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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

But the battle doesn’t seem quite over yet.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Betsy DeVos Is Now Fighting The Union At The Education Department

Originally published in The Intercept on March 15, 2018.

The union reprsenting nearly 4,000 federal employees working for the U.S. Department of Education filed a complaint this week accusing the agency, run by Betsy DeVos, of union busting.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

use this

cover of the new ‘agreement’

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

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

Radio show on Janus v. AFCSME and striking teachers

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

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

Can listen here:

Teacher Unrest Spreads to Oklahoma

Originally published in The Intercept on March 6, 2018.

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

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

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

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

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

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

Why Aren’t Teachers Getting a Raise?

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

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

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

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

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

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

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

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

The Step Up Plan

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

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

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

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

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

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

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

Strike As a Last Resort

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

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

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

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

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

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

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

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

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

Bernie Sanders on Puerto Rico Neglect: “Do You Think This Would Be Happening in Westchester County?”

Originally published in The Intercept on March 2, 2018.

On March 2 1971, President Woodrow Wilson signed a law granting U.S. citizenship to the residents of Puerto Rico. But 101 years later, the federal government, by abandoning the island in the wake of a crippling debt crisis and an even more devastating hurricane, is treating Puerto Ricans like citizens in name only.

Washington’s failure to adequately help Puerto Rico rebuild its economy and school system was the focus of a daylong conference at the U.S. Capitol on Thursday, hosted by the American Federation of Teachers, the Hispanic Federation, and the Albert Shanker Institute.

The event drew powerful progressive politicians — namely Sens. Bernie Sanders, I-Vt.; Elizabeth Warren, D-Mass.; and Richard Blumenthal, D-Conn. All three back the Puerto Rico and Virgin Islands Equitable Rebuild Act, often referred to as a “Marshall Plan” for the territories. The bill, authored by Sanders, would provide $146 billion to Puerto Rico’s recovery, would forgive its debt, and would establish Medicaid and Medicare parity. Unlike in the U.S., the federal government subjects Puerto Rico and the Virgin Islands to annual Medicaid caps.

Five months after Puerto Rico’s worst natural disaster in nearly a century, more than 30 percent of the island — over 900,000 people — still live without electricity. Roughly 270 public schools still lack power, and some areas of the island do not expect to see restored electricity until the end of May. Puerto Rico was struggling even before Hurricane Maria: With roughly $123 billion in debt, the island declared bankruptcy last May.

The federal government last month promised some additional aid to Puerto Rico. When Congress passed a two-year budget to avoid a government shutdown, it included billions of dollars for Puerto Rico’s recovery, though still far short of the $94.4 billion the island requested. The U.S. Department of Education also announced on Wednesday that it would be distributing an additional $2.7 billion to Puerto Rico to help its public schools and universities recover.

But the government’s assistance so far has been underwhelming. Last October, when Congress passed a $36.5 billion disaster relief bill to help areas ravaged by hurricanes and wildfires, it gave Puerto Rico $4.9 billion as a loan. (Other devastated areas like Texas, Florida, and California instead received grants. The loan adds to Puerto Rico’s already crushing debt.) On Tuesday, the U.S. Treasury announced it would be cutting that loan to $2 billion, though it’s not clear if the federal government will even agree todistribute these funds at all.

At the conference on Thursday, Warren called the federal government’s recovery response “embarrassing” and stressed the need for sustained pressure on lawmakers to take action. She pointed out that in December, Republican Sen. Bill Cassidy joined Sanders and seven Democrats in asking Lamar Alexander, Republican chair of the Senate Health, Education, Labor and Pensions Committee, to hold hearings on Puerto Rico and the Virgin Islands.

“Given the extent of the damage inflicted upon both territories, as well as the important roles of the departments under this committee’s jurisdiction in ongoing hurricane relief efforts, we believe such hearings would be an important part of the Committee’s oversight related to hurricane recovery,” they wrote in a letter.

Warren cited Cassidy’s support as an encouraging glimmer of bipartisan hope, but noted that the committee has yet to act on that recommendation. “If we don’t keep pushing, the hearings won’t happen” she said.

The Massachusetts senator also pushed the necessity of debt forgiveness. “Puerto Rico needs debt relief. Vulture funds should not get one more cent from the island,” she declared. “It is especially the case that money that Congress appropriates to Puerto Rico is money that should not go toward paying Wall Street.”

For his part, Sanders took clear swipes at Puerto Rico’s proposed education reform bill that would bring charter schools and vouchers to the island. He likened it to New Orleans following Hurricane Katrina and warned that disaster capitalistsmight prey on Puerto Rico.

“Disaster capitalism means people who take advantage of a disaster to do bad things, and what they’re trying to do in this moment, in this terrible moment for Puerto Rico, is to move to very aggressively privatize public services like schools and the electrical grid,” he said.

Sanders went on to list the benefits that the federal government offers to citizens on the mainland but denies to Puerto Ricans, including parity for Medicaid, the Earned Income Tax Credit, and the Child Care Tax Credit.

“Do you think this would be happening in Westchester County, New York?” Sanders asked the audience, referring to the island’s snail-paced recovery. “We are here to tell the people of Puerto Rico that they are not forgotten, that they are not alone, that we will do everything that we possibly can to rebuild the island.”

Marie Mora, an economics professor at the University of Texas Rio Grande Valley, was one of several academics who spoke at the conference. Mora traced Puerto Rico’s economic decline back to 2006, when the federal government eliminated tax breaks for companies doing business there. Following the expiration of IRS Code Section 936, there was a significant loss in private and public sector jobs, and a massive net outmigration to the mainland. This, Mora said, coupled with a rapidly aging population and diminishing healthcare, education, and utility investments, all contributed to the fiscal stress and “vicious cycle” Puerto Rico now faces.

Though the island’s population has been shrinking, 3.3 million people still live there — a population larger than that of 21 states and Washington, D.C.

Leaders from Puerto Rico — including María Meléndez, mayor from the Puerto Rican municipality of Ponce, and Aida Díaz, president of the Asociación de Maestros de Puerto Rico, the island’s 40,000-member teachers union — also spoke at the conference.

Díaz slammed the charter and voucher proposal, which is backed by Puerto Rico’s Gov. Ricardo Rosselló. Díaz said her union is pushing an alternative education reform plan based on turning each public school into a community hub that would provide increased social services. The so-called transformation zones are similar to models in New York City and the Miami-Dade County Public Schools.

“We know that some students are failing and we need transformation of our school system, but it is not something that comes from someone who is behind a desk,” Díaz said. “It should be made in a way that everyone participates, to debate what we want, what kind of citizens we want to develop, what are the needs of the country, what should be done first, what political issues need to be solved.”

Puerto Rico’s Education Secretary Julia Keleher previously told The Intercept that she felt that embracing education reform proposals like charters and vouchers would help the island attract new sources of federal funds for its recovery. But the teachers union feels left out of the conversation. Díaz told The Intercept last week that her union was not included in drafting the government’s education reform bill, and she does not feel as though teachers’ feedback has been taken seriously since the legislation was first introduced.

Some education experts offered early endorsements for the alternative reform plan put forth by Díaz and her union.

“The children of Puerto Rico will be well-served by transformation zones in which schools anchor local communities,” said Susan Moore Johnson, a research professor at Harvard’s Graduate School of Education, in a statement.

“Across the United States, school districts have relied on this template to build strong systems that provide a solid education for their students, and the model makes great sense for Puerto Rico as well,” said David Kirp, a public policy professor at the University of California, Berkeley.

It’s now up to the federal government to change course and help the island get back on track — and treat Puerto Ricans like the U.S. citizens they are.

The Right Is Trying to Bring Down Public Sector Unions. It May Bring Much More Down With It.

Originally published in The Intercept on February 25, 2018.

In the middle of last week, Dixon O’Brien, a 60-year-old engineer, and his union, the International Union of Operating Engineers Local 150, quietly filed a federal lawsuit against Lincolnshire, a village in a northern suburb of Chicago. Together they raised issue with Lincolnshire officials using taxpayer dollars to fund a statewide lobbying group, the Illinois Municipal League, which advocates for things like limiting collective bargaining and reducing pension benefits. “O’Brien objects to the use of his tax money to fund private organizations that lobby and/or engage in other political activities that run directly against his economic interests and his political beliefs,” the complaint reads.

On Thursday, the head of the same union filed a federal lawsuit against Illinois Gov. Bruce Rauner, challenging portions of state law that requires unions to provide representational services to non-dues paying members. “It is absurd that state law forces unions to provide equal representation and service to public sector workers who are not members and pay nothing toward associated costs,” said union President James Sweeney in a statement.

And then on Friday, the International Union of Operating Engineers Locals 139 and 420 filed a federal lawsuit against Wisconsin Gov. Scott Walker, challenging a law he signed in 2011 that dramatically restricts public employee collective bargaining rights. The unions argue that the law’s restrictions impinge upon their protected free speech rights under the First Amendment.

These three consecutive lawsuits are a warning to the Supreme Court that if it buys into an extreme conservative argument being used to undermine labor unions, the justices are going to take a lot more than just agency fees down with them.

On Monday the Supreme Court will hear oral arguments in Janus v. AFSCME, Council 31 – a case experts have long predicted could strike a mortal blow to public sector unions. The plaintiff, an Illinois state worker named Mark Janus, has argued that he has a First Amendment right to avoid paying anything to a union that bargains on his behalf. With the current ideological leanings of the court, the plaintiff — and the conservative groups backing his lawsuit — face strong odds of victory.

But while most of the media has focused on the fact that the Janus case stands to decimate union coffers – and by extension, Democratic Party coffers – some labor activists and legal scholars have begun sounding the alarm on what they say would be the unintended consequences of the suit, effectively opening up the floodgates for countless lawsuits like the recent ones filed by the International Union of Operating Engineers. If Mark Janus doesn’t have to pay his agency fees because collective bargaining is speech he disagrees with, then collective bargaining is speech. And it can’t be restricted. Indeed, when some of the lazier advocates of Janus lay out the case, they accidentally argue on behalf of  unions’ right to free speech. “Because government is both employer and policymaker, collect­ive bargaining by the union is inherently political advocacy and indistinguishable from lobbying,” wrote George Will on Sunday, directly implicating the First Amendment.

For more than 40 years, the Supreme Court has held that there’s a constitutional difference between a union’s political activities and its collective bargaining work. Compelling workers to fund the former would infringe on their freedom of speech, the court ruled in the 1977. But under current law, collective bargaining is different. Imposing conditions, such as requiring mandatory dues, or limiting the scope of their negotiations to wages and benefits, is fair game.

If the Janus plaintiffs win their case, this critical distinction would be dismantled. (A decision is expected by June, when the court’s term ends.) A union’s bargaining and political lobbying would be treated the same — as protected free speech. In other words, the court would actually be elevating the free speech standards of bargaining. That, in turn, could bring with it new legal protections.

“If the plaintiffs are right that collective bargaining is political speech indistinguishable from lobbying, well, the flip side of that coin is that that protected free speech can’t be restricted,” said Ed Maher, a spokesperson for the International Union of Operating Engineers. “We don’t think this has been thoughtfully considered by the plaintiffs, and it is our belief that a win for Janus will open a tremendous Pandora’s box.”

This Pandora’s box, Maher suggested to The Intercept, holds all sorts of chaotic possibilities for the U.S. legal system and state governments across the country. Nearly all states impose some form of restriction on collective bargaining, limiting who can bargain and what workers can bargain over. If the Janus plaintiffs win in court, the theory goes, then workers could start bringing First Amendment challenges to limitations on their bargaining rights, like the restrictions Walker, the Wisconsin governor, passed in 2011.

And, as the three cases filed last week demonstrate, they’ve already started.

Courts have long sought to avoid applying First Amendment rights to unions. From the earliest court decisions that concerned worker protests in the 19th century, as labor writer and strategist Shaun Richman has written, judges have tended to treat unions “as criminal conspiracies that interfere with employers’ property and contract rights.” And while courts have chipped away further at the free speech rights of workers and unions over the last half-century, they have also expanded the free speech protections afforded to employers and corporations.

Ann C. Hodges, a labor law professor at the University of Richmond agrees that a win for the Janus plaintiffs could invite all sorts of new legal challenges. Writing recently for the American Constitution Society, Hodges said:

Courts have regularly ruled that states like Wisconsin can provide collective bargaining rights to some groups of employees and not others, using the rational basis test to find no equal protection violation… But if all union activity is protected political speech, then these distinctions implicate fundamental rights, invoking strict scrutiny for such classifications. Thus, the differential treatment of employee groups by the states may not survive. Indeed, unions may even have an argument that there is a constitutional right to collective bargaining.

Equally unlikely to survive are many governmental employer restrictions on employee speech. A long line of cases allows government employers to impose various restrictions on employee speech. The Supreme Court distinguishes employee from citizen speech, permitting employers to limit and control employee speech in the interests of the government as employer… A ruling in favor of the Janus plaintiffs could obliterate the distinction, requiring employers to tolerate much unwanted speech by their employees.

Some left activists remain understandably skeptical that Janus could lead to some interesting or even good opportunities for labor, arguing, as Richman wrote, that a judiciary that “that could buy such a craven argument as Janus will refuse to take the precedent to its logical conclusion and shamelessly waving away workers’ free speech rights.” But if the anti-Trump backlash leads to a wave of liberal judge appointments, the legal landscape could grow significantly more friendly for unions over the next few election cycles. Plus, unless Janus ends with an extremely narrow ruling, it would be a while before the Supreme Court could really stamp out all the knock-on cases, even if it wanted to. In other words, legal chaos could reign for years in the lower courts.

Richman goes so far as to say that Janus “could hand new liberal majorities a roadmap for restoring a legal balance of power between corporations and workers.” Or, as Sweeney of Local 150 puts it, “The free speech rights being invoked by the union-busters behind Janus work both ways.”

Betsy DeVos Is Helping Puerto Rico Re-Imagine Its Public School System. That Has People Worried.

Originally published in The Intercept on February 22, 2018.
Puerto Rico, in the midst of the chaos and instability following Hurricane Maria, is moving quickly forward with plans to institute a wide swath of education reforms, with the help of the aggressively ideological federal education department, helmed by Education Secretary Betsy DeVos.

Puerto Rico’s governor and education secretary have expressed openness to the concerns raised by parents, teachers and community members, and stress they are not looking to implement an extreme version of privatization. Yet at the same time, they have stoked fears by pushing forward a notably vague charter law that does little to address what people are most worried about. This “trust us” mentality has not been helped by the engagement of DeVos, nor by Gov. Ricardo Rosselló’s recent visit to a notorious charter chain in Philadelphia last week — a prime example of the kind of low-performing, fiscally reckless charter that school advocates warn about.

At a time when the island is starved of investment and inching slowly through a storm recovery, many Puerto Ricans worry that the government is treating this more as an opportunity to disrupt education, rather than stabilize it — while also potentially opening the doors for supercharged corruption.

Puerto Rico’s public school system remains severely ravaged since Hurricane Maria, the Category 4 storm that tore through the island in late September. “The recovery has gone very slowly,” said Aida Díaz, president of the island’s 40,000-member teachers union, the Asociación de Maestros de Puerto Rico“We still have hundreds of schools without electricity, internet, and many of our teachers and students are having classes just half-day.”

Rosselló delivered a televised address in early February announcing a package of educational reforms he’d like to bring to the island – including charters, vouchers for private schools, and the first pay increase for teachers in a decade. Puerto Rico teachers earn on average $27,000 a year, and would see increases of $1,500 under the governor’s proposal. “The current educational system does not respond to what is needed to train our students to succeed in a world that’s ever more competitive and complex,” Rosselló  declared.

Rosselló’s big announcement came on the heels of a separate plan he outlined in January, to close 305 of Puerto Rico’s 1,100 public schools. Rosselló said these closures would lead to an estimated $300 million in savings by 2022 – and by extension help the island recover from Maria and its long-term debt crisis. Puerto Rican citizens have long worried the government’s interest in shuttering schools would be a first step on the road to privatization.

While Rosselló’s televised address garnered a lot of national attention, little has been paid to the 136-page bill that was introduced several days later, and the vocal debate it has sparked within the territory.

Who helped craft the bill is not entirely clear.

Díaz, the teachers union president, told The Intercept that her members played absolutely no role in drafting the proposals. “They didn’t consider us, they didn’t invite us, we didn’t participate,” she said.

Todd Ziebarth, senior vice president for the National Alliance of Public Charter Schools, told The Intercept they “were not deeply involved in the bill drafting at all” but that they did have some conversations with people in Puerto Rico’s education department about charter legislation and how other states have handled certain issues. Ziebarth added that while his organization has not done a deep analysis of Puerto Rico’s bill, he thinks “it provides a good start for getting charters up and running.”

DeVos and her federal education department have certainly been involved. DeVos’s Deputy Assistant Secretary Jason Botel has been in “close communication” with Puerto Rico’s Education Secretary Julia Keleher for months since the storm, and in a blogpost published in January, Botelwrote, “We look forward to supporting students, educators and community members as they not only rebuild what’s been lost, but also improve, rethink and renew.”

In an interview with The Intercept, Keleher, Puerto Rico’s education secretary, said that a local law firm helped them craft the bill, two law firms from the mainland that had experience working with charter schools, and a team from the federal department of education. “We did have a series of technical assistance from the U.S education department,” she said. “They didn’t comment on the bill but they did help us think through it, and helped us define what we thought should be the final set of things to include.”

In November, Rosselló tweeted pictures of a meeting he and Keleher held with DeVos and her staff, noting they were “itemizing the areas that need the most attention in order to restore our education system.”

The Department of Education did not return The Intercept’s request for comment, but earlier this month DeVos told a group of reporters that she was very encouraged by Puerto Rico’s leadership for embracing school choice after the hurricane. She praised its approach for thoughtfully “meeting students needs … in a really concerted and individual way.”

In November, In the Public Interest, a research and policy organization focused on privatization and contracting, submitted a request under the Freedom of Information Act to the Department of Education requesting all communications between Jason Botel and Julia Keleher between July 1 and mid-November, and all emails sent or received by Botel during that period that mention charter schools or Puerto Rico. The Education Department confirmed receipt of the FOIA request a week later, and granted the group’s fee waiver request on January 12. Shar Habibi, the research and policy director at In The Public Interest, told The Intercept they’re still waiting to receive the records.

ONE CONTROVERSIAL ASPECT of Puerto Rico’s proposed legislation is its language to allow multiple charter school authorizers. Authorizers are entities – such as school districts, state commissions or nonprofits – that grant charter schools the right to exist. They are also then responsible for ensuring that the schools produce sufficient academic results and comply with relevant laws and regulations. If a school fails to do so, an authorizer is supposed to revoke the school’s charter and shut them down. The quality of charter school authorizing ranges widely throughout the United States.

Section 13.04 of the bill states that either Puerto Rico’s education department or a Puerto Rican university can authorize charter schools. This language has raised concerns that Puerto Rico will open the floodgates to many charter authorizers like in Michigan – a state that has earned a reputation for having notoriously lax charter oversight. The more there are, the easier it is for bad charters to shop around for an authorizer that will let them stay open.

Karega Rausch, the interim CEO of the National Association of Charter School Authorizers, told The Intercept that their group does not have a hard-and-fast rule, or even guiding data, on the number of authorizers a jurisdiction should have – but they have observed that the overall quality of a charter sector can be “diluted” in places with too many authorizers. (Places like D.C., New Jersey and Massachusetts have just one charter authorizer, while states like Michigan, Ohio and Minnesota have many.)

Keleher, Puerto Rico’s education secretary, said she expects the legislation to be amended to allow for just one authorizer. “I think we’d want to stay away from having two based on what we understand as effective practice,” she said. The island’s senate is still holding public hearings on the bill.

Multiple news outlets this month reported that Puerto Rico aims to start with 14 charter schools, two in each of the island’s seven provinces.

Keleher told The Intercept that this has never been a formal plan, and her off-the-cuff remarks were interpreted by the media as something she never intended. “People were asking me how many we would have, so I was trying to answer the question and suggested maybe two per region,” she said. “The next thing I know people are asking me where I’m going to get these 14 [charter] applications. I just said that number because two per region seemed reasonable to manage, so I thought it was a number that could help calm people down.”

Keleher says the department has no plans to do what New Orleans did following Hurricane Katrina, and that it should develop a formula to limit the number of charter schools in Puerto Rico. But, she said, that formula needs to be flexible and should be handled by education department after the law is passed. “If the schools are super successful and more people want them, we should allow that up to a point,” she said.

The proposed legislation would also allow for the creation of virtual charters in Puerto Rico – a particularly contentious type of online school, evenamong school choice supporters. (DeVos is a big proponent of virtual charters, and a former investor in them herself.)

Keleher acknowledged the concerns around virtual charters, but says she remains optimistic about their potential. “I’ve taught in online classrooms,” she said. “It requires discipline and fidelity, and it may not be right for everyone.” She emphasized the importance of providing “options,” which she said could help bring new infusions of funds to the island. “If you look at what the president is prioritizing in his new budget, there’s a lot of emphasis on educational options,” she said.

In general Keleher advocates for an approach that leaves the charter law fairly vague (or as she calls, it “flexible”) so that her department can then craft regulations as it sees fit.

“We don’t want the law to be so tied to the reality of today,” she said. “We want to make it function as a lever to get the [education] department to behave in a way that we will produce strong results.” She pointed out that their last education law was incredibly detailed, “but very poorly implemented” and so this time they tried to go in the opposite direction. “We want to be sure that the system is responsive, rather than every time you want to adjust your program you have to amend your law,” she said.

The idea of creating an ambiguous law understandably has not eased much anxiety amongst Puerto Rico residents concerned about the pitfalls of school choice.

Even Ziebarth of the National Alliance of Public Charter Schools says it’s better to put more into the charter law than less. “We tend to try to get as much into the law as we can, and while some decisions make sense left to regulation, I think if they have a chance to pass a strong charter law that’s better,” he said. “I think we know enough about what the fundamentals should look like – particularly around flexibility, accountability and funding – that they can put that in statute now and not go back later and deal with it.”

Ziebarth adds that especially if Puerto Rico is considering going down the road of virtual charter schools, the island should include their six policy recommendations. “They should definitely not repeat the mistakes that others have made in that area,” he said.

Vouchers for private schools are included in the education reform bill, but they would likely not be implemented until after charter schools get started. Keleher told The 74 that given their budget situation, “it’s not something we can execute right now for obvious reasons.”

In 1994, back when Rosselló’s father, Pedro Rosselló, was governor, Puerto Rico’s Supreme Court struck down a proposal to establish a school voucher program. Puerto Rico’s leadership believes a series of court decisions issued over the past two decades, including from the U.S. Supreme Court, have now paved the legal path for them to move forward with school vouchers.

A recent trip taken by Rosselló has exacerbated concerns that he is not seriously grappling with the risks of his proposed education reforms.

Last week he visited an ASPIRA charter school in Philadelphia, and tweeted out after his visit that it represents an “excellent charter school model.”

But just two months ago Philadelphia voted to close two ASPIRA charter schools for their low academic quality, as well as a host of financial scandals and mismanagement issues. For years there have been concerns that ASPIRA was self-dealing with public funds, and the situation was difficult to track because each ASPIRA charter is structured as an independent nonprofit, despite all sharing the same board of trustees through their parent organization. “It’s very difficult to follow the financial trail when there are so many complicated, connected entities, and money flowing throughout them,” said an official working in the Philadelphia School District official in 2014. A former accounts payable coordinator at ASPIRA also filed a federal whistle blower lawsuit in 2014, alleging that the charter operator misappropriated more than $1 million in federal funds. The employee charged that ASPIRA made “repeated false representations” to the U.S. and state Departments of Education “in an effort to defraud the United States of taxpayer dollars, under the guise of providing quality education to some of the nation’s neediest students.” ASPIRA dismissed the charges as politically motivated. Then in 2016 news emerged that ASPIRA’s CEO had paid a top employee $350,000 in a sexual harassment settlement. Another former senior employee filed a lawsuit claiming she had been wrongfully terminated for helping her colleague file that sexual harassment complaint.

Díaz, the teachers union president, told the Intercept that Rosselló has been unresponsive to their concerns.

Randi Weingarten, president of the American Federation of Teachers, said Puerto Rico’s governor should be ashamed of himself. “He pretends that he’s a Democratic governor, but his playbook on schools is right out of Trump and DeVos,” she told The Intercept. “He won’t even tell the people of Puerto Rico what he’s doing as he secretly travels to an ASPIRA charter for a tour.” Weingarten says his behavior is “just baffling” and “one wonders who he is listening to.”

Keleher, for her part, emphasized that she’s trying to be very transparent and accessible with Puerto Ricans to discuss the reforms. This week her department organized a forum and last week she met with parents from each region of the island.

“The governor appointed me and I am fully accountable to the people,” she said. “You can like my decision or not but I think I’m responsible for showing you how I got my decision, and at the end of the day I have to take the hit.”

Still, the education secretary’s engagement with the public hasn’t always gone smoothly. Last week during a union-sponsored Q&A, Keleher abruptly stormed outwhen one teacher said the education secretary should return when she’s more prepared to answer their questions.

“Before this bill we were working together, we understood each other, and we agreed on many things,” Díaz told The Intercept. “But right now communications are stopped, I don’t think [the government] wants to understand our point of view.”

Indeed the question of whether charter schools in Puerto Rico would be unionized remains an open one. The proposed legislation says nothing about it. Most states do not require charter teachers to be in unions – indeed being union-free is seen by many charter advocates as a key characteristic of the model – but a few states, including Maryland and Hawaii, require it.

Keleher told The Intercept that they are staying intentionally “silent on the union issue” though she’s “not adamantly opposed if in the context of Puerto Rico” unionized charters seem like the best way to do it. She said, though, that if charter school operators want to come and oppose doing so with a unionized staff, she “would also understand and respect that” and she’s “very much in a let’s-see-what-makes-the-most-sense” position.

The last time Puerto Rico passed major education reforms was in the 1990s, and some elements of the controversial bill have attracted support from union members. Aside from the $1,500 pay hikes, Díaz says her union also likes the new procedures outlined around making school budgeting more transparent, and creating regional education offices.

“But the rest of the bill is unacceptable to us, and we cannot support it,” she said. For now the Asociación de Maestros de Puerto Rico will continue mobilizing against the charter and voucher proposals, and Díaz said they are also going to start more vocally championing for public schools that provide robust wraparound social services.

“These kids and their parents have been traumatized,” said Weingarten. “Let’s try to create some stability in Puerto Rico after this terrible storm.”

Draft Legislation Suggests Trump Administration Weighing Work Requirements And Rent Increases for Subsidized Housing

Originally published in The Intercept on February 1, co-authored with Zaid Jilani.

Draft legislation obtained by The Intercept suggests the Department of Housing and Urban Development is eyeing a proposal to overhaul the federal government’s administration of subsidized housing, through measures such as rent hikes and conditioning aid on employment.

This change would significantly impact those who rely on public housing and housing choice vouchers, often referred to as Section 8 in reference to Section 8 of the Housing Act. The news comes just weeks after the Trump administration announced that states could start imposing work requirements as a condition of Medicaid eligibility.

When asked about the document, Department of Housing and Urban Development spokesperson Brian Sullivan would not confirm its existence, but he suggested more would become clear when the Trump administration announces its budget later in February. “I think what you’re talking about is going to be expressed publicly in the budget coming up, so prior to that we would have nothing to say,” Sullivan said. He did not return multiple requests for further comment.

Document metadata reveals the name of the author of the document; she is listed as an HUD employee on a number of department web pages between 2013 and 2017.

It is unclear at this time whether the draft legislative language, dated January 17, will be proposed as a standalone bill or included within existing legislation. There are many parts of the 28-page document that are vague and even contradictory. However its text strongly suggests the administration is considering rent reform.

Under current regulations, most households that receive federal housing subsidies pay 30 percent of their adjusted income as rent. Adjusted income is a household’s gross income minus money taken out for four mandatory deductions: dependent deductions ($40 per month per dependent), elderly and disabled deductions ($400 per year), a child care deduction, and medical and disability expense deduction. This 30 percent threshold, which has been the standard for most rental programs since 1981, is based on a rule-of-thumb measure that estimates a household can devote 30 percent of its income to housing costs before it becomes “burdened.”

The draft legislation eliminates all four deductions, effectively making the changes most burdensome on households with children, the elderly, or people with medical problems.

If the draft’s proposals are enacted, those families would have to pay the higher of two figures: Either 35 percent of their household’s gross income, or 35 percent of what they earn from working 15 hours a week for four weeks at the federal minimum wage. A comment in the margins of the document notes that the latter would equal $152.25, something housing advocates say is effectively a new minimum rent floor.

Additionally, the draft legislation would allow public housing authorities to impose work requirements of up to 32 hours a week “per adult in the household who is not elderly or a person with disabilities.” According to the Center on Budget and Policy Priorities, more than half of all recipients who lived in subsidized housing in 2015 were elderly or disabled, and more than a quarter of all households had a working adult.

Diane Yentel, the president and CEO of the National Low Income Housing Coalition, expressed alarm at the possible changes.

“HUD’s proposals could raise rents on millions of low-income households that receive federal rental assistance, with some of the largest rent increases for families and individuals that have the greatest difficulties affording housing,” Yentel said. “By raising rents on some of the lowest income and most vulnerable families in HUD subsidized housing, HUD would jeopardize family stability by increasing the financial burdens they face through higher rents.”

New York Times Applauds Donald Trump For A New Attempt At An Old Corporate Boondoggle

Originally published in The Intercept on January 30, 2018.

Even as the debate over the Republican tax overhaul continues, there is general consensus that corporations and the wealthy will now enjoy huge tax cuts while the rest of America gets precious little. But, based on an article published Monday, New York Times economics reporter Jim Tankersley would have you believe that a provision buried on Page 130 of the tax bill is part of a “plan to help distressed America.”

The plan is to pump more money into “opportunity zones.”

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The problem, though, is that he glosses over years of research that show that so-called opportunity zones do next to nothing to revive distressed areas. Opportunity zones are a decades-old bipartisan idea that involves showering businesses with tax breaks, subsidies, and other incentives to lure them into struggling areas, with the hope that new injections of capital will lead to community renewal and revitalization.

The opportunity zones were “never debated on the floor of the House or Senate” and were “never promoted by Republican leaders or the White House,” but according to Tankersley, their inclusion in the tax bill “is an attempt to grapple with … the fact that, in huge swaths of the country, the economic recovery has yet to arrive.” He declared the provision “the first new substantial federal attempt” to aid communities with high poverty and sluggish job growth in more than a decade. “If the zones succeed,” he wrote, “they could help revitalize neighborhoods and towns that are starved for investment.”

There’s a lot packed into that “if.”

In his attempt to shed light on the “little-noticed section in the $1.5 trillion tax cut,” Tankersley spoke to politicians, community development professionals, and venture capitalists like Sean Parker, who expressed enthusiasm for idea. There are a few glaring omissions, though. The article includes no comments from scholars who have actually studied opportunity zones, and it links to none of the many research studies done on their effectiveness. Spoiler: Research shows these schemes rarely ever help cities, and often hurt them. (The article does link to illuminating resources such as a biography of Republican Sen. Tim Scott.)

In fact, “the bottom-line effects of these kinds of tax incentives are often too small to change the locational preferences of investors,” explained Rachel Weber, an urban planning professor at the University of Illinois at Chicago. “Moreover, they often create complex financial and administrative structures that consume a large portion of the tax benefit as transaction costs paid to industry professionals, leaving less for the bricks and mortar.”

Dan Immergluck, a professor in the Urban Studies Institute at Georgia State University, offered a similar assessment. “There is not much evidence that marginal tax breaks to incentivize capital investment or hiring by private firms works very well,” he said. Immergluck distinguished opportunity zones from what he calls “deeper incentives” like the Low-Income Housing Tax Credit. “The LIHTC clearly creates housing that would not exist otherwise,” he said. “But it is not a marginal incentive to move private capital around. It creates fundamentally a new form of capital. This opportunity zone program will not do that.”

Buried toward the end of Tankersley’s article is a brief acknowledgment that past research shows previous revitalization efforts haven’t worked out so well, but this history was apparently not sufficient enough to blunt the article’s decidedly sunny outlook. “Proponents say the new Opportunity Zones are designed to be more effective than earlier programs,” Tankersley wrote, offering no real explanation as to why. He also asserted that the New Markets Tax Credit — a federal tax break to spur revitalization in distressed communities launched in 2000 — has been “more successful” than previous opportunity zone efforts. But he offered no research to support that claim, either. The few studies that do exist on the New Markets Tax Credit paint a mixed picture, at best. A Government Accountability Office study published in 2014, for example, found that the the program has “become more complex and less transparent” over time, and as a result, investors potentially take home a much higher rate of return than is warranted. Also, due to data limitations, the GAO concluded that “it is not possible to determine, at this time, the NMTC project failure rate with certainty.”

Last summer, Timothy Weaver, an urban policy and politics professor at the Rockefeller College of Public Affairs & Policy at the University at Albany, published an article on opportunity zones, tracing their effectiveness in both the United States and the United Kingdom — where the concept originated in the early 1980s.

“Enterprise zones do very little to revive urban areas,” he concluded. “At best, they divert investment from one part of the city from another, resulting in no net gain for the city as a whole. At worst, they result in tax-giveaways to firms that would have been operating anyway, thereby generating a net loss to city revenues. … The enterprise zone is a zombie policy that staggers on despite its moribund performance. It’s time to perform the last rites and bury it once and for all.”

Reached for comment on the New York Times article, Weaver told The Intercept that he “was struck by its slap-dash approach to critical engagement.” Put differently, that investors may stand to reap major windfalls does not mean that the communities themselves will be better off.

“There is no question that cities — poor areas in particular — need capital investment,” he added. “However, this is a terribly inefficient way of going about it.”