How state governments are reimagining American public housing

Originally published in Vox on August 4, 2022

What if one of the answers to America’s housing crisis is something that’s been staring us in the face?

Public housing — but not exactly the kind most people think of.

Even before the pandemic, the nation had too few homes available to buy or rent. Housing prices were eating up bigger chunks of people’s budgets every year — and that was all before inflation started wreaking havoc on American bank accounts. Now, with the Federal Reserve hiking interest rates to try to rein in inflation, one unfortunate but entirely predictable consequence is a reduction in home construction. With mortgage rates going up, fewer people are looking to buy, which means fewer private developers are launching projects compared to a year ago, unwilling to risk not landing a buyer. Housing experts warn that the longer this all drags on, the harder it will be to get new projects started later, worsening an already serious housing shortage.

To prevent this grim spiral, a small but growing number of analysts and lawmakers are turning their sights to an idea that has fallen mostly out of favor over the last 50 years: what if the government steps in to develop its own housing? Specifically, state and local governments.

In June the Rhode Island legislature approved $10 million in its state budget for a new pilot program to build mixed-income public housing. It’s one of several state and local governments starting to get into a game that’s historically been the federal government’s purview.

K. Joseph Shekarchi, a Democrat who serves as the state’s powerful House speaker, pushed to include this funding as one way to tackle Rhode Island’s affordable housing crisis. “I think housing authorities in Rhode Island are one of the best-kept secrets. They produce clean, affordable, low-income housing that are really well-maintained and high quality,” he told Vox. “So with this $10 million, we want to see if there’s an appetite for incentivizing housing authorities to increase their housing stock.”

Governments have successfully addressed past housing shortages through publicly developed housing in places like ViennaFinland, and Singapore, but citing these examples often leads to glazed eyes and weary skepticism that such models could ever work in the US, with our more meager welfare systems and our strong cultural attitudes toward private homeownership. America’s 958,000 units of federal public housing have also long suffered from reputation problems both real and exaggerated, with many seen as ugly, dirty, or unsafe. Few understand that many of the woes of American-style public housing have had to do with rules Congress passed nearly 100 years ago that predictably crippled its success and popularity, rules like restricting the housing to only the very poor.

“There’s just real skepticism that governments can do things well, and there’s the stigma of American public housing driven by racist and classist policy choices that have undermined public housing here in ways that European and Asian public housing programs have not,” said Alex Lee, a California state representative, who introduced a bill this year to create new publicly owned mixed-income housing.

Lee prefers the term “social housing” — to help differentiate his vision from the segregated, income-restricted, and underfunded public housing that has defined the American model. “But just because there were mistakes made doesn’t mean we’re doomed to repeat them,” he added.

Lee’s legislation commanded wide support from powerful constituencies in California, and passed through both his chamber and the state Senate’s housing committee. Though his bill is now stalled out, experts say it went farther than anyone expected on its first try, and Lee has pledged to keep pushing next year.

In Colorado, lawmakers just passed a bill creating a new state office to develop 3,500 new housing units targeted to middle-class families. And in Hawaii, lawmakers recently passed several bills that make it easier for the state to build mixed-income condos with 99-year leases, similar to how public housing works in Singapore.

But where this model may already most clearly demonstrate the government’s power to increase housing supply is in Montgomery County, Maryland — a suburb just outside Washington, DC. The local public housing authority there is on track to build nearly 9,000 new publicly owned mixed-income apartments over the coming years, by leveraging relatively small amounts of public money to create a revolving fund that can finance short-term construction costs. One of their initial projects — 268 new apartment units located near a planned bus rapid transit line — is set to be finished this year.

“What I like about what we’re doing is all we have effectively done is commandeered the private American real estate model,” said Zachary Marks, the chief real estate officer for Montgomery County’s housing authority. “We’re replacing the investor dudes from Wall Street, the big money from Dallas.”

State and local governments don’t have the best track record at quickly spinning up new affordable housing, and most public housing authorities lack staff like Marks, experienced in this kind of real estate acquisition. But the public sector can start with acknowledging they have the tools and resources that make it easier to build even in weak economic periods, plus no voracious investor to satisfy at the end of a project. Governments could even step in now to buy half-finished housing from companies that suddenly find themselves unable to make their financing math work.

While Montgomery County is a liberal area in a blue state, Marks notes there’s nothing about what they’re doing with the Housing Production Fund that heavily relies on government subsidies, which is typical of traditional affordable housing projects. “This kind of project is better for the taxpayer, it avoids a concentration of poverty, and it’s very capitalist in my view,” he said. “A lot of this is just convincing governments that you don’t even know how powerful you actually are.”

States can become public developers in different ways

When Meghan Kallman was first elected to the Rhode Island state Senate in 2020, she knew she wanted to focus on housing. The pandemic had intensified housing insecurity in her district, and Rhode Island ranked near the bottom nationally for building new units. And while an early 1990s law already required every Rhode Island city and town to have at least 10 percent of its housing be affordable to low and moderate-income households, only six out of 39 municipalities actually met that target in 2020.

Kallman said this all showed more aggressive state action was needed. With the backing of Reclaim RI, an activist group formed by leaders of Bernie Sanders’s 2020 presidential campaign, Kallman proposed the Create Homes Act, legislation to launch a new state agency that could build, own, and operate housing.

The idea, Kallman explained, is to have an agency that could develop plans not only for increasing housing supply but also for maintaining and repairing existing housing stock. She introduced it near the end of this year’s session, and though it didn’t pass, it picked up significant support, including Rhode Island’s Senate President Dominick Ruggerio. Kallman thinks they’re well positioned to get it over the finish line in 2023.

“What would it look like to have a system where rental units are state-administered, and it falls into the category of a public good that people can avail themselves of?” she asked. “I think that’s a really interesting proposal and something I’m really excited to support and see how it works out.”

Andrew Friedson, a Montgomery County councilmember who has been leading efforts in Maryland to address his region’s housing shortage, told Vox he’s been supporting the public development idea because “there is now much broader recognition and understanding” that governments have to be more aggressive. “The status quo and even marginal improvements are not going to come anywhere close to meeting the need,” he said.

Indeed, states typically have not attempted any of this. While states since the 1980s have taken a leading role in funding and administering affordable rental housing, developing and owning mixed-income housing has not been something governments in the US have done, or even seen as their responsibility.

Mark Shelburne, a national housing policy consultant, said the public developer idea holds promise. “It’s pretty rare that someone actually has a truly new idea in this space,” he said. “Pretty much every idea out there has already been said before — and who knows, maybe at some point in history someone had this same concept and we’ve all just forgotten — but I will say this does seem like a new idea today.” Shelburne added that the concept “absolutely can be viable” if the authorizing legislation is set up properly and flexibly.

Paul Williams, the founder and director of the Center for Public Enterprise, a recently launched think tank, has been leading efforts to promote the idea of state and local public housing developers.

It’s not an immediate fix — “getting out of this mess will take no less than 20 years,” he wrote in an essay last August on solving the housing crisis — but it’s one of the only viable solutions he sees.

“Congress is not going to fund new public housing, we can’t even get them to fund the capital backlog,” Williams told Vox, referring to the billions of dollars needed for outstanding repairs and maintenance of existing federal housing units. “So getting local and state governments to create public enterprises to do public development is what I see as the way to move this forward.”

States are rediscovering their self-interest

Why did states retreat from developing their own affordable housing, anyway? Part of the reason is that the federal government stepped up to the plate, with the Housing Acts of 1937 and 1949, and establishing the US Department of Housing and Urban Development in 1965. States and local governments were happy to let HUD take over, but when federal public housing started to lose support in Congress in the 1970s, and the Reagan and Clinton administrations slashed HUD’s budget in the ’80s and ’90s, there was no real state and local infrastructure around to fill the void.

Shekarchi, the Rhode Island House speaker, noted that housing has always been a difficult and complicated issue, and on the local level, many communities balk at any hint of affordable housing construction and associated tax increases. “Many people don’t want it because they think affordable housing means more traffic or diminishing of home values or crime or drugs or low-income people,” he said. “And I think state government is reflective of those views. We have two-year election cycles and legislators are reflective of the public.”

But despite these NIMBY attitudes, some local policymakers are beginning to recognize their own self-interest in stepping up on housing development, capitalizing on tools and public ownership that can create value and be reinvested into the community.

“Both because we don’t have to meet the private sector return requirements, and because it’s much easier to set policy on things that you own, all of that [revenue] just gets poured back into overall housing production and operation,” said Marks, of Montgomery County. “A lot of the time I’m talking to people about the short-term benefits [of our development model], but frankly the biggest benefit is that value that we’re creating very slowly over 20 years, so that the people sitting in my chair in two or three decades will have a ton of resources that can be realizable by them then, to continue the mission.”

Stanley Chang, a state senator in Hawaii who has been leading efforts in his state to promote social housing, says he spent a lot of time visiting places like Vienna and Singapore to understand regions that actually solved their housing shortages. “I’m not arguing we should copy-and-paste but I do think we should learn the lessons from these places,” Chang said.

Kallman, the Rhode Island state senator, says she doesn’t view her proposed public developer bill as a revenue generator for the state, though she acknowledges it could indeed turn out to be one. “For me this is primarily about the state stepping up,” she said. “To solve a housing problem that is affecting huge numbers of people.”

Campaigns may have lost their most effective — and annoying — outreach tool

Originally published at Vox.com on July 19, 2022

Text messaging — with their markedly high “open rates” — is an especially potent form of political outreach: Since 2016, texting has become one of the most appealing ways for campaigns to engage voters or supporters, especially as so many have ditched their landlines.

But as part of a broader effort to crack down on the fast-growing problem of spam calls and texts, mobile carriers like AT&T, T-Mobile, and Verizon have been rolling out a new policy that affects any business, nonprofit, union, or campaign that intends to send at least 3,000 messages per day.

It means that political campaigns and advocacy groups have fewer rights to text you, if you haven’t affirmatively opted in to receive the messages — and it’s causing distress among those groups ahead of the midterms.

The changes — known as “10DLC” for the 10-digit long codes that high-volume businesses and apps use to text local numbers — will require organizations to register with the Campaign Registry, a subsidiary of the Milan-based communications firm Kaleyra. Carriers will impose higher messaging fees and slower delivery rates for any group that fails to register, and in some cases block them from delivering messages altogether.

Every registered group must also limit their texts only to users who have opted-in to receive them, a massive change from the status quo. Progressive groups warn this new requirement will yield dire democratic consequences — particularly for the most marginalized who are typically ignored by elites and politicians. Others suggest these groups have grown too reliant on unsolicited texting, and that it’s not essential to successful mobilization.

Campaigns had a preview of what the future might look like if they fail to comply with the new 10DLC rules. Last month, a Democratic National Committee texting campaign, meant to notify voters that it was primary day, provide them with information on making a voting plan, and invite them to attend a free virtual training on mobilizing others, was suspended after at least five recipients of the roughly 50,000 registered complaints about the unsolicited blasts.

Recipients of the DNC texts had been invited to opt-out of future messages by texting back “stop,” and the DNC said their records indicated that everyone they texted had expressed interest in receiving the messages either by opting in or having affirmatively engaged with the committee before in other ways. Still, the handful of complaints triggered an audit, and the committee’s ability to send messages from that particular number is still suspended.

“This shutdown … is nothing less than the silencing of core political speech at the hands of a private company pursuant to an ambiguous, unwritten policy,” DNC executive director Sam Cornale wrote in a letter to the CEOs of AT&T and T-Mobile. “As we have explained, in the wake of unprecedented voter disenfranchisement efforts, text messages have become a critical tool in combatting misinformation and attempts to disenfranchise in real time. … The health of our democracy demands you act now to change this harmful policy.”

Scott Goodstein, who led Barack Obama’s pioneering texting program during the 2008 cycle and was the lead digital adviser to Bernie Sander’s 2016 campaign, said the Democratic committees’ defense of unsolicited messages is short-sighted.

“The DNC has no incentive to think about this differently,” he told Vox. “Spamming fundraising donor lists works and helps politicians raise a few extra bucks, but spamming low-turnout voters may not help these politicians communicate with this transient but critical portion of the electorate. What if we went into these communities and held different events to get opt-in? It’s a lot more work but that’s the point. They’re thinking short-term and not long-term.”

10DLC is the mobile carrier solution to spam text messaging

There’s little question anymore that people are being flooded with unsolicited texts: Aside from just being annoying, government agencies say the increased spam is leading to higher rates of fraud. In 2020, criminals stole at least $86 million through frauds originating in spam texts — with examples like targeting seniors on Medicare, claiming to offer extended warranties for cars, or impersonating Covid-19 contact tracers. The median amount customers lost was $800.

In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) to stop robocalls and auto-dialers that contacted individuals without their consent. But organizations that send texts have been able to operate in a legal gray area, by having individuals press “send” on mass-texting tech platforms — thus blurring the line between automated and human outreach.

