How Schools Are Trying to Make Undocumented Kids and Their Parents Feel Safe

Originally published in VICE on March 22, 2017.
—–

On Tuesday, New York City mayor Bill de Blasio announced that America’s largest public school system will prohibit federal immigration agents from entering their buildings without a warrant signed by a judge. While there have been no reports of Immigration and Customs Enforcement (ICE) agents rounding up kids at school, de Blasio was echoing similar shows of support for immigrant children made over the past several months by mayors and school officials across the United States.

In November, Pew Research Center reported that about 3.9 million kindergarten through 12th grade students in US public and private schools were children of undocumented immigrants, and 725,000 K–12 students were undocumented themselves. Even before President Trump took office, the feds were known to apprehend some of these students and their parents on their way to school. And now, under a White House that has already begun to dramatically reshape immigration policy, undocumented people and their advocates say the simple act of taking a kid to school has become a terrifying ordeal.

“Parents are fearful of dropping their kids off at school, and kids are concerned while they are at school that they’ll come home and their parents might not be there,” said Laura Vazquez, the program manager with the National Council of La Raza’s Immigration Initiatives.

In 2011, then president Obama’s Department of Homeland Security issued a memo instructing ICE agents to generally avoid enforcing federal immigration policy in so-called sensitive locations such as schools and churches. While President Trump has abandoned many of Obama’s policies restricting immigration enforcement, he has, so far, kept the rule about schools and churches in place. But that’s been little consolation for the millions of families who have witnessed immigration raids in their communities, as well as the political empowerment of conservatives who take a hardline on deportation. And given Trump’s repeated condemnations of so-called sanctuary cities, how long the president will be willing to tolerate the quasi-sanctuary status of schools remains a serious question.

Schools have been proactive in hopes of alleviating the anxiety of immigrant children, emphasizing that they remain open to everyone. For example, Chicago Public Schools, the nation’s third-largest school district, released a memo in December affirming that it would remain a “safe and welcoming” environment for all students and staff. And in February, CPS announced guidelines for principals should agents arrive on school grounds.

Even in districts that aren’t taking pains to make immigrants feel safe, US law already provides a fair number of protections for undocumented students. In addition to the DHS memo still on the books, in 1982 the US Supreme Court ruled in Plyer v. Doe that no public school could deny children access to an education based on their immigration status. Subsequent court decisions reaffirmed this principle, barring schools from enacting policies that could significantly interfere with student enrollment. For example, in 2012, a federal appeals court unanimously struck down an Alabama law requiring public schools to check the immigration and citizenship status of new students.

The Family Educational Rights and Privacy Act, a federal law preventing schools from sharing confidential student information, also serves as a bulwark for undocumented students. While schools can share confidential information under limited circumstances, sharing with ICE agents is not considered such an exception. Title VI of the Civil Rights Act also creates obligations for schools to prevent discrimination based on race or immigration status. And the Fourth Amendment, which protects against unreasonable search and seizure, requires ICE agents to obtain judicial warrants to enter schools, not just the administrative warrants they generally use to make public arrests.

In light of the precedents favoring their cause, the National Immigration Law Center has been pushing school districts nationwide to adopt “Campus Safe Zone” policies, which mostly affirm existing policies while expressing strong support for undocumented students. (A Department of Education spokesperson told VICE that the agency has not released any statements or new guidance for schools concerning the president’s immigration policies.)

For his part, Mark Krikorian, the executive director of the Center for Immigration Studies, a conservative think tank, told me that school leaders speaking up about undocumented students “are intentionally lying in order to gin up panic and opposition,” adding that “it’s a ridiculous idea” that an ICE agent would ever go into a school.

But even if schools may be safe spaces right now, getting there remains a real challenge—immigration experts say there are few legal options available to protect undocumented students and parents who are en route to “sensitive locations” like school or church. For example, in Los Angeles in late February, ICE agents arrested Rómulo Avelica-González, an undocumented Mexican immigrant, right after he dropped off one of his daughters at school. Avelica-González, a father of four who has lived in the US for nearly a quarter century, was apprehended a block away from the school. The ICE agents were in unmarked cars and wore jackets that said “police.”

Such arrests don’t technically violate federal policy, even if they come right up to the line. And it’s important to bear in mind that raids targeting people en route to school were reported last year, after the Obama administration ordered agents to arrest, detain, and deport undocumented immigrants from Central America. Most of these arrests involved entering homes and picking people up off the streets, but some students were also detained by immigration officials on their way to school. Public school teachers at the time said the ramped-up enforcement  had a chilling effect on other students, leading to increased absences and general classroom stress.

David Hausman, a Skadden Fellow at the ACLU Immigrants’ Rights Project, says it’s more important than ever to inform students that protections remain in place for them—that even if getting there is a heavy lift, some places really are safe. “Although we’ve seen disturbing incidents near schools, we have not at least yet seen any enforcement actions within schools themselves,” he said.

The White House did not respond to a request for comment on possible changes to ICE protocol Wednesday afternoon, but that agency did confirm the 2011 policy on avoiding sensitive locations remains active. Meanwhile, conservatives like Krikorian insist it’s “not a legitimate concern” for schools to talk to parents about possibly facing arrest when picking up their children.

“You don’t get a free pass to break the law just because you have children,” he said.

The Hour of the Attorneys General

This article appears in the Spring 2017 issue of The American Prospect magazine.
—-

On a Tuesday night in early February, not three weeks after Donald Trump’s inauguration, three federal judges in San Francisco heard arguments about whether to halt his first major policy undertaking. Trump had issued an executive order banning hundreds of thousands of travelers from entering the country, including citizens of seven Muslim-majority countries, and all refugees. As many as 60,000 individuals had their visas revoked. Almost immediately, a pair of Democratic attorneys general, Washington state’s Bob Ferguson and Minnesota’s Lori Swanson, brought suit against Trump’s executive order, arguing it violated the 14th Amendment’s guarantee of equal protection under the law as well as the First Amendment’s Establishment Clause, harmed all Washington and Minnesota businesses and communities, and was “undermining [their] sovereign interest” as welcoming destinations for immigrants and refugees.

More than 100,000 people from across the nation sat glued to a YouTube livestream of the legal hearing. The high-profile courtroom drama unfolded amid massive protests against Trump in streets and airports. Besides Democratic attorneys general, civil rights groups and private lawyers filed dozens of other lawsuits in federal courts across the country. A few days later, the United States Court of Appeals for the Ninth Circuit blocked Trump’s executive order, ruling that it failed to advance U.S. national security. So went the opening round in what will surely be a continuing legal struggle over Trump’s powers.

As millions of Americans steel for years of conflict with a Republican-controlled Congress and an authoritarian president, Democratic state attorneys general—politicians with independent authority to sue on behalf of their states—are expected to take a leading role on the front lines of the mobilized resistance. Though their numbers have fallen in recent years, the 21 Democratic AGs now in office have pledged to work together to use their powers to protect citizens from executive overreach. They will be a crucial source of support in fighting a president who says he will deport millions of undocumented immigrants and deregulate everything from the banking industry to the environment.

The Supreme Court and, ironically enough, Republican state attorneys general have paved the way for the Democratic AGs. Thanks to the Supreme Court, the states have stronger grounds for contesting federal authority than they did in the past, and during the Obama administration Republican state AGs honed the legal playbook for challenging federal laws, regulations, and executive orders. Democratic AGs may now be able to use that same playbook to contain Trump, especially because the Republican Congress shows little evidence of serving as an independent check on the executive branch. Since Democrats at the federal level have no power to conduct investigations, much less bring indictments, state AGs have been propelled into the forefront as a check and balance against one-party national government.

Since the election, Democratic AGs have begun other actions besides opposing Trump’s travel ban. The day before his inauguration, six Democratic AGs filed a motion to defend an EPA pollution rule being challenged in court by the fossil fuel industry. Four days later, 16 Democratic AGs filed to intervene in a case regarding the Consumer Financial Protection Bureau, an independent agency the Obama administration had been defending in court. Many suspect Trump will fire the CFPB’s director and downgrade the agency. “The CFPB has been the cop on the block, and as Republicans try to defund and kill off the agency, there will be a huge gap to be filled,” says Caroline Fredrickson, the president of the American Constitution Society. “AGs will be a major part of that response.”

AGs have also been preparing to defend health-care rights. Massachusetts AG Maura Healey has taken the lead in organizing a multistate working group to protect the Affordable Care Act, and New York AG Eric Schneiderman reintroduced legislation to protect access to free birth control for New Yorkers as afforded by the health-care law.

AGs have been beefing up their offices. New York—already one of the largest AG units, with nearly 700 lawyers—is hiring two new senior attorneys to focus on issues related to Trump’s presidency. Schneiderman already has an ongoing investigation of the Trump Foundation. In February, Maryland’s Democratic-controlled legislature moved to expand the authority of their state AG for the first time since 1864, citing the unique danger posed by Trump. Maryland lawmakers are also considering appropriating $1 million more per year to the state AG office and hiring five additional attorneys to take on the federal government.

AGs are under no illusion: It’s all hands on deck.

STATE ATTORNEYS GENERAL trace their roots to 17th-century England, where the office of AG became independent of the king. According to James Tierney, who leads Columbia Law School’s National State Attorneys General Program, the idea of an independent attorney general migrated to the American colonies and became a fixture of American state governments after the Revolution. In contrast to the U.S. attorney general, who is appointed by the president and can be removed at any time, most state AGs are elected, strengthening their position as true independent checks against executive power.

In 1907, the National Association of Attorneys General (NAAG) formed to chart a shared antitrust strategy regarding the Standard Oil Company. The group, which also tackled issues such as habeas corpus, federal-state relations, and criminal law enforcement, was staffed through state AG offices until 1936, when it was taken under the umbrella of the Council of State Governments. In 1980, NAAG split off once again as an independent association. Over the decades, its agenda has expanded to include pressing issues of each new era: internal security in the 1950s, civil rights in the 1960s, cyberspace law in the 2000s, and consumer financial protection in the 2010s.

