The Rift Among Charter Schools

Originally published in The American Prospect on October 20, 2017.

t’s a surprisingly challenging moment for the charter school movement. In August, Education Next—an education policy journal published by the Hoover Institution at Stanford—released its 11th annual public opinion poll examining Americans’ views on K-12 education. They reported a stunning 12-percentage-point drop in support for charters from spring 2016 to spring 2017—from 51 percent to 39 percent. African-American support fell from 46 percent to 37 percent, and Hispanic support fell from 44 percent to 39 percent.

A Gallup survey released a week later found growing partisan divides on charters, with Democratic support standing at 48 percent, down from 61 percent in 2012. Republican support, by contrast, has remained steady over the five years at 62 percent. While Gallup’s senior editor, Lydia Saad, suggested that Democratic support may have declined because chartering has become more closely tied to Donald Trump and Betsy DeVos, the Education Next staff said they found little evidence of a “Trump effect” because in their survey, support from both parties fell.

“If the decline in support were related to Trump’s support of the concept, I would have expected it to occur primarily among Democrats, and that’s not what we see,” Martin West, Education Next’s editor-in-chief told Education Week. “I would also expect there to be similar changes in opinion about other policies that the president has embraced, especially other school choice policies, which is not what we see.”

How much stock should charter advocates (and politicians) put in one or two national surveys? Michael Petrilli, president of the Thomas B. Fordham Institute, a conservative education think tank, published a provocative essay this month entitled, “The charter-schools movement needs to stop alienating Republicans.” Citing the new Education Next results, Petrilli argues that charter advocates should focus on regaining GOP support, and suggests doing so by tamping down social justice rhetoric (such as closing achievement gaps and alleviating systemic inequalities), by emphasizing parental choice and personal freedom (i.e., that charters liberate families from their government-assigned schools), and by touting that most charters are non-union. “If we charter advocates want to maintain conservative and Republican support for these life-changing schools, we need to remember who our friends are—and help them remember why they liked us in the first place,” he writes.

Others have looked at wavering public support and pointed to for-profit charters as a model that may be hurting the reputation of the broader movement. “I would distinguish between the role that high-performing public charters can play in a strong public education system as opposed to vouchers and for-profit charters,” John King, the former secretary of education under Obama told Chalkbeat this past summerOthers have suggested that virtual charters—known for producing notably low academic outcomes—could be hurting public opinion. “It’s not fair to the charter school community to have these [test score] anomalies in the mix,” Nina Rees, the president of the National Alliance for Public Charter Schools told The 74. “In a lot of states the performance of the virtual charter schools are considered outliers when you compare them to the average brick and mortar school.”

And now, in a surprising new development, so-called “independent charters”—freestanding schools not run by networked chains— have also begun to organize collectively. They’re saying their interests and reputations can suffer when they’re lumped in with the rest of the charter movement.

According to the National Alliance for Public Charter Schools, 60 percent of the nation’s charters are independent, down from 69 percent in 2011. Well-known nonprofit charter management organizations (CMOs)—which make up 24 percent of the sector—include Success Academy, KIPP, and Achievement First. For-profit networks (called education management organizations, or EMOs) make up the rest, and include networks such as K12 Inc. and Academica.

Despite comprising more than half of all charters, independent charter schools rarely dominate the press narratives, and seldom attract the same level of enthusiasm from philanthropists and advocacy groups. Independent charter supporters say it’s because their schools aren’t focused on growth, scale, and replication—priorities among mainstream education reformers.

Last week, leaders of independent charter schools gathered together in New York City for the first-ever Independent Charter School Symposium. Amy Shore, of the Center for Educational Innovation, which co-sponsored the conference, emphasized that her group is not anti-CMO, but wants to focus on helping “the mom-and-pop store survive next to Walmart.” Part of the challenge, she explains, is advancing a different idea about what constitutes meaningful reform. “I’d say a lot of the big foundations are looking at how to achieve scale,” she says. “There’s an argument that if it cannot expand, then why would we invest money in it?” But Shore stresses that “there’s a whole other theory of social change” that says if a majority of charters are independent, and there are all kinds of different flowers growing, “why are we trying to make them all roses?”

Steve Zimmerman, founder of the Coalition of Community Charter Schools, an organization representing New York City’s independent charters and the conference’s other co-sponsor, says he started his group in response to what he saw as too much focus on standardized testing—a trend he believes stifles innovation, collaboration, and charters’ original promise.

Zimmerman says a turning point for independent charters came with the election of Donald Trump. “Some things became more clear for us, and one of them was that we saw too much coziness between major players in the charter world and the incoming administration,” he says.

At the conference, held at a hotel in Queens late last week, attendees discussed forming their own national organization of independent charters, to advocate for their interests and challenge the prevailing narrative around education reform. When this group would launch, and what it would actually look like, is not entirely clear. As Zimmerman admits, they’d face an uphill battle for funding, as the major financial backers of the movement prefer supporting charter networks that can grow. “They want to see replication, they want to see leverage,” he says. “We understand that the likelihood is that we will never, ever get money from those guys because we do not represent scale. We represent the kinds of schools that people want to send their kids to.”

As an example, Zimmerman points to Sidwell Friends, the renowned private school in Washington, D.C., that boasts such alumni as Malia Obama and Chelsea Clinton. “We want our schools to be like where the Obamas sent their kids to,” he says. “There is no Sidwell Friends 2, Sidwell Friends 3. They don’t do that. You grow a great school culture, one at a time, and it takes years.”

This year Florida legislators passed a controversial omnibus bill—HB 7069—which revamps many aspects of chartering across the state. One of its most significant provisions involved making it easier for national CMOs to enter communities with low-performing traditional public schools.

At the Independent Charter School Symposium, Christopher Norwood, founder of the Florida Association of Independent Schools—which represents freestanding charters, not CMOs or EMOs—explained how the legislative debates around HB 7069 highlighted problems independent charters face in his state. While Norwood estimates that 80 percent of what his group supports aligns with the Florida Charter School Alliance—the state’s dominant charter advocacy organization—he believes “it’s that 20 percent” that will make or break independent charters. “The way [HB 7069] was written, it was written for outside companies to come in,” he says. “If we had more power in that decision-making, we would not have wanted that to happen.”

Norwood and Zimmerman anticipate pushback to their efforts to form their own organization, but say they have little choice but to push forward.

“The National Alliance truly believes they act in the interest of all charter schools…but the truth is they can’t really represent interests of independent charters because their funders really believe in the network model,” Zimmerman says.

Nonetheless, in a statement provided to The American Prospect, Vanessa Descalzi, a spokesperson for the National Alliance for Public Charter Schools, says that the organizers of the Independent Charter Schools Symposium have their full support. “The National Alliance represents all public charter schools—including those which belong to a network or function as independent single sites—and we appreciate when any of our constituents take proactive steps to identify areas of need and provide resources to their communities,” she says. The new group of independent schools “will be a welcomed voice” in the charter movement, she says, while adding that “advocating for independent, community-based schools is in the National Alliance’s DNA.”

Ultimately, leaders of independent charters are trying to figure out how to save, or redefine, the brand of the charter school movement, much as Michael Petrilli is when he talks about winning back GOP support, or John King is when he tries to distance the movement from for-profit networks.

In Norwood and Zimmerman’s eyes, extricating independent charters from what they describe as “corporate aspects” of the movement could help restore progressive support for charter schooling. The networked chains and their advocates “win battles but they’re losing the war—if the war is hearts and minds of people, and the war of ideas,” says Zimmerman. Though he acknowledges independent charters align with CMOs on many issues, and cites equitable funding as an example, he says for now that independent charters have to carve out their own space, and create their own national voice.

Norwood expects CMO leaders to push back on their efforts to organize independently. “If you take away independently operated charter schools from a certain organization [like the National Alliance for Public Charter Schools], what are they left with?” he asks. “Now they’re exposed. Now they’re all management companies. Now they can’t hide behind [us].”


Desegregated, Differently

Originally published in the Fall 2017 issue of The American Prospect. 

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Hartford, Connecticut, is struggling. Teetering on the brink of bankruptcy, the state’s tiny capital wrestles with many of the same economic challenges as other predominantly poor post-industrial cities along the East Coast. Yet Hartford boasts one remarkably unique feature: Nearly half of its public school students attend desegregated schools.