Mobile carriers say their new 10DLC policy is a response not only to customer dissatisfaction but also to a political climate that’s been urging more serious intervention.

Sen. Richard Blumenthal and Rep. Raja Krishnamoorthi, both Democrats, wrote separate letters to the Federal Communications Commission over the last year urging greater attention and action on the issue of spam calls and texts.

The 10DLC policy was supposed to be rolled out last year but was delayed following requests from members of Congress to wait until after the 2021 elections. The changes took effect in March.

Mike Donoghue, the co-founder and CEO of Subtext, a company that connects media organizations, artists, and other creators with audiences over text, said his company has welcomed 10DLC and thinks it will help build and retain trust with the public.

“A lot of other players have tried to ignore it or pretend it’s not going to happen but it’s already happened and we’re not going back,” he told Vox.

Goodstein, who now runs a progressive digital marketing agency called Catalyst Campaigns, says he doesn’t actually believe the 10DLC regulations will be effective in controlling political spam texts, in part because the penalties are so weak and there’s little stopping a company from just contacting individuals who complain or opt-out from a different long-code number.

“It’s just whack-a-mole with 10DLC until there’s real pain,” Goodstein said, noting that with CAN-SPAM, a 2003 federal law passed to block unsolicited email, violators faced hefty fines, prosecutions, and even jail time. “Which is why you didn’t get spam from Pizza Hut,” he added.

Advocates warn 10DLC will lead to voter suppression

Progressive advocacy groups and Democratic campaign leaders have been working for over a year to try and convince mobile carriers to exempt them from 10DLC rules. Democratic lawyers have thus far urged federal campaigns to not register, in part to avoid conceding the point that 10DLC should include political groups.

In a letter sent to the CEO of AT&T, Congressional Black Caucus PAC chairman Rep. Gregory Meeks argued that the proposed 10DLC policies “will lead to the disenfranchisement of minority voters across the country” by limiting their ability to do voter education outreach.

And in February, in joint letters to T-Mobile and AT&T’s CEOs sent by the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, the Democratic Governors Association, the Democratic Legislative Campaign Committee, and the DNC, the executive directors collectively urged against implementing the opt-in requirement for political texts.

Doing so “would have catastrophic implications for the ability of political parties, candidates, and other political committees to engage with their volunteers to communicate regarding voter education, GOTV messaging, and other essential political speech,” they wrote. “You are proposing to drastically curtail political expression at the core of our democratic system, speech that is at the very heart of First Amendment protections.”

The executive directors pitched what they saw as a compromise plan, where political campaigns and committees would still register with the Campaign Registry, but not be subject to any opt-in requirement so long as they give individuals the option to opt-out. Requiring opt-in “would undermine our democratic process and hinder access to the polls,” they wrote.

Five months later, on July 12, Anthony Russo, vice president of legislative affairs for T-Mobile, wrote back rejecting this idea, saying requiring opt-in is essential to protecting customers. “There is no confusion about this requirement — simply unwillingness to abide by it,” Russo wrote. “While many political, civic-oriented, and other non-profit organizations have the laudable intentions, T-Mobile’s primary concern is for its customers and ensuring they receive only those messages they want to receive.”

Elvin Bruno, the director of mobile fundraising at Grassroots Analytics, a firm that helps Democratic candidates raise money, told Vox the rollout of 10DLC has had a dramatic impact on campaigns so far, especially smaller campaigns on the local and statewide level.
“The regulations have been inconsistent, poorly communicated, and all the deadlines and dates have changed,” he said. “I can’t stress enough how bureaucratic and unclear it has been to navigate, even for folks like us who are working with the largest political operations in the country.”

Republican campaigns haven’t made as much noise against the proposed regulations, though they say 10DLC is part of a larger threat rooted in the power of technology companies to discriminate.

“From Google suppressing Republican GOTV and fundraising emails to mobile carriers censoring and policing political speech, Big Tech is blatantly trampling on First Amendment rights,” said Emma Vaughn, a spokesperson for the Republican National Committee. “Republicans will continue leading the fight to protect our rights against Big Tech billionaires. For them, it’s all about power and control — if they can silence political candidates, they can silence you.”

Mobile carriers, and their trade association, CTIA, say they’ve continuously engaged with political groups and collected feedback throughout the process, but stand by 10DLC and enforcing industry best practices.

“We believe customers should be able to control which entities send them bulk text messages, which is why we’re requiring bulk message senders to acknowledge they have recipients’ consent before participating in our program as a registered sender,” said Alex Byers, a spokesperson for AT&T. “This approach enables customers to receive messages they want and protects them from unwanted robotexts.”

When asked about the concern about blocking get-out-the-vote text messages ahead of the November election, Byers noted that customer complaints are the primary metric carriers would look at to determine if a message is unwanted or spam. “Our experience is that informational texts like these would be highly unlikely to generate many complaints,” he said.

Donoghue of Subtext thinks the professed concern that 10DLC will inhibit voters from learning things like changes to their polling location are largely smokescreens, and most political groups simply resent the idea that they should get consent before texting.

“If you randomly sampled 10 text messages from a given campaign, I suspect the vast majority are going to be asking people to do something, like signing a petition or making a donation,” Donoghue said. “But campaigns shouldn’t want to send messages that people find annoying. I think a lot of folks are starting to realize that.”

The FCC has flipped-flopped on the issue, though more federal intervention may be coming

Back in 2012, Goodstein and his firm Revolution Messaging petitioned the FCC to clarify that the Telephone Consumer Protection Act did not distinguish between emails that turned into texts, and regular texts. This was a texting loophole popular at the time, and Goodstein saw his crusade as a consumer protection mission, given that individuals pay for the cost of receiving text messages, unlike receiving political flyers in the mail, or emails. Even if your phone plan includes unlimited texts, senders are not privy to that information ahead of time.

In late October 2012, just before the presidential election, a Virginia marketing firm that had represented Republican candidates began sending out anonymous texts with attacks against Barack Obama. “If re-elected, Obama will use taxpayer money to fund abortion. Don’t let this happen,” read one of the messages. “Medicare goes bankrupt in 4000 days while Obama plays politics with senior health,” read another. By using the email-to-text loophole, the marketing firm was able to bypass the TCPA requirement for opt-in consent. When reporters eventually figured out who was behind the unsolicited texts, the founder of the firm claimed they were exercising their First Amendment rights.

In 2015, then-FCC chair Tom Wheeler finally ruled on the petition, and clarified that “consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers.” It was a win for Goodstein and those who believed political texts without opt-in consent were TCPA violations and simply unethical.

But in 2018, the P2P Alliance, a coalition of providers and users of peer-to-peer (P2P) text messaging, filed a new petition with the FCC, asking for exemption from TCPA’s rules. In June 2020, the FCC, chaired by Ajit Pai, issued a ruling affirming P2P was distinct from autodialing, a win for campaigns and advocacy groups that wanted assurance they could contact people without opt-in consent.

Goodstein says the FCC must reverse this decision and close the loopholes that allow political spammers to run amok. The new 10DLC rules, he believes, won’t be enough to stop bad actors. The P2P Alliance spent over $130,000 lobbying in 2021, and over $50,000 this year.

Representatives from the Democratic political committees welcome the FCC’s attention in this area, but they say expecting action ahead of the 2022 elections is unrealistic.

Will Wiquist, an FCC spokesperson, pointed to a proposal the agency’s chairwoman, Jessica Rosenworcel, circulated to her colleagues last October. Rosenworcel proposed launching a rule-making process to require mobile wireless providers to block illegal text messaging. If adopted, the rule-making would explore steps like network level blocking and applying caller authentication standards to text messaging.

“The item has yet to be adopted and remains up for a vote by the full Commission,” said Wiquist.

Heading into November, some progressive advocates and Democratic leaders say the 10DLC rules pose an existential threat to a free and fair election. Restrictions on text messages will enable more voter suppression, they warn, and opportunities for misinformation to spread, unchallenged. Goodstein says the opposite is true, that allowing unsolicited political texts to flow freely will annoy people to the point where they just tune out everything.

“Just like sending hundreds of robocalls a few days before elections, some portion of these undecided voters are going to become disenfranchised,” he said. “They’ll be confused on what to believe, and less motivated to engage.”

School funding lawsuits are long, frustrating, and crucial for fighting inequality

Ever since the mid-1980s, policymakers and researchers have debated the question of whether public school funding really matters. Yes, some school districts have more money per student, but is it money that helps improve student achievement or is it better teachers? Is it increased spending that boosts test scores or higher-quality curriculum and nicer facilities?

Both Republicans and Democrats have capitalized on the debate when it proved convenient, suggesting maybe schools were getting too much and needed to embrace their favored policy reforms instead.

If this all sounds rather silly to you, you’re not alone. Money pays for teachers, after all. For facilities. For textbooks and technology. Thankfully, decades of research has mounted to push the tiresome debate in a much more constructive direction. A raft of studies now show sustained increases in school funding lead to better outcomes for students, as measured by higher test scores, higher graduation rates, and even higher wages.

It’s still not entirely clear where said funding increases should go. More tutors? After school programming? Music programs or athletics? But spending too little overall, researchers feel confident in saying, will hurt kids’ chances.

Armed with this knowledge, advocates for public schools still face a problem. How do you get state legislators to spend more on education? While school funding is a mix of local, state, and federal dollars, the least amount comes from the federal government. Local communities can raise property taxes, but most cities can only tax their residents so much, and relying on local taxes alone is a surefire way to ensure schools in rich areas are better off than schools in poor ones. States, therefore, play an important role, but as any education activist can tell you, it can be awfully hard to get state lawmakers to act without pressure.

That’s where state school funding lawsuits come in. Since 1973, the Supreme Court has held there exists no federal right to an equal education, so lawyers and advocates have turned to arguments based on state constitutions instead. These cases, where students or parents or even school districts themselves sue for more funding, have emerged as a key way to get more money into low-income schools. “Very few major changes in school funding have ever taken place without judicial action,” said David Knight, a professor of education finance at the University of Washington College of Education.

But these cases take years to litigate, are hard to win, and even if a plaintiff does win, state lawmakers often drag their feet on remedies, leading to even more protracted court battles. As of 2019, as tallied in the book A Federal Right to Education, plaintiffs prevailed in school funding lawsuits in a state’s highest court in 23 states and lost in 20 states.

A new school funding lawsuit, first filed in 2014, will soon be decided in Pennsylvania. The outcome matters not only for families in Pennsylvania but for school advocates nationwide who are trying to decide if these cases still make sense for them to pursue. While the lawsuits tend to be highly state-specific, some legal experts say that judges have signaled something of a retreat in enthusiasm for intervening in public school finance over the last decade, though there are enough counter-examples (like in Kansas and New Mexico) that it can be hard to draw firm conclusions.

“Pennsylvania will be a real bellwether on future cases,” said William Koski, a Stanford professor who focuses on education law and policy. “It’s why it’s being so closely watched by folks around the country.”

Even the defense concedes more money would help Pennsylvania students

One of the key ways states can mitigate school inequity is by distributing more money — reducing reliance on local property taxes to drive dollars into classrooms. But Pennsylvania ranks 45th in the nation for its state share of funding for K-12 education, picking up 38 percent of the costs to educate kids compared to a national average of 47 percent. “Pennsylvania has long been one of the most inequitable states in the country,” said Bruce Baker, a Rutgers University professor specializing in education finance.

“Taxable wealth varies dramatically among school districts,” Katrina Robson, an attorney for the plaintiffs, explained in court. For example, she said, if the small rural Shenandoah Valley district, one of the plaintiffs, taxed at nearly double the average rate in the state, it could still only raise about $4,000 per student. New Hope-Solebury in Bucks County, by contrast, could tax at the average rate, and raise upwards of $21,000 per student.

Matthew Kelly, an education professor at Penn State University, testified that his analysis showed the wealthiest school districts in Pennsylvania spend $4,800 more per student than the state’s poorer districts, and school districts would need an additional $4.6 billion to meet a target for adequate funding set by the state.

In practical terms, funding disparities can lead to situations like some kindergartners only getting 15 minutes of recess per day because a school can’t afford more staffing. Nonwhite students from low-wealth districts are nearly twice as likely to be taught by inexperienced teachers.

Defendants argued that even if disparities exist across Pennsylvania, students still receive more on average than children in other states, as Pennsylvania ranks near the top nationally in per-pupil spending. “The narrative that Pennsylvania drastically underfunds education is simply not accurate,” said a lawyer for House Speaker Bryan Cutler in court.

The lawyer also pushed back on the idea that a judge should intervene in education policy decisions. “You cannot conflate things that are nice to have with what the Constitution requires,” he argued. “Not funding a weight room is not unconstitutional.” In other instances, the defendants criticized the way the petitioner school districts spent the funds they did have, like on iPads instead of on cheaper Chromebooks.

