aside from the GAO report, HUD published its own interim RAD evaluation in the fall of 2016. The study, conducted by a management consulting firm called Econometrica Inc., deemed RAD initially successful based off metrics such as the number of applications for conversion it processed, the amount of private financing it generated, and the number of RAD transactions closed. The interim report did not investigate the early impact of RAD on tenants.

Davis said the interim report “was very clear in affirming our view that this is a program that brings new sources of money to solve the problem of deferred capital housing needs.” While he acknowledged that GAO had identified some risks to affordability, he said they are not major risks, and expressed confidence in his agency’s ability to address those concerns. Davis also emphasized that not having RAD at all would pose far more risks to long-term housing affordability.

Jessica Cassella, a National Housing Law Project staff attorney who focuses on tenant protections under RAD, told The Intercept that one important issue highlighted by GAO is that HUD has been relying largely on local data collected by housing authorities and property owners. “As the GAO recommended, and as we think as well, HUD should have its own set of data,” Cassella said.

Last fall, HUD started requiring property owners to certify information about tenants’ experiences to the federal government. For the first time since the program’s inception, owners must now report how many residents came back to a converted RAD property and how many former public housing tenants did not return. To incorrectly certify information could be criminal fraud under the False Claims Act, punishable by thousands of dollars in fines and even prison sentences. Advocates view this new requirement as an improvement to the RAD oversight and monitoring process.

“Things always take longer to stand up than you think when it’s a government program,” said Davis. “Certification wasn’t initially required — [private companies] had to certify certain things at closing, but they didn’t have to come back after the project was complete to certify what actually happened [to tenants].”

Davis told The Intercept that this newly required tenant information has not yet been made publicly available because his team is “working through kinks and tweaking” data. He said HUD “discovered in the first few months of the reporting that some people interpreted questions differently, and we want to align that so the data is good when we make it public.”

But Cassella noted that HUD’s new certifications still fail to monitor all the rights that tenants are guaranteed, such as the right to relocate with a choice mobility voucher. Under RAD, tenants are entitled to request a voucher to move to any unit on the private market after living one or two years in a RAD-converted property.

“We have anecdotally encountered situations where housing authorities do not have procedures set up so tenants can exercise that right, and HUD does not have any way to currently monitor whether these moves are actually happening,” she said.

Cassella also pointed to GAO’s finding that roughly one-third of the public housing units chosen for RAD did not report making any capital repairs at the time of their conversion. “Given that there’s a $49 billion backlog, it’s hard to imagine how a third of those properties don’t need any repairs,” she said. “Maybe some of those repairs will be deferred to a later time, but when the stated purpose of RAD is to physically improve the properties, we would hope to see a lot more of those repairs happening early on.” It’s not clear how the federal government evaluates RAD applications that claim no immediate physical repairs are necessary.

Even if Congress one day lifts the cap on RAD to make all public housing units eligible for conversion to the private sector — as some groups have been advocating for — it is unlikely that every building in the public housing stock would make for a viable RAD candidate.

Some public housing units are in such bad shape that experts suspect not even tax credits or other federal subsidies will be enough to entice private developers to take over certain decrepit buildings. There’s a risk that, as RAD expands and most public housing units are converted to the private sector, those that aren’t converted will be the ones in the worst condition.

“If people had a bad image of public housing before, it’ll just get even worse,” said Alex Schwartz, a professor of urban policy at The New School, when I interviewed him about RAD in 2015. “It’s analogous to the health insurance pool — where all the healthy people leave, and then you’re just left with just those who have the most expensive health needs.”

Though HUD and affordable housing advocates don’t exactly see eye to eye, even the advocates are convinced that there might be no better option available at this time but to push for stronger HUD oversight.

“We’ve seen a number of problems, such as tenants being improperly discouraged from returning, owners or developers not accommodating people with disabilities, or the new construction not being suited to family needs,” said Brenda Castañeda, an attorney at the Charlottesville, Virginia-based Legal Aid Justice. “The RAD process could clearly benefit from active HUD oversight, as the GAO suggests.”

Donald Trump’s Civil Rights Office for Housing Has Found the Real Problem: Pets

Originally published in The Intercept on March 23, 2018.
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The Office of Fair Housing and Equal Opportunity at the Department of Housing and Urban Development was designed to confront discrimination, segregation, and poverty. Instead, under the Trump administration, the agency is gearing up to confront a much stranger boogeyman: The emotional support snake.

For media and lawmakers, the idea of pet owners selfishly and fraudulently exploiting legal accommodations for Americans with disabilities has proven irresistible. It’s a story that hits all the right buttons: entitled and oversensitive pet owners, smitten with ridiculous animals, lying to befuddled businesses, and, with the weight of federal law behind them, forcing workaday Americans to endure the presence of an unwanted critter.

Fear of phony pups and fraudulent felines has been percolating for years. The idea got a big boost in 2014, when the New Yorker ran a piece featuring its author successfully testing the proposition that she could bypass many “no pets allowed” policies with a phony doctor’s note. She brought a 15-pound turtle into a museum, a 26-pound turkey into a restaurant, a snake into a movie theater, and an alpaca on a train. The journalist showed how easy it was to convince confused business owners to let her in with her exotic animals, since the cost of denying someone their legal accommodations is quite high.

The public got another dose of outrage this past January, when a woman tried to board a flight out of Newark International Airport with a peacock named Dexter. The passenger insisted her bird was an “emotional support animal,” which, under the Air Carrier Access Act, passengers can legally bring on planes. United Airlines didn’t buy it and refused to let her on. A few days later, United announced that it would be  tightening its policies around companion animals and now requires new documents to verify an animal’s health and training. Delta Air Lines did the same thing, and both companies say they’ve seen nearly double the amount of passengers flying with animals in recent years. “Dexter, unwittingly, may have struck a blow for sanity,” wrote New York Times columnist David Leonhardt in a recent piece titled, “It’s Time to End the Scam of Flying Pets.” Leonhardt said he hopes to see all airlines adopt “fairly strict” rules soon, and that the whole scandal is a “fascinating case study of how mass cheating can become acceptable.”

But while peacocks and “mass cheating” among pet owners make for juicy stories, civil rights advocates worry about where all this self-righteous anger is heading. Sources connected to HUD, helmed by Ben Carson, say that Anna Maria Farías, the federal assistant secretary for Fair Housing and Equal Opportunity, has said cracking down on assistance animals is a “priority,” and that HUD may issue new guidance restricting access to emotional support animals as early as the beginning of April.

The federal housing agency has been meeting with representatives from housing industry groups, including the National Apartment Association, but it has so far ignored entreaties from fair housing and disability rights groups to hold similar meetings, representatives of those groups say.

“The National Fair Housing Alliance has reached out to HUD about accommodation verification, but HUD has declined, thus far, to confer with us regarding this particular matter,” said Morgan Williams, the group’s general counsel, in a statement to The Intercept. “We expect HUD would meet with fair housing and disability rights advocates in the course of any consideration of guidance on reasonable accommodations and assistance animals under the Fair Housing Act.”

Brian Sullivan, a spokesperson for HUD, told The Intercept that the agency has no comment at this time on whether it plans to issue further guidance on emotional support animals.

The agency’s refusal to publicly comment on the issue, combined with its meetings with housing industry groups, has advocates bracing for things to get worse. Under federal law, individuals with physical or mental disabilities can bring assistance animals with them on planes or keep them in their homes, and they can also bring trained service dogs to other public places. But in just a few short years, 21 states have moved to criminalize the misrepresentation of such animals, with another 13 drafting similar legislation to take up this year. Advocates note that evidence for a supposed fake assistance animal crisis has been extremely limited, and many times outrage can be traced back to mental health stigma more generally.

“There are unfortunately people who take advantage of laws intended to protect people with disabilities, but I think the problem has been blown completely out of proportion,” said Marcy LaHart, an attorney in Florida who represents individuals denied reasonable animal accommodations. “What I see far more is people who have legitimate mental health issues — things like depression, anxiety, and panic attacks — who are harassed because they don’t know what they need to do, what they need to provide, to verify their legitimate need. They’re automatically assumed to be frauds because they don’t ‘look disabled.’”

In the popular consciousness, service dogs and emotional support animals are essentially interchangeable. But legally, they’re very different things: the former protected by Americans with Disabilities Act and the latter coming from the Fair Housing Act.

The Americans with Disabilities Act and related regulations say that service dogs, which have been “trained to do work or perform tasks” related to a specific disability, must be given broad access to public places where pets are typically not allowed. The ADA sharply limits inquiries related to the animal. All that can be asked of the owner is whether their dog is needed because of a disability, and what tasks it has been trained to perform. It’s illegal to request documentation for the service dog or to inquire about the owner’s disability.

In some ways, the protections of the Fair Housing Act are much broader. The FHA (in combination with Section 504 of the Rehabilitation Act) gives individuals the right to keep “emotional support animals” in their homes, provided they can produce a letter from a trained professional that says an animal could help them cope with mental or physical issues, including anxiety, depression, and post-traumatic stress disorder. Unlike the ADA’s service dogs, emotional support animals do not have to be specifically trained to perform specific tasks, and they do not have to be dogs.

The confusion over these differences stems in part from the fact that, while people are generally restricted to keeping their emotional support animals at home, they can also take them on planes. It’s not a coincidence that many high-profile complaints about ostensibly ridiculous support animals involve encounters during air travel: that’s the only public place the law requires them to be allowed. (Even then, there are some exceptions, such as the case of Dexter the peacock.) But planes are about the extent of it: People who rely on emotional support animals can’t take them into restaurants, schools, and movie theaters, all places where trained service dogs are allowed entry under the ADA.

Now, civil rights advocates say they hear that HUD plans to issue new guidance soon, in an effort to rein in alleged emotional support animal fraud.

Mary Rosenberg and Ken Walden, two disability rights lawyers who work at the Chicago-based Access Living with connections to HUD, told The Intercept  their sources say the forthcoming guidance might place new limits on acceptable breeds of emotional support animals (barring pit bulls, for example), erect new hoops for who can verify a disability, and prohibit certain exotic or non-traditional animals.

“What we heard was that Anna Maria Farías essentially thinks emotional support animals might be appropriate for armed military veterans with PTSD, but not really for people beyond that,” said one national fair housing advocate, “based on nothing more than her personal whim.”

Indeed, this past fall HUD filed a charge against a West St. Paul, Minn., apartment complex that ordered an army veteran to get a cat instead of a dog. “Assistance animals play a vital role in helping our veterans cope with service-related disabilities,” said Farías in a press release, that exclusively referred to the tenant as a veteran. HUD declined to make Farías available for an interview.

If HUD does decide to issue new guidance around emotional support animals, how it will comport with past HUD legal interpretations is not yet clear. In 2013, HUD issued guidance that civil rights groups viewed favorably, which clarified housing providers’ legal obligations in relation to the Americans with Disabilities Act. (More than half of all fair housing complaints concern individuals with disabilities, and nearly half of those involve animal-related issues.)

“One issue with new guidance from HUD is there are a lot of people who already have emotional support animals, and this could send them into a limbo,” said Rosenberg. “Whatever the guidance is, it might make it seem like individuals are not allowed to have the animals they already live with, which could fuel a lot of anxiety and confusion.”

“It remains unclear to us if new guidance would supplant the old guidance, contradict it, or complement it,” added Walden.

Federal guidance does not carry the same legal power as statutes or regulations. However, like the Obama-era guidance on transgender bathrooms in public schools, the promulgation or repeal of federal legal interpretations can carry political implications and shape policy.

One major reason critics say there’s an urgent need to crack down on alleged fraud is because of the growth of new websites that sell inexpensive documentation that falsely identify pets as service dogs or emotional support animals. Even in apartments where pets are allowed, buildings often charge tenants a monthly or annual pet fee. But if an animal is considered an emotional support animal, not a pet, landlords (and airlines) can’t charge tenants (or passengers) for their animals. Many suspect that non-disabled individuals are using this new cottage industry to bypass pet fees, or policies that prohibit pets. The New Yorker article noted that the National Service Animal Registry, a commercial business that sells certificates, vests, and badges for helper animals, signed up 11,000 emotional support animals in 2013, up from 2,400 in 2011.

But civil rights advocates say there are major misconceptions about these websites and those who turn to them. While writers like Leonhardt characterize customers as selfish and intentional cheats, advocates say plenty of people who turn to these sites have real needs and may not understand that what they’re doing is illegitimate.

“Just because someone uses one of these websites doesn’t mean they don’t have a disability,” said Williams, of the National Fair Housing Alliance. “They may have no concept that they’re using a website that other people might deem problematic.”

“Sometimes I have people come to me who have already gotten a certificate from an online vendor and generally we’ll explain to them that those aren’t sufficient under the Fair Housing Act,” said LaHart. “We’ll ask them to get a letter from a provider who can truly verify their need, and that’s pretty much it, and we’ll proceed from there. Some people don’t have doctors or were just mortified at having to discuss mental illness. They might think they’re weak because they suffer from depression. I find that particularly in the older generation.”

LaHart calls the online companies selling fake animal support letters “crooks” and says governments should be going after the sellers, not the buyers. “There’s a way to go after those providers and not throw the baby out with the bathwater,” she said.

Aside from pointing to how easy it can be to obtain fake certification and swag, disability rights lawyers emphasize that there’s been very little proof of actual widespread fraud. They suspect that housing providers are more likely looking for ways to limit their liability under the Fair Housing Act. One major difference between the Fair Housing Act and the Americans for Disabilities Act is that individuals who have been discriminated against can only sue for monetary damages under the former. Matthew Dietz, a disability rights lawyer, told The Intercept that in his practice, the Fair Housing Act has a lot more teeth. “When I sue a condo association, I sue the association itself, I sue the property manager, and I sue each and every individual on the board of directors,” he said.

The Intercept asked the National Apartment Association for statistics or survey data it uses to show that there’s been an increase in problematic requests for animal accommodation.

Nicole Upano, the NAA’s senior manager for government affairs, responded by pointing to the 2014 New Yorker article, and added that as of this week, the National Service Animal Registry had registered 181,984 service and emotional support animals. “To put this number in perspective, NAA is aware of more than 20 websites or online providers that offer documentation to their customers in exchange for a fee,” she said.

Though it is possible that some of those websites also sell fake doctor’s notes, these figures don’t shed real light on alleged fraud in housing because certified animals — fake or not — are not relevant for securing accommodations under the Fair Housing Act. In the housing context, emotional support animals don’t need certification. Tenants just need a third party to verify that they have a disability and could benefit from living with an animal.

In addition to lobbying for new federal regulations that would crack down on alleged fraud, housing industry groups have also been pushing for legislation on the state level to limit access to emotional support animals. While many of these efforts are framed as ways to better protect the rights of those with legitimate disabilities, civil rights advocates worry the new statutes could have the adverse effect of preventing or deterring people from receiving accommodations to which they are legally entitled. For example, new legislation signed this month by South Dakota Gov. Dennis Daugaard requires tenants seeking to live with an emotional support animal to provide verification that comes “from a licensed health care provider.”

But under HUD’s 2013 guidance, for example, legitimate third parties include social workers, not all of whom have clinical training. In some cases, animal trainers, case workers, or even guidance counselors have testified to an individual’s need for an assistance animal. “We worry these laws could have a chilling effect on tenants and anyone who was called upon to verify their need for assistance,” said Walden, a disability rights lawyer.

Florida passed a law in 2015 that makes it a crime for people to falsely claim that they need service dogs. LaHart, the attorney, notes that even though the law doesn’t apply to emotional support animals, condominium associations have sometimes pointed to it as a way to scare tenants seeking accommodations.

“Condo lawyers and sometimes board members will try to use the new law as a way to intimidate people who have asked for a housing accommodation,” she told The Intercept. “I think there is definitely potential for a chilling effect. And I never even see the people who don’t come into my office who get those kind of letters [from condo associations] and just give up.”

Proponents of the new restrictions say they don’t necessarily want to lock people up for their cats and dogs, but that there needs to be more societal pressure and social stigma on non-disabled individuals who break the laws. “The moral compass is gone from people,” one Minnesota resident who wants to see her lawmakers crack down on animal fraud told a local news outlet.

But at the end of the day, advocates say, much of the debate stems from people questioning both the legitimacy of an individual’s disability, and an individual’s preference to use animals as their preferred coping mechanism. National media has certainly done its part to fuel public distrust. While existing research on the benefits of emotional support animals is mixed and limited, recent stories have nonetheless taken to casting assistance animals in a notably negative light. “Therapy animals are everywhere. Proof that they help is not,” read one Washington Post headline from last summer. “The Surprisingly Weak Scientific Case for Emotional Support Animals” read another recent story in Vox.

Dietz, a disability rights attorney, says these kinds of articles are missing the point. “As a society we treat medication, like Xanax or Prozac, as a more acceptable response to anxiety and depression, even though the costs are so much more and the efficacy may not be as much,” he said. “Just as you wouldn’t ask someone, “Does your Prozac really help you?” — you shouldn’t be arguing with someone about if their dog really does provide them with mental and emotional support. The person with the disability should be the one in charge of their own health and the way they care for themselves. And as long as it doesn’t bother anyone else, an accommodation should be made.”

For Dietz, service animals are just the latest in what he sees as a long history of challenging accommodations for people with disabilities, and he says it certainly won’t be the last. “A couple of years ago, the biggest issues were parking spaces,” he said. “People debated whether a person was really disabled enough to need the parking space, and how visible does the disability need to be. In five years, it’s going to be whether the person can really smoke marijuana in their house or is that an unreasonable request? As time goes on, how we choose to treat people with disabilities and the accommodations available to them change.”

For all the hype and chaos, one team of researchers noted the lack of objective data surrounding the public’s understanding of service and emotional support animals, and decided to administer an anonymous online survey to those who do not have one of their own. Their study, published last year in the International Journal of Environmental Research and Public Healthfound that “despite the media’s focus on abuses and false representations of these dogs, most participants reported feeling the majority of people are not taking advantage of the system.”

National Labor Relations Board Finds That Cesar Chavez Charter Network Violated Federal Labor Law

Originally published in Washington City Paper on March 15, 2018.

Teachers at Chavez Prep Middle School in Northwest D.C. voted 31-to-2 to form a union last June, becoming the first unionized charter school in the city. Chavez Prep is one of four schools in the Cesar Chavez Public Charter School network, enrolling roughly 1,200 students across the District.

This month, D.C.’s charter community has had another first: a complaint issued by the National Labor Relations Board, finding that the Cesar Chavez charter network violated federal labor law, both by making unilateral changes to the working conditions at Chavez Prep instead of allowing teachers to bargain over them, and by issuing rules across all four of its schools “interfering with, restraining, and coercing employees in the exercise of rights” guaranteed under the National Labor Relations Act.

The charter network has been under federal investigation since late August, when Chavez Prep’s new union, an affiliate of the American Federation of Teachers, filed an unfair labor practice charge alleging illegal workplace activity. Now the Regional Director for the D.C./Baltimore area, an NLRB career staffer named Sean Marshall, has issued a complaint, finding merit to all of the AFT’s allegations. A trial before an administrative law judge has been scheduled for July 11th.

The AFT filed two additional charges on behalf of Chavez Prep teachers—one in December, and another in early February. Marshall’s team is still investigating these and has not yet determined if they have merit.

Christian Herr, a Chavez Prep science teacher who sits on his union’s bargaining team, tells City Paper that he and his coworkers felt the NLRB’s complaint was extremely important. This is Herr’s fifth year working at his school, and in that time he’s had four different principals, four different assistant principals, and four different CEOs.

“We’ve had just a huge amount of administrative turnover, and all that change leads to a huge amount of fatigue,” Herr says. “Just to have the NLRB say this is not business as usual, you can’t just make any change you want, that by law you have to work with us—that means a lot to us.”

But the battle doesn’t seem quite over yet.

In December, after the union filed their second unfair labor charge, Chavez Prep principal Kourtney Miller told EdWeek that her school disagrees with all of the union’s claims, and noted “they haven’t been validated by the NLRB.”

When reached for comment on the NLRB’s new determination, Chavez Prep CEO Emily Silberstein sent City Paper a lengthy statement saying they are “disappointed that the AFT is diverting attention and resources towards complaints over minor points that have no meaningful impact on our faculty and staff or on our scholars.” Silberstein insisted that the NLRB “has not validated” the union’s charges, pointing to the scheduled hearing.

Silberstein emphasized that plans to revise their charter network’s employee handbook had been in the works long before the union formed, and that “literally making a federal case out of routine and positive handbook updates is unproductive and contrary to the spirit of collegial negotiations.” She added that Chavez Prep administrators have been meeting regularly and productively with teachers to hash out their first contract.

With regards to filing unfair labor practice charges at all, Silberstein says that “complaining to the NLRB” is a “common tactic in the AFT’s playbook as the union seeks to expand its membership in charter schools.” Resolving the complaints, she added, will be costly for teachers, management, and will “diver[t] funds from students’ needs.”

It would be extremely unusual if Chavez Prep actually opted go to trial in July—something that could easily cost them (and thus, taxpayers) tens of thousands of dollars. When an NLRB regional director finds an unfair labor practice to be meritorious, the two sides reach a settlement agreement before trial over 90 percent of the time.

Silberstein wouldn’t answer whether her school was preparing to go to trial. “We don’t believe the AFT’s complaints have merit, so we will continue to challenge them by following the NLRB’s process,” she says.

Sam Lieberman, an AFT lawyer representing the charter teachers, says they are certainly open to avoiding a trial with a settlement.

Most charter schools across the country do not have unions—just 11.3 percent according to the National Alliance of Public Charter Schools. But most major cities do have more unionized charter schools than D.C. does. In Chicago, nearly a quarter of the city’s charters are unionized, and teachers at its largest chain, Noble Network of Charter Schools, have beenleading a union campaign for the past year. In Los Angeles, nearly a third of the city’s charters are unionized, and teachers at its largest charter chain, Alliance College-Ready Public Schools, are also currently organizing for a union.

Two main factors have inhibited charter organizing in D.C. The first is that there’s no state teachers union in the nation’s capital—intermediate bodies that have proved instrumental in helping charter teachers organize unions in cities like New Orleans, Philadelphia, and Detroit. And second, the Washington Teachers Union, representing 4,000 traditional public school teachers across the District, was weakened and distracted over the last decade, following the contentious tenure of schools chancellor Michelle Rhee and a long stretch of stalled contract negotiations.

For now, Chavez Prep’s union and management will continue to hold bargaining sessions to negotiate their first contract.

Kara Howard, a first-year Chavez teacher who is also part of the bargaining team, says the constant burn-and-churn of the school, with routine staff, schedule, and leadership shifts, “makes it really hard for new teachers to be effective, because you’re spending all this time just trying to figure out what’s going on.” Howard notes that a few new teachers have already left this year.

“As a new teacher who did manage to find her footing, thanks to the knowledge of my fellow colleagues, I felt like my job was to pay it forward,” she says, in reference to her decision to join the bargaining team. “This isn’t just teachers who have been around a long time who want more power, it’s about teachers being on the front line. If we’re not being supported because of constant change, and we can’t share our ideas, then we’re not doing what’s best for kids.”

Herr says he and his colleagues don’t yet know how the Chavez Prep administration will respond to the NLRB complaint.

“We hope they choose not to drag it out,” he says. “We hope they choose to do the right thing and come to the table with us, really sit down and have a conversation about how we can best support our community going forward. That’s all we’ve been asking from the get-go. By law they are required to talk to us, and we hope they see this as a clear sign.”

Betsy DeVos Is Now Fighting The Union At The Education Department

Originally published in The Intercept on March 15, 2018.
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The union reprsenting nearly 4,000 federal employees working for the U.S. Department of Education filed a complaint this week accusing the agency, run by Betsy DeVos, of union busting.

The complaint, filed with the Federal Labor Relations Authority on Tuesday, comes after the Education Department effectively declared itself free from union mandates by imposing upon the agency’s 3,900 staffers a “collective bargaining agreement” that commands no union agreement at all.

The move is a first, even for the boundary-pushing Trump administration. But DeVos has never been known for having positive relations with teachers unions. For decades prior to her joining the Trump administration, she funded politicians dedicated to weakening organized labor and backed school choice advocacy groups that depicted teachers unions as selfish enemies of deserving children.

On Friday, management officials at the Education Department informed their workers’ union, the American Federation of Government Employees Council 252, that they would no longer be bargaining with them. Instead, management issued a 40-page document the department is calling a “collective bargaining agreement.” This unilateral agreement supposedly took effect on Monday. Education Department staffers have been represented by the AFGE since 1982.

“AFGE did not agree to these unilateral terms,” said Claudette Young, AFGE Council 252 president, in a statement. “The agency has imposed an illegal document that we had absolutely no bargaining over. It’s a total attempt to strip employees of their collective bargaining rights and bust the union. This is an attempt to tie our hands.”

In an interview with The Intercept, AFGE Assistant General Counsel Ward Morrow said it’s “extremely unusual” to have to file a complaint over something like this. “You can’t even call it a ‘collective bargaining agreement’ because it wasn’t collective, it wasn’t bargained, and there was no agreement,” he said.

The new edict seeks to curtail union activity by imposing significant new rules and restrictions on the AFGE. “They take away union office space, all equipment, and we have officers who have already been locked out of the system, who are unable to access files and documents,” Young told The Intercept. Federal laptops, printers, and cellphones assigned to union members must be returned by March 26. Union office space must be vacated by April 11, unless the AFGE wants to start paying fair-market rent for its use.

Staffers who serve as union officers are now also being told that they will no longer receive paid leave for time spent performing union representational duties. “That impacts not only our salaries but our retirements,” said Young.

In a statement released Wednesday, the AFGE said stripping officers of their paid time to focus on bargaining and union duties “is like asking the fire department to operate without fire trucks or a firehose.”

The Education Department did not return The Intercept’s request for comment, but Liz Hill, a department spokesperson, told Politico that the AFGE “spent more than a year dragging its feet on ground rules negotiations without reaching any agreement, and then failed to respond in timely manner to negotiate over the contract proposed by the Department.”

According to Young, the union had been hashing out ground rules between October 2016 and December 2017. They had another meeting scheduled for this month. Their last contract was negotiated in 2013.

“We did not have any sticking points, we were not at an impasse,” she told The Intercept. “We were negotiating ground rules and making progress at every negotiating session. We don’t believe that we had anything we would not have been able to reach an agreement over if bargaining were to continue.”

The Federal Labor Relations Authority is expected to launch an investigation in response to the complaint. (A spokesperson for the labor board did not return a request for comment.) Hill told Politico that the agency’s unilateral contract “complies with all statutory requirements and maintains union members’ rights under the Civil Service Protections Act and the Federal Labor Relations Act.”

The one-sided agreement includes a number of obvious deficiencies, union members said. For one thing, it’s not signed by anyone in the union. “In order for any contract to be legally binding, it must be illustrated by a signature,” said Sharon Harris, national executive vice president for Council 252. The document also uses the union’s logo on its front cover. “They didn’t get permission from AFGE to use that, and it gives a false perception that this was a joint agreement between management and the union,” Harris added. Moreover, the document includes a preamble which states:

The following articles of this agreement constitute a total and complete agreement on the subjects addressed in the articles, by and between the U.S. Department of Education … and the American Federation of Government Employees …

“Their preamble states they reached an agreement with our union, which they did not,” said Young.

use this

cover of the new ‘agreement’

DeVos has avoided the AFGE’s attempts to sit down in person, according to union leaders. They say they have made numerous attempts to schedule meetings with the education secretary, to no avail. Specifically, they say there have been at least three emails sent to her schedulers, and two in-person requests.

“I saw her once, made an earnest effort to step forward and introduce myself and request a briefing, and she said, of course, send it to her scheduler, and we’ll put it on the calendar,” said Harris. “We got receipt of our request but never actually anything scheduled.”

Radio show on Janus v. AFCSME and striking teachers

I was kindly invited onto a California radio show, Beneath the Surface, yesterday to talk about recent happenings in the world of labor — namely the Supreme Court case challenging public sector union agency fees and the recent West Virginia teacher strike  and potential teacher strike in Oklahoma.

I was joined by Shaun Richman, a regular source of inspiration for my labor stories.

Can listen here: http://archive.kpfk.org/index.php?shokey=bts_friday

Teacher Unrest Spreads to Oklahoma

Originally published in The Intercept on March 6, 2018.
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Last summer Teresa Dank, a third-grade teacher in Tulsa, Oklahoma, gained national attention after she began panhandling to raise money for her classroom. Like many other teachers in a state with some of the lowest education spending in the country, Dank was at her wit’s end. Her frustration came to a head two weeks ago, following yet another failed legislative attempt to increase teacher pay. And so she started an online petition, asking for signatures from those who would support a walkout by teachers. Soon another Oklahoma teacher named Alberto Morejon launched a Facebook group to mobilize fellow educators for a walkout, quickly drawing tens of thousands of members.

The increasing momentum for a strike in Oklahoma comes as a strike by West Virginia teachers entered its ninth consecutive school day on Tuesday. State lawmakers, hoping to bring the strike to an end, reached a deal on Tuesday morning to raise all state employee salaries by 5 percent. Oklahoma’s 42,000 teachers make even less than their West Virginian counterparts; in 2016, the average Oklahoma teacher earned $45,276, a salary lower than that of teachers in every state except Mississippi. With no pay increases for Sooner State teachers in a decade, educators have been leaving for greener pastures, moving to neighboring states like Arkansas, New Mexico, Kansas, and Texas. Last May, Shawn Sheehan, Oklahoma’s 2016 Teacher of the Year, announced that he would be moving to Texas for more financial stability.

As it so often goes, when times are tough for teachers, times are also tough for students. Per-pupil spending in Oklahoma stands at $8,075, among the lowest in the country and lower than all of Oklahoma’s neighboring states. The Center on Budget and Policy Priorities puts Oklahoma’s cuts to general education funding since the recession as the highest in the nation, with 28 percent of the state’s per-pupil funding cut over the last decade. Things have gotten so bad that nearly 100 school districts across the state hold classes just four days a week to save money.

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Strikes by Oklahoma school employees are technically illegal, but educators have found a legal work-around. If school districts shut down, then that’s a work stoppage that doesn’t involve teachers walking off the job. Many superintendents across the state have already come out in support of closing down schools if the teachers decide to move forward with their strike.

Teachers point to a four-day strike from nearly three decades ago, when more than half of Oklahoma educators stayed home from school. This successful 1990 protest prompted the legislature to raise teacher pay, institute class-size limits, and expand kindergarten offerings.

“Nothing else has worked over the last two to three years, so at this point teachers, parents, and community members are desperate for a solution,” said Amber England, a longtime Oklahoma education advocate. “This is what they’re thinking is the last resort. They don’t want to do it, but they really don’t feel like they have any other option.”

Why Aren’t Teachers Getting a Raise?

Educators were optimistic that things were going to change in 2016. The Republican-controlled legislature promised it’d pass a teacher pay increase, but in the end they failed to get anything done. Later that same year, a high-profile ballot initiative went before voters to increase the state sales tax by 1 percent, to give all teachers a $5,000 pay increase.

But that measure also ended up failing miserably, garnering just over 40 percent of the vote. Republicans in the state opposed taxes going up, and many Democrats also opposed the measure because a sales tax would have hit the poor the hardest.

In 2017, the legislature promised yet again to pass a teacher pay raise, adjourning in the end with nothing to show for it. A measure to raise teacher and state employee salaries funded by a tax on cigarettes, motor vehicle fuel, and beer failed 54-44 in October.

“Time after time, there’s just been terrible cuts, broken promises, and no legislative action or leadership,” England told The Intercept.

Just like in Kansas, Oklahoma’s leaders have been slashing taxes, finding that this then leaves them with less money to fund basic government services.

Aside from reducing income taxes for its wealthiest citizens in 2013, Oklahoma legislators voted in 2014 to extend major oil industry tax cuts that were set to expire in 2015. The drilling tax, known as the “gross production tax,” or GPT, had been set at 7 percent in the 1970s, but in the early 1990s, when horizontal drilling first came on the scene, the then-Democratic controlled legislature reduced it down to 1 percent, to help encourage experimentation with the new technology.

Mickey Thompson, who worked as the president of Oklahoma Independent Petroleum Association between 1991 and 2005, told The Intercept that the GPT reduction was important back then because horizontal drilling was “really new, untested, unproven, and expensive.” Thompson helped push for the tax reduction in the ’90s, but today has become one of the state’s most vocal advocates for raising it back up to 7 percent, because, he said, by now everyone knows that horizontal drilling easily pays for itself. “These cuts were never supposed to be permanent,” Thompson said.

The GPT was supposed to return back to 7 percent in 2015, but Republicans instead made the tax cuts permanent at 2 percent, a notably lower rate than other oil-producing states.

The Step Up Plan

Following all the legislative failures and the ballot measure failure, a group of influential business leaders in Oklahoma got together in December to formulate a last-ditch effort to push something through. The elite bipartisan coalition, dubbed Step Up Oklahoma, unveiled their proposals in January, advocating modest revenue hikes on GPT, motor fuel, cigarettes, and eliminating a few income tax deductions. Hailed as a grand compromise, the Step Up plan would have generated enough revenue to give all teachers a $5,000 pay raise. All five of Oklahoma’s former living governors endorsed the plan, as did the state’s teachers union 

But when legislators voted on the package in mid-February, it too failed, with 17 Democrats and 18 Republicans voting against the measure. Some Republicans argued this was Oklahoma’s last real shot at reaching a compromise this year, but other Democrats said they don’t buy that this is the best deal they could reach.

Rep. Forrest Bennett, a first-term Democrat representing Oklahoma City, was among those who voted against the Step Up plan.

“There was a hell of a lot of pressure on us to pass it, and I’ve gotten a lot of shit for voting no, but this package was pretty flawed from the start,” he told The Intercept. Bennett noted that aside from teacher pay increases, the Step Up deal contained a number of regressive taxes and pushed only for doubling the GPT up to 4 percent.

In October, a new nonprofit, Restore Oklahoma Now, formed to push for a 2018 ballot measure that would hike the GPT back up to 7 percent and direct the majority of new revenue to schools and teachers. That effort is being led by Thompson, the former OIPA president.

“We felt we needed to get GPT to at least 5 percent,” Bennett explained. “We were being dictated to by this private business owner group, and as long as that 7 percent ballot initiative is looming, we think we will have more opportunities to push for alternatives.”

England, who had been helping the Oklahoma Education Association mobilize support for the Step Up plan, emphasized that it’s been increasingly difficult to reach any sort of bipartisan agreement. “Compromise is not the politically correct position anymore,” she told The Intercept.

Strike As a Last Resort

For many teachers, the legislature’s failure to pass the Step Up plan was the last straw. Dank launched her petition a week after the failed vote, capitalizing on the frustration of thousands of teachers whose classrooms have been underfunded for far too long.

Different dates are floating around for a potential strike. One scenario is to strike on April 2, the same time that students are scheduled to take their mandatory standardized tests. Failing to take those tests could mean Oklahoma sacrifices millions of dollars in federal funds. Organizers are calling this the “nuclear option.” Another possibility is to shut down schools the week following spring break, which would be the week before standardized testing. The Oklahoma Education Association plans to hold a press conference Thursday afternoon to unveil a “detailed revenue package and a statewide closure strategy.” NewsOK, a local news outlet, reported that nearly 80 percent of respondents to an online survey administered by the Oklahoma Educators Association voiced support for school closures to force lawmakers to increase educational investments.

Thompson, the leader behind the GPT ballot initiative, worries a teacher walkout will damage public support for educators in the state. “I think a majority of teachers understand what we’re trying to do [with our initiative], but their morale is very low, and they are beyond frustrated,” he said. He acknowledges, though, that his concerns “are falling on deaf ears” and that “teachers are ready to try anything.”

For his part, Thompson thinks the ballot initiative he’s leading stands a better shot at passage than the failed 2016 penny tax. “Teachers have gone two more years without a pay raise, and the public has been talking about it for all this time now,” he said. “There is just more public support for a teacher raise than two years ago.”

Thompson also thinks the fact that his proposed ballot initiative would raise revenue without raising taxes on everyone else will help secure its passage. “Conservatives don’t want to raise state sales tax, liberals don’t want a regressive tax, but our deal is not a sales tax — it’s a tax on the oil and gas industry, trying to take away their sweetheart deal that was passed 20 years ago,” he said.

Their ballot initiative isn’t a done deal yet, though; they haven’t even begun collecting the necessary 123,000 signatures. Last week, they defended their ballot initiative at Oklahoma’s Supreme Court, and now they’re waiting for the court’s approval to move forward.

“The court can take as long as they please to give us a decision on whether we’re valid or whether we’re kicked to the curb,” Thompson explained. “We’re not officially a ballot initiative until we get their approval, but we’re feeling confident.”

Democrats remain convinced that all the mounting pressure will create more opportunities for lawmakers to push forward alternative revenue packages this legislative season. Bennett said the threat of a 7 percent GPT ballot initiative, a statewide teacher walkout, and a potential blue wave for Democrats across the country in November, will help keep pressure up in the legislature.

“The Step Up coalition made people feel like their deal was the last shot, but it’s not,” he said. “What they did do was engage a lot of people, and now a lot more are really frustrated and are paying attention.”