In most places, desegregation was a 20th-century phenomenon that was pulled apart by a skeptical Supreme Court and political backlash from white families. But in Hartford, it’s still happening, thanks to Sheff v. O’Neill, a 1996 state Supreme Court decision in which the court ruled that the region’s racially segregated schools denied Hartford children their constitutional right to an equal education. By suing the state rather than the federal government, the plaintiffs did not need to prove the state’s intent to discriminate (a high legal bar to reach), and instead focused on Connecticut’s obligation to provide all students with equal opportunity. It was a novel legal strategy at the time, and remains so today.

Over the past two decades, Connecticut has slowly but surely funded the creation of integrated magnet schools both within Hartford and in the surrounding suburbs, and paid for Hartford students to attend predominately white schools outside their city’s borders. The magnets—which have proved popular and academically distinguished—come with some rules: No more than 75 percent of a school’s student body can be black or Latino, and, correspondingly, no less than 25 percent can be white or Asian.

But some Hartford leaders have tired of Sheff, which reduces their authority over city schools, and encourages students to look beyond Hartford for public education. A number of Hartford parents have also grown frustrated that their children who can’t land spots in the coveted magnets are falling behind (52 percent of Hartford students are still enrolled in segregated neighborhood schools). Connecticut’s worsening fiscal crisis has also ramped up Sheffresistance from state officials, who have signaled—implicitly and explicitly—their desire to scale back the legal remedy.

So nearly three decades after they first filed suit, the plaintiffs are headed back to court—and longtime observers say they’ve never seen the two parties so far from an agreement. The state wants not only to be freed from court oversight, but also to reduce the number of white students the existing magnet schools must accept, a proposal supporters say will open up more opportunities for marginalized students, and critics say will cripple the goal of integration. The fight is being closely watched by civil rights advocates across the country, who want to know if Hartford and Sheff are a viable new model for school integration—or a dead end.

“I figured this would be a long-haul effort,” says Elizabeth Horton Sheff, an African American community activist, and the lead plaintiff for Sheff since the late 1980s. “But I did not expect this kind of resistance to a constitutional question that’s been asked and answered.”

CONNECTICUT IS AFFLUENT, predominantly white, and largely suburban. Like other New England states, Connecticut largely missed the migration of African Americans from the South, and Latinos from Mexico and the Caribbean. For decades, the state’s relatively few African Americans mostly clustered in Hartford, Bridgeport, and New Haven—a pattern born out of the state’s racist housing laws, which had barred black residents from owning land, forcing them into ghettos where renting was cheaper.

The Sheff lawsuit began with John Brittain, an African American civil rights attorney who arrived to teach at the University of Connecticut School of Law in 1977. Before then, Brittain had litigated school desegregation cases in Mississippi, and soon after his arrival he began studying the demographics of Connecticut’s schools and neighborhoods, to see if similar legal action might be necessary.

By 1983, Brittain had plans to move forward with a federal school desegregation case. Yet one challenge was a rapidly changing legal landscape following a 1974 U.S. Supreme Court decision, which said that unless it could be shown that a district deliberately sought to discriminate by race, it could not be held responsible for school segregation. Still, Brittain and his team felt they could prove intent.

At the last minute however, they pulled the plug. “Like a NASA shuttle launching, we aborted,” he tells me. One factor motivating the decision, Brittain says, was a sense that the community was not ready, that Northerners viewed desegregation as something only necessary for Southerners reckoning with Jim Crow.

But five years later, in 1988, everything changed. The state’s then-education commissioner, Gerald Tirozzi, published a report concluding that school segregation was a growing trend in Connecticut, with 80 percent of the state’s minority students concentrated within 14 of its 165 school districts. Following the release of the explosive report, the education commissioner emphasized the state’s collective responsibility for the problem and proposed financial incentives for school districts to voluntarily reduce segregation, but stressed that if this proved ineffectual, the state education board should consider a mandatory desegregation plan. It was—and still is—very unusual to have state officials propose strong desegregation initiatives rather than have those initiatives designed by courts.

Leaked to the Hartford Courant, the Tirozzi Report was featured as the paper’s front-page scoop just before Christmas in 1987. It generated massive amounts of community and political attention, and within four months of its release, Brittain and his colleagues drafted their school segregation complaint against the state.

“We strategically solicited just about every social, educational, religious, and community organization to sign on to a pledge to support our case,” Brittain says. “The enthusiasm was overwhelming.” Unlike the ditched federal suit from a few years earlier, this time Brittain felt community members were ready.

Filed in 1989, the suit was tried in the early 1990s. At the time, minority students comprised more than 92 percent of Hartford’s public school enrollment, and of the 21 surrounding suburban towns, only seven had school districts with minority enrollments that exceeded 10 percent.

Sheff was named for Milo Sheff, a black fourth-grade student in Hartford, and his mother, Elizabeth. Sixteen other children were named as plaintiffs—four more black children, six Latino, and six white. It was brought not only for Hartford students stuck in impoverished schools, but also for suburban students “deprived of the opportunity to associate with, and learn from, the minority children” in Hartford, as the complaint read. Sheff lawyers argued that inequality by both race and poverty denied the plaintiffs their constitutional right to an equal education.

Connecticut’s Supreme Court issued its landmark 5–4 ruling in the spring of 1996, holding that “racial and ethnic segregation has a pervasive and invidious impact on schools”—and violated the state’s constitution. (The court ignored the plaintiffs’ poverty argument.) Instead of outlining a remedy, however, the court ordered the governor and the legislature to develop a solution.

Perhaps unsurprisingly, the state’s initial response to Sheff was feeble. In 1997, Connecticut’s legislature authorized new investments in early childhood education, a state takeover of Hartford’s schools, and the creation of integrated magnets coupled with an expanded interdistrict school choice program. But the amount of money allocated to the remedies was insufficient, and weak financial incentives led to minimal suburban school participation in interdistrict choice. (The amount of money the state offered receiving districts to take in students was generally not enough to offset the cost of educating them.) The voluntary nature of the Sheff remedy helped it avoid political backlash, but also severely watered down its impact.

Many blamed the court for not ordering its own, stronger remedy. “One of my signature criticisms is that after the courts find liability against an educational authority for violating the Constitution … they remand the remedy phase back to the perpetrators of the wrongdoing,” says Brittain. “I call this asking the fox to guard the hen’s coop.”

But the plaintiffs kept up pressure, and by 2003, the state finally negotiated its first settlement agreement, committing to have 30 percent of Hartford students enrolled in integrated schools by 2007. Though progress felt sluggish at times—not enough suburban schools were reserving seats for Hartford students, magnet construction was slow, and by 2006 still fewer than one in ten Hartford students were enrolled in integrated schools—observers remained optimistic, saying things were at least plugging along in the right direction. Even when leaders may have grumbled behind closed doors about costs or the strategy, publicly they embraced their legal obligations.

But over time, some Hartford leaders began openly criticizing Sheff and questioning its value. As the four-year settlement agreement neared its end in 2007, Hartford’s new school superintendent went before the state legislature to testify that magnets were not achieving their goals and “there is no research to suggest that minority students will do better by sitting next to a white student.”

Elizabeth Horton Sheff, the lead plaintiff, and Eugene Leach, another plaintiff, wrote an op-ed condemning the superintendent’s remarks, noting that he cherry-picked struggling magnets, misrepresented the social science research, and tried to relitigate a matter the Supreme Court had already settled. “The question for Connecticut officials is how, not whether, to achieve desegregation,” they wrote.

Though state officials do not need Hartford’s approval to allocate funds for the Sheff remedy, Connecticut’s legislature was ambivalent about distributing more money without Hartford’s explicit support. Some also waffled on committing more funds, given the slow progress made since 2003. So, faced with a political impasse, the plaintiffs again went to court, demanding better and faster compliance with Sheff.

They were successful, and the new settlement negotiated in 2008 was one both parties agreed was far more likely to facilitate desegregation than its predecessor. “Under the first stipulated agreement, everyone saw their roles differently. … Now we expect there to be better coordination,” said a state Department of Education spokesperson at the time. The agreement called for expanding magnets and interdistrict choice, and for the first time, Connecticut committed to a detailed road map to end racial segregation faced by all Hartford’s children.

By April 2009, two decades after the suit was initially filed, a state official who worked on Sheff remarked that there had been more progress toward integration in the preceding year than in the past decade. The University of Connecticut also released a report in 2009 finding that attending an interdistrict magnet school had positive effects for students in reading and math, and that magnet students reported more positive intergroup relations than non-magnet students in the region. Between 2008 and 2013, the number of Hartford students enrolled in integrated schools jumped from 19 percent to 41 percent.