In one of the most staggering but revealing parts of the trial, lawyers for the defense questioned why a school district needed to provide high-quality course offerings to all of its students anyway. “What use would a carpenter have for biology?” a defense lawyer asked. “What use would someone on the McDonald’s career track have for Algebra 1?”

The plaintiffs feel the four-month trial, which ran between November and March, went well, with even the defense’s key expert witnesses conceding that increases in spending can help students.

Eric Hanushek, a Stanford economist, has long argued that increased spending does not necessarily lead to improved benefits for kids, though his claims have largely rested on decades-old studies with crude methodologies. Hanushek mostly dismisses the more empirically rigorous research that has emerged in the 21st century, so much so that Baker calls Hanushek “education’s merchant of doubt.”

“I believe that money can matter,” Hanushek said in the trial. “It probably, at times, matters. The problem is that we don’t know when it’s going to matter.” He acknowledged that if districts “use our resources well” they can successfully educate low-income students.

A decision in the trial could come later this fall.

These cases turn largely on local political conditions and individual judges

Education historians analyze the history of school funding lawsuits in three waves. The first wave of litigation was relatively short — from 1971 through 1973 — and hinged on the 14th Amendment’s equal protection clause. Lawyers successfully made this argument in two federal district courts and in California’s Supreme Court, but the US Supreme Court rejected it in its San Antonio Independent District v. Rodriguez decision.

So lawyers and advocates pivoted. In the second wave of lawsuits, from 1973 to 1989, they made arguments that school spending systems were unconstitutionally inequitable, and relied heavily on state education provisions to make their case. This wasn’t the most successful era, with plaintiffs winning in only seven out of 22 final decisions. Though of those states where plaintiffs did win, according to Koski, per-pupil spending did become more equal across school districts and more targeted to less-wealthy areas.

The third wave began with Kentucky’s Supreme Court decision in 1989 and continues through today. Rather than arguing for “equitable” or “equal” education, advocates have found success arguing that state constitutions guarantee all students an adequate level of education. Framing arguments around minimum levels of “adequacy,” lawyers have found, appeals to political values around ensuring opportunity and seems to offer more deference to those sympathetic to local control arguments. There’s no doubt that politics play a significant role in the success or failure of these trials.

“These cases are all political,” Koski said. “Politics matters more than constitutional language.”

It should be noted, though, that simply winning a case does not mean the actual remedy will be good or will not lead to new problems.

In Washington state, plaintiffs won their state school funding lawsuit in 2012, with the state Supreme Court ruling the legislature had failed to meet its constitutional duty for the state’s 1.1 million students. After initial resistance, this McCleary decision eventually prompted Washington lawmakers to increase funding for public schools by a whopping $7 billion in new dollars over the last decade. However, the McCleary decision also massively expanded funding gaps between wealthy and poor school districts in the state that didn’t exist before, driven by a flawed funding formula lawmakers used to distribute the new aid.

“Everyone did get more money, but the wealthiest districts got the most,” said Knight of the University of Washington. “One takeaway for Pennsylvania is you’ve got to take your time to get the remedy right, you can’t just rush that part.”

In Pennsylvania, advocates have been working to mobilize political pressure on their elected officials in anticipation of a final court ruling. Susan Spicka, executive director of the statewide advocacy group Education Voters of PA, said they’ve always viewed the lawsuit as “one piece of the toolkit” to fix public schools, and are clear that the path ultimately lies with the legislature in Harrisburg.

“The school funding lawsuit is just really helpful to get people to understand who is failing who, because a lot of people will blame their school board or think it’s all on the local level,” she said. “With the lawsuit we can say that in most cases your local school district, that’s already raising taxes, is doing the best it can, but the state is failing on its end.”

Looking ahead at future cases

The lawsuits can be slogs. New Mexico is a state where advocates found success in court but are still struggling with lawmakers to enforce their ruling. “The legislature did take some steps but three years later there’s still a lot to be done,” said Ernest Herrera, a Mexican American Legal Defense and Educational Fund attorney representing the plaintiffs. “Where we’re at is enforcing our judgment, doing discovery, conducting depositions to find how far the state has come and what is still left.” Herrera, who co-filed the case in 2014, acknowledged “it’s been a long battle.”

Even though they can be arduous, it’s hard to imagine the cases will disappear, given how widespread school inequity is nationwide and how strong the research is suggesting increased school funding helps kids.

2018 report released by the US Commission on Civil Rights detailed the persistent school funding inequities that remain between high-poverty and low-poverty districts. “Low-income students and students of color are often relegated to low-quality school facilities that lack equitable access to teachers, instructional materials, technology and technology support, critical facilities, and physical maintenance,” the federal report said. The cases are one of the only strategies that have proven, however imperfectly, to drive billions more in new funding to low-income students.

New state cases continue to be filed and litigated. In 2019, the ACLU of Maryland and the NAACP Legal Defense and Educational Fund went to court to reopen a landmark school funding case from 1994. Maryland tried to dismiss the plaintiffs but the Circuit Court for Baltimore City ruled in 2020 that the complaint could continue. In Washington state, education advocates filed a new school equity lawsuit last December, taking on inequitable school buildings, an angle that the earlier McCleary case didn’t focus on. While there have been a few attempts to file new federal school lawsuits in recent years, those cases haven’t proved successful so far, and advocates say the current composition of the US Supreme Court doesn’t bode well for any new revisitation of Rodriguez.

“The position I would focus on now is less about overturning Rodriguez and more about seeking the recognition of a federal right that would protect some form of an adequate education for all children, that would prepare students to be effective and engaged citizens and be college- and career-ready,” said Kimberly Robinson, a University of Virginia law professor specializing in education and public policy. “That said, while yes, I think this adequacy argument is the better one, I still don’t think this current Court with a 6-3 conservative majority would accept it.”

So bumpy state litigation will likely remain. Even if the plaintiffs win in Pennsylvania later this year, the case could be appealed to the state’s high court. Spicka, of Education Voters PA, said they’re prepared for the long fight, and cited the hundreds of people who turned out to rally in support during the four-month trial.

“State lawmakers always pit communities against each other, and this lawsuit was just soul-filling to see rural and urban communities come together to say: Harrisburg, we need you to fund our schools,” she said. “We had immigrants and communities of color standing side by side with rural whites, and there were just no school funding hunger games.”

Senate Democrats slowly consider their options after Roe

Originally published in Vox on July 7, 2022.
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When the draft Supreme Court opinion on Dobbs v. Jackson Women’s Health leaked in early May, Democratic lawmakers in the Senate scrambled to figure out a response.

They settled on a vote on a bill that had already failed to pass in February, the Women’s Health Protection Act — a bill that would both codify access to abortion and invalidate existing state restrictions on the procedure. But in the wake of the draft opinion, the bill, which the House passed last fall, failed again in the Senate, 49-51. Supporters of the legislation brushed off the failure, stressing the point was to galvanize voters behind a vision that could be realized by electing more Democrats and overturning the filibuster.

Two months later, the Supreme Court has overturned Roe v. Wade. But Democrats in Congress are still negotiating their next move to protect abortion rights.

Democratic senators, led by Patty Murray (WA) and Elizabeth Warren (MA), have been pushing for a bolder response from the executive branch. Aside from pressuring the administration, the closest thing congressional Democrats have to a strategy is asking voters to help them maintain their House majority and elect two more senators in November. If they do, Democrats could scrap the filibuster for abortion bills, surmounting both Republican opposition and resistance from Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ).

Behind the scenes, a debate among Democratic leaders, strategists, and reproductive rights groups that began with the draft opinion leak is still playing out.

Should Democrats hold votes on various angles of the abortion debate that poll well with voters — for example, a vote upholding abortion access nationally in cases of rape or incest, or threat to a mother’s life? These measures likely wouldn’t get 60 votes to pass, but they might get support from a few Republicans, would force others to take potentially unpopular positions ahead of the midterm elections, and could demonstrate majority support for some forms of abortion rights.

“I think a rape, incest, health-of-the mother exception gets probably 52 to 53 votes in favor, and from a morale standpoint there’s just a huge difference seeing something with 52 votes in favor rather than 49,” said a senior Democratic aide, one of several aides who spoke on condition of anonymity.

But other prominent Democratic leaders argue that such votes would be theatrical wastes of time, and possibly even counterproductive: They could give moderate Republicans an opportunity to distance themselves from their extremist party, or undermine the case for broadly protecting abortion rights by deeming some abortions more worthy than others.

In interviews, aides and lawmakers suggested Democrats are also considering another path: introducing reproductive health bills through a process called unanimous consent. This parliamentary tactic could allow Democrats to bring up abortion issues often and blame Republicans when measures — even moderate or popular ones — fail. But only one senator is needed to block unanimous consent bills, so this wouldn’t get every lawmaker on record or offer the televised drama of a full vote.

Still, two weeks after Roe fell, there remains no organized plan. The Supreme Court decision came down on the morning of Friday, June 24. Lawmakers left for recess that weekend and do not return until July 11.

“Given that we had a leak draft of the opinion, I don’t know why there wasn’t an outline of all the things that we’d be voting on if Roe were overturned,” said a senior Democratic Senate aide. “If you could have gotten consensus around having a vote around a rape, incest, or health exception bill, or a bill on medication abortion, or on IVF, or contraception access, that all could have been ready to go the day the Supreme Court ruled.”

The Women’s Health Protection Act is Democrats’ effort to codify Roe

For the past year, Democrats have rallied around the Women’s Health Protection Act, legislation that lawmakers say would codify Roe into law, but would also override many state restrictions to make abortion more accessible.

Since the Supreme Court’s 1992 Planned Parenthood v. Casey decision, states have been allowed to enact abortion restrictions as long as the restrictions do not present an “undue burden” on someone seeking to end a pregnancy. (What constitutes an “undue burden” is vague and heavily contested.) Nearly 500 restrictions have been passed by state and local governments since 2011, and the Women’s Health Protection Act would override most of these laws by invalidating medically unnecessary state restrictions, such as requirements for ultrasounds, parental consent, mandatory waiting periods, and admitting privileges at nearby hospitals.

Mary Ziegler, a legal historian at Florida State University, told the 19th News in February that while it’s difficult to say whether the Women’s Health Protection Act is broader than Roe, it “definitely disallows more restrictions than the current interpretation of Roe/Casey.”

Reproductive health groups have been all-in on the bill, including urging the overturn of the Senate filibuster if necessary to get it passed. But in February, it failed 46-48, with almost all present Democrats voting in favor of opening debate on the bill, and no Republicans doing so. In the wake of the leaked draft overturning Roe, it hardly fared better, not reaching majority support.

The only Democrat in opposition was Manchin, who says he would support legislation to codify Roe but sees the Women’s Health Protection Act as going beyond the narrower Roe and Casey standards.

Sens. Susan Collins (ME) and Lisa Murkowski (AK), two Republicans who likewise support legislation to codify Roe, have also objected to the fact that the Women’s Health Protection Act would override states that have permitted religious exemptions for abortion providers. Following the overturn of Roe, Collins reiterated her position that abortion should be legal nationwide, though she supports allowing states to “account for regional differences with regulations like parental notification requirements.”

In February, Murkowski and Collins released their own bill, the Reproductive Choice Act, which would codify Roe and Casey, but also ensure that any existing religious conscience exceptions could stay in place. States could continue to enact abortion regulations so long as they don’t “have the purpose or effect of presenting a substantial obstacle to a woman seeking to terminate a pregnancy.”

The bill picked up no co-sponsors, and was blasted as a harmful step backward by Democrats and reproductive health groups. “Senators Collins and Murkowski are trying to muddy the waters by pushing a flimsy bill that claims to codify the right to abortion into law but actually weakens the protections we have under current law,” NARAL Pro-Choice America said in a statement.

Sens. Tim Kaine, Susan Collins, and Lisa Murkowski are working on a bipartisan bill

Democrats argue it’s a waste of time to expect any other Republicans to come on board with the Collins-Murkowski bill. The entire Republican Senate caucus except Collins and Murkowski, for example, recently voted for a measure that would strip federal funding for cancer screenings, STI testing, and birth control from health providers if they refer any patient for an abortion.

“This isn’t like the gun bill,” a Democratic aide said, referring to the bipartisan gun bill President Joe Biden signed into law last month. “There aren’t 10 votes there to find.”

Still, Murkowski and Collins have been working with Sen. Tim Kaine (D-VA) on a potential bipartisan bill, though they have not made anything public so far.

Even if their bill couldn’t reach 60 votes, Kaine has said he thinks there’s value in a compromise measure that could command bipartisan majority support in Congress, especially since courts are still grappling with the issue of abortion rights.

A spokesperson for Kaine told Vox that the senator “is examining the [Supreme Court] opinion and talking to colleagues to determine how best … to find bipartisan support to federally protect reproductive freedom.”

For now, Democrats and reproductive rights groups are skeptical. If Collins and Murkowski are not willing to change the filibuster, then their efforts at drafting a compromise bill are “nothing more than a political stunt that should not be taken seriously,” NARAL president Mini Timmaraju told Vox.

Sen. Tina Smith, a Democrat from Minnesota, said she’d need to know whether the Kaine-Collins-Murkowski proposal would protect people from the kinds of restrictions previously passed in states like Texas, where private citizens can now file lawsuits against providers and anyone suspected to “aid and abet” an illegal abortion.

“Would the bill protect people in those circumstances?” she asked. “And I don’t know the answer to that, but I think that is the question that has to be asked and understood.” Smith said she thinks the focus also needs to stay on how many votes there are.

A spokesperson for Warren declined to say whether she’d vote for a Kaine-Collins-Murkowski bill ahead of November if the filibuster were overturned, and a Murray spokesperson said simply that the senator “has spoken with” Kaine about his work with Collins.

Should Democrats hold votes on bills that won’t pass to get Republicans on record?

A thorny debate on the Democratic side of the aisle is whether to hold more votes that highlight where Republicans stand on reproductive rights, even if the bills have no shot of passage.

Republicans already voted in February and May against the Women’s Health Protection Act, but that was an expansive bill. More people are paying attention now that Roe has been overturned, and there is an election coming up. Could more votes help keep attention on the issues, and drive home more clearly where individual lawmakers stand? What about bills barring criminal penalties for women who seek or obtain abortions? Or barring penalties for friends and acquaintances who might assist them? Or codifying exceptions for rape and incest?

Other Democrats have floated the idea of voting on other rights besides abortion that are not spelled out explicitly in the Constitution, like same-sex marriage and the right to contraception.

For now, most Democratic lawmakers say they are waiting to see what their senior female colleagues want to do, and will take their lead from them. Others say they are waiting to get clearer signals from the reproductive rights advocacy groups, like Planned Parenthood, NARAL, and Emily’s List.

A group of female senators, led by Patty Murray, the health committee chair, started convening in May to explore response options after the draft opinion leaked; on June 7, more than a month later, Murray and Warren led 23 other Democratic senators in sending a letter to the Biden administration, urging the president to lead a national plan to defend reproductive rights. The letter listed seven specific ideas for the administration to consider, including increasing access to abortion pills and exploring travel vouchers for those who might need to go to another state for the procedure.

Reproductive rights groups had first approached female senators with the idea to urge Biden to declare the overturn of Roe a public health emergency, a suggestion Warren and Smith took up in a New York Times op-ed the day after the Supreme Court decision.

A Warren spokesperson declined to say whether the senator thought there was merit to taking individual votes on aspects of reproductive rights ahead of the November midterm elections, but did say Warren “supports putting everyone on the record with votes and every Republican senator voted against the Women’s Health Protection Act.”

A Murray aide said the senator plans to lead Senate Democrats “in using the floor to continue making clear the stark difference between where Democrats stand and where Republicans stand on every woman’s right to control her own body, calling for unanimous consent on women’s health bills and delivering floor speeches about the devastating impact of the Dobbs decision.” The aide pointed out that Murray also has a health committee hearing planned for July 13 to highlight the effects of the Dobbs decision.

In interviews, aides and lawmakers involved in these discussions said that rather than hold more formal votes, elected officials are leaning toward a Senate procedure known as “unanimous consent” or “UC.”

Unanimous consent moves more quickly: Any senator can bring up a measure for unanimous consent, and any other can block it. A Democratic lawmaker might introduce a bill codifying the right to birth control, for example, seeking unanimous consent. If just one Republican objects, then the legislation can’t move forward through this expedited process, and Democrats could theoretically then blame the whole party for the obstruction.

“Democrats could still credibly say it was Republicans who blocked the bill from moving forward,” said an aide familiar with the discussions.

“Democrats have a lot of bills and are interested in making that contrast between the parties clear, so UC offers an opportunity to highlight that week after week, and not let that momentum fall away,” explained another aide.

Recently introduced legislation includes bills to stop disinformation from crisis pregnancy centersprotect abortion care for military service members, and codify FDA regulations on abortion pills. Sen. Ron Wyden (D-OR) reiterated the need post-Roe to strengthen online privacy laws, and a letter Speaker Nancy Pelosi circulated in the House floated ideas related to targeting personal data stored in period tracking apps, as well as legislation reiterating that Americans have a constitutional right to freely travel.

Still, some lawmakers and staffers say their caucus would be making a mistake in not holding more formal votes, especially on aspects that hold broad appeal among the American public. One downside with unanimous consent is that those tactics generally draw far less notice in the media, and they fail to put everyone on record.

“Has a [television] network ever cut to the floor during a UC?” said an aide who was critical of the strategy. “If we had a motion to proceed vote on a rape-incest-health bill, I guarantee CNN and MSNBC would put it on TV. That’s literally never happening with a UC, that gets dismissed in two seconds.”

These staffers point to disturbing examples mounting in the news of people denied abortion care in the wake of the Dobbs decision — including a 10-year-old rape victim in Ohio. Voting on a rape and incest exception bill could theoretically divide the Republican caucus and underscore how out of step Republicans are with the public.

Plus, one staffer said, framing this as a tactical retreat is not how it was viewed when Democrats voted on narrower pieces of the Affordable Care Act: “We voted on different aspects, like preexisting conditions, the contraceptive piece, the donut hole, and no one ever thought that was harmful in talking about the most popular parts of the law and having those standalone votes.”

But several Democratic aides dismissed the idea that further votes were needed, stressing that Republican opposition to reproductive health care was already clearly demonstrated with the two failed Women’s Health Protection Act votes. Anything above that would be redundant, and could serve to highlight Democrats’ inability to get legislation passed.

“I don’t think anyone in America is confused on where things stand, and do people even pay attention to a bunch of show votes in Congress?” an aide asked. “I just don’t think there’s a huge, compelling case for it, though I don’t think we’re strongly opposed either.”

Smith, of Minnesota, offered something of a middle-ground position. “It’s clear where Republicans stand on reproductive freedom — they are opposed to it. And they’ve made that clear in their votes and in confirming justices committed to overturning Roe, so voters know, and I don’t think we need additional votes,” she told Vox.

Still, Smith acknowledged, there’s value to taking votes.

“I can’t speak for all of my colleagues in the caucus about how they will want to proceed and what we might do, but let me just say that votes in the Senate can help us demonstrate how out of step the Republicans are with what Americans want,” she said. “I don’t think those votes are needed for Americans to understand the fundamental differences between Republicans and Democrats. People, I think, understand that regardless, but I know we will continue to have conversations about what votes we want to have in order to put Republicans on the record again.”

What a lawsuit in Mississippi tells us about the future of abortion pills

Originally published in Vox on June 29, 2022.
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As some states have moved to fully ban abortion in the wake of Dobbs v. Jackson Women’s Health, new questions emerged about abortion pills: Do states have the legal authority to outright ban drugs that have been approved by the U.S. Food and Drug Administration?

An ongoing federal lawsuit in Mississippi could provide a glimpse at the answer. GenBioPro, the manufacturer of generic abortion pills, is fighting to overturn state restrictions that impede access to the abortion pill mifepristone. Their lawsuit, filed in 2020, hinges on an argument that many legal experts expect other states and advocates to make in the coming months: that Mississippi’s restrictions on medication abortion are unduly excessive, illegally pre-empting the FDA’s authority on drug safety.

The FDA approved mifepristone for use in 2000. Over the next 18 years, more than 3.7 million women in the United States used the medication — sold under the brand Mifeprex — to end an early pregnancy. In 2016 the FDA reported mifepristone’s “efficacy and safety have become well-established by both research and experience, and serious complications have proven to be extremely rare.” Three years later the agency approved GenBioPro’s generic version.

Today medication abortion — a combination of both mifepristone and misoprostol — account for more than half of all abortions in the US, and fights over accessing the pills are expected to be among the most fiercely contested in the post-Roe era.

Just hours after the US Supreme Court overturned Roe, President Joe Biden gave a speech promising to protect a woman’s access to drugs approved by the FDA, including mifepristone. Biden announced he was directing the federal Department of Health and Human Services “to ensure that these critical medications are available to the fullest extent possible” and Attorney General Merrick Garland pledged to use the powers of the Justice Department to crack down on states trying to ban medication abortion.

But the Biden administration has stayed quiet on the Mississippi lawsuit. The White House declined to comment on the case, as did the FDA and DOJ. HHS did not return requests for comment.

Mississippi has urged for a dismissal of the case. Judge Henry Wingate, a Reagan appointee on the United States District Court for the Southern District of Mississippi, requested that both parties provide written submission on the impact, if any, of the Dobbs decision on the lawsuit, and on Mississippi’s “trigger law” banning abortions, which is set to take effect next week. Submissions are due on Thursday.

A ruling in favor of Mississippi could have implications for other jurisdictions seeking to ban abortion pills in a post-Roe landscape.

If upheld, it “would also open the floodgates for states to substitute their judgment for FDA’s in other controversial areas of medicine — some of which we may be aware of — some of which we may not be,” said Delia Deschaine, a DC-based attorney who specializes in FDA regulation. “For example, if there were a group of individuals opposed to palliative care, a state could conceivably limit access to medications that are approved for use in that context. This then becomes a situation where the practice of medicine using pharmaceuticals unpredictably varies between states — which creates its own host of public health issues.”

What it means to “pre-empt” the FDA

Through the passage of the Federal Food, Drug, and Cosmetic Act in 1938, Congress empowered the FDA as the sole agency to approve drugs in the US. It’s responsible for reviewing a drug’s safety, weighing its risks and benefits, and regulating appropriate conditions for safe and effective use.

Even though many reproductive health experts — including the American College of Obstetricians and Gynecologists — actually say the FDA has too many restrictions on mifepristone (for example, only certified pharmacies or providers can dispense the drug) everyone must abide by the agency’s determinations.

But many red states, including Mississippi, have passed laws that go even further than FDA’s rules around mifepristone. For example, Mississippi requires a doctor to physically examine a patient prior to offering the drug, and for patients to ingest the medication “in the same room and in the physical presence of” the physician who gave it to them, rather than taking the medication at home.

Experts say there is a “strong, though legally uncertain” argument that the Supremacy Clause of the US Constitution gives the federal government authority over these conflicting state rules. Indeed, GenBioPro has argued Mississippi’s law is “an impermissible effort by Mississippi to establish its own drug approval policy and directly regulate the availability of drugs within the state.”

This idea — that federal regulation of drugs would take precedence, and a state cannot ban a drug that has been given federal approval — is known as the preemption argument.

For now, legal scholars say it’s unclear how preemption arguments will play out in court. Courts often grant deference to the FDA, though there are relatively few examples involving drugs. The main precedent is a 2014 case where a federal judge struck down a Massachusetts effort to restrict the opioid Zohydro, since the FDA had approved the painkiller.

“The fact that this case relates to a medication that is used in abortion is one reason we might see the district court take a different stance than other courts on this issue,” said Deschaine.

Anti-abortion advocates maintain that states have the authority to restrict or ban mifepristone, because states can regulate medical practice, and the FDA lacks the authority to regulate abortion. Legal scholars also note that Congress has never explicitly said that FDA drug approval supersedes state law, though it has expressed that for medical devices.

While the DOJ declined to comment on the GenBioPro case, Attorney General Garland’s recent public statements suggest the agency is thinking about the preemption argument. “The FDA has approved the use of the medication Mifepristone,” Garland said Friday, adding that, “states may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”

What’s next for the GenBioPro lawsuit

Gwyn Williams, an attorney representing GenBioPro, told Vox that in response to the judge’s request, their team submitted a statement reiterating their previous position that the legal issues decided by the US Supreme Court in Dobbs “do not affect GenBioPro’s claims, which are based on federal preemption and not on constitutional rights to privacy or abortion.” Williams says they expect the judge to issue his decision on dismissing the case soon.

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Paul Barnes, a Mississippi Assistant Attorney General representing the state, declined to comment.

Greer Donley, a University of Pittsburgh law professor who specializes in reproductive law, told Vox that one reason why the court has been “pretty delayed” in issuing any rulings could be because the judge “might be trying to look for an opportunity to kick the case.”

If Mississippi fully bans abortion statewide — which it’s set to do next week, though that trigger law is now being challenged in court — then the state’s mifepristone restrictions might become moot. “If there’s a statewide ban, then I can imagine the defendant saying the lawsuit is moot now because all these laws that regulate abortion providers are subsumed by the bigger abortion ban generally,” said Donley.

But Donley says the preemption argument would still have broad merit, since the FDA still acts as a gatekeeper.

“To earn the right to sell a drug product, manufacturers must produce years, if not decades, of expensive, high-quality research proving that the drug is safe and effective,” she wrote, along with law professors David Cohen and Rachel Rebouché in a legal article cited in the Dobbs dissent. “If they are successful, they can sell their product in every state; if unsuccessful, they cannot sell their product anywhere. If a state were to ban abortion, it would in effect ban the sale of an FDA-approved drug.”

In other words, if it is impossible to comply with both state and federal law at the same time, there remains a plausible preemption argument.

Deschaine, the attorney who specializes in FDA regulation, thinks upholding state restrictions on abortion pills could certainly affect whether other drug companies seek to go through the FDA approval process in the future.

“The incentives for developing FDA-approved drug products are strong, but those start to erode the more fractured the regulatory scheme for these products becomes,” she said. “If a company does not believe that it will be able to market its product in all US states/jurisdictions, then it may not be willing to assume the risk of pursuing the drug approval pathway. Indeed, even absent those restrictions, that pathway is very costly and uncertain.”

The coming legal battles of post-Roe America

Originally published in Vox on June 27, 2022.
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When the Supreme Court issued its 6-3 decision in Dobbs v. Jackson Women’s Health, declaring that there is no longer a constitutional right to end a pregnancy, it ushered in a series of new and fiercely contested legal questions about who can be punished for doing so, and where, under newly restrictive state laws.

Can a state punish a resident for getting an out-of-state abortion? Can it punish the provider in another state who facilitated it? Or as Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote in their dissent: “Can a State prohibit advertising out-of-state abortions or helping women get to out-of-state providers? Can a State interfere with the mailing of drugs used for medication abortions?”

Many anti-abortion activists and conservative legal scholars have long insisted that overturning the 1973 Roe v. Wade decision would lead to a simpler legal landscape — freeing the Supreme Court from the “abortion-umpiring business,” former Justice Antonin Scalia​​ wrote in 1992, and allowing the matters to be decided “state by state.”

But while conservatives fantasized about the supposedly tidier legal landscape of a post-Roe America, other legal scholars warned overturning Roe could make the legal complexities of the last five decades seem quaint.

In his concurring Dobbs opinionJustice Brett Kavanaugh dismissed concerns that overturning Roe will raise new vexing legal questions. “As I see it, some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” Kavanaugh wrote. His arguments: The right to travel between states, as people seeking abortion in states with bans will now need to do, is constitutionally protected. Legal precedent would also prevent states from holding anyone liable for abortions that occurred before Friday’s decision.

With the rise of the internet, telehealth appointments, mail-order pharmacies, and drugs like mifepristone and misoprostol that people can acquire in advance of being pregnant, the questions around what it means to both provide and obtain an abortion have evolved considerably since the pre-Roe days, as have questions about what it means to “cross state lines” to get one. The liabilities involved in all these scenarios are likely to be tested in the years to come.

Ultimately, the end goal for the anti-abortion movement is not a patchwork of abortion-friendly and abortion-restricting states. It’s a country where abortion is illegal and inaccessible and ideally where fetuses are viewed as people, entitled to the same protections as any other individual under the Fourteenth Amendment.

“Until that argument is accepted, the antiabortion movement will use state powers to stop as many abortions as possible, including outside state borders,” wrote three Pennsylvania law professors, Greer Donley of University of Pittsburgh, David Cohen of Drexel University, and Rachel Rebouché of Temple University, in a working paper posted online in February that laid out the legal dilemmas, and was cited directly in the Dobbs dissent. This doesn’t necessarily mean that those attempts will succeed, but it underscores just how uncertain the legal landscape now is.

Though someone is unlikely to be physically barred from crossing a state border to end a pregnancy, the potential for criminal penalties when they return is very real in a post-Roe landscape. Up until now, states have primarily targeted abortion providers and clinics, as people seeking abortions were exercising their constitutionally protected right to end a pregnancy. But if new laws are upheld that extend greater legal protection to fetuses, the pressure on pregnant people around violating those new fetal rights will also increase. As more people opt for self-managing their abortions at home outside the formal health care system, experts say laws aimed at criminalizing these sorts of abortions are more likely.

With poorly regulated data privacy laws, aggressive prosecutors could amass a lot of evidence if they suspect a person obtained an illegal abortion, or an abortion that would not be legal in their home state. Missouri lawmakers introduced a bill last year that would have claimed legal jurisdiction for any pregnancy that was conceived within Missouri borders or in which the parents were Missouri residents at conception. It never received a vote, but lawmakers took another swing this year, introducing a bill that would target anyone in or outside of Missouri’s borders who “aids or abets” a Missouri resident’s abortion. Liberal states, in turn, are now trying to pass new protections for providers and allies who help end pregnancies for out-of-state residents.

“There are a whole host of unanswered questions that will now dominate,” Rebouché said. “Particularly as states start to enact their own abortion bans and do so on various timelines, I think what to expect in the immediate future is confusion.”

There is little legal precedent for these questions

Only two cases since Roe have really addressed questions about out-of-state legal liability, and it’s not clear how they would apply in a post-Roe America.

In its 1975 Bigelow v. Virginia decision, the US Supreme Court affirmed that a Virginia newspaper could print an ad for an abortion clinic in New York, where the procedure was legal, even though in 1971, when the ad originally ran, it was illegal in Virginia. The Court upheld the advertising on First Amendment grounds, and also noted that Virginia could not prevent its residents from traveling to New York for an abortion or prosecute them for doing so.

“A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State,” the justices then wrote.

Then in 2007, the Missouri Supreme Court issued a decision in another abortion-related case, this one pertaining to a state law that prohibited individuals from “aid[ing], or assist[ing]” a minor’s abortion without parental consent. Planned Parenthood challenged the statute on First Amendment grounds, since the organization provided information to minors about out-of-state options, and alleged the law violated the commerce clause of the Constitution, since it would “requir[e] non-Missouri health care providers and others” to comply with the parental consent law. The court, citing Bigelow, dismissed the commerce clause claim, and said it was beyond the state’s authority. “Missouri simply does not have the authority to make lawful out-of-state conduct actionable here, for its laws do not have extraterritorial effect,” the court wrote.

Still, Donley, Cohen, and Rebouché caution from reading too much into these examples. “Though these two precedents contain strong statements against the application of extraterritorial abortion law, there is no reason to count on them being the final say on the matter,” they write in their preprint paper on post-Roe possibilities. “The first is dated and concentrated on the First Amendment, and the second is applicable in Missouri only.” The scholars note the Supreme Court could easily revisit Bigelow’s anti-extraterritoriality principle, and that it will indeed be “ripe for reassessment” once interjurisdictional abortion prosecutions begin.

But until these questions wind their way back up to the Supreme Court, aggressive prosecutors can and likely will experiment with testing the limits of the law.

For example, the law professors note, Georgia passed a law in 2019 which declared “unborn children are a class of living, distinct person” who deserve “full legal protection.” This law effectively banned abortions after just six weeks, as soon as fetal cardiac activity could be detected. It was later struck down by a district judge as a violation of Roe, but has since been stayed at the 11th Circuit Court of Appeals, pending a decision in Dobbs. The appellate court is now expected to lift that stay in the coming days or weeks, and Georgia’s Republican Attorney General Chris Carr already sent a letter on Friday urging the 11th Circuit to reverse the district court’s decision.

If the law goes into effect, an emboldened prosecutor could seek criminal penalties for a Georgian who crossed state lines to obtain a legal abortion, or even against anyone who helped them travel across state lines, under the rationale that their unborn child deserves full legal protection. States may struggle to enforce extraterritorial prosecutions, though, just as they’ve struggled to crack down on Aid Access, which dispenses medication abortion to US residents from overseas.

There is no legal consensus yet on these questions, and politics will likely play a role in shaping what plays out. While there are not many activists urging prosecutors to go after teenagers who import marijuana from other states, pressure to enforce state abortion bans to the fullest extent possible is a safer bet. Already, Texas Republicans are discussing new legislation that would allow district attorneys to criminally punish anyone who helps a person end a pregnancy outside Texas. And if an anti-abortion activist in a red state sees an opportunity to shut down or cause headaches for an abortion provider working in a blue state, it’s fair to expect they will try.

Some scholars, including University of Pennsylvania law professor Seth Kreimer and Yale law professor Lea Brilmayer, have argued that extraterritorial prosecution of abortion would likely be illegal under the Constitution. Others, like Chicago-Kent School Law professor Mark Rosen and University of Michigan law professor Donald Regan, have argued that states would likely be able to regulate out-of-state abortion activity of their residents.

Donley, Cohen, and Rebouché identify with a third category of scholars, including Harvard law professor Richard Fallon and Washington University in Saint Louis law professor Susan Appleton, who think it will be murky, variable, and highly contested for years to come.

Blue states are trying to shield providers from red-state prosecutions

With Roe in place, a provider in New York or California had little to fear from a prosecutor in Texas or Louisiana. Abortion was a constitutionally protected right for all citizens. But with Roe overturned, that legal calculus changes, and providers may find themselves vulnerable to states that have fully banned the procedure, or that want to punish anyone who helps their citizens get it.

To try to protect providers who offer abortion services to patients who might visit them from a state where it’s illegal, Democrat-controlled states have started to craft and pass so-called shield laws. These laws offer additional protections, like barring state agencies from helping another state’s criminal investigation, and ensuring that an abortion provider could not lose their professional license or face malpractice insurance penalties as a result of an out-of-state complaint.

While these shield laws are unlikely to face constitutional challenge, it’s unclear if they will really be effective, and Donley, Cohen, and Rebouché note they may also create new legal battles between red and blue states. “After all, if Illinois refuses to extradite an abortion provider to Georgia, will Georgia retaliate and refuse to extradite a gun dealer to Illinois?” they asked in their February paper.

Medication abortion also creates particularly complex legal challenges for states. Laws around telemedicine generally defer to the location of the patient, but could a provider in New Jersey, where abortion is legal, face penalty for mailing pills to a patient who lives in a state where abortion is illegal, if the patient traveled to New Jersey for the actual appointment? Or what if the pills were sent to an address in a Democrat-controlled state, and then forwarded through the mail to a state where it’s illegal, either by a mail forwarding service or by a friend?

“There will be efforts to crack down on PO boxes, but the person who just gives [a telehealth provider] their friend’s address and the friend then personally forwards the mail — that will be impossible to police,” Donley told Vox.

Heightened conflict between the federal government and Republican states has already started

In addition to new battles between red and blue states, legal scholars predict new and unprecedented tensions between states and the federal government in a post-Roe environment.

A preview of those fights came on Friday, when President Joe Biden gave a speech calling out “extremist governors and state legislators” who want to try to limit access to FDA-approved medication like mifepristone. Biden announced he was directing the federal Department of Health and Human Services “to ensure that these critical medications are available to the fullest extent possible and that politicians cannot interfere in the decisions that should be made between a woman and her doctor.” The same day, Attorney General Merrick Garland announced he would use the powers of the Justice Department to crack down on states trying to ban medication abortion.

majority of states have imposed some sort of restriction on medication abortion, though many are looking to enact even more aggressive regulation going forward. It’s not clear yet whether states can outright ban drugs that have been approved by the FDA, since that agency has the sole authority to approve drugs in the US. “It’s an open question,” Patti Zettler, an associate professor of law at Ohio State University and former associate chief counsel for the FDA, told the Washington Post last month.

There’s some legal precedent for courts striking down state restrictions that conflict with FDA approval. In 2014 a federal judge struck down a Massachusetts effort to ban the opioid Zohydro, since the FDA had approved the painkiller.

Still, it might be harder for a court to strike down laws that in practice restrict access to the drugs, like Texas’s ban on obtaining pills after just seven weeks of pregnancy, but that do not technically ban its use.

For now, no one really knows, but the evidence suggests we’re entering a new legal era, not simply reverting to the pre-1973 status quo. As Breyer, Sotomayor, and Kagan write in their dissent, the Dobbs decision “puts the Court at the center of the coming ‘interjurisdictional abortion wars.’”

Should you keep abortion pills at home, just in case?

Originally published in Vox on June 22, 2022
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Medication abortion, or taking a combination of the drugs mifepristone and misoprostol, is an increasingly common method for ending pregnancies in the United States. Reasons vary and overlap: Some women lack access to in-person abortion clinics; others prefer to end pregnancies in the comfort of their own home. Others seek out the pills because they cost far less than surgical abortion.

With more in-person clinics shuttering and a Supreme Court that’s threatening to overturn Roe v. Wade, a small but growing number of reproductive experts have been encouraging discussion of an idea called “advance provision” — or, more colloquially, stocking up on abortion pills in case one needs them later.

It’s an idea that has merit: Mifepristone has a shelf life of about five years, misoprostol about two, and both drugs work better the earlier in a pregnancy you take them. In states that are ramping up abortion restrictions, there’s often a race against the clock to access care. In Texas, for example, if you don’t realize until eight weeks in that you’re pregnant — which could be only a couple of weeks after a missed period — you would have already passed the state’s new legal deadline for obtaining abortion pills. But if you had already stored them in your home, or your friend or neighbor had, then you’d be able to take them.

In a 2018 nationally representative survey of women ages 18 to 49, 44 percent expressed support for advance provision, and 22 percent said they were personally interested in it. Those who had previously had a medication abortion and those who reported facing greater barriers to reproductive health care were more likely to support the idea.

Data on these kinds of abortions — often called “self-managed” or “self-administered” — are harder to track. Research published in 2020 estimated that 7 percent of women will self-manage an abortion in their lifetime, though this was calculated with the assumption that Roe was still in place. New Guttmacher data published last week on US abortion incidence found there were 8 percent more abortions in 2020 than in 2017, but self-managed abortions are excluded from this count.

“We know there are thousands of self-managed abortions that we aren’t capturing,” Rachel Jones, a Guttmacher research scientist, told Vox. “If the Supreme Court overturns Roe, and abortion becomes illegal in 26 states and people can’t travel to another state, then self-managed is going to be the only other option they have for an abortion.”

Talking more frankly about self-managed abortion goes against longstanding American cultural norms. For years US reproductive rights groups stressed that the decision to end a pregnancy “was made between a woman and her doctor.” Internationally, where abortion has been more heavily criminalized, there is less pressure to involve medical professionals. It was in the legally restrictive context of Brazil in the late 1980s that women first pioneered the use of misoprostol to self-manage their abortions.

Rebecca Gomperts, the Dutch physician who in 2018 founded Aid Access to deliver abortion pills to US patients, has been one of the most vocal advocates for advance provision, and began offering it as an option to people in all 50 states last fall. Costs for the pills range from $110 to $150, with a sliding scale for those who lack funds. Recently, in Politico, Gomperts encouraged doctors to begin prescribing mifepristone and misoprostol to those who are not pregnant, so they have the medication available if they need it later.

“Abortion pills are something that, actually, you cannot die from,” she said. “There’s no way that you can overdose on it. And what we know from research is that you don’t need to do an ultrasound for a medical abortion.”

The idea of getting medication in advance of need is nothing new. Doctors also used to commonly prescribe emergency contraception to women before it became available over the counter.

Right now large mainstream abortion rights groups are mostly staying quiet on advance provision, leaving lesser-known organizations like Aid Access and Plan C to try to get out the word. (NARAL and Guttmacher declined to comment, and Planned Parenthood did not return requests for comment.)

Aid Access and Forward Midwifery are among the few groups currently offering US patients the option to order pills in advance, though Elisa Wells, co-director of Plan C, said she knows others are considering it. “I was just having a conversation with a provider in Montana,” she told me. “We believe it will become more common. Sometimes we call it the ‘just in case’ plan, because unplanned pregnancy is so common.”

It’s a safe option for most patients

When it comes to safely ending pregnancies, medication abortion is over 95 percent successful, according to Guttmacher. Less than 0.4 percent of patients require hospitalization. The National Academies of Sciences, Engineering, and Medicine has also affirmed medication abortion as a safe method to terminate pregnancy, one with very low risk of complications.

Research published earlier this year in the medical journal Lancet found self-managed abortions specifically to be very effective, and with high rates of patient satisfaction.

Gomperts also urges more attention on misoprostol-only abortions, which are common internationally. The drug can be easier for women to access since misoprostol is less tightly regulated; it’s used for other ailments including stomach ulcers and managing miscarriages, and is sold over the counter in many countries.

While medication abortion is a safe option for almost everyone with an early pregnancy, the pills are not recommended for people who take blood thinners, who have bleeding disorders, or who are at high risk of ectopic pregnancies. (Ultrasounds are recommended for those in this latter category.)

Still, one upside of advance provision — and medication abortion generally — is the greater number of people who could potentially provide the pills, including primary care doctors. Another upside is that it could be easier to share pills with those who need the medication quickly but lack access to it. Research suggests the drugs are best taken within the first 10 to 12 weeks of a pregnancy.

Paying attention to legal risks and criminalization

Outside of groups that exploit international law like Aid Access, advance provision is unlikely to be a legal option in every state. Some states, for example, require patients to get ultrasounds before a provider can give them abortion pills. Other states are cracking down on abortion pills themselves.

While few states currently ban self-managed abortion outright, many have existing laws that overzealous prosecutors could use to go after women, like fetal homicide statutes. “I am concerned that if people stockpile, without knowing the legal risks or how to cover their digital footprints, they could be subject to criminalization,” said Renee Bracey Sherman, founder of the abortion storytelling group We Testify.

The National Right to Life Foundation also released model legislation in mid-June that encourages states to criminalize those who “aid or abet” illegal abortions, including those who provide instructions over the phone or internet about self-managed methods.

Even in states with fewer legal concerns, advance provision won’t be the right option for everyone. “It’s a potentially high cost for a patient that is unlikely to be covered by insurance,” said Daniel Grossman, a physician and a professor of obstetrics and gynecology at the University of California San Francisco. Not everyone can afford to spend $150 to have a backup method available, and some people will still need or prefer in-person clinic care.

It hasn’t gone mainstream, yet

In the days following the leaked draft of the Supreme Court’s decision to overturn Roe v. Wade, telehealth abortion providers reported spikes in internet searches and pill orders. Still, most Americans lack familiarity with not only abortion medication but also the few groups that currently provide the pills in advance. Some activists say leaders and more well-resourced organizations should do more to promote self-managed abortion as an option.

In December 2021, three UCSF reproductive health researchers, including Grossman, published an article calling advance provision “an unexplored care model that we believe holds promise and merits further study.”

Grossman told Vox that he believes more people should ask their primary care and reproductive health providers if they’d be open to prescribing or giving them abortion pills to store for later use. “Even if the doctor doesn’t want to, I think it’s worth just sparking a conversation with them and get their provider thinking,” he said. Grossman previously told Jezebel he’s found it challenging to get other researchers and health care providers to give advance provision the attention it deserves.

“We have ibuprofen in case of a headache, cough syrup in case of a cold, and Plan B in case of a broken condom,” said Bracey Sherman of We Testify. “It’s already normal for other health care and we should normalize it for abortion.”

Wells, from Plan C, said the historical restrictions placed on abortion have likely made some groups and individuals more reticent to talk about advance provision. “I think there’s probably a lot of fear about not wanting to break any rules,” she said.

Another factor limiting discussion, Wells suggested, is the way abortion has been heavily medicalized in the US, to the point where people believe the drugs have to be or are best administered by a medical professional. Attitudes are different internationally, she said.

“We have become so invested in saying that we need to have safe abortions and that doctors and clinicians and the clinics can provide that,” Wells said. “Clinicians have done a wonderful job, and we have to have all these different types of care options available, but [self-managed abortions] can be a bit of a threatening message to that whole system.”

Evictions are life-altering — and preventable

Originally published in Vox on June 14, 2022.
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When Susan Brewer’s wife lost her job during the pandemic, her family, living on the South Side of Chicago, fell behind on rent. Brewer had been supplementing her wife’s salary with the disability income she received from Social Security, but on its own it wasn’t enough to pay their bills.

In December 2021, Chicago opened up a new round of applications for renters needing emergency aid. But Brewer’s landlord — who was then threatening them with eviction —wasn’t interested. Normally, that would have been the end of it: If a landlord refuses to participate in a government program, their tenants won’t get help. But in this case, Brewer was able to apply for and receive the money directly. She picked up her check from City Hall, paid off all her outstanding rental debt, and her wife eventually got her job back.

“Becoming homeless was one of my greatest fears,” she recalled. “I’m 64 years old. I can’t be out in the streets. I’m still struggling to get the weight back I lost from all that stress.”

Brewer was able to stay in her home because, about a year before she got her aid, the federal government had taken an unprecedented step: It decided to help people at risk of eviction stay in their homes. The Emergency Rental Assistance Program — or ERAP — marked a fundamental departure from virtually all previous housing aid programs. Tenants could get money directly, the eligibility process was streamlined, and the categories of people who qualified were intentionally broad.

Nearly 1 million people are evicted in the US each year, mostly for nonpayment of rent. Between 2000 and 2016, according to the Eviction Lab at Princeton University, one in 40 American renter households was evicted, and more than twice that share were threatened with it. The experience of losing one’s home to eviction has been linked to all sorts of adverse consequences, including higher job lossdebtsuicide, and reduced credit access.

Many evicted families are forced to relocate to lower-quality homes in neighborhoods with more crime. Evicted children experience higher food insecurity and lower academic achievement than other low-income kids living in rental housing, partly as a result of having to shuffle between schools and their parents’ declining mental health.

But even as research mounted on the prevalence and harms of eviction, the federal government did little to help families avoid it. “Before the pandemic, evictions were happening and there was a crisis, but we weren’t thinking about federal intervention in that space in a real way,” acknowledged Peggy Bailey, the senior adviser on rental assistance at the US Department of Housing and Urban Development. The federal government would sometimes take action if the eviction violated the Fair Housing Act, but not otherwise.

The situation changed only when the pandemic hit, and orders to “stay at home” grew louder and more urgent. You can’t stay at home if you lose your home.

Initially plagued by bureaucratic hurdles, the rental assistance program eventually succeeded in reducing evictions. Although twice as many renters reported being behind on rent in mid-2021 compared to pre-pandemic times, eviction levels remained well below historic averages by the end of the year. They did not rebound to expected levels even after the Supreme Court struck down the CDC’s federal eviction moratorium. The money also largely reached the vulnerable tenants it was intended to help. Among those renters, researchers have found, the experiment was associated with a host of benefits, including less debt and physical stress.

But now, as federal ERAP dollars dry up, evictions are beginning to climb again.

The country faces a pivotal choice to build on what communities have learned. Before the pandemic, almost 8 million renters spent more than half of their incomes on housing. With more funding, the government could create a permanent program to help those who, living paycheck to paycheck, might need emergency assistance to cover temporary shortfalls on rent. A bipartisan bill in the Senate would do just that.

“What we know now from ERAP is that we can play a role in preventing evictions due to nonpayment of rent,” Bailey said. “Just a little bit of housing assistance can go a long way to saving money and a lot of aggravation for families.”

“We put a lot of effort into building the [rental assistance] plane while we were flying,” added Dave Thomas, the president of the Philadelphia Housing Development Corporation. “And now that it’s built, we have to figure out: Does it last, or was it a lot of energy for nothing?”


The federal CARES Act from March 2020 included money that states and cities could use to assist renters. But it was in December 2020 that Congress authorized $25 billion for its first initiative dedicated exclusively to helping renters stay in their homes. A second round of funding in March 2021 brought Congress’s total ERAP spending to $46.5 billion.

The money was directed to states and localities to distribute to newly created rental assistance programs. These built-from-scratch, decentralized programs, which number over 500 today, had varying rules and requirements for tenants and landlords to apply. Natasha Leonard, a housing specialist with the National League of Cities, said much of her work during the pandemic was spent trying to spread awareness about what other cities were doing for rental assistance. For months, the program was blasted for administrative hangups, shifting and confusing guidelines, and sending money to renters too slowly.

ERAP was administered by the Treasury Department, not the Department of Housing and Urban Development. HUD has more experience developing targeted funding formulas, but Treasury has experience sending money out quickly. It also exists outside of the traditional federal housing bureaucracy, so some leaders felt it was better positioned to innovate and take risks.

Over time, Treasury did innovate. It loosened ERAP rules and clarified its expectations. Jurisdictions scrambled for new technology and staff and for nonprofit partners to help spread awareness among eligible renters.

In 2021, 3.8 million payments were distributed to eligible households. By April of this year, per a Treasury spokesperson, that number had reached 5.7 million. In all, more than $30 billion in assistance has been distributed or obligated, and the remaining money is expected to be spent in the next few months. Activists and reporters are now warning of the funds running out too quickly.

Researchers have found that, by and large, the funds went primarily to communities hit hardest by the economic impacts of the pandemic — places with steeper job losses, higher shares of renter households, and more residents of color. Treasury data published in late February reported that over 80 percent of program funds went to very low-income households, defined as those earning 50 percent or less of area median income, and primarily reached Black, Latino, and female-headed households.

“It was unlike anything — and at a scale unlike anything — we’ve seen in our lifetime,” said Greg Heller, a former Philadelphia Housing Development Corporation official who helped lead the aid distribution for his city.

Claudia Aiken, a policy researcher at the University of Pennsylvania, has already found clear results from Philadelphia. Receiving emergency rental assistance was associated with a lower likelihood of incurring debt, a lower share of tenants reporting that they worried frequently, and a significant decrease in the amount of rent owed among those behind on payments. Other studies on preliminary impacts in Atlanta and Baltimore have found receiving rental aid is associated with reduced risk of homelessness and lower debt.


As states and cities cobbled together their rental assistance programs, policymakers quickly ran into several issues. Landlords weren’t always eager to participate because accepting the money sometimes came with requirements to forgive past penalties, interest, and court costs; or because participating barred landlords from chasing payments for anything outstanding in the months they received aid. Some states capped available rental assistance so low that many landlords saw accepting it as consenting to de facto rent cancellation while they were dealing with their own cash flow problems.

Some programs tried to grease the wheels to induce more participation. A Pennsylvania rental assistance program in place before ERAP launched had a monthly cap of $750, regardless of what rent was owed. But only 44 percent of landlords participated, so Philadelphia policymakers decided to pair state aid with CARES money to offer landlords up to $1,500 per month. This boosted Philadelphia participation to 63 percent.

Still, many landlords just wouldn’t bite. In a national survey of rental assistance programs conducted in spring 2021, 44 percent of program administrators said landlord responsiveness was a challenge. That number rose to 67 percent in summer 2021, and 74 percent in late 2021. As one ERAP administrator explained, “many landlords are not looking to keep unreliable tenants; some refuse to work with us; [and] others are not willing to renew leases.”

Landlord resistance is nothing new in federal housing policy. But to address the issue, Treasury took an unprecedented step. It said that programs must send money directly to tenants when their landlords don’t cooperate, and clarified that programs can even provide direct assistance to tenants before trying to engage the landlord. Not all programs embraced the idea, but many did.

“ERAP operated under the idea that we should help everyone who has a need, and that’s just a radical departure and mindset from our other existing housing programs,” said Aiken.

ERAP’s goal to assist needy tenants was so explicit, and so unlike any past federal program, that Treasury officials even clarified that aid should be delivered to anyone experiencing hardship during the pandemic, not just due to Covid-19.

Federal policymakers have contemplated the idea of distributing rent money directly to tenants, but they’ve only really tried it once before, via a small program that ran in a dozen cities in the 1970s.

“Tenants are the program’s primary beneficiaries,” explained Noel Poyo, the deputy assistant secretary for community economic development at Treasury, who led the department’s implementation of ERAP. “It is a low-income household that meets these tests. The program doesn’t exclude tenants with landlords who don’t want to participate.”

Another defining characteristic of the program was its gradual embrace of unusual strategies to get money out the door. In distributing public funds, governments have an obligation to ensure that the dollars really get to those who need them. But fraud mitigation can go too far, requiring so many bureaucratic hurdles that the aid never reaches those it was meant to help.

Some ERAP programs took dramatic steps to cut down on paperwork. Instead of submitting official records, people could simply affirm, under penalty of perjury, details of their personal circumstances, like their income or address. Administrators were also allowed to verify income by cross-referencing applicants’ statements with other population-level data in the same geographic region.

Others embraced “categorical eligibility”: the idea that if you qualify for one existing welfare program, and that program verified your personal details, then you should be considered automatically eligible for another. Researchers found that programs with fewer and more flexible requirements were able to distribute their rental assistance funds faster.

Watchdogs have thus far produced little evidence of fraud. Eight months into California’s pandemic rental assistance program, housing officials identified 1,800 fraudulent applications out of nearly 500,000 — or 0.0036 percent — and none of those applications were paid. California officials explained they had learned a lot about detecting fraud after the state’s costly unemployment fraud debacle. Other states that disclosed data — such as Utah, Arizona, and New York — reported virtually no rental assistance abuse, either. In Montgomery County, Maryland, auditors wrote in October, “We ultimately found no specific instances of fraud,” though they acknowledged that self-attestation made it difficult for them to discern who might be lying.

In February, federal auditors with the Government Accountability Office warned Congress that they did not think Treasury had implemented enough monitoring controls for its ERAP program, and stressed fraud was a risk. A spokesperson for Treasury said all ERAP grantees must have in place procedures to prevent, investigate, and address fraud. Rich Delmar, deputy inspector general of the Department of the Treasury, the division responsible for oversight, could not provide specifics on ERAP fraud allegations, but said when they receive tips of abuse through their hotline, they investigate them.

Even with Treasury’s encouragement, some local administrators resisted easing up on their program requirements, fearful of the potential for scandal or backlash.

But Poyo, from Treasury, said that ERAP demonstrated governments could reduce unnecessary barriers to aid while still using identity verification tools to evaluate applications. “It is not a zero-sum game between supporting access for vulnerable populations and ensuring strong program integrity,” he said.


ERAP was clunky at times. Local program leaders said the continually shifting Treasury guidance made distributing money more challenging, as did the IT demands and lack of qualified staff and volunteers. It took time to build up coordination with local court systems that handled evictions, too.

“There was a perception at first that if you just dump loads and loads of money that local governments should have some way of getting it out,” said Heller. “But to get hundreds of millions of dollars — in Philadelphia, we had over $250 million — requires a huge amount of infrastructure, a lot of IT backbone, a lot of training.”

While the program overall did a good job reaching needy areas, some struggled more than others. Elizabeth Kneebone, the research director for the Terner Center for Housing Innovation at UC Berkeley, has been studying communities that were more readily able to deploy this federal assistance, which tended to be denser urban areas. Suburbs and rural communities — with fewer nonprofits, diminished or nonexistent local media, and less institutional capacity in their local governments — tended to have a harder time, even as the need for help persisted.

“With the suburbanization of poverty, we need to ask, how do we make these areas more flexible and responsive to the ways needs can change?” Kneebone said.

Experts and policymakers say they are not exactly sure what happens now. Federal funds are drying up and most programs are no longer accepting new applicants. Researchers are continuing to publish new reports on ERAP lessons learned.

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There is a consensus among housing leaders that the next year will be critical in determining whether all this pandemic-era knowledge is sustained and expanded upon, or buried and forgotten.

The National Low Income Housing Coalition, an advocacy group, is focusing on rising eviction rates and the need to establish a permanent emergency rental assistance program, said Sarah Gallagher, the group’s senior project director. “We need it both for individuals in emergency situations because of personal crisis, as well as to prepare for another pandemic,” she said.

If Congress was planning to reallocate new dollars, then local officials would work to invest in infrastructure and staff, just like they do for other permanent housing programs. But at this point, communities don’t know if they’ll be using their ERAP systems again, or be forced to dismantle them.

Meanwhile, HUD is now considering an eviction prevention strategy and is beginning to think through how to start tracking eviction data nationally. In recent federal appropriations acts, Congress tasked the housing agency with considering the feasibility of developing some sort of national eviction database, and three bills have been introduced to increase federal analysis of evictions.

“I think you can make an extremely strong defense that investing in eviction prevention provides a positive economic and social return to the country,” said Gene Sperling, the American Rescue Plan coordinator for the Biden administration. “So even on that hard-headed basis, eviction strategy is the type of wise investment that people think of like quality preschool — especially when you consider the economic scarring, emotional trauma, and heartbreak these policies can prevent.”

The uncertainty surrounding future funding makes this all particularly confusing for local housing leaders. Right now, some communities are still distributing their ERAP funding, which doesn’t expire until September 2025. Localities are also tapping into remaining state and local recovery funds to help sustain their programs.

But these funding streams will, eventually, be gone. On the congressional level, there’s a bill to establish a permanent Emergency Assistance Program. While its proposed $3 billion in annual funding is fairly low, housing advocates say passing the legislation would be an important seed that could help motivate HUD to continue building on ERAP lessons. For now, though, passage looks unlikely.

In the meantime, activists are fighting to press for broader reforms to the housing market.

Gallagher suggested making ERAP recipients automatically eligible for other programs through categorical eligibility. “Some of the households that received ERAP are in need of longer-term subsidies, and now that households have been engaged, we don’t just want to walk away,” she said. “We’ve already deemed them eligible, there should be a way to transition those folks to additional resources, using self-attestation.”

Bailey, from HUD, noted it was her agency that first encouraged Treasury to consider self-attestation as a strategy because HUD knew from experience how hard it can be for homeless populations to receive government assistance when they lack certain documents. She acknowledged, though, that currently no HUD programs, including even its own homeless assistance programs, allow for that flexibility.

Some communities, like Philadelphia and Chicago, have used their ERAP dollars to bolster adjacent housing assistance efforts, like expanding access to lawyers for low-income tenants and encouraging alternatives to eviction through so-called court diversion programs. The White House is encouraging these kinds of efforts and held a summit on court diversion in the summer of 2021, something Sperling said was done partly to accelerate a conversation around long-term eviction reform.

While federal funds certainly enabled Philadelphia and Chicago to run more successful diversion programs (landlords are much more likely to agree to an eviction alternative if there is money available to pay them rent) local leaders say they don’t plan to abandon their diversion efforts even if ERAP dollars dry up. “As our resources have diminished, we’ve tried to be a little more intentional … and do a little more targeting,” said Thomas, of the Philadelphia Housing Development Corporation.

“We used $8 million of our ERAP funds to launch a right-to-counsel pilot because we want this to be not a one-time emergency measure, but to help create infrastructure that can be lasting,” said Daniel Kay Hertz, the director of policy with the Chicago Department of Housing.

“The primary crisis we have now is how many people continue to need assistance, and not having enough money for them,” he added. “But the secondary crisis is that Chicago and dozens or hundreds of jurisdictions gained an enormous amount of administrative capacity to do a direct relief program, and we aren’t sure yet what that will mean.”

A program that helps millions of hungry kids is about to expire

Originally published in Vox.com on June 1, 2022.
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One of the most fundamental and intuitive facts about learning is that it’s hard to focus, or really do much of anything, if you’re hungry. There’s a hierarchy of needs, and stomachs come out on top.

Yet youth advocates are staring down a chilling deadline. June 30 is the last day for Congress to reauthorize a series of waivers that have allowed public schools to creatively deliver meals to students during the pandemic.

Originally passed in March 2020, the waivers granted schools the flexibility to navigate not only the challenges of remote learning and Covid-19, but also the supply chain crisis, the school labor shortage, and steep inflation at the grocery store. The waivers also expanded eligibility for school meals, enabling an additional 10 million students to access free breakfast and lunch each day.

Education leaders assumed Congress would re-extend the meal flexibility for one more year. The waivers, which expire at the end of June, were extended twice before on a bipartisan basis. In February, Democratic Reps. Abigail Spanberger and Suzanne Bonamici and Republican Reps. Brian Fitzpatrick and John Katko introduced the Keeping School Meals Flexible Act to extend them one last time through June 2023, but when Congress passed its $1.5 trillion spending bill in March, the language for school meals was missing. Advocates were stunned, and say this decision alone has already jeopardized access to summer meals for nearly 7 million children.

“There is no urgency and political appetite to even have this conversation,” said Jillien Meier, director of the No Kid Hungry campaign. “Frankly this is not a priority for Congress and the White House. People are really focused on having a ‘return to normal’ … folks aren’t talking about it and they have no clue that this crisis that is looming.”

Many people would certainly like to see the waiver authorizing universal free meals made permanent, reducing the stigma for children and administrative burdens on parents and school districts. But advocates say that’s not what this fight is about. Instead, they’re seeking just one more year of flexibility to help schools weather the inflation and supply chain crises, and to contact the millions of families who have not filled out school meal application forms for the last 2.5 years.

“Usually that outreach starts in the fall and you get the sign-ups going for the following school year,” said Katie Wilson, the executive director of the Urban School Food Alliance, which works with large school districts. “How do you educate these millions of families that that needs to be done again, and over the summer? It just won’t happen.”

Decades of research have shown how child nutrition programs aid academic achievementschool attendance, and student health outcomes. But the consequences of not extending the waivers will not be limited to families penalized by paperwork. Schools will also have less money to meet rising food prices and will face steeper financial penalties for not meeting all federal nutrition requirements, a challenge amid widespread product shortages. Some schools may decide to cut back on food offerings and even stop providing meals altogether. Others may slash budgets for their classrooms.

School lunches are not immune to the supply chain and inflation crisis

In normal times, the federal nutrition standards serve as important guidelines to ensure healthy options are available to students. Schools can only be fully reimbursed for the meals they serve if said meals meet those quality standards.

But these are not normal times, and school nutrition directors nationwide say they’ve never had so much difficulty stocking their cafeterias with basics like milk, meat, and vegetables. It’s become common for food orders to simply not arrive, or to be only partially filled.

A survey from the US Department of Agriculture released in March found 92 percent of School Food Authorities reported supply chain challenges, with products like chicken and bread among the most difficult products to procure. Nearly three-quarters of SFAs also reported staffing challenges, with acute shortages of cooks, drivers, and food prep employees.

Nutrition directors have had to get creative in finding emergency substitutes, including making shopping trips at 4 am to Costco and Kroger. Other school districts have cut back to one meal option, instead of the three or four they used to have. Without the federal waivers, schools could face financial penalties for all these decisions, if they opt to continue providing food at all, and would be under more pressure to hound families for unpaid school lunch debt.

Thanks to the waivers, the federal government has covered more of the cost of school meals than usual. This reimbursement flexibility has still just barely allowed school districts to tread water. “Ninety percent of schools are using the waivers and only 75 percent of them are breaking even,” Stacy Dean, USDA deputy undersecretary, told the Washington Post in March.

Without an extension, the average reimbursement could drop by nearly 40 percent. And this drop would occur as schools continue to face higher costs for food and labor. Grocery prices were 10.8 percent higher year-over-year than in April 2021, and are expected to increase substantially this year.

“We literally believe we’re going to go off a cliff June 30,” said Wilson. “And we simply don’t have the labor to go back to doing what we did [pre-pandemic]. We have school districts that are missing hundreds of people, so to expect them to account for every kid and what their family income is ridiculous.”

Congress could extend the waivers easily

Hundreds of advocacy groups, school districts, and elected officials have urged Congress to reauthorize the waivers for the next school year, at a price tag of roughly $11 billion.

Senate Agriculture Committee Chair Debbie Stabenow (D-MI) told Politico that the last-minute opposition to including school meal waivers in their March spending bill came from Republican Minority Leader Mitch McConnell. A few weeks following this surprise, Stabenow introduced the Support Kids Not Red Tape Act to extend the waivers, but so far, it has formal backing only from Democrats, plus Republicans Lisa Murkowski and Susan Collins. Even moderate Democrats Joe Manchin and Kyrsten Sinema support the extension.

But Republican support might be higher than co-sponsorship suggests. Senate Agriculture Ranking Member John Boozman told Vox that he’s been meeting with school nutrition professionals, child hunger advocates, and other leaders about ensuring access to healthy meals at school. “Both sides of the aisle in the Senate want that outcome, and we remain engaged in good-faith talks about the best path forward,” he said, adding that he appreciates “the frequent input I receive from those on the front lines working tirelessly to feed children in need.”

McConnell has declined to comment publicly on the issue, and his office did not return Vox’s request for comment. But a GOP leadership aide told Politico that they do not see pandemic-era flexibilities as necessary anymore, and blamed the Biden administration for failing to include an extension of the meal waivers in its formal Covid spending bill request and 2023 budget request. Agriculture Secretary Tom Vilsack says he had been personally pressing Congress to extend the waivers for one more year.

Some child hunger activists suspect a crisis is being orchestrated to hurt Democrats in the midterms.

“It’s political. [Republicans] know this is going to explode in the summer, and there’s an election in November,” said Wilson. “So people are going to get outraged, families are going to have huge lunch debt, and they’re going to blame the legislators. No one is going to know Senator Stabenow submitted a bill to avoid this; they’re going to want to know why their kids are starving.”

Summer meal programs have already been affected

The federal summer meals program, established in 1975, operates in places where at least 50 percent of children in a geographical area have family incomes low enough to qualify for free or reduced-price meals during the regular school year. As the American Prospect noted, this program was designed with concentrated urban poverty in mind, and has always been less accessible to low-income children living in rural areas.

But the pandemic waivers exempted meal providers from this density requirement. Even in urban communities, the waivers have allowed providers to distribute summer meals to families in bulk, sparing parents from having to make daily trips to pick up food for their kids.

Thousands of sites that distributed federally subsidized meals last summer have already backed out from participating in the coming months, due to Congress’s dithering on extending the waivers.

“Many, many small, particularly faith-based organizations have said, no, we’re not going to go from ‘feed all children until June 1’ and then after that say now we need to know your family’s income to serve you,” said Wilson. “If the groups have to start identifying kids, that’s a nightmare.”

According to USDA data, there were 67,224 open sites providing summer meals in 2021. The No Kid Hungry campaign estimates that 1 out of every 5 of those sites will be unable to serve meals to all kids this coming summer, jeopardizing access for nearly 7 million children.

“Congress could fix this through so many avenues,” said Meier. “They don’t need a big relief package like Build Back Better. Congress can increase the flow of food to families and right now is just refusing to pull those levers.”

Are active shooter drills worth it?

Originally published in Vox.com on May 28, 2022.
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When one Robb Elementary teacher heard gunfire explode down the hall, she shouted for her kids to get under the desks as she sprinted to lock the classroom door. “They’ve been practicing for this day for years,” the teacher told NBC. “They knew this wasn’t a drill. We knew we had to be quiet or else we were going to give ourselves away.”

Lockdown drills (or “active shooter drills”) have become standard fare in American public schools, used in more than 95 percent of schools and mandated in more than 40 states. But despite their ubiquity, there’s no federal guidance on exactly how these drills should run, creating significant variation — and controversy — across the country.

For-profit companies with big marketing budgets sell their own preparedness programs to schools, despite limited evidence for the effectiveness of these companies’ approach. Some students have reported feeling traumatized after the drills, though others say it gives them a relative sense of empowerment. In recent years, anecdotes have emerged of overzealous tactics, like shooting teachers with plastic pellets, simulating gunfire, and using fake blood.

While reporters continue to stitch together the specifics of what went down at Robb Elementary, it’s clear that the school went into lockdown — teachers locked classroom doors, turned out lights, and moved the class out of sight from the hallway and remained quiet.

In the Uvalde Consolidated Independent School District, all schools use the Standard Response Protocol for lockdowns, a set of clear instructions promoted by the “I Love U Guys” Foundation, which parents launched in 2006 after their daughter was killed in a Colorado school shooting. The protocol instructs teachers to lock doors and ensure students stay out of sight and stay quiet.

A fourth grader who survived the shooting told the CBS affiliate KENS of San Antonio that when he heard the shooting, he urged his friend to hide under something. “I was hiding hard,” the child said. “And I was telling my friend to not talk because [the shooter] is going to hear us.”

These experiences suggest the lockdown drills really did help students and staff respond effectively. Evidence so far suggests children and educators in Uvalde followed their lockdown training well, and it was local police who failed to follow protocol. For now, most experts say if we’re stuck living in a society where school shootings are threats communities must deal with, then schools should plan for drills but be more conscious of how they’re executed, and take steps to mitigate needless harm.

The case for lockdown drills

More schools began practicing lockdown drills after the 1999 high school massacre in Columbine, Colorado, but the number ticked up quickly following the shooting at Sandy Hook Elementary School in Connecticut in 2012. Even though youth homicides are far less likely to occur in schools than other locations, school leaders and politicians face immense pressure to proactively respond to these frightening incidents.

Research has suggested that lockdown drills are important tools, said Jaclyn Schildkraut, a professor of criminal justice at the State University of New York at Oswego, who studies school lockdown drills. One reason is that the more a school practices, the better students and staff get at remembering to execute all the steps.

“This is particularly important as [emergency] drills … are designed to build muscle memory, which allows a person to perform certain functions in chaotic situations, such as an active attacker, when their mind is still trying to process what is taking place,” she wrote in a 2020 paper. Other research has found disaster trainings help students develop skills, and the National Association of School Psychologists has also endorsed lockdown drills as a way to prepare for emergencies.

Schildkraut’s findings indicate that staff and students who participate in lockdown drills feel more prepared and more empowered for an emergency. The trade-off, she found, is that students also felt less safe in school — potentially as a result of having to think about the risk they might one day face.

Some critics have said it’s not necessary to subject young students to the drills when they could just listen to their teachers’ instructions in the event of an emergency. A common comparison is flying on an airplane; passengers are directed on where to turn for information if there is a crisis, but they are not required to practice the emergency protocols before their flight takes off.

Schildkraut said a difference is that teachers are often the first people to be killed in a school shooting. “You can’t remove the only people with the information and then expect anyone else to do it,” she told me. “Everyone has to have the tools to stay safe in the moment.”

Supporters of lockdown preparedness also point to the Parkland, Florida, shooting in 2018, where students at Marjory Stoneman Douglas High School had received no active shooter training and the school had no established lockdown procedures.

This lack of training, experts say, was one reason teachers and students on the third floor of Marjory Stoneman Douglas had evacuated their classrooms when they heard a fire alarm. (The alarm had been set off by discharge coming from the shooter’s gun.) When the shooter reached the third floor, he murdered five students in the hallway and one teacher who was holding their classroom door open.

But little federal guidance exists on best practices for lockdown drills, despite repeated calls for such assistance. In 2013, federal agencies endorsed a controversial practice known as “Run, Hide, Fight,” encouraging school staff unable to hide or run in an active shooter incident to try to “incapacitate” the perpetrator with “aggressive force” or nearby items like fire extinguishers. The federal training did not clarify how and if educators should practice such tactics.

In the final report of the Federal Commission on School Safety established after Parkland, the authors recommended federal agencies develop guidelines for active shooter trainings, but to date those have not materialized. A spokesperson for the Department of Homeland Security did not return request for comment; a spokesperson for the Department of Education provided links to guidance on active shooter and emergency events, but not to drills specifically.

A suite of companies and consultants have stepped into the breach, touting so-called “options-based” approaches they claim are superior to traditional drills. These include training staff in more tactics, like barricading doors or even actively confronting an armed shooter. The most recognized player in this space is Alice, the largest for-profit provider of active shooting training in the US. Armed with big marketing budgets, the company can travel across the country to promote its model, even with limited research available to support it.

“There’s no requirement on what model to use, and right now it’s everyone trying to figure it out,” Schildkraut said.

How lockdown drills can cause harm

Given the steady stream of anecdotal news stories about active shooter drills inspiring child fear and even employee injury lawsuits, advocates have urged more attention on whether lockdown drills provoke trauma or are even necessary. Psychologists say establishing drill standards is especially important for children, whose brains and coping strategies are still developing. Others urge more focus on preventive safety strategies, like improving mental health supports and developing anonymous tip lines for students.

Scant high-quality research exists on the mental health risks of lockdown drills, though in 2021, Georgia Tech researchers, in partnership with Everytown for Gun Safety, published a study analyzing social media posts before and after the drills in 114 schools across 33 states.

The researchers found the drills associated with increases in depression, stress, anxiety, and physiological health problems for students, teachers, and parents, and suggested leaders rethink schools’ reliance on them. “We provide the first empirical evidence that school shooter drills — in their current, unregulated state — negatively impact the psychological well-being of entire school communities,” the authors wrote.

Other experts say the drills may even be counterproductive, given that most school shooters tend to be current or former students of those schools. The drills might spark “socially contagious” behavior, some critics warn, or deter school leaders from making other proactive safety investments.

Alice’s methods, which include alarming simulations, have drawn particular scrutiny. But in December 2021, when a shooter murdered four students at Oxford High School in Michigan, leaders noted they had prepared for such an attack using an Alice drill two months prior. The CEO of Alice claimed Oxford would have seen dozens more deaths without the training.

One study published in 2020, led by a criminal justice professor at Xavier University in Cincinnati, found roughly one in 10 students reported experiencing a negative psychological outcome following an Alice training, but over 85 percent of students said they either had no change in feeling or felt more prepared, confident, or safe. The professor who led that research — Cheryl Lero Jonson — published a study in 2018 arguing that “options-based” approaches like Alice were “more effective civilian response[s]” to active shooter incidents than traditional school lockdown drills. Critics note Lero Jonson is a certified Alice instructor and say her findings were not sufficiently independent.

Schildkraut, who primarily studies the Standard Response Protocol method, told me she would not feel comfortable saying if one model is better or worse, but that she does feel advocates of Alice-like approaches mislead the public when they suggest traditional lockdown drills don’t involve choices.

“When we train students, we don’t say this is your only option. If you’re in an open area or by an exit door, your best option is to get out of the building,” she said. “The reason why there’s a heavier focus on the lockdown as an option [and the ‘L’ in Alice stands for lockdown] is because kids remember things in a very linear fashion, and the best thing a student can do is shut the door and get out of the way.”

How to mitigate drill harm

To reduce the risk of trauma, a growing number of experts and advocates have stepped up to issue recommendations for lockdown drills.

In August 2020, the American Academy of Pediatrics (AAP) announced its opposition to high-intensity active shooter drills, issuing recommendations including to eliminate deception in the exercises, and to incorporate student input in their design. The AAP recommended making accommodations for students who may have had prior traumatic experiences or are otherwise at higher risk for negative reaction.

A month later, the National Education Association, the American Federation of Teachers, and Everytown for Gun Safety issued their own recommendations for school safety drills, including removing students from them altogether. If students do have to participate, the teachers unions and Everytown suggest giving parents notice, eliminating simulations that mimic an actual shooting, and using age-appropriate language developed in partnership with school-based mental health staff.

In May 2021, the National Association of School Psychologists, the National Association of School Resource Officers, and Safe and Sound Schools released their own new guidance on school lockdown drills, recommending, among other things, getting parental permission and training staff to recognize trauma signs.

And this year, partly motivated by the new Georgia Tech research, lawmakers in Washington state passed a bill prohibiting school lockdown drills from involving lifelike simulations or reenactments that are not “trauma-informed and age and developmentally appropriate.” The law takes effect in June.

Researchers say more high-quality studies are needed to understand the long-term impacts of lockdown drills and to develop more standardized approaches that could minimize risk. More leadership from the federal government would help.