It was in the mid-1990s, though, that state AGs really began to innovate new ways to use the powers of their office. More than 40 states came together to sue the five largest U.S. tobacco companies, charging them with consumer fraud and seeking payment for the Medicaid costs incurred for tobacco-caused illness. The bipartisan effort led to a groundbreaking settlement in 1998 and provided the template for multistate litigation ever since.

“We knew AGs were increasing [their] power back in 1995, when they started to take on the powerful tobacco industry,” says Karen White, the executive director of the Conference of Western Attorneys General, another AG association, which White has worked for since 1991. “This was the first time that AGs had front-page news headlines every day. Their powers were elevated, and people started to understand what they do, and could do. It wasn’t the first multistate case, but it was the most impactful in terms of catching people’s attention and catapulting AGs into a force to be reckoned with.”

Paul Nolette, a Marquette University political scientist who studies AGs, finds that while there were a few multistate cases in the 1980s, their numbers increased during the 1990s and 2000s and reached new heights during the Obama years. Some were bipartisan—particularly around consumer protection issues—but the later years of the last century and early years of the new one saw the birth of party-affiliated AG associations and more multistate, partisan litigation.

Republicans led the way, bolstered by the Republican Attorneys General Association (RAGA), a group dedicated to electing Republican AGs and litigating cases based on conservative legal philosophy. RAGA launched in 1999, moving under the auspices of the Republican State Leadership Committee in 2002. But the group’s formidable legal efforts did not take off until the Obama years.

And take off they did. Launching a concerted effort to beef up its political power, RAGA began fundraising and spending money on AG campaigns at unprecedented levels. In 2014, the group split off to become its own organization, creating its own super PAC to boot. RAGA raised $16 million that year, nearly four times what it raised in 2010. Pharmaceutical companies, the fossil fuel industry, the U.S. Chamber of Commerce, and the Koch brothers were among the group’s largest benefactors. Promises to fight for deregulation in the courts proved to be effective fundraising appeals. In joint actions, Republican AGs challenged President Obama’s policies on immigration, health care, the environment, and the workplace—raking in even more money with each successful court action.

Increased campaign spending paid off. By 2015, Republicans commanded a majority of AG seats, and in the 2016 election, Republican attorneys general increased their numbers from 27 to 29, the most at any time in U.S. history.

Democratic AGs, after dragging their feet, began rethinking their own strategies in 2014. They had a part-time committee—the Democratic Attorneys General Association (DAGA)—which had been based in Denver, Colorado, since its founding in 2002. DAGA was disconnected from the rest of the party, though. And while it had always done some fundraising, budgets for AG races had been fairly small.

“RAGA could really marshal its Republican AGs, whereas DAGA just wasn’t as good,” says Travis LeBlanc, who served as special assistant attorney general of California and a senior adviser to California AG Kamala Harris. “RAGA really ran like a really well-oiled machine.”

At the end of 2015, DAGA decided to relocate to Washington, D.C., and turn itself into a full-time operation. In May 2016, the group hired its first full-time executive director, Sean Rankin, a veteran Democratic political operative. Charged with aiding and electing Democratic AGs across the country, Rankin tells me he thinks he has the coolest job in politics.

Today, DAGA has offices in both Washington, D.C., and San Francisco. Rankin spent most of 2016 forging new relationships with groups like the National Education Association, Planned Parenthood, and the Democratic Governors Association, and since Election Day he has been working with tech groups, labor unions, Latino Victory, and the Congressional Black Caucus. “We needed to leverage new strategic partnerships,” says Rankin. “This component seems obvious, but for DAGA it didn’t exist before in the same way.”

Despite the decline in the number of Democratic AGs, DAGA is quick to note its successes in the 2016 election: Democrats won two out of three of their most contested AG races, even outperforming Hillary Clinton in states such as Pennsylvania and North Carolina. DAGA’s fundraising prowess still pales in comparison to RAGA’s; in the 2016 cycle, DAGA raised $10 million, compared with the more than $23 million RAGA raked in. But in February, DAGA hired its first full-time fundraiser, and has been working to raise money from progressive interest groups motivated to fight back against Donald Trump.

“Gun control, reproductive choice, environmental issues—at the end of the day, these are all being played out more in the courts than they are in Congress, and so our Democratic interest groups are coming to realize they need to support Democratic AGs more going forward,” says Steve Jewett, a political consultant who oversees campaign work for DAGA.

“RAGA certainly has the lead, but that lead is not going to last forever,” Rankin adds. “We are going to catch up.”

DAGA’s investments over the course of 2016, while made on the assumption that Clinton would win, have nevertheless enabled AGs to coordinate faster responses to the new president. But how effectively the Democratic AGs will contest Republican policies and Trump’s agenda remains to be seen.

“Republicans are different, they’ve always been more sophisticated and disciplined in the orchestrated exercise of power,” says a political consultant involved with AGs who agreed to speak on background. “With RAGA, they’re pretty harsh with one another. If you don’t participate, if you don’t play along, you won’t get support. I don’t think DAGA has been as disciplined about that.”

DEMOCRATIC AGS WILL SURELY look to the example set by their GOP colleagues as they prepare to oppose Trump’s policies. During the Obama years, Republican AGs took their cases to Texas courts, which are chock-full of conservative judges who are amenable to their arguments. The GOP did not originate “forum shopping”—Democratic AGs won injunctions against George W. Bush’s policies from district court judges in California’s more liberal Ninth Circuit—but the Republicans did increase the practice. Greg Abbott, Republican governor of Texas, says that on a typical day when he was Texas’s AG, he went into the office, sued the federal government, and went home. Abbott sued the Obama administration 31 times, and his successor, Ken Paxton, brought 17 additional legal challenges.

For nearly a century after Massachusetts v. Mellon, a 1923 Supreme Court case, states were treated like any other litigant. They were not allowed to bring lawsuits unless they had “standing” to sue—that is, they could not challenge federal policies they believed were generally bad unless they could show a concrete and specific injury caused by the challenged conduct that could be remedied by a court. A harm affecting everyone was not a sufficient legal basis.

“Otherwise you’d get every state marching into court the second that you do something they don’t like,” says Stephen Vladeck, a University of Texas Law School professor. “You’d turn what are really political disputes into court challenges at the outset. Find me a federal policy that all 50 states endorse.”

Under George W. Bush, however, Massachusetts’s AG, joined by 11 other Democratic AGs, sued the Environmental Protection Agency to regulate greenhouse gases. In a surprising 5–4 decision in 2007, the Supreme Court gave Massachusetts “special solicitude” in the standing analysis, making it easier for states to get into court than it is for individuals and private organizations. The ruling effectively expanded states’ authority to bring lawsuits against the federal government.

Under Obama, Republican AGs pushed open this door even further. In 2014, Obama announced new policies to give undocumented parents and lawful permanent residents permission to live and work for three years without fear of deportation. Twenty-six Republican AGs sued the federal government in response, arguing that the president violated procedural norms and exceeded his constitutional authority.

Abbott argued that Texas had standing to challenge Obama’s immigration program because his state would suffer a financial burden in providing undocumented immigrants with state-subsidized driver’s licenses. A Texas district judge, Andrew Hanen, agreed that this burden constituted sufficient “harm” to bring the case and issued a national injunction to block the order. (Hanen, it should be noted, was no fan of Obama: He had previously been on record saying that the administration worked with drug cartels to smuggle children illegally over the Mexican border.) In a 2–1 decision, an appellate panel on the Fifth Circuit upheld Hanen’s injunction.

Last year saw even more preliminary national injunctions against Obama’s policies, all issued by federal district court judges in Texas. Republican AGs were able to block several Department of Labor regulations, a letter from the Department of Education advising schools about policies regarding transgender students and public-school bathrooms, and a rule interpreting an anti-discrimination clause in the Affordable Care Act.

Some scholars, such as Samuel Bray, a professor at UCLA School of Law, have been speaking out against the trend of issuing national injunctions—a legal innovation that didn’t become commonplace until the latter half of the 20th century. The idea that a single district judge could issue an injunction to block federal policy nationwide, as opposed to just restraining the defendant’s conduct vis-à-vis the plaintiff, was, Bray says, unthinkable for most of U.S. history.

But what goes around comes around, and Democratic AGs intend to use the new legal strategies forged by their Republican colleagues to challenge President Trump.

“Republican AGs engaged in continuous warfare,” says Maryland’s attorney general, Brian Frosh. “Scott Pruitt [the former Oklahoma Republican AG and new EPA head] created a federalism unit in his office and went out and sued the Obama administration repeatedly. Maybe that’s what this evolves into for us. I really hope it doesn’t, but we will engage when necessary.”

Democrats, in short, have no interest in unilaterally disarming.

WHEN A STATE FILES A LAWSUIT, it invokes a special sort of gravitas that private entities don’t have. And when ten, or fifteen, or twenty states join together to sue a corporation or the federal government, it sends a powerful message—something AGs rarely overlook.

“Every case is about the law, and the politics,” says Amanda Frost, a professor at the Washington College of Law at American University. “If you read the complaints AGs file, they are very often written with reporters in mind, with the politics in mind.”

Not coincidentally, Democratic AGs hailing from solidly blue states such as California, New York, Washington, and Massachusetts have shown themselves particularly willing to position themselves on the front lines of the political resistance against Trump.

Schneiderman, New York’s AG, brings with him personal experience battling Donald Trump in court. In the summer of 2013, two years before Trump announced his candidacy, Schneiderman filed a lawsuit against him, alleging that Trump University, which ran a real-estate training program from 2005 until 2011, ripped off thousands of people all over the country.

In response, Trump created a website to attack Schneiderman, sued him for $100 million, and filed ethics claims against him—all of which went nowhere. The Trump University case appeared to settle this past November, with Trump agreeing to pay $25 million. (One of the former students has recently pulled out of the settlement, raising questions as to whether the case is indeed resolved.) “From our perspective, [Trump’s] response to our suit was really a preview of the scorched-earth tactics he’d go on to use during the presidential election,” Schneiderman says. “Look, Trump has had a successful career involving charming people or bullying people, and at this point in his life, we shouldn’t expect anything different from him.”

Legal problems with Trump’s taxes or businesses could be a state as well as a federal issue, and if any state AG investigates those issues it would be Schneiderman, since the Trump Organization is headquartered in New York. Some progressives have been calling on him to launch such investigations, but none are yet under way, and they could be difficult for a state AG to pursue. (Investigating Trump might have been easier for Preet Bharara, the fired U.S. Attorney for the Southern District of New York.) But at a conference of the National Association of Attorneys General in early March, Schneiderman said “it is not sustainable” for Trump to refuse to disclose his holdings or to divest them. He added that his office is currently studying Trump’s potential conflicts of interest, but that “it would be premature to say” how his team will proceed.

Following the election, Massachusetts Democratic AG Healey organized town halls to gauge citizens’ reactions to Trump around her state. Hundreds turned out—far more, she says, than she ever anticipated. “I’m hearing from Democrats, Republicans, and independents. They’re really upset. I’ve never seen anything like this,” Healey says. “We need to stand up on the front lines to play defense, but also to play offense and continue to pass laws that help people, the economy, the environment, and consumers, in the face of a president and an administration that may abdicate any and all responsibilities.”

AFTER DISAPPOINTING RESULTS in the 2016 federal elections, Democratic party leaders—including Tom Perez, the new chair of the Democratic National Committee—say they recognize the need to shift political focus back to the states.

“Republicans have taken so many states, dominating governor’s mansions, legislatures, and even state AGs,” says Healey. “That’s because the Republican Party made a concerted effort to focus on the school committee on up. We have got to do a better job of telling everyday people why Democratic policies translate to prosperity.”

Democrats may find that refocusing on states produces more than short-term political gains. For years, the GOP has positioned itself as the party of federalism. But there is also a progressive version of federalism, historically associated with Louis Brandeis, the early 20th-century reformer and Supreme Court justice, who envisioned states as “laboratories of democracy.” Democratic AGs seeking to act as checks on the Trump administration might find themselves reinvigorating this ideal.

Take, for example, Trump’s threat to cut off billions of dollars to states and cities that refuse to help with deportations. Democrats may find themselves grateful for certain Supreme Court decisions that they otherwise oppose. In its 5–4 ruling on the Affordable Care Act in 2012, the Supreme Court struck down the provision of the law that effectively forced the states to expand Medicaid. The Court held that by making all federal Medicaid funds conditional on the expansion, Congress would be unconstitutionally commandeering state governments. In the age of Trump, Democrats may now find that decision a helpful precedent in protecting states from having their state and city police forces commandeered for immigration enforcement, on penalty of losing federal funds they would otherwise have the right to receive.

“Trump’s never been in government, his people have never been in government, they’re not lawyers, and they don’t seem to have a sense of the Constitution at all,” says Columbia Law School’s James Tierney. “They’re going to learn that we’ve got judges; we’ve got good, strong, judges. And a lot of those suits will be brought by attorneys general.”

Lawyers will be watching the Trump administration like hawks, looking for any slight procedural violation. Not only can state AGs sue for things Trump affirmatively does; they can also sue for inaction if they feel the president fails to fulfill his duties under the law.

“It’s actually much less complicated than reporters think it is,” Tierney says. “If someone does not enforce the law, then someone has to do something about it. We haven’t even begun to see what cases will be dropped, what unfair settlements will be struck—but people are watching very closely. And if [Trump] operates in a way that impacts the sovereignty or the proprietary interests of the citizens of the state, AGs will sue.”

TIERNEY ADMITS AGS ARE more partisan than they were a few years ago but says they’re still less partisan than Congress or the American public. AG partisanship may be set to escalate, however, in dramatic new ways.

In November 2015, Schneiderman launched a probe into ExxonMobil in response to news investigations that suggested Exxon knew since the 1970s that its products were heating up the atmosphere, yet intentionally misled investors and the public about it. Schneiderman requested internal Exxon documents spanning the past 40 years. Schneiderman said he had suspicions that, as in the tobacco cases of the 1990s, corporate executives in the oil industry may have had hidden knowledge that their products had harmful consequences. California AG Kamala Harris opened an investigation in January 2016, and Maura Healey of Massachusetts joined Schneiderman’s probe two months later.

In May 2016, 13 Republican members of the House Committee on Science, Space and Technology sent a letter demanding that Democratic AGs and environmental groups turn over their own documents to show whether their Exxon investigations were politically motivated. A month later, ExxonMobil filed a federal lawsuit in Texas against Healey, claiming her AG probe was politically motivated and violated Exxon’s corporate right to free speech. Lamar Smith, the House Science Committee chairman from Texas, followed up in July by issuing subpoenas to Healey, Schneiderman, and eight environmental organizations.

“The attorneys general are pursuing a political agenda at the expense of scientists’ right to free speech,” Smith said at the time. (ExxonMobil is headquartered in Texas.)

Both Democratic AGs responded that Congress lacked the authority to intervene in their state-level investigations, and refused to comply. In mid-February, Lamar Smith issued new subpoenas.

Paul Nolette says he’s never seen this kind of congressional interference before and that for the most part, corporate investigations, such as when state AGs probe pharmaceutical companies, have been considered nonpartisan. “That may be changing,” he says. “I suspect this won’t be a one-off thing.”

“You now have a Republican-controlled Congress wasting taxpayer money harassing state AGs, sending multiple subpoenas, which it has no authority to issue,” Healey tells me. “We have the authority to do this investigation, and it’s critically important that it’s not hamstrung by political machinations exercised by the House committee. Let’s be very clear about what this is. It’s an abuse of federal power, and an example of a committee that isn’t interested in facts or science looking to carry the water for corporate interests.”

AGS ARE MOSTLY ELECTED, so a legal strategy for resisting Trump will require not just victories in the courtroom but in the polling booth as well. DAGA has already been eyeing the 2018 electoral landscape, recruiting candidates, and raising money.

ACLU donations skyrocketed in the wake of Trump’s immigration executive order, but no similar wave of cash poured into DAGA’s coffers. Rankin is optimistic that such fundraising will be coming; in addition to its new fundraiser, DAGA has been talking to progressive groups and other organizations that want to help Democratic AGs raise money. Rankin says the organization received its first million-dollar donation in mid-February. “That’s never happened before,” he says.

In many states, attorneys general are the best-situated leaders to run for higher office as a result of their experience, statewide reputation, and legal victories they may have won.

“Our AGs are out there saying, ‘Listen, I’m here to fight for you, I’m going to defend you against big interest groups that are against you or do you harm,’” says Jewett, DAGA’s election consultant. “We look at our Republican counterparts and they’ve essentially been sending a message of, ‘We’re going to fight regulation, fight Obama.’ I think that’s not a long-term winning strategy and Republicans are going to struggle to find a message to stay relevant.”

Right now, faced with a president whom most progressives consider unfit and dangerous, relevance is not a problem for Democratic AGs. No other progressive force in the country is as well positioned to investigate the Trump administration and to take it to court.

Chicago Teachers May Launch Nation’s Largest Charter School Union

Originally published in The American Prospect on March 7, 2017.
—–

Teachers at Chicago’s biggest and best-regarded charter school network have set out to form a union, a move that if successful would create the largest charter school union in the nation.

In an open letter to administrators and school board members, teachers at the Noble Network of Charter Schools requested permission to organize a union without interference or fear of retaliation. Founded in 1999, Noble operates 17 campuses across the city, educating more than 12,000 students.

“Under current local and national conditions, educators labor to remain in their classrooms while our value is diminished, our capacity drained, and our power constrained,” read the letter, which was delivered on March 3. “Both students and educators struggle to thrive in climates that prioritize test scores and compliance over creativity and personhood. Our students’ learning conditions are our working conditions.”

As of Friday morning, 131 of the roughly 800 Noble teachers and staff across city had signed on in support of the union. Union organizers told The American Prospecton Monday that they have received many more signatures since then, but could not say exactly how many because online signatures are still being tallied.

Known for “high expectations,” as its website says, Noble Network has earned a reputation as one of the most high-performing charter networks in the country. Last year, 90 percent of Noble high school seniors went on to college. In 2015, the Eli and Edythe Broad Foundation awarded Noble a $250,000 prize for being among the nation’s top charter networks.

On Monday, Noble teachers held a press conference in advance of a Noble school board meeting, reiterating their request to management for a fair and neutral process.

The response they have received from network CEO Michael Milkie has been skeptical.

“We respect the rights of individuals to organize or not organize, and we will continue to address concerns of teachers, staff, parents, and all members of the Noble community,” said Milkie in an emailed statement. “In my experience as a former CPS teacher, I believe a restrictive union contract could eliminate the curriculum and flexibility we have to best serve our students’ needs.”

In most cases, charter teachers have waited until they secured a solid majority in support of their union efforts before going public with their organizing. However, in cases where the size of the unit was considered too large to possibly conduct effective organizing in secret and still maintain job security, workers have sometimes opted to launch public campaigns.

This is the strategy being pursued by charter teachers organizing a union at Alliance College-Ready Public Schools, the largest charter chain in Los Angeles. They have been organizing publicly since the spring of 2015. Several months after LA teachers launched their union drive, California’s state labor board announced that it would be issuing an injunction to block Alliance administrators from interfering with their staff’s organizing. Two weeks ago, Dolores Huerta, the co-founder of the United Farm Workers, also called on Alliance to stop interfering in their teachers’ union drive.

One issue Noble teachers hope to address with a union is high teacher turnover. Last year Melissa Sanchez, a Chicago-based education journalist, reported that state data on certified teachers showed that annual retention averaged 75 percent in recent years across the Noble network, compared with 79 percent at traditional public schools, and 83 percent when in-district transfers were taken into account.

Mariel Race, a Noble teacher involved in the organizing efforts, says her charter network has long focused on expansion, but now operates so many schools that it’s time to shift gears towards retaining strong teachers. “We’ve given our feedback on teacher retention for many, many years, and I don’t feel like it’s really being heard,” she told The American Prospect. “There’s not a whole lot that’s being done about it. I think that having a teacher perspective at the table is a huge piece, and I think in order to be heard, with legal backing, and collective backing, it needs to be a union.”

“We need to keep teachers around,” adds James Kerr, a high school English teacher at Noble. “I can go back to my own high school and I’ll see the same teachers who taught when I was there. That’s what I want for our kids.”

Another issue teachers hope to address is salaries—Noble has no pay-scale, leading sometimes to substantial variation among staff wages. Exit interviews revealed that 39 percent of teachers departing Noble—especially female staff—did not feel they were paid fairly. Through an open records request, Sanchez also found that on average, Noble Street teachers earn about $52,000 a year in salaries, and can earn $5,500 in performance bonuses and $2,000 extra in stipends. An average school teacher in a traditional Chicago public school earns roughly $15,000 more than that.

Chicago already has an unusually large number of charter unions. Thirty-two schools, or a quarter of the city’s charter schools, are currently organized with the Chicago Alliance of Charter Teachers & Staff, an affiliate of the American Federation of Teachers. In an AFT press release, Chris Baehrend, the president of Chicago ACTS said that Noble educators are “asking for management to be fair and neutral in this process. After they have succeeded, nearly half of the charter educators in Chicago will have the power of a union behind them in advocating for the schools their students deserve.”

The president of the Chicago Teachers Union, Karen Lewis, also voiced support for the Noble Street teachers. “The Chicago Teachers Union stands in complete solidarity with the courageous teachers and staff in the Union of Noble Educators, and personally, I am extremely proud of their desire to strengthen their collective voice to better advocate for the students they serve,” she said in a statement.

While Race says she and her colleagues are “inspired” by the experiences other charter teachers have had in organizing unions, and “humbled” by what they’ve had to go through, Noble teachers want to make their very own union a grassroots organization that represents their school community.

D.C. Charter Teachers Seek to Unionize

Originally published in The American Prospect on February 22, 2017.
—-

This morning, teachers at Paul Public Charter School, one of the oldest charters in Washington, D.C., publicly announced their intent to unionize—a first for charter schoolteachers in the nation’s capital. As in other cities where charter teachers have formed unions, the Paul educators are forming their own local—the District of Columbia Alliance of Charter Teachers and Staff (DC ACTS)—which will be affiliated with the American Federation of Teachers. 75 percent of Paul’s teaching staff signed a petition in support of joining DC ACTS, and asked administrators to voluntarily recognize their union.

The Center for Education Reform estimates that 10 percent of charter schools are unionized nationally, up from seven percent in 2012. As more and more charter teachers have launched organizing efforts, the absence of charter unions in Washington, D.C., has been notable—particularly given the city’s high density of charter schools. There are 118 charters—run by 65 nonprofits—within D.C., educating 44 percent of the city’s public school students.

Patricia Sanabria, a high school English and special education teacher at Paul, is excited about unionizing with her colleagues. Born and raised in Washington, D.C., Sanabria is a product of D.C. public schools, and spent two years teaching at Ballou High School, a traditional public school in one of the poorest parts of the city, before coming to her charter.

When she first started working at Paul—which educates about 700 students from grades 6-12—Sanabria felt very supported by the staff, which was much smaller than Ballou’s. “It felt more like a family, I felt a lot more at home,” she says. But over the past three years, that feeling has waned, and this year has been especially frustrating.

“When I first got here, the teacher in the classroom next to mine told me that charter schools are ‘teacher factories’, and it’s very true,” Sanabria says. “They keep giving us things to do, and they don’t take into account how much time that adds to our work day. I would say I’m pretty routinely here for 10 hours or more a day, and that’s just not something you see in other professions, and certainly if you do see it, people are compensated for it.”

Sanabria thinks the working conditions negatively impact her school’s special education program, and she hopes a union can help improve it. “Part of that is linked to teacher retention and the hiring of teachers,” she explains. “I think [Paul] is not a very attractive one for special educators, who often have multiple degrees, because we don’t offer competitive salaries. If I had stayed working for DCPS I would be making more than $10,000 a year more than I am now as a fifth-year teacher.”

Two things happened last year which helped precipitate the union effort.

The first is that administrators brought in a consultant at the start of the 2015-16 school year to launch a committee with teachers dedicated to discussing school improvements. After a series of meetings, teachers submitted a list of proposals to their administration, including such recommendations as more transparent staff evaluations, caps on class sizes, and increased time for teacher planning. But the suggestions went nowhere.

“Soft diplomacy has been tried,” says Dave Koenig, a government and history teacher at Paul, and the first person at his charter to reach out to the AFT.

“Nothing really came out of the consultant committee, nothing substantial, no major changes,” adds Katrina Foster, a special education coordinator who has been working at Paul for seven years. “So the union was just kind of the next step, [we] organically moved into starting this movement.”

Paul teachers also grew frustrated at the end of last year when the high school’s popular principal did not have her contract renewed. Educators say they were given no clear explanation for her firing, and the teachers rallied together for the principal’s reinstatement. Their efforts, too,  went nowhere. For teachers like Koenig, that was the last straw.

“In my time here I’ve seen people who are really good, dedicated teachers shown the door because they have personality conflicts with someone above them. I’ve also seen really good people leave on their own because they feel underappreciated or overworked to the point of developing [a] nervous breakdown,” says Koenig. “I don’t want that to continue to happen. I want the staff to be stable and happy, and I think a union is part of how we get there.”

“I don’t think the union is for any one particular thing, but mainly to support staff, to give teachers a voice, and recourse,” says Foster.

Representatives from Paul Public Charter were not available for immediate comment.

Two key factors have inhibited charter organizing in Washington, D.C.

Charter teachers in cities such as Chicago, Philadelphia, and New Orleans—where successful charter unions have taken root—have had the benefit of receiving help from their state teachers union. When charter teachers have just begun trying to launch a brand new local off the ground, state affiliates have provided them with valuable transitional support and bargaining staff. No such intermediate body exists for the District of Columbia.

The Washington Teachers Union, D.C.’s traditional public school teachers union, has also been particularly embattled in recent years. In 2007, the city hired a controversial schools chancellor, Michelle Rhee, who was empowered to make decisions largely without school board or city council approval. As charter schools expanded throughout the city, Rhee proceeded to fire hundreds of teachers from traditional public schools, and regularly engaged in high-profile fights with the WTU.

Rhee left in 2010, but the union has since struggled to find its footing and regain power. Its current president, Elizabeth Davis, was elected in 2013, and has spent the majority of her tenure trying to negotiate a new collective bargaining agreement. Teachers have been working under a contract that expired back in 2012, and haven’t had a base-level salary increase since then.

In an interview with The American Prospect, Davis says she’s always been interested in helping to support charter school organizing, and that her members are interested in it, too. “The first three years of my presidency just ended up being far more than I anticipated,” she says, in reference to the contract negotiations that have commanded the union’s attention and resources.

“But our union is going to support charter teachers organizing in any way we can,” Davis said. “We want teachers, irrespective of what schools they teach in, public or charter, to have a union.”

Paul charter teachers say they’re looking forward to forming DC ACTS, rather than joining the 4,000-member WTU, because it will allow them to build something from the ground up. “I think being in our own local, and such a small unit, is going to allow us the freedom to be creative and innovative in terms of what we negotiate for,” says Koenig.

Paul’s educators plan to organize under the jurisdiction of the National Labor Relations Board. Last summer, the NLRB issued a pair of decisions which said that charter school teachers are private employees who fall under the federal labor board’s purview. Even before the NLRB ruling, D.C.’s public employees’ labor board, which covers teachers and other staff in traditional public schools, had excluded charters from its purview.

If Paul Public Charter School administrators do not voluntarily recognize their teachers’ union, and challenge the NLRB’s jurisdiction should the staff then move for an election, the administration would effectively be saying that D.C. charter school teachers should have no formal rights under any labor board—public or private. Union opponents may see an opportunity to overturn the NLRB’s charter rulings in the Trump administration, given that Trump has named Philip Miscimarra as the board’s new acting chairman. Miscimarra was the sole dissenting voice in the 2016 charter school decisions, and argues that charter labor law should be left to state and local regulators.

Across the country, charter administrators and board members have generally fought union efforts, insisting that collective bargaining agreements would inhibit charter school success and flexibility. Gina Mahony, the former vice president for government relations for the National Alliance of Public Charter Schools, a group that strongly discourages charter unionization, sits on the Paul Public Charter School’s board of trustees.

While Koenig says improving Paul is his top priority, he’s also hopeful that starting DC ACTS could spark broader change within D.C.’s charter school sector.

“This has always been partially political for me,” he says. “Problems we face at Paul are also problems in other charter and public schools. A really disturbing theme in education today is how teachers are treated so poorly, so that the good ones are pushed out, and automatons are brought in who are willing to simply teach skills for standardized tests. I think teachers unions are our only way to fight back against things like that, and unions in general are very important to fight back against a changing economy that crushes working people.”

An A.G. in Action

Originally published in The American Prospect on February 13, 2017.

 

xx.png

Photo Credit: Rachel Cohen

 

Last week on the steps of Federal Hall, the Wall Street building where George Washington was inaugurated and the Bill of Rights was introduced, New York Attorney General Eric Schneiderman unveiled the New York Votes Act, a package of election reforms he hopes can transform his state into a national leader on voting rights.

About 100 people gathered for the press conference, where Schneiderman was joined by representatives from Common Cause, SEIU, and other progressive organizations. The attorney general’s omnibus bill—which includes reforms like automatic voter registration and early voting—would mark a significant step forward for the liberal state that has the third-worst voting participation rate in the country, and ranks as the fifth-worst state for voter registration.

The New York Votes Act comes at a time when the president of the United States falsely claims that anywhere from three million to five million votes were cast illegally in the 2016 election, and when the new U.S. Attorney General refers to the Voting Rights Act as “intrusive.” Schneiderman, by contrast, said his office received literally thousands of complaints last year regarding barriers to voting, and “not one verifiable claim” of voter fraud.

“I have a lot more confidence to move voting reforms than I ever have,” he declared.

The event was organized amid a flurry of ongoing legal battles involving Schneiderman and other Democratic state attorneys general who are challenging President Trump’s executive order banning citizens traveling from seven Muslim-majority countries, and suspending refugee entry into the United States. Schneiderman filed suit in New York federal court challenging the ban, and he joined 18 other Democratic AGs in filing an amicus brief to support Washington’s attorney general, who also sued.

Earlier that same morning, Schneiderman stopped by for a Bloomberg TV interview where he fielded questions on the legality of the Muslim ban, and his thoughts on defunding so-called sanctuary cities. Calmly pushing back on the idea that there’s legitimate national security rationale for the executive order, Schneiderman said Trump’s actions are clear efforts to discriminate. Immigrants comprise 23 percent of New York’s population, and barring travel, Schneiderman said, would hurt all the state’s residents, and every state institution and business.

Schneiderman has a long history of activism on behalf of New York’s disadvantaged. Bill Lipton, the New York State Director for the Working Families Party, first met him in the 1990s, when Schneiderman was leading a legal team against subway fare increases which would have disproportionately hurt low-income communities and people of color. “It was an innovative legal strategy, and foreshadows a lot of what we see today,” Lipton recalls. “At this point I think it’s safe to say that Eric is one of the most important Democrats in America, and going beyond that, he’s really a leader of the resistance against Donald Trump.

Schneiderman was suing Trump well before his fellow AGs got around to it. Sitting in his 25th-floor office in Lower Manhattan, he told me what he’d learned from fighting the president in prior litigation. In the summer of 2013, two years before Trump announced his candidacy, New York’s AG filed a lawsuit, alleging that Trump University was a scam that ripped off thousands.

“From our perspective, his response to our suit was really a preview of the scorched earth tactics he’d go on to use during the presidential election,” Schneiderman said. Trump created a website to attack Schneiderman, sued him for $100 million, and filed ethics claims against him—all of which went nowhere. The case ended this past November, with Trump agreeing to settle for $25 million.

“Look, Trump has had a successful career involving charming people or bullying people, and at this point in his life, we shouldn’t expect anything different from him,” Schneiderman said.

Keenly aware of the threats posed by the president, New York’s AG emphasizes the importance of states—especially progressive, liberal states—in checking federal power. He feels frustrated with the Democratic party over the past 30 years, which has focused too narrowly on federal elections and failed to invest in local politics. New York is a particular source of frustration for liberals: The Democrats control the governorship, the Assembly, and have a numerical majority in the state senate—but do not control it, since several Democratic senators caucus with Republicans.

“My approach is much more grassroots, and our problems need to be dealt with aggressively,” Schneiderman said. “Activists and donors have to be demanding of elected officials. If you give a good speech, that’s great, but if you’re not actually passing laws and enacting policies that make the lives of people better—then maybe you need to be replaced.” Back when Schneiderman was a state senator, he engineered successful campaigns to elect more progressive Democrats to New York’s senate.

The attorney general’s legal hero is Charles Hamilton Houston, the attorney behind the NAACP’s legal campaign to end racial segregation. Schneiderman calls him a role model—a “strategic, activist lawyer” who consciously used the law for social change. Though Houston died four years before the Supreme Court issued its landmark Brown v. Board of Education ruling, it was his protégé, Thurgood Marshall, who argued the case in court. A picture of Charles Hamilton Houston hangs behind Schneiderman’s desk in Albany.

Schneiderman is hopeful, noting that the level of democratic and progressive activism he’s seen since Election Day surpasses anything he’s witnessed since the 1970s.

“It’s important to support groups like Planned Parenthood, but we also need to channel that grassroots energy into passing specific legislation,” he said. “And as state politicians, Democratic AGs are in a great position to lead on that.”

Will Crumbling School Buildings Get a Piece of the Infrastructure Pie?

Originally published in The American Prospect on February 8, 2017
—–

Paul L. Dunbar Elementary school, a historic, four-story building of orange brick located in North Philadelphia, looks solid and imposing from the outside. But inside Dunbar, water leaks from the school’s aging roof into classrooms, the windows are in need of repair, and the heating system only works some of the time.

Dunbar is one of hundreds of schools in Philadelphia and throughout the country that is literally falling apart. From fire code violations to faulty boilers that make it too hot or too cold for students to concentrate in class, structural problems plague as many as two-thirds of America’s schools. By one 2016 estimate, it would cost $145 billion a year to properly repair and maintain the nation’s school buildings.

So when President Donald Trump flagged school infrastructure investments in his first speech following the presidential election, public school advocates sat up and took notice. “We are going to fix our inner cities and rebuild our highways, bridges, tunnels, airports, schools, hospitals,” Trump declared. “We’re going to rebuild our infrastructure, which will become, by the way, second to none.”

But excitement turned to uncertainty a few weeks later when Trump gave his inaugural address. The president talked again about infrastructure spending, but this time made no mention of school facilities. In fact, Trump actually argued that America’s education system—as opposed to being starved for investments—is “flush with cash.”

It’s been like that a lot for public school advocates toiling to drag the nation’s crumbling school buildings into the 21st century. A full two decades ago, the U.S. Government Accountability Office reported that as many as 28 million students attend schools under conditions that are unhealthy, uncomfortable, or even unsafe. Yet virtually no federal funding has been set aside to address these infrastructure problems. That burden falls on the shoulders of local districts. And since some localities possess far more power to raise money for repairs than others, the condition of schools in wealthy versus low-income districts varies wildly.

The last time the nation debated school infrastructure spending in 2009, billions of dollars were set aside to renovate school buildings in disrepair. The school infrastructure money had been proposed as part of President Obama’s economic stimulus bill following the 2008 financial crisis. Advocates of that bill, the American Recovery and Reinvestment Act, needed to secure the vote of Maine Senator Susan Collins, one of three Republicans who held the key to its passage. But Collins argued that education facility spending should be a local, not a federal matter, so the school repair money was stripped out at the last minute.

“Her reasoning was that the federal government shouldn’t be involved in public schools, that it was a local issue,” recalls Jared Bernstein, a senior fellow at the center on Budget and Policy Priorities and the former chief economist to Vice President Joe Biden from 2009 to 2011. “We tried to explain that this is just a one-time jolt of infrastructure money to help them improve their facilities, maintenance, and energy efficiency. This was about the quality of the buildings kids would be walking into, not the federal government coming to take over your curriculum.”

School repair advocates tried again in 2011, when Democrats Senator Sherrod Brown of Ohio and Representative Rosa DeLauro of Connecticut introduced the Fix America’s Schools Today Act, which would have authorized $25 billion in federal school improvement funds. The legislation would have distributed 40 percent of the money to the 100 largest high-need school districts, and the remaining 60 percent would have been split among state education departments and administered through competitive grants. But the bill, too, went nowhere, and it was never reintroduced.

Now, Trump’s plans for sweeping infrastructure investments give public education advocates what some say is their best chance in decades to finally repair the nation’s dilapidated schools. Senate Democrats, for starters, recently unveiled an infrastructure bill that included $75 billion for school investments. Randi Weingarten, the president of the American Federation of Teachers, praised the Democrats’ proposal, adding that her union has “walk[ed] the walk” on infrastructure investment for years, harnessing billions in teacher pension money to pay for projects. But the size and shape of the GOP plan is unclear, and it’s anyone’s guess whether Republicans will include in their legislation the repair money that school facility advocates seek.

Convincing Congress to spend big on school infrastructure could be an uphill battle. Unlike the highway and railway lobbies, school infrastructure advocates don’t have a well-funded institutional presence on K Street. Moreover, advocates also lost a key political champion when Senator Tom Harkin, a Democrat from Iowa, retired in 2015. Harkin had chaired the Senate Health, Education, Labor, and Pensions committee in 2009, and had been one of Capitol Hill’s strongest champions for school infrastructure funding.

Still, advocates of school buildings are gearing up to make their case. One promising new weapon in their arsenal is the National Council of School Facilities, a nonprofit organization formed in 2012 to support state agency officials responsible for public school facilities. Late last year, the group issued a resolution calling for pre-K–12 public school buildings and grounds to be included in federal infrastructure programs. Though the group has a tiny budget, it is the first federal lobbying vehicle for state leaders to advocate on behalf of school repairs.

Proponents of increased school infrastructure spending have their work cut out for them, says Mary Filardo, executive director of the 21st Century School Fund, a national nonprofit that advocates for improved public school facilities. Our “feet are still a little flat,” she admits. “States are not prepared to make as strong a case as they need to about the importance of school buildings, and their role in economic change.”

Federal school infrastructure investments are important, Filardo and her allies say, because aside from creating jobs and directly providing resources for school repair, the feds can also help motivate states that are currently contributing nothing to building repairs in local districts to step up and help out.

Currently, local communities pay more than 80 percent of capital costs for school buildings. Over the past two decades, by contrast, states covered only 19 percent of school facility capital spending on average, according to the 21st Century School Fund. And in 2015, 12 states provided no school repair funding at all.

Even more importantly, school repair advocates see federal investments as the only real means to eradicate the gaping disparities between school buildings in wealthy versus low-income communities across the nation. “When facilities are just funded locally, how much you can spend is entirely a function of the wealth of your community,” says Filardo.

The school infrastructure crisis has been building for decades. In 1995, the GAO issued a report estimating that $112 billion was needed to repair and modernize the nation’s school facilities. By 2013, in the wake of the 2008 financial crisis, the American Society of Civil Engineers gave public school facilities a “D+” grade on its national report card. The group found that school construction had diminished to approximately half the level spent before the recession, even as public school enrollment continued to grow.

And last year, yet another report, issued by the 21st Century School Fund, the National Council on School Facilities, and the Center for Green Schools, estimated that it would cost roughly $145 billion a year to maintain, operate, and modernize school facilities to the point where all American students could learn in safe and healthy environments.

If there’s one lesson school facility advocates say they’ve learned from the past few decades, it’s that money doesn’t just trickle down to the schools and districts that need it most.

“From 1995 to 2004, there was tremendous growth in the U.S. economy, and I wondered whether because of this, low-wealth zip codes would get plenty of school construction money,” says Filardo. “What we found is that there was no trickle down—the poor districts were starved compared to the wealthiest districts, except where there had been court cases, and even then it still didn’t compensate for the differences in where they started out.”

In the decade following the GAO’s seminal 1995 report, the nation’s most disadvantaged students received about half the funding for their school buildings ($4,800 per student) as their more affluent peers ($9,361 per student), according to a study led by Filardo’s group. The 21st Century School Fund found that poor schools were most likely to use their limited funds for basic repairs, like asbestos removal or new roofs, while schools in more affluent communities tended to use repair money for things like constructing new science labs and performing arts centers.

These findings underscore why throwing money at schools is, by itself, not enough, say public school advocates; infrastructure investment must be consciously directed to districts with the greatest needs. Otherwise, any school repair money allocated in a Trump administration infrastructure package could just deepen the colossal disadvantages students in poor communities already face.

 

DeVos Might Not Force Private School Vouchers on States — But She Could Promote Them

Originally published in The American Prospect on February 6, 2017.
—-

In 1997, when Arizona launched the nation’s first tax-credit scholarship program, allowing individuals to receive tax credits for donating to nonprofits offering private school tuition grants, legislative aides estimated it would cost the state $4.5 million annually. By the 2015-16 school year, the yearly cost of the program had grown to more than $140 million, even though private school enrollment was actually below its 1997 levels.

Florida launched the nation’s second tax-credit private school voucher program in 2001, with a cap of $50 million. Today the program tops out at $559,000,000 annually, and will increase to $699,000,000 in the next fiscal year.

Pennsylvania’s tax-credit school voucher program, also launched in 2001, was originally capped at $30 million. Designed to provide tuition assistance to private schools, pre-K programs, and “innovative” public school initiatives, it now hits $175 million annually.

Tomorrow the Senate will hold its final vote on Donald Trump’s nominee to lead the federal education department, Betsy DeVos, a billionaire Republican donor who has spent decades advocating for charter schools, private schools, and virtual education. No other Trump appointee has faced the same magnitude of opposition, with hundreds of thousands of Americans calling, emailing, and faxing their senators in protest.

Though it’s widely expected that she’ll be confirmed on Tuesday, the past few months of anti-DeVos campaigning have created some new fault lines within education reform coalitions. In addition to labor unions and civil rights groups, more liberal school choice organizations, like Democrats for Education Reform and Education Trust, have lined up against DeVos’s nomination. Billionaire Eli Broad, who funds charter schools in Los Angeles, New Orleans, and other cities, penned a letter last week against his fellow billionaire education reform champion. On the other hand, Eva Moskowitz, founder and CEO of Success Academy, the largest charter school network in New York City, has emerged as one of DeVos’s most ardent supporters.

One major concern critics have voiced about DeVos is whether she will use her federal perch to push school privatization. She’s referred to the public education system as a “dead end” and has neither attended a public school, nor worked in one. In her home state of Michigan, DeVos has spent years (unsuccessfully) pushing private school vouchers, and has funded voucher efforts in other states.

Though DeVos has promised she would not “force” voucher programs on states, there are other ways she could support their growth if she’s confirmed as education secretary. She might get behind what’s known as “Title I portability”—a policy that would allow states to use federal dollars earmarked for low-income students to follow them to the public or private school of their choice. At $14.5 billion annually, Title I is the federal government’s largest program for K-12 students. Some congressional Republicans tried to include Title I portability in the federal education law that passed in 2015, but Barack Obama said he’d veto any bill that contained it. Democrats and Obama’s administration maintained that such a policy would significantly harm poor students by directing federal funds away from high-poverty school districts.

Title I is likely to come up again, given that in early January Donald Trump tapped Rob Goad, a senior education adviser to Representative Luke Messer of Indiana, to join his administration. Messer is known as one of the most vocal Congressional advocates for Title I portability, and Goad will serve as the key education expert on Trump’s White House Domestic Policy Council. A DeVos-backed Title I portability amendment to the Every Student Succeeds Act could win congressional approval unless Senate Democrats successfully filibuster it.

DeVos is also likely to support states establishing education savings accounts, which are voucher-esque subsidies that can go toward expenses like tutoring and homeschooling, as well as private school tuition. In December, right-leaning education reformers gathered together in Washington, D.C., for a conference hosted by the Foundation for Excellence in Education, an education advocacy group on whose board Betsy DeVos served until recently. At the conference leaders spoke animatedly about setting up vouchers or education savings accounts in every state across the country.

Noting the liberal opposition to DeVos’s nomination, some education analysts have suggested that private school vouchers are unlikely to expand beyond conservative legislators and red states. However, the reality is that private school voucher programs are often pushed in blue cities and purple suburbs—where a plethora of religious schools are located. In fact, it’s Republican-leaning rural areas that tend to have some of the greatest opposition to private school vouchers, given their scant school options.

Indeed Maryland, a blue state that went for Hillary Clinton by 26 points, established its first private school voucher program last year, appropriating $5 million to the effort. While school voucher initiatives are often pitched as vehicles to help poor, black students escape their local public schools, data from the first year of Maryland’s program reveal that more private school vouchers went to white students than black students, and 78 percent of the 2,464 vouchers issued went to students who were already enrolled in private schools. Maryland’s Republican governor Larry Hogan says he wants to double the funding for the voucher program over the next three years.

“In Maryland, no one has lobbied harder or been more excited about Governor Hogan’s voucher program than religious schools,” says Sean Johnson, the legislative and political director for the Maryland State Education Association. “Despite the rhetoric you hear on vouchers from President Trump, Governor Hogan, and Betsy DeVos, vouchers are less about moving kids from public schools and more about moving taxpayer dollars to private and religious schools. We can’t afford to fund two different school systems—public taxpayer dollars should be spent improving our public schools, not subsidizing expensive private schools.”

Meredith Curtis of the Maryland ACLU says what’s happening in Maryland is similar to what’s happened in other states, where private school voucher programs start out small, but continue to steadily grow, even as public school budgets are cut.

“Maryland public schools have tremendous needs that need to be addressed by the state, but we have no promises from the governor to meet those urgent needs, and yet he proposes increasing funding to religious schools,” Curtis says. “What we’ve seen in other states is that once allocations for vouchers are set in place, they just continue to increase, but there’s no accountability for benchmarks to compare the quality of education. We support [the right of] private schools to set their own curriculums, but we object to publicly funding [them].”

Assessing the educational value of private school voucher programs has been difficult. As Erin Richards details in The American Prospect’s most recent issue, Wisconsin, which launched the nation’s first private school voucher program 27 years ago, still lacks high-quality data for assessing performance, and still lacks robust mechanisms to hold private schools that receive public dollars accountable.

DeVos, congressional Republicans, and a host of GOP governors around the country may be enthusiastic about increasing the number of students enrolled in private schools, but public support for such policies is actually falling. According to an annual poll conducted by Harvard’s Education Next journal, nationwide support for vouchers targeted at low-income students fell from 55 percent to 43 percent between 2012 and 2016, and support for universal vouchers fell from 56 percent to 50 percent.

If private school vouchers become increasingly associated with Donald Trump, the nation’s staggeringly unpopular new president, then public support for vouchers may fall further yet.

 

New Jersey Supreme Court Blocks Chris Christie’s Efforts to Bypass Teacher Union Contracts, Alter School Funding

Originally published in The American Prospect on February 2, 2017.
—–

New Jersey Governor Chris Christie’s post-election tribulations continue to pile up. In September, Christie’s administration petitioned the New Jersey Supreme Court to vacate a 2011 ruling that found his prior education funding cuts unconstitutional. The petition also requested authority to bypass teachers’ collective bargaining agreements and tenure laws. The outspoken Republican, a long-time foe of organized labor, claims that these employment rules, not school funding levels, squander already scarce dollars and harm students in low-income districts.

But Tuesday, New Jersey’s high court denied the Christie administration’s attempts to link tenure and collective bargaining to school funding. Long regarded as a national leader in progressive school finance, the Garden State’s funding formula is the result of three decades of state Supreme Court litigation: The Abbott v. Burkecases determined that in order for the state to provide a “thorough and efficient” education to every student, New Jersey must send additional funds to 31 disadvantaged school districts across the state. Christie argues that these monies have been wasted, pointing to the districts’ low test scores and graduation rates.

In his ruling, the chief justice, Stuart Rabner, noted that the Abbott cases did not cover tenure and collective bargaining and declined to “exercise original jurisdiction” on those areas. He also emphasized that the court was not “opin[ing] on the merits of the issues or arguments” when it came to the teacher employment rules.

David Sciarra, the lead Abbott counsel and executive director of the Education Law Center, a New Jersey legal advocacy group, praised the court’s decision. “Issues related to collective bargaining and teacher layoffs were never in the Abbott cases, which has been singularly focused on ensuring adequate funding and resources for students in New Jersey’s poorest schools,” he said in a statement.

The state teachers union has argued that Christie’s efforts were politically motivated from the start, since the administration filed its legal petition just as the high-profile Bridgegate trials were getting started. “The court’s thorough rejection of Governor Christie’s frivolous but costly legal action demonstrates that his political Hail Mary lacked any solid legal basis,” New Jersey Education Association president Wendell Steinhauer said in a statement. “It was simply another taxpayer-funded Christie boondoggle, designed to divert attention from his many political woes.”

NJEA’s Steinhauer also commended the court for declining to rule on collective bargaining agreements and tenure. Calling Christie’s efforts an “attempted power grab” the union president said, “The court was wise to realize, as the Legislature long has, that no governor or commissioner of education should be given that amount of unchecked authority.”

New academic studies also challenge Christie’s contention that it is wasteful to direct supplemental funding to poor school districts. A 2016 National Bureau of Economic Research paper compared student test scores in 26 states that altered their school funding formulas since 1990, usually in response to court-orders like Abbott, with 23 states that had not. Researchers found that funding reforms that increased dollars sent to low-income school districts improved achievement and outcomes for those students. Another recent study found that poor children in districts subject to funding court-orders attended school longer, and earned higher wages as adults, compared to poor students in districts that were not under court-order.

The state Supreme Court ruling marks a setback to Christie’s education agenda. The governor shocked the nation this past summer when he announced his intention to upend his state’s school funding formula—declaring “no child in this state is worth more state aid than another.” Rather than direct more money to the poor, urban districts that have high concentrations of low-income students, Christie proposed distributing the exact same amount of funding to every school district in New Jersey. Only that, he insisted, would be fair. If implemented, Christie’s plan would have had crippling impacts on certain communities. NJ Advance Media found that the governor’s proposal would reduce state aid to Camden, one of the poorest cities in the United States, by 78 percent, and 37 other districts would see funding reductions exceeding 50 percent.

But, Democratic lawmakers, who control both the General Assembly and the Senate, plan to negotiate a new school funding formula  and have already expressed opposition to Christie’s proposals.

Meanwhile, challenges to teacher employment statutes in New Jersey are not over. In November, six Newark parents filed a lawsuit challenging the constitutionality of the state’s “last in, first out” law, which requires teacher layoffs to be made exclusively on the basis of seniority. The plaintiffs say the current law violates students’ right to an education by ignoring individual teachers’ records when determining which teachers to let go.

The Newark parents’ lawsuit mirrors a California case, Vergara v. California, which argued that teacher tenure, seniority, and other employment rules violated the state’s constitutional responsibility to provide students with an equal education. The California plaintiffs won the that case in 2014. But in a unanimous 2016 decision, the California Court of Appeals struck down that ruling and the state Supreme Court declined to take up case. Similar lawsuits challenging teacher job protections have also been filed in New York and Minnesota.

Teachers Union Battle Escalates at KIPP Charter School

Originally published in The American Prospect on January 30, 2017.
—-

Public school advocates and labor unions have been pressuring members on the Senate education committee to vote Tuesday against Betsy DeVos, Donald Trump’s controversial pick to head the federal education department. Pointing to the Republican billionaire’s track record in politics, advocacy, and philanthropy, critics argue that she represents an existential threat to public schooling.

Flying under the radar of this high-profile fight is a little-known labor battle escalating at one of the nation’s most well-regarded and politically powerful charter school networks. With 200 schools across the country, the Knowledge Is Power Program, or KIPP, is known for boosting student achievement among low-income students, and elevating the “no excuses” style of teaching to the national stage.

In late June, the United Federation of Teachers (UFT), New York City’s teachers union, filed a grievance on behalf of staff at the Bronx-based KIPP Academy Charter School, which became the first KIPP school in the city when it opened 16 years ago. (Eleven operate in New York City today, making KIPP one of the largest charter chains in the city.) The union accused KIPP Academy of failing to provide its employees with a host of basic labor rights they’re entitled to under the citywide collective-bargaining agreement. Specific grievances included a failure to provide teachers with summer vacation pay, an appropriate number of sick days, and sufficient rest periods on the job.

The battle has since metastasized into a wider legal fight, when KIPP Academy launched an ostensibly unrelated effort to encourage its employees to decertify their union.

KIPP’s academic model, defined by longer school days and school years, is also known for its high teacher turnover—fueling criticism that it’s an unsustainable model for school reform. A 2013 study published by the policy think tank Mathematica found KIPP teacher turnover was 21 percent during the 2010-2011 school year, compared with about 15 percent nationally for public schools. The study also found 86 percent of KIPP principals said teacher vacancies were hard to fill.

While most charter schools are staffed by non-union teachers, KIPP Academy is one of four so-called “conversion charters” in New York City, meaning it was formed by converting an existing public school into a charter. David Levin, co-founder of the KIPP Foundation, had launched KIPP as a program within P.S. 156 in 1995, and in the spring of 2000, he applied to expand it from a program into the entire school. As part of his application filed to the New York City Schools chancellor, Levin submitted a copy of an agreement between the UFT and the school district that said any conversion charter school “shall be subject to collective bargaining agreements for like titles or positions … including but not limited to salary, medical, pension and welfare benefits and applicable due process procedures.” The agreement also said the charter’s board of trustees could negotiate changes to the collective-bargaining agreement.

When KIPP Academy Charter School launched in September 2000, all of its initial employees had been previously employed by New York City Public Schools, all had worked in the P.S. 156 KIPP program, and all had been represented by the teachers union. KIPP Academy’s original students were all also former P.S. 156 students.

Last spring, 16 years later, about 20 staff members approached the UFT to raise concerns about their working conditions.

“Our day runs from 7:20 in the morning to 5:15 in the afternoon, so we’re there for nine hours and 55 minutes a day, and most of the time there are no breaks,” says Fatima Wilson, a fourth grade science teacher at KIPP Academy, and one of the teachers to approach the union. Even going to the bathroom becomes an ordeal, Wilson says, as teachers must inform the entire staff if they need to relieve themselves. “We often have to hold it in, and risk urinary tract infections, kidney infections. This is life as we know it,” she said in an interview with The American Prospect. “It winds up being a long day, an unsustainable day, but you know we still come to work because we love our kids.”

Wilson, who is in her second year at KIPP and her ninth year as a classroom teacher, wants to work at KIPP until she retires. She’s “embarrassed” by how terrible the staff turnover is, and says it’s because of the labor conditions.

The UFT filed its grievance on behalf of KIPP Academy teachers on June 28, 2016; when KIPP did not respond, the union sent a letter in late October announcing its intent to move forward with arbitration—a process of settling legal disputes outside of court. UFT filed for arbitration on November 7.

Shortly thereafter, KIPP representatives began talking with staff about decertifying the union—a process to revoke UFT’s legal representation.

Some KIPP Academy teachers had actually tried to do this once before. In 2009, employees filed a petition for union decertification, but under the law at the time, KIPP teachers would have needed to garner a third of the entire citywide public school bargaining unit—then 75,780 employees—to hold an election. In a 2010 hearing before the New York Public Employees Relations Board, an administrative law judge rejected the teachers’ petition as being “numerically insufficient.” KIPP Academy officials also tried to argue that the UFT didn’t even represent its staff since KIPP began as a program, not a school, meaning the charter shouldn’t be considered a real “conversion charter.”

New York’s PERB didn’t buy it. “Contrary to … KIPP Academy’s argument, the fact that one of numerous letters submitted with the charter application refer[s] to KIPP [as] a program, rather than a school, does not change the fact that the charter application specifically sought charter status based on the conversion of a public school,” the judge concluded in December 2010.

After the teachers union filed for arbitration this past November, KIPP filed for an injunction. In a district court hearing held on November 29, KIPP’s lawyer, Jeffrey A. Kehl, argued that UFT does not have representation status to file grievances on behalf of KIPP Academy teachers, pointing out that the union has not bargained any agreement, processed any grievance, or attended any meetings for KIPP teachers since the charter opened in 2000.

The judge, Carol Edmead, responded that none of what Kehl said alters the fact that the UFT has “been deemed and not overruled” as the teachers’ bargaining agent. She denied KIPP’s petition to thwart arbitration.

Since then, KIPP officials have held several meetings with their staff (what the union calls “captive audience meetings”) to discuss decertification, prompting the UFT to file charges with the National Labor Relations Board on January 19. The union’s complaint accuses the school of violating federal labor law, alleging, among other things, that KIPP encouraged teachers to end their relationship with the union, and threatened teachers with termination if they did not do so.

In response, school superintendent Jim Manley sent an email to staff at all 11 KIPP schools across the city, saying the NLRB complaint, along with the union’s subsequent press release and its demand for arbitration, “highlights our concern that engaging with the UFT will fundamentally alter the way in which we have worked together over the last 22 years to keep our promises to our kids and their families.” Going further, Manley said KIPP does not believe the academic success it has achieved would have been possible under a UFT collective-bargaining agreement.

Manley also said KIPP “disagrees” that the union represents its staff. He gave no mention to the PERB decision in 2010, or to the district judge’s recent decision in November. “We disagree both because of how we have operated since our chartering and because of recent changes to the law,” Manley said, referring to an NLRB decision issued last summer that says charter school teachers should be considered private employees. (If KIPP teachers are private employees, then the number of petition signers needed for UFT decertification may no longer be a third of the entire UFT bargaining unit, as it was in 2010. This question is unsettled and would likely need to be resolved by the federal labor board.)

KIPP NYC declined The American Prospect’s request for further comment.

One KIPP Academy teacher I spoke to, who asked to remain anonymous for fear of retaliation, said that teachers became interested in the union after seeing how KIPP responded to the filed grievance. This teacher was not one of the educators to approach the union last spring, but joined on this fall after seeing the administration’s reaction. “They didn’t want to work with the union, they didn’t want to hear what teachers were saying, and that made me passionate about joining the effort,” the teacher told me. “We felt disrespected.”

That feeling informed Wilson’s reaction to her superintendent’s suggestion that KIPP Academy might not be able to do as much for its students if teachers worked under a UFT contract.

“The only way we would sign on to work long days is because we believe in the mission, the vision, and we believe in the kids and families and each other,” she said. “Our success has nothing to do with the fact that [KIPP] is breaking laws by not giving us our right to duty-free lunch, our right to uninterrupted prep periods, the right apportion of sick days. Despite everything, despite the laws KIPP is breaking, we’re still persevering because we love our kids.”

The teacher who spoke anonymously echoed Wilson’s sentiments. “We love our school and students,” she said, but “it just feels terrible to be silenced about things like your mental health and your daily life. The idea of having a real collective voice, to be part of the decision-making process—that’s what people are most interested in.”

The NLRB will now conduct an investigation into what happened at KIPP Academy, and if the federal labor board decides to issue a complaint, an administrative law judge will conduct a hearing to determine whether KIPP violated federal law.

On January 25, some of the school’s teachers filed a new union decertification petition with the NLRB. At least 30 percent had to sign on to file for an election, though it’s unclear at this time if all the signatories were employees represented by the UFT. A hearing is typically set before an election to address those concerns.

The UFT maintains that any decertification election should be seen as illegitimate, since it alleges that KIPP has already illegally encouraged, cajoled, and threatened their employees into voting against union representation.

KIPP clearly recognizes the high stakes in this battle. If KIPP Academy teachers prevail in their fight to improve their working conditions through the UFT collective-bargaining agreement, other KIPP charter school teachers in New York City, and even across the country, might consider organizing similar efforts. KIPP Academy teachers could also choose to negotiate modifications to their citywide contract—something unionized KIPP teachers in Baltimore have done. (In Maryland, all charter school teachers are automatically covered under their district’s collective-bargaining agreement.)

These sorts of charter school labor issues may soon surface at the federal level. Last week, Jason Botel, who founded a Baltimore KIPP charter school, was named as a senior education adviser to the White House. And Betsy DeVos’s nomination is still before the Senate.

Unlearning the lessons of the housing crisis

Originally published in Curbed on January 19, 2017.
—-

Nearly six million American families lost their homes to foreclosure between September 2008 and September 2015.

This unprecedented housing crisis, promulgated by well-documented Wall Street fraud and predation, led—eventually—to government action, culminating in July 2010, when President Obama signed the Dodd–Frank Wall Street Reform and Consumer Protection Act into law.

Dodd-Frank outlawed some prominent forms of predatory lending and established a new agency—the Consumer Financial Protection Bureau—whose primary mandate is to aggressively penalize firms for fraudulent and shady business practices. Three years after its launch, the CFPB had addressed more than 400,000 consumer complaints concerning issues like unauthorized credit card fees and ballooning mortgage payments, and distributed more than $10 billion in settlements back to consumers.

Another three-odd years later,  Donald J. Trump’s surprising presidential victory has sent a deep chill down the spines of housing and civil rights advocates across the country. In his capacity as a developer, Trump was a defendant in one of the largest cases ever brought by the federal government for housing discrimination against African-Americans. In his short political career, he has pledged to deregulate the housing and financial sectors, and his early cabinet appointments have close ties to Wall Street.

“We’re about a decade out from the housing crisis, and it’s important that we don’t succumb to this collective amnesia about what happened,” says Sarah Edelman, the director of housing policy at the Center for American Progress. “We’re at real risk of returning to predatory lending and losing the protections Congress put in place to make sure nothing like that ever happens again.”

The Fair Housing Act of 1968 bars landlords, lenders, and sellers from discriminating based on race, sex, religion, or national origin, and requires recipients of federal funds to proactively promote housing integration. In 2015, under Obama, the Department of Housing and Urban Development released a new federal rule—known as the “Affirmatively Furthering Fair Housing Rule”—to provide communities with new tools to ensure they meet their fair housing obligations.

At the time, Republicans decried the AFFH rule as government overreach. Trump’s now-nominee for HUD secretary, Ben Carson, called it a dangerous “social engineering” scheme in an opinion piece published during his 2015 primary run. And while campaigning for president, Trump said he’d rescind the rule.

Already active litigation regarding violations of housing and civil rights law would also likely be stymied by a motivated Trump administration. For context, the civil rights division of the Department of Justice filed more than 100 lawsuits between 2012 and 2015, with a majority of those casesconcerning housing and lending discrimination. Former DOJ officials predictthat Trump’s administration will not be as committed to enforcing fair housing laws, especially if the Senate confirms Alabama Senator Jeff Sessions as the incoming attorney general.

Sessions allegedly railed against the NAACP and the ACLU for trying to “force civil rights down the throats of people,” according to testimony at his 1986 confirmation hearing for a federal judgeship (he was ultimately denied the position because of such remarks). If Sessions brings this point of view to his new role, Justice Department lawyers working on fair housing cases could be reassigned, and Trump’s team could simply avoid pursuing similar suits in the future.

Stuart Rossman, a staff attorney at the National Consumer Law Center, raises several additional concerns for fair housing advocates. For the past few years, two homeowners’ insurance trade associations have been challenging a 2013 HUD rule that formalized how housing discrimination cases could be tried under the so-called “disparate impact” standard, which lets individuals allege housing discrimination without having to prove that someone intentionally sought to discriminate.

The Obama administration has vigorously defended the rule in court. “Will the [Trump] government now throw up their hands and send their lawyers home?” asks Rossman. If the rule is thrown out, individuals may find it more difficult to bring fair housing cases forward.

And then there’s the matter of proving these cases once they’re on the docket. At present, the federal government collects detailed demographic data from banks under the Home Mortgage Disclosure Act, including price data for loans and information about who has been denied service. “Banks very much want to keep this information private, because they know when it’s collected it will be scrutinized,” Rossman explains. By evaluating HMDA data, lawyers can assess if banks are treating some groups of people differently than others.

“I’m not saying there’s not overt discrimination cases out there, but the systemic, institutional type of cases which affect a broad range of individuals are far more likely to [fall under] disparate impact,” Rossman says. “The banks, auto lenders, and insurance companies are far too sophisticated to engage in overt sexism, racism, and ageism. If you can’t get that aggregate analysis to make a disparate impact claim, you’re in a really bad spot to sue.”

Since the HMDA’s passage in 1975, each administration has had a fair amount of discretion to interpret the law. If, say, Trump’s team decides they don’t need to require banks to report as much information as they do now, changing HUD’s disclosure requirements, lawyers could find themselves locked out from the sort of aggregate data needed to prove housing discrimination in court.

Rossman also points to a tactic taken by George W. Bush’s administration, which used the Office of the Comptroller of the Currency to protect banks from civil rights suits initiated by state attorneys general and private lawyers. That means there are multiple strategies the Trump administration could pursue to avoid fair housing litigation at both the federal and local levels.

On the finance side of the equation, Trump’s nominee to lead the Treasury Department is Steven Mnuchin—a Goldman Sachs veteran of 17 years. Mnuchin founded and ran a mortgage lender, OneWest Bank, that was recently accused of housing discrimination in a federal complaint filed by two nonprofit groups. According to the complaint, OneWest (now a subsidiary of CIT Bank), was far more likely to foreclose on black and Latino homes than to lend to those owners, and neglected to maintain foreclosed homes in black and Latino neighborhoods, hastening their decline, while it actively maintained foreclosed homes in majority white areas.

“Mnuchin has a lot of rhetoric about his interest in protecting working families, but that’s not what his record has shown,” says Paulina Gonzalez, the executive director of the California Reinvestment Coalition, one of the groups to lodge the complaint. “The evidence speaks for itself.” That evidence now includes a newly disclosed 2013 memo from the California attorney general’s office alleging that OneWest repeatedly flouted a variety of foreclosure laws.

Mnuchin isn’t the only Goldman alum lined up to set financial policy in the Trump era. The president-elect has also named Gary Cohn, the president and COO of Goldman Sachs, to direct the National Economic Council, the president’s main forum for economic policy advice. Likewise, Jay Clayton, a Wall Street attorney whose firm has long represented Goldman Sachs, was recently nominated to lead the Securities and Exchange Commission. During the last administration, SEC regulations were key to holding banks accountable for bad behavior that led to the mortgage crisis, but the New York Times calls Clayton’s appointment “a strong signal that financial regulation in the Trump administration will emphasize helping companies raise capital in the public markets over tightening regulation.”

Trump will also have the ability to appoint leaders to all three of the major financial regulatory agencies: the Federal Reserve, the Federal Deposit Insurance Corporation, and the OCC. “Though the good news is we now have legal standards that prohibit irresponsible lending, it only underscores how important those regulatory agencies are, and their leadership,” says John Taylor, the president and CEO of the National Community Reinvestment Coalition.

“These appointments are critical,” Taylor continues. “Is [Trump] finding people whose first obligation is to ensure that average working class Americans are treated fairly, or is he looking out primarily for the businesses and agencies that might be affected by regulation?”

Ultimately, housing advocates worry about what will happen if Trump and congressional Republicans deregulate the housing industry and repeal the young Dodd-Frank law. Trump’s transition team has already said it’s looking to “dismantle” Dodd-Frank and Mnuchin has said targeting it would be a top priority for him. Many experts have suggested that rather than go through the trouble of repealing Dodd-Frank entirely, Republicans may look for ways to starve it, rendering it ineffective.

David Dayen, journalist and author of Chain of Title, a 2016 bestseller on the foreclosure crisis, says Trump may even be motivated to “weaponize” Dodd-Frank—using it to selectively advance his personal goals.

For example, Obama’s Justice Department has been pressuring Deutsche Bank to pay billions of dollars for its malfeasance during the housing crisis. Trump owes Deutsche Bank $364 million. Similarly, the FDIC and the Federal Reserve have been investigating Wells Fargo for anti-consumer practices. Donald Trump owes $410 million to Wells Fargo. Dayen sums up Trump’s fiscal conflicts of interest: “Trump may find it very appealing to be able to prosecute some financial institutions and not enforce rules at others.”

The unraveling of post-housing crisis protections could be especially dangerous as Republicans talk animatedly about privatizing Freddie Mac and Fannie Mae, the quasi-public agencies that help stabilize the U.S. housing market by securing the insurance markets and keeping mortgage rates low. Mnuchin has already said the next administration will get the government out of Freddie Mac and Fannie Mae.

On top of housing discrimination fears, advocates worry about what Trump’s administration could do to exacerbate demand for affordable housing across strata: for homeowners and renters, urbanites and rural dwellers. “After millions had their homes foreclosed upon, and millions more millennials delayed homeownership due in part to crushing student loan debt, demand for rental units has reached its highest levels since the 1960s, resulting in skyrocketing rents,” explains Diane Yentel, president of the National Low Income Housing Coalition.

Between 2005 and 2015, roughly nine million households moved from owning homes to renting—the largest change over any 10-year period on record. As a result, Wall Street firms started investing more heavily in single-family rentals, and a recent report out of Atlanta found that these institutional landlords were more likely to evict tenants than mom-and-pop ones. “It’s really important to keep watching these companies as they develop, because many of them are not located in jurisdictions with strong tenant protections,” Sarah Edelman says.

The stakes are high, and the litany of housing risks is long. But, thanks to the progress made over the last eight years, advocates at least will enter the Trump years with language and policy proposals they lacked a decade ago when foreclosures hit en masse. “Back then, progressives didn’t have a shelf of ideas, or the architecture to actually make the system safer,” says Dayen. This anti-discrimination framework will be threatened, and in some cases dismantled, under Trump. But it can also be defended, and restored.