For a while, the state supported integration efforts not only in Hartford but also in the highly segregated metropolitan areas of Bridgeport and New Haven. The magnet schools were extremely popular everywhere, yet at the same time, state legislators were growing wary about all the money they were spending. By September 2009, lawmakers issued a moratorium on constructing new magnets outside the Hartford region, which they said they were obligated to continue building because of Sheff.


EVEN AS STATE LEADERS ostensibly kept up their commitment to Hartford desegregation, some city officials were proposing to move in a different direction by doubling down on efforts to elevate the so-called education reform movement. Since 2006, Hartford’s then-superintendent, Steve Adamowski, had pushed a plan to transform Hartford Public Schools into an all-choice “portfolio” district, a national strategy backed by the Seattle-based Center on Reinventing Public Education. In 2011, Hartford school officials launched a campaign to dissuade families from choosing suburban magnets. One press release said parents should “avoid the temptation to gamble with their children’s future” and enroll their student in a Hartford public school instead. Another district-sponsored TV ad featured a Hartford teacher saying, “Your child’s education is a right and not a game. Why risk their future on a [Sheff] lottery and then a waiting list?” When the plaintiffs criticized the district’s “Choose Hartford” campaign, Adamowski defended it, saying the dragged-out Sheff remedy was harming Hartford schools.

Hartford’s school board has also had an uneasy relationship with Sheff. (It’s not a formal party to the case, yet is generally expected to greenlight plans the plaintiffs and state negotiate.) “Sheff is an abrogation of democratic governance because it transfers [decisions] to confidential negotiations that many, if not most, people don’t know exist, decisions that are the responsibility of state and local government,” says Richard Wareing, a Hartford school board member who recently served a three-year stint as board chair. “There is no transparency. There is no accountability.”

ONE PROBLEM DOGGING Hartford desegregation has been a lack of clear regional coordination. When federal judges ordered school districts to desegregate in the South, many formed new city-countywide school districts, such as Charlotte-Mecklenburg Schools in North Carolina, and Metropolitan Nashville Public Schools in Tennessee. Yet Connecticut, a state with 169 small towns, has an entrenched culture of parochialism that is unlikely to change without pressure from a court. While the Hartford metropolitan area has been willing to agree to some regional cooperation for services like hazardous waste collection and firefighting, on most everything else the small towns remain fiercely autonomous.

Accommodating this tradition of “local control” has led to disjointed, kludgy efforts to desegregate the region, especially since the most serious segregation exists among districts, not within them.

Between 1998 and 2016, Bruce Douglas led the Capitol Region Education Council, or CREC, a quasi-public agency that manages the interdistrict program and 17 Sheff magnet schools. When I asked him to reflect on Sheff, he praised Connecticut’s Supreme Court for pushing a voluntary plan, and thereby avoiding the problems of so-called “forced busing.” That said, Douglas, who also believes there needs to be more regional cooperation, admits that the court could have played a larger role pushing that along.

Absent such court mandates, he says, “you would need legislators who have the courage to say, ‘I’m willing to lose my job by voting in favor of regionalizing school districts,’ because there is no doubt they’d be voted out the next cycle.”

Sheff plaintiffs have pushed for more regional coordination at the negotiating table, though they too have stopped short of calling to revamp district lines.

“We’ve never pushed for redrawing school district lines for political reasons, but short of that we’ve pushed for regional solutions ad nauseam, and they’ve never gone anywhere,” says Martha Stone, the lead attorney for the Sheffplaintiffs. “We’ve pushed for regional preschool, for more mandatory participation from the suburban districts [in interdistrict choice], for more carrots for suburban districts that participate at greater rates, for housing mobility certifications that are tied to education options.”

The state, wary of costs and of political blowback, has consistently rejected these proposals, resulting in a series of year-to-year goals, with the prospect of long-term, regional planning feeling at times more elusive than ever.

Andy Fleischmann, a Democratic state legislator from the affluent suburb of West Hartford who chairs the Education Committee, is quick to note that many people have strongly differing views on the lawsuit. “Where you stand, depends on where you sit,” he says. In his community, he admits no one has seriously pushed for redrawing district boundaries. “You’d be hard-pressed to find anyone in my town who would say, ‘Oh sure, let’s erase the school district’s boundaries,’” he says. “My town has worked hard to make sure that we’ve maintained great schools and there’s just a huge number of people who wouldn’t want to go ahead and take our great school system, change its boundaries, and potentially throw off what’s been working well for as long as it has. That’s true of folks who are sitting in Wethersfield, or East Hartford, or Windsor and Bloomsfield. That’s just not something that’s been discussed very seriously by many parties.”

Rather than redrawing district lines, Fleischmann supports expanding financial incentives to induce more suburban schools to voluntarily participate in the interdistrict program. When I asked about empowering the education commissioner to mandate greater suburban participation, he quickly dismissed the idea. “That’s been brought up a few times over the years, but that’s never gotten far. Superintendents and school boards of local districts say, ‘Wait a minute, why would that be a good thing from where we sit?’”

Still, calls for greater regional cooperation have grown more pronounced in recent years, in part because the state’s fiscal crisis has ramped up pressure on leaders to identify economic inefficiencies. And longtime observers say there’s a greater recognition now that Hartford Public Schools and CREC must work together to desegregate the region, rather than position themselves as competitors for students, as has been the case at times in the past.

What’s needed now, CREC’s new executive director, Greg Florio, told me, is a comprehensive plan. When asked what’s stopping that from becoming a reality he cited the continual leadership turnover within Hartford and a lack of clear direction from the state.

But it’s not just Sheff’s implementation that’s in flux. The demographic patterns within the state of Connecticut have also been changing over the past 15 years, with suburbs growing more diverse, and in some cases, more poor. Twenty-four percent of school-age children in the towns surrounding Hartford this past school year were black or Hispanic. The population shifts have prompted some to wonder if the Sheff remedy should be revised to reflect these not-so-black-and-white realities.

SHEFF POLITICAL TENSIONS have come to a head over the past two years.

One key factor is Connecticut’s worsening fiscal crisis, which threatens a $5 billion budget deficit. Despite the state’s affluence and Democratic control, lawmakers have been resistant to hiking taxes on its wealthiest residents.

Connecticut’s population is also shrinking. Since 1994, the state’s 35- to 44-year-old demographic has declined by 20 percent, and fewer prime-age adults means fewer school-age children. All of these issues combine to make school funding particularly contentious, especially since Connecticut relies heavily on local property tax to fund public education.

Although Connecticut has poured in funds to construct new magnets, it has not increased the per-pupil spending for those magnet students since 2010—despite increasing per-pupil spending at traditional schools every year. As a result, suburban districts have had to pick up a greater portion of the tab to send students to magnet schools, and some are growing increasingly unhappy about it. “I think the state tried very hard to do right, especially at the beginning, but people got tired,” says Sandra Cruz-Serrano, CREC’s deputy executive director. “The political environment started to change, especially as CREC was building these beautiful new schools while suburban schools from the 1950s struggle to renovate.”

Many leaders, families, and educators have concrete ideas of how to improve Sheff—to make it more user-friendly, more cost-effective, and more equitable—but it’s nearly impossible to make headway on these adjustments without leadership from the state, and many state officials remain cool to the program. “The state has never seen Sheff as a real benefit to them; they’ve only treated it as something that was onerous,” Douglas says.

Not all Hartford leaders believe Sheff can be sufficiently improved. Craig Stallings, the Hartford school board chair, doesn’t think there can be any real tweaks to the remedy, and even if adjustments were possible, the city would still be unfairly deprived of local control.

Stallings, an African American man born and raised in Hartford before Sheffwas litigated, speaks highly of his education, which he says was rigorous and culturally responsive, despite being segregated. “Quality is more paramount than integration,” he tells me. “I’m the anti-Sheff guy around here.” Another vocal Sheff critic is Thirman Milner, an 83-year-old Hartford resident and the city’s first African American mayor, elected in 1981. Milner, who originally supported Sheff, now says it would be better if the lawsuit were abandoned, and the state just gave money to the city to do what it sees fit. “I think the Hartford board would have a much better idea of how to spend the money, and I think we need to get rid of Sheff if we really want to stabilize the schools,” Milner says.

John Brittain laughs hard when I ask him if he thinks the state would distribute the same kinds of resources to Hartford without Sheff mandates. “No, and I believe that’s just a smokescreen for opposition to school integration, just like ‘busing’ was always a smokescreen,” he says. “‘It’s not the bus,’ as we used to say. ‘It’s us.’”

Brittain’s skepticism seems justified: The state funds other segregated regions of the state far less, and is already attempting to shift more Sheff costs onto local suburban districts. In 2015, the state signed a one-year agreement to expand seats in existing magnet schools, but Connecticut officials said they would refuse to open new magnets in the future, and refused to increase magnet per-pupil funding. Even today, the existing magnet schools are operating only at 93 percent capacity, in part because the state has capped the number of seats it will fund.

Julie Goldstein, the principal of Breakthrough, an award-winning magnet run by Hartford Public Schools, says the last few years of budget cuts have been very painful. “One of the misconceptions of magnet schools is that because we have nice buildings we must be oozing with funds,” she tells me as we sit together in her office. Breakthrough recently had to shorten its school day and eliminate two certified positions, including its assistant principal. Continually reducing their resources, supplies, and field trips, Goldstein says, makes recruiting students much harder.

Desegregation efforts came under even more fire this year, as the Hartford Courant ran a series of articles highlighting problems with the school-choice lottery and frustrated Hartford students who struggle to land spots in magnet schools. The fact that some magnets have to leave seats empty in cases where they aren’t able to attract enough white or Asian children has added insult to injury to those who already feel like they are being left behind. “One lesson we’ve learned from all this is that stopping midway, and not meeting the full public demand, creates serious political blowback,” says Phil Tegeler, the executive director of the Poverty & Race Research Action Council, and a former Sheff attorney.

In response to Hartford residents’ palpable frustration, this year the state announced plans to revamp the Sheff legal mandates, saying the current 75 percent cap on black or Latino students is ultimately harmful. The state proposed changing the ratio to 80 to 20.

Many I spoke with, however, say they felt this state action amounted to Sheffsabotage, even if it came from a well-intentioned place. Plus, they say, it’s a slippery slope to allow the state to change desegregation standards when it’s politically convenient to do so.

“It was an embarrassing idea to drop the percentage down; the 75 percent standard is bad enough, and 80 percent is even worse,” says Bruce Douglas, CREC’s former executive director. “That’s not desegregation—and this came from a Democratic administration!”

Sheff critics correctly note that there is no real social science justification behind the 75-to-25 standard, but practically speaking, ensuring there are enough white students in a school matters for integration. And for better or for worse, magnet operators have to attract white parents.

“Our schools are in the suburbs, and one of our charges is to bring white children into those schools,” says Florio, CREC’s executive director. “There’s a tipping point, and once it gets below the 25 percent mark, it becomes a much greater struggle to make it a racially diverse school.”

“I’m not saying the state was consciously trying to make Sheff fail, but anyone who would come up with this [80-to-20 ratio] would have to realize this would make the magnet schools fail,” adds Douglas.

A representative from the Connecticut Department of Education declined to comment for this story, citing pending litigation.

THIS PAST JUNE, FOLLOWING a three-day hearing, a Connecticut Superior Court judge blocked the state’s efforts to change the Sheff desegregation standards to 80 to 20. But with the latest Sheff settlement agreement now expired, plaintiffs are expected to head back to court, and the debate will surely be revived again soon.

The Sheff Movement, a coalition of parents, teachers, students, and local residents in Greater Hartford, know the politics of desegregation remain daunting, but they are committed and insist the law is on their side. They have been working to organize and educate community members around integration, but raising money for their efforts has been difficult.

As time passes, the degree to which parents and community members can even speak to the history of the Sheff lawsuit is also quickly fading. When perusing the various magnet school websites, one can find little to no mention of the consequential civil rights lawsuit, including why the Sheff ruling has made these schools a reality. The magnets operated by Hartford Public Schools and CREC aren’t even referred to as “Sheff schools,” but rather as “Hartford magnets” and “CREC magnets.” Some magnet school leaders may also prefer de-emphasizing their school’s connection to Sheff, finding it can be helpful when convincing skeptical white parents who otherwise might be deterred by the desegregation element.

“I understand that schools may not want to be racially identifiable, but it’s important to understand the history,” says Robert Cotto Jr., a pro-SheffHartford school board member. “If you’re talking about branding, and this is a school that is created as a result of maybe the most important civil rights case in Connecticut, why isn’t that being demonstrated? If people have no idea, then that right there undermines the case in the long run. Maybe it’s intentional.”

Elizabeth Horton Sheff doesn’t care if the magnets are named for the lawsuit so long as the desegregation initiative moves forward. But she does think there is a deliberate effort to obfuscate the history, so people “won’t have to worry about things like constitutional rights” and can frame the conversation solely around school choice.

And indeed, though integration advocates think the basic framework of Sheffcan still work—involving a voluntary, choice-based model—there is a genuine concern about what would happen if the state abandoned Sheff in favor of a more free-market-based choice system.

In 2014, Cotto published “Choice Watch,” a report that found Connecticut charters and technical schools to be highly racially segregated, despite both having statutory requirements to reduce racial and ethnic isolation. Connecticut Sheff magnet schools were the only choice-based option Cotto found that significantly reduced segregation. The state’s limited resources and enforcement with regard to charter and technical schools, Cotto says, clearly suggest how the state would treat magnets if Sheff were to end.

IN 2015, FOR THE FIRST time since Sheff v. O’Neill, lawyers in a different state filed a state-level school desegregation lawsuit. Twin Cities attorneys filed a case against the state of Minnesota, saying that the state’s segregated schools violate Minnesota’s constitutional obligation to provide all students with an adequate education. The suit will be heard by the state Supreme Court later this fall, but regardless of what happens, desegregation advocates are saying we should expect to see more affirmative, state-level litigation in the years to come.

In 2016, President Obama’s Education Secretary John King traveled to Hartford and proclaimed that the region’s desegregation work could serve as a model for the country. He touted the state’s hefty investments in magnet schools that attract suburban kids, and praised Hartford’s voluntary busing and interdistrict school choice program.

With conservatives now controlling the federal government, liberal organizations have been focusing much more heavily on how school choice policies, specifically private school vouchers, can exacerbate segregation. But Hartford’s magnet and interdistrict program demonstrates how choice can be used (sometimes awkwardly and imperfectly) to promote school desegregation. Sheff proves that with clear desegregationist goals, ample resources, and dedicated enforcement, a choice-based system need not lack high-quality, integrated options.

The challenge, it turns out, isn’t finding a system that works. Sheff is working: 48 percent of Hartford students are already in integrated schools, a massive improvement without parallel almost anyplace else in the nation. Instead, the challenge has been securing the long-term political commitment to sustain that system—and the financial support to ensure it runs well, which is often the same thing. Integration is possible, but no one would deny it’s been a long, hard road, with more yet to go.

Still, the original activists who stood up to segregated schools decades ago never thought otherwise. They just believed it would be worth it in the end. “I knew this lawsuit would never directly benefit my son,” Elizabeth Horton Sheff told me this past summer. “I didn’t do it for my child. I do it for our children.”



Atlantic Story Postscript

Originally published in Medium on October 13, 2017.

On September 26th I published a story in The Atlantic that has garnered a number of interesting reactions. It has also sparked some confusion.

My piece, entitled “Why Education is Not The Key to a Good Income” looks at a body of evidence that suggests educational attainment is not the main factor influencing intergenerational mobility — a child’s likelihood that they will one day outearn their parents.

Some readers responded by worrying that I was saying schools don’t matter.

Or more conspiratorially, that I’m working to reduce accountability for schools and, ultimately, reduce funding for education.

Many of these responses, I will note, have focused heavily on the title of the piece and much less on the body. (As is standard journalistic practice, I did not write the title; however, I do believe a fair reading of it captures the thrust of my argument.)

The latest critique came Friday, from Mike Petrelli, the president of the Fordham Institute, a center-right education think tank.

He calls my piece misleading, again focusing on the title. “How can she write ‘education isn’t the key to a good income’ when reams of research show that it still is?”

Despite various insinuations about the piece, I see no reason to be coy about the argument I was making and its implications. So let me spell those things out clearly.

  1. Education is important. Schools matter. I would never say otherwise. I spend a great deal of my time thinking about public schooling, and reporting on how best to achieve its potential and promise.
  2. Jesse Rothstein, whose new study was featured in my piece (among other studies), also does not say schools are unimportant. He does not argue that we should stop investing in schools or in school improvement.
  3. There are critical differences between the aggregate effect of education versus the individual effect. Jesse’s study, and my piece, were both focused on the aggregate effect. That’s the correct context for the headline.
  4. On an individual level, education is typically quite important to earning a good income. Well-paid lawyers went to college and to law school. Wall Streeters are overwhelmingly college educated, often with MBAs or other graduate credentials. Doctors attend college and medical school, and so on.
  5. But education, in and of itself, does not create jobs with good incomes. It’s conceivable that improving schools would, through second-order effects, create jobs. But the evidence suggests that it does not, or hasn’t yet. And if the supply doesn’t change, then the aggregate effect of academically superior schools on income mobility will be negligible. I recommend Matt Bruenig’s great post on this issue.

For policymakers, this is a critical distinction. Imagine there’s a good job with two applicants John Smith and Jane Doe. He gets it, and she doesn’t.

Improving Jane’s school academically might ensure that she gets the job instead. And then if you improve John’s school some more, maybe he’s the stronger candidate again. But no matter how much you improve his school or hers, you can’t give them both that same job. The effect on overall income mobility is zero. For policymakers, opportunity is just as scarce either way. If they’re trying to make everyone better off economically — and we mostly assume they are — this isn’t a great way to do it.

This aggregate v. individual effect distinction is important to the piece.

For instance, Rothstein is quoted as saying “We cannot educate people out of this problem.” He’s referring to aggregate inequality and mobility, not saying that, in the job market, an individual who attends a good school won’t outcompete someone who didn’t. Another economist, Marie Connolly, is quoted as saying “Education is just not a big part of the story. You can see a little role for school quality but the structure of the labor market seems to be a much bigger driver.” She’s referring to aggregate levels of intergenerational mobility across Canada.

If you’re an individual looking for a leg up over the competition, by all means, go to a good school if you can. But if we want to reduce overall levels of poverty in the U.S, we’re going to need to look beyond education.

Progressive Candidates Seek to Upend the Democratic Establishment in Upcoming Ohio Election

Originally published in The Intercept on October 5, 2017.

VOTERS IN COLUMBUS — Ohio’s largest city — will head to the polls this November to choose between a group of Democratic Party-endorsed incumbents for city council and the school board and a slate of progressive challengers backed by the Working Families Party. The challengers, running under the banner of “Yes We Can,” were inspired by the Bernie Sanders campaign and seek to unsettle a narrative that claims “Columbus Is Already Great.”

By many measures, Columbus is doing pretty well. It’s the fastest-growing city in the Midwest, it recently won a $50 million competitive grant from the U.S Department of Transportation to revamp its transportation systems, and it’s one of the few cities in the nation to boast a AAA bond rating, a signal of its strong financial position. Its Democratic mayor, Andrew Ginther, has taken to calling Columbus “America’s Opportunity City,” an epithet reiterated recently by national publications.

“Columbus is a great place to live, we are a very diverse city, and we have maintained a strong economic base,” Mike Sexton, chair of the Franklin County Democratic Party, said to The Intercept. “I think people are pretty happy with the direction that Columbus is going in.”

Will Petrik, a Yes We Can candidate running for city council, doesn’t think so. “We’re here to say no, we actually have mass income inequality, one of the highest infant mortality rates in the country, and a drug crisis that’s tearing apart families and communities,” he said. “Saying everything is awesome doesn’t reflect the experience of all Columbus residents, [and] we need to be honest in order to develop real solutions to improve people’s lives.”

Despite the city’s booming aura, it’s true that sharp disparities exist in Columbus. The Brookings Institution released a report this year that found that 42 percent of jobs created in the Columbus region between 2010 and 2015 were low wage. Richard Florida, an urban policy professor at the University of Toronto, found that among all U.S. metropolitan areas with over 1 million people, Columbus ranks second in terms of economic segregation.

The races in Columbus are emblematic of a question the Democratic Party is grappling with nationwide: Does the future belong to the populist left à la Vermont socialist Bernie Sanders, or will more moderate Democrats continue to dominate the party? Progressive candidates have been finding success in municipal elections. For instance, Christine Pellegrino, who was a Sanders delegate at the 2016 Democratic National Convention, was elected to the New York State Assembly this year, and Edie DesMarais became the first Democrat to win a state House seat in Wolfeboro, New Hampshire. Just this week, populist Randall Woodfin, supported by the Sanders-backed campaign group Our Revolution, was elected mayor of Birmingham, Alabama.

Yes We Can, which held its first meeting in Petrik’s living room in January 2016, felt that the Democratic Party too often overlooked quality candidates in favor of operatives who had sufficiently demonstrated their loyalty and “paid their dues.” Inspired by the recruitment process of Brand New Congress, a PAC formed by former staffers and supporters of the Sanders presidential campaign, Yes We Can sought to urge new kinds of people to throw their hat into the political ring. For example, Jasmine Ayres, a first-time candidate and community organizer, is running for city council with Yes We Can, and Erin Upchurch, a social worker and first-time candidate, is pursuing a spot on the school board.

“[We] know we need to change the game, not just play it,” reads one Yes We Can flyer. “That’s why we’re the only group in Columbus focused on electing new, progressive leaders who speak up about income inequality, tax giveaways to wealthy developers, violence in our communities, and the challenges facing our schools.”

The national progressive movement has taken notice: On Tuesday, Our Revolution endorsed the three Yes We Can candidates who performed best in the primary elections: Ayres for city council and Upchurch and Amy Harkins for school board.

THE DEMOCRATIC PARTY in Franklin County isn’t so thrilled about these new challengers in the nonpartisan elections.

Jen House, who chaired Franklin County’s most recent Democratic endorsement process, was quoted in the Columbus Dispatch in May as saying that Yes We Can was trying to undermine the work of the local Democratic Party. When The Intercept asked for further clarification, House expressed frustration at those “who call themselves Democrats standing out there and refusing to acknowledge” the good things that Democrats are doing. And “being constantly negative,” she added, fuels a feeling in Columbus and throughout the state that government can’t do anything right. “It’s really easy to stand on the sideline and throw rocks, but it’s a whole different ballgame when you’re forced to govern,” she said.

House also pushed back against the idea that Columbus has long been a safe bet for the party. “Things have been run by Democrats for a very long time in other cities, but in Columbus, it’s all still relatively new,” she told The Intercept, adding that some countywide offices are still held by Republicans, including the county prosecutor who was re-elected last year.

The Franklin County Democratic Party endorsed the establishment candidates for city council and the school board months before the primary elections, drawing criticism that it rubber-stamped the incumbents. House defended the party’s actions, emphasizing that all candidates received equal time to make their case before the screening committee. In the end, she said, her committee felt the incumbents had more experience, had done good work, and deserved their support. “What’s getting lost is that people just assume that we did not put a lot of thought into this,” House said. “We do not just automatically support incumbents, but we endorse candidates we think are worthy.”

Columbus Democrats also question Yes We Can’s affiliation with the Working Families Party, a national political organization that helps elect progressive candidates for office. The group endorsed Yes We Can in March, its first official endorsement in Ohio, where only the Democratic, Republican, and Green parties are recognized. Under state law, candidates’ party affiliation is determined by how they voted in the last partisan primary. All five Yes We Can candidates voted during the last Democratic primary, meaning they are considered Democrats.

“It seems a little disingenuous to call themselves a party when [WFP] is not recognized in Ohio,” said House. “And then they also get to call themselves Democrats. It’s not really fair to voters.”

Joe Dinkin, WFP’s national communications director, said that for his organization, a party is defined as a group of people who share a set of values and work together to make change through the electoral process. “That can take a lot of forms,” he told The Intercept, “including backing a challenger in a Democratic primary, helping a progressive Democrat beat a Tea Party Republican, or fielding candidates in nonpartisan races, or putting an initiative on the ballot.” In other words, the group’s definition of a political party extends beyond the formal party structure.

WFP is recognized as an official political party in New York, Connecticut, and Oregon, three states that allow for cross-endorsements, meaning a candidate can accept more than one party’s nomination. The strategy has helped the group get candidates elected, most notably in the 2013 election of Bill de Blasio as New York City’s mayor. But in Ohio, where cross-endorsements are not permitted, WFP has no strategic incentive to seek formal party status.

As Yes We Can candidates seek to distinguish themselves from the local Democratic establishment, they have begun to highlight the issue of police violence. “None of our elected officials — especially those running in this election — are speaking up about police brutality,” said Upchurch. “There’s absolute silence, and it speaks volumes.”

The city has witnessed a number of incidents of unchecked police violence in the recent past, and locals are dissatisfied with the official response. In June 2016, two Columbus plainclothes police officers shot and killed Henry Green, a 23-year-old black man. Three months later, a Columbus police officer fatally shot Tyre King, a 13-year-old black boy who pulled a BB gun from his waistband. None of the three cops involved in Green and King’s deaths were criminally charged, and following King’s death, the city’s mayor stressed that Columbus is still “the safest big city in America.”

Then last month, more than 100 protesters took over a Columbus City Council meeting to call for the firing of police officers recently caught on camera beating a man and threatening to “choke the life out of [him].” Following the meeting, the city council president reiterated that he had confidence in the police department and the police chief.

Yes We Can also sees an opportunity to change the narrative around Columbus public education, in part by scrutinizing the school board through a social justice lens. One issue the candidates have focused on is the number of tax abatements the city has been awarding developers, largely at the expense of school funding.

In September, the Columbus Education Association, the city’s local teachers union, voted “no confidence” in the seven-person Democratic school board. After a period of intense negotiations, the union ratified a new contract that many members felt was disrespectful. “It was the board’s final offer, we were not satisfied,” said Tracey Johnson, the union’s president. Johnson would not tell The Intercept whether the Columbus Education Association would be endorsing the school board incumbents or the Yes We Can candidates, though she said her union would make its announcement soon.

REGARDLESS OF WHICH Democratic Party wing succeeds in the Columbus elections, the Republicans, who have supermajorities in both chambers of the state legislature, have worked to sharply limit what blue cities like Columbus, Cleveland, and Cincinnati can accomplish on their own. In a lame-duck session at the end of 2016, the Ohio legislature rushed through a measure that prohibits Ohio cities from raising their local minimum wage, joining 22 other states that passed similar “preemption” laws.

“I will say, there are people in Yes We Can who think the Columbus City Council should just take up the challenge — raise the minimum wage — and go fight the state in court,” said House. “However, our city prosecutor has said he doesn’t think it would be successful, in part because there is only one Democrat on the Ohio Supreme Court.” House thinks the move would result in a large, unsuccessful legal expense for local taxpayers, and that perhaps the best route to raising the minimum raise in Columbus is working to elect Democratic state House candidates in rural Ohio.

Upchurch told the Intercept that at the very least, she sees more room for local progressive governments to make noise. “We can raise awareness, I know for a fact that most of our residents don’t even know what’s happening at the state-level around the minimum wage,” the school board candidate said. “Progressive leaders can start these conversations, and then advocate fiercely around them.”

Petrik concedes that Yes We Can’s odds of uprooting the Democratic establishment are a long shot, but winning this year is not necessarily the goal. “Bernie didn’t win, but he shifted the conversation and inspired a movement,” Petrik told The Intercept. “There is a new base of people who’ve become politically engaged, and they understand how broken the system is. We know change takes time, so it might not be this year, and may not be in three years, but we believe that we will win.”

The New Fight For Labor Rights

Originally published in The New Republic on September 28, 2017.

The American labor movement currently stands at one of its lowest points in history. Barely one-tenth of all workers belong to a union—down from more than one-third in the 1950s. Over the past half-century, the courts have gutted legal protections for striking workers, curtailed their ability to engage in political action, and granted employers broad “free speech” rights to frighten them out of unionizing. Under President Trump, workers are likely to be besieged by even more hostile attacks from Republicans and their corporate allies—including calls for a national “right to work” law that would strip unions of their ability to collect dues. If the labor movement hopes to survive in the twenty-first century, it will need a new strategy.

For more than 80 years, workers have primarily relied on protection from the National Labor Relations Act, the landmark measure passed under FDR that prohibits unfair labor practices and encourages collective bargaining by private-sector employers. But the law has been so watered down by unfriendly court decisions and legislative amendments that it offers little recourse for the labor movement going forward. Today, according to a new report by a leading think tank, workers would be better off if they adopted a strategy that turned to a different and more sacrosanct set of constitutional guarantees: the Bill of Rights.

According to Shaun Richman, a former organizing director for the American Federation of Teachers, workers should not just defend their rights as employees, but should also start championing their liberties as citizens. In a report for the Century Foundation, Richman argues that just as corporations have gone to court to claim broad constitutional protections, workers should assert their fundamental rights to free speech and equal protection under the law. “Unions have rarely if ever argued that these cases violated their own constitutional rights,” Richman says. “Rights-based rhetoric was kept out of their whole legal strategy.”

Consider several recent cases that unions argued—and lost—under the National Labor Relations Act. In 2011, workers at a Jimmy John’s sandwich franchise in Minneapolis launched a campaign to protest the company’s refusal to provide paid sick leave. In response, the company fired six workers involved in the protest. But when the union representing the employees, the Industrial Workers of the World, accused the company of violating the National Labor Relations Act, a federal appeals court ruled in July that the company had the right to fire its employees for engaging in “disloyal” conduct.

At the same time, Congress and the courts have sharply curtailed the ability of workers to go on strike, especially in solidarity with others. It is now illegal for truck drivers to refuse to make deliveries to stores where workers are on strike, or for cleaners to refuse to wash linens from hotels where workers are protesting. In 2006, Roger Toussaint, then the president of Local 100 of the Transport Workers Union, was sentenced to ten days in jail for leading a transit strike that crippled New York City. Employers, meanwhile, have retained the right to lock out workers who are engaged in collective bargaining, and to fire employees without just cause.

To Richman, cases like these underscore the benefit of a rights-based strategy. After all, punishing employees for speaking out against their boss—whether on a flyer, a T-shirt, or Twitter—would seem to violate their First Amendment right to free speech. Similarly, going on strike should fall under the constitutional right to free assembly, and union organizing embodies the right enshrined in the Thirteenth Amendment to be free from “involuntary servitude.” In effect, Richman argues, unions should go on offense in the courts—and brandish the Constitution as their most powerful weapon.

“After the election, it’s clear Democrats need to do something to win back workers,” Richman says. “But they don’t really know what to do. Why not push the courts to establish a right to strike? Or the right to be free from arbitrary terminations from your job?”

Some longtime observers of the labor movement are skeptical that unions will embrace Richman’s call to arms. “I’ve found that unions are very shortsighted,” says Bill Fletcher Jr., co-founder of the Center for Labor Renewal and a former education director of the AFL-CIO. “There’s a conservatism that exists in the labor movement—a sense that doing anything different might be too radical, or could be misperceived, or could lead to an uncertain outcome.”

Given the bleak state of affairs for workers, however, some argue the labor movement has little left to lose. “There’s no point thinking that if labor sticks with the status quo, they will survive,” says Erik Loomis, a labor historian at the University of Rhode Island. “The National Labor Relations Board under Obama was probably the best it’s been for labor since LBJ. But even that kind of incremental progress is just not enough when you’re at total war with the Republicans.”


When it comes to corporations and employers, the courts routinely adopt a rights-based position. Unlimited campaign contributions are protected as a form of free speech. Denying the right of unions to collect dues from all employees is defended as “the right to work.” Employers have the right to permanently replace striking workers, and to put economic pressure on other businesses to support their own economic interests. Richman points to cable television providers that have blacked out an entire channel rather than submit to a rate increase from the channel’s network—and have even urged viewers to call the network’s CEO to complain. “Why is the use of the secondary boycott legal when employed by media companies,” Richman writes in his report, “but illegal when exercised in solidarity by workers?”

Richman spells out a variety of rights-based cases that unions should take to court—where even conservative judges have proven to be receptive to constitutional arguments. Unions should argue that workers have a free-speech right to protest their employers. If they are locked out on the job, workers should assert their due process rights under the Fifth Amendment. And they should challenge right-to-work laws and the bans on solidarity boycotts and so-called “signal picketing”—such as protests in front of a company that mistreats its employees—as violations of their Fourteenth Amendment right to equal protection under the law. “Simply put,” Richman argues, “unions are hampered by rules that would never be applied to corporations, or to any other form of political activism.”

In addition to fighting in court, workers and their allies need to educate the public about workplace inequality and pressure Democratic lawmakers to block anti-labor judges. They also need to begin outlining a clear pro-worker agenda for whoever wins the Democratic nomination for president in 2020. The Obama era showed just how brief the window of opportunity can be for advancing labor rights. That’s why, even though the GOP currently controls all three branches of government, and the courts still tilt to the right on matters of labor law, unions and their supporters must wage a war on all fronts. “It would be horrible if people thought we could just pursue a long legal strategy and ultimately win in the courts,” says Stephen Lerner, a labor strategist and architect of the Justice for Janitors campaign. “It has to be part of a concerted strategy—winning both legally and legislatively.”

In a way, there’s no better time than now to implement a rights-based labor strategy. After all, Lerner points out, some of the greatest gains in labor history have come from workers organizing to fight illegal or unprotected conditions—whether it was farmworkers going on strike to protest low wages, or public school teachers mobilizing for collective bargaining rights at the state level. It’s not just Republicans holding back workers—it’s also the timidity of unions themselves. “There has to be a willingness to break the law as a way to highlight injustices,” Lerner says, “to show we can go on offense.”


The Limits of Education’s Promise of Success

Originally published in The Atlantic on September 26, 2017.

One of the most commonly taught stories American schoolchildren learn is that of Ragged Dick, Horatio Alger’s 19th-century tale of a poor, ambitious teenaged boy in New York City who works hard and eventually secures himself a respectable, middle-class life. This “rags to riches” tale embodies one of America’s most sacred narratives: that no matter who you are, what your parents do, or where you grow up, with enough education and hard work, you too can rise the economic ladder.

A body of research has since emerged to challenge this national story, casting the United States not as a meritocracy but as a country where castes are reinforced by factors like the race of one’s childhood neighbors and how unequally income is distributed throughout society. One such study was published in 2014, by a team of economists led by Stanford’s Raj Chetty. After analyzing federal income tax records for millions of Americans, and studying, for the first time, the direct relationship between a child’s earnings and that of their parents, they determined that the chances of a child growing up at the bottom of the national income distribution to ever one day reach the top actually varies greatly by geography. For example, they found that a poor child raised in San Jose, or Salt Lake City, has a much greater chance of reaching the top than a poor child raised in Baltimore, or Charlotte. They couldn’t say exactly why, but they concluded that five correlated factors—segregation, family structure, income inequality, local school quality, and social capital—were likely to make a difference. Their conclusion: America is land of opportunity for some. For others, much less so.

A new working paper authored by the UC Berkeley economist Jesse Rothstein builds on that research, in part by zeroing in on one of those five factors: schools. The idea that school quality would be an important element for intergenerational mobility—essentially a child’s likelihood that they will one day outearn their parents—seems intuitive: Leaders regularly stress that the best way to rise up the income ladder is to go to school, where one can learn the skills they need to succeed in a competitive, global economy. “In the 21st century, the best anti-poverty program around is a world-class education,” Barack Obama declared in his 2010 State of the Union address. Improving “skills and schools” is a benchmark of Republican House Speaker Paul Ryan’s poverty-fighting agenda.

Indeed, this bipartisan education-and-poverty consensus has guided research and political efforts for decades. Broadly speaking, the idea is that if more kids graduate from high school, and achieve higher scores on standardized tests, then more young people are likely to go to college, and, in turn, land jobs that can secure them spots in the middle class.

Rothstein’s new work complicates this narrative. Using data from several national surveys, Rothstein sought to scrutinize Chetty’s team’s work—looking to further test their  hypothesis that the quality of a child’s education has a significant impact on her ability to advance out of the social class into which she was born.

Rothstein, however, found little evidence to support that premise. Instead, he found that differences in local labor markets—for example, how similar industries can vary across different communities—and marriage patterns, such as higher concentrations of single-parent households, seemed to make much more of a difference than school quality. He concludes that factors like higher minimum wages, the presence and strength of labor unions, and clear career pathways within local industries are likely to play more important roles in facilitating a poor child’s ability to rise up the economic ladder when they reach adulthood.


For Rothstein, there’s no reason to assume that improving schools will be necessary or sufficient for improving someone’s economic prospects. “We can’t educate people out of this problem,” he says.

His work, like Chetty’s, is not causal—meaning Rothstein is not able to identify exactly what explains the underlying variation in his economic model. Nevertheless, his work helps to provide researchers and policymakers with a new set of background facts to investigate, and signals that perhaps they should be reconsidering some of their existing ideas. (Both Raj Chetty and his co-author Nathaniel Hendren declined to comment for this story.)

Jose Vilson, a New York City math teacher, says educators have known for years that out-of-school factors like access to food and healthcare are usually bigger determinants for societal success than in-school factors. He adds that while he tries his best to adhere to his various professional duties and expectations, he also recognizes that “maybe not everyone agrees on what it means to be successful” in life.

Deborah Menkart, the executive director of Teaching for Change, agrees that Rothstein’s research supports what teachers have long known from their own experience on the front lines. “I think it also affirms the focus,” she said, on having “children not just see schools as a ticket out of poverty, as a way to ‘rise above’ your community, but as a way to [be] agents for change within their communities.” “Part of the problem,” she adds, “is that the whole conversation around education has become so focused on helping individuals ‘escape’ their bad circumstances, rather than helping them become part of the solution.”

Rothstein is quick to say that his new findings do not mean that Americans should do away with investments in school improvement, or even that education is unrelated to improving opportunity. Certainly the more that people can read, write, compute, think, and innovate, the better off society and liberal democracy would be. “It will still be good for us if we can figure out how to educate people more and better,” he says. “It might help the labor market, our civic society, our culture.” But Americans should be more clear, he says, about why they are investing in school improvement. His research suggests that doing so in order to boost a child’s chances to outearn their parents is unlikely to be successful. According to Rothstein, education systems just don’t go very far in explaining the differences between high- and low-opportunity areas.

Politicians rarely draw the same conclusions that Rothstein does, but his study certainly isn’t the first piece of evidence to suggest that increasing skills and educational attainment are often insufficient for disrupting economic trajectories.

According to Marshall Steinbaum, the research director at the Roosevelt Institute, economists have long believed that differing levels of skills and education (what the field refers to as “human capital”) is the most salient explanation for why individuals achieve such varied economic outcomes. “I think it’s becoming harder and harder to accept explanations like the so-called skills gap,” he says, referencing the popular idea that low-income people merely lack the necessary skills and training to thrive in the modern economy.

As a stronger explanation, Steinbaum points to the rise of  “interfirm inequality,”a phenomenon in which even workers with very similar education histories, ages, and industries make very different amounts of money depending on which firms they work for.

Meanwhile, other studies have suggested that differences in local labor markets can affect economic outcomes and upward mobility. For example, in 2015, the left-leaning Center for American Progress, in conjunction with the economists Richard Freeman and Eunice Han, published a report building on Chetty’s work and found that union membership seems to be another critical factor helping poor people escape poverty. The researchers went beyond Chetty’s regional-level analysis to compare outcomes between individual union and nonunion households. They found that low-income children who grew up with parents in unions earned more as adults than the children of nonunion parents. They concluded that making it easier for individuals to collectively bargain would likely help boost economic mobility.

Rothstein’s work also comports well with some research findings out of Canada. The country has relatively high rates of intergenerational mobility—significantly higher than in the United States or Britain. That said, this past year, the University of Ottawa economist Miles Corak found that, similar to the U.S., where one grows up in Canada seems to largely determine one’s economic chances in adulthood.

Marie Connolly, an economist at the University of Quebec in Montreal who collaborates with Corak, told me that after studying geographic mobility across Canada, her team has identified similar patterns as Rothstein did in the United States.

“Education is just not a big part of the story,” she says. “You can see a little role for school quality, but the structure of the labor market seems to be a much bigger driver.”

Rothstein’s research is certainly not the final word on the subject, and his study comes with some caveats. The first, as mentioned earlier, is that his findings are not causal. It could be, for example, that whatever is going on in places where children are more likely to rise up the economic ladder, like Salt Lake City and San Jose, have low-income families that have some other unidentified characteristic—such as different parenting styles—that affects their children’s lives. It’s possible these families produce economically successful children for reasons that have nothing to do with where they live.

Another caveat, related specifically to Rothstein’s school-quality finding, is that low-income children who grow up in places that see lots of children transcend poverty could have some unobservable characteristic that leads them to have good employment  outcomes but poor academic performance. And Rothstein does not identify specific schools in his paper when drawing his school-quality conclusions, meaning he’s making indirect inferences.

Ultimately, most Americans would probably agree that leaders should work to build great schools, and that individuals who work hard should be able to improve their economic earnings over time. Devoting the bulk of one’s attention to the former in the hopes that it causes the latter, however, might prove to be a real mistake.


Reeling from a Murder Spike, Baltimore Grasps at a Gun Bill

Originally published in CityLab on September 22, 2017.

Across the country—from Louisiana to Iowa to Massachusetts—so-called “mandatory minimum” sentencing is increasingly out of favor. These are laws that require certain penalties for people convicted of specific drug or firearm offenses. A powerful bipartisan consensus has emerged around the idea that mandatory minimums are ineffective (and expensive) deterrents, as well as racially discriminatory and unlikely to reduce recidivism.

In part, the bill’s success reflects the pressure that the city’s legislators are under to do something—anything—to curb the violence. As the Brennan Center for Justice has reported, violent crime is at historic lows nationally, but no such decline can be found in Baltimore: As of this writing, 253 people have been murdered since January. In 2015, Baltimore’s violent crime rate was more than four times the national average, and its murder rate was more than 11 times the national average. Right now, Baltimore’s murder toll exceeds that of New York City, which has about ten times the population. 

“I by no means think this is a comprehensive solution to gun violence,” says city councilman John Bullock, widely seen as the deciding vote. He recognized the public’s concern with mandatory minimum sentencing, which is why he introduced the amendments to weaken it from its original form. Councilman Eric Costello, who voted for the bill and has said the amended version is “not as strong” as he would have liked, declined a request for comment; Council President Jack Young, who also backed both versions, did not return requests for comment.

Critics of the bill are frustrated with the city council’s rationale to pass a measure that has no evidence to support it.

“The easiest thing for elected officials to do is pass a new criminal law, make sentences longer, add mandatory minimums,” says Molly Gill, vice president of policy for Families Against Mandatory Minimums. “That may give them a feeling of accomplishment, but it’s not going to solve these very complicated problems of why we have violence, gun crimes, and murders.”

Mark Kleiman, an NYU public policy professor and an expert on drug and criminal justice issues, calls the $1,000 fine “gibberish.” Quoting the infamous politician syllogism, he says, “We must do something, this is something, therefore we must do it.”

Among those who testified against the mandatory minimum bill this past summer was Dayvon Love, director of public policy for the Baltimore nonprofit Leaders of a Beautiful Struggle. He points to the support from the Greater Baltimore Committee, a business advocacy group, as key to the bill’s success. “I suspect they are trying to attract more wealthy, white people to invest and come to Baltimore, and the murder rate is merely an impediment to them doing business,” Love says. “They could care less if this bill would have the possibility of destroying the lives of black people who become more prone to violent activity because they were sucked into the criminal justice system.”

Illegal gun possession is highly correlated with the future risk of committing a murder, and Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research, does think illegal gun possession is a serious crime and is a major contributor to Baltimore’s homicide rate. Ultimately, though, he did not support the measure passed by the city council, principally because he says there’s no evidence that it would be effective. “It’s rather surprising that there is no solid research that answers the question of what happens if you adopt a mandatory minimum for illegal gun possession,” he says. Most existing research has focused on drug-related arrests.

Webster thinks the city does need to have better consequences for illegal gun possession, but that the consequences should be driven by better arrest and prosecution, rather than at the tail end of the sentencing process. In Baltimore only about 40 percent of arrests for illegal gun possession end up in a conviction or guilty plea. A Baltimore Sun analysis found that about one-quarter of cases are dropped even before defendants go to trial. And though the Baltimore Police Department has improved its homicide clearance rate in 2017 compared to recent years, Webster notes that the past two years have led to many unsolved murders and nonfatal shootings. “When shooters are not locked up, they are emboldened and ripe for being shot themselves,” he testified recently in Annapolis.

Proponents of mandatory-minimum sentencing have taken to placing blame on Baltimore city judges. “At the end of the day, we don’t impose sentences and don’t implement bails,” State’s Attorney Mosby said last year. “We can make a recommendation. But it’s not on us.” In an op-ed that counseled against “reflexively recycling the regressive strategies of the 1980s,” former deputy attorney general of Maryland Thiru Vignarajah noted that leaders who blame the courts are essentially echoing tactics deployed by President Donald Trump, who has repeatedly tried to discredit the judiciary, even threatening judges at times.

Yet this month in Baltimore, the city council voted 8-7 in favor of establishing a new mandatory minimum penalty for individuals caught carrying an illegal gun. The proposed legislation originally would have imposed a one-year jail sentence on first-time offenders caught carrying a gun within 100 yards of places like churches, schools, and parks. After public protest, the bill was weakened to add just a $1,000 fine to existing state law, which already imposes a one-year minimum sentence on second-time offenders. The legislation (in both its original and final form) was backed by the city’s police commissioner, Kevin Davis, along with Mayor Catherine Pugh and Baltimore State’s Attorney Marilyn Mosby—who all also advocated unsuccessfully over the last two years for new statewide mandatory minimums.

“Mandatory minimum sentences are shortcuts we don’t need as prosecutors,” says Vignarajah. “We should be able to walk into a courtroom and explain why a sentence is appropriate and have faith in our judges to determine where a specific defendant falls on the spectrum between a violent repeat criminal and someone who needs a second chance. Mandatory minimums are unduly rigid and strip away discretion that judges need.”

Todd Oppenheim, a public defender in Baltimore who opposes the mandatory minimum measure, says that in his experience most defendants who would be affected by the bill are young and/or first-time offenders, not the “repeat violent offenders” who tend to dominant the debate. “The possession of a handgun is considered a violent offense, but I don’t see it as one because I know the circumstances under which my clients come into possession of it,” he says“Like drugs, a lot of my clients don’t understand that you can possess something without it being on your body.”

The Baltimore Police Department, by contrast, emphasizes that in the past 18 months, 60 percent of the 605 convicted gun offenders had had more than half their sentence suspended by a judge, and more than 100 people were arrested on handgun charges at least twice. The mandatory minimum “isn’t about mass incarceration or locking up more people,” Commissioner Davis testified in July. “It’s about holding the right people accountable.”

Still, there are alternative ideas.

With a new grant from Bloomberg Philanthropies, Johns Hopkins’s Daniel Webster is currently working with the state’s attorney’s office and the police department to develop new training protocols that will help strengthen the prosecution of illegal firearms. “First we have to have good policing that is done in a way to identify illegal gun possession without doing illegal searches and unconstitutional policing,” he says. “And then we need to have solid evidence that is useable to bring convictions.”

Dayvon Love emphasizes investments in community-based solutions, “where violence is prevented by people who are in closest proximity to the violence.” Leaders of a Beautiful Struggle’s recommendations include more funding for Safe Streets Baltimore, which uses a public-health strategy of employing ex-offenders as to mediate neighborhood disputes. In studies, the model has shown to be effective, but Baltimore’s program has drawn controversy in the past due to allegations of criminal activity by program workers. Love also cites efforts like the Baltimore Ceasefire movement and local violence prevention centers.

Gill, of Families Against Mandatory Minimums, points out that the number of full-time law enforcement officers per 1,000 Baltimore residents fell 14 percent between 2003 and 2015, and even more in 2016. “Mandatory minimums are incredibly expensive—prison is not cheap,” she says. “It might be a better investment to put more squad cars on street corners than to jack up sentences.”

In other words, the answer doesn’t have to be a year in jail, but the assumption that there will be some consequence to breaking the law. “Right now a lot of people figure I’ll just take my chances,” says Webster.

Kleiman of NYU thinks policymakers should be considering things like 9 p.m. curfews. “It’s the perfect sanction in the sense that it’s salient, it’s aversive, and it doesn’t interfere with family duties and employment,” he says.

Ironically, on October 1, a major new statewide law—the Justice Reinvestment Act—goes into effect, and it will significantly reduce mandatory minimum sentences for non-violent offenders throughout Maryland. The law, which was signed in May of 2016, was widely seen as the broadest criminal justice legislation to pass in decades, representing a major shift away from “War on Drugs”-era policies.

“There’s a progressive movement to move away from incarceration for nonviolent offenses,” says Oppenheim. “But when it comes to violent offenses—and the definition of violence I think is subjective—leaders still harbor the old-school mentality. They don’t have any real ideas, and it helps them get elected.”

Authorities Close in on Pro-Charter School Nonprofit for Illicit Campaign Contributions

Originally published in The Intercept on September 19, 2017

A NEW YORK-BASED education reform nonprofit funneled nearly $2.5 million to a related group in Massachusetts, according to new disclosuresunearthed as part of a legal settlement.

The Massachusetts operation, called Families for Excellent Schools-Advocacy, a pro-charter group, was hit with a record $426,500 fine for failing to disclose its donors related to a 2016 Massachusetts ballot campaign — a race that became the most expensive ballot measure in state history.

FESA is a 501(c)(4) offshoot of the New York-based Families for Excellent Schools, a 501(c)(3). That connection raises the stakes for New York Attorney General Eric Schneiderman, who has jurisdiction over Families for Excellent Schools in New York and has made clean campaigns a centerpiece of his agenda.

In exchange for their tax-exempt status, federal law bars 501(c)(3) organizations from engaging in political activity, and some are calling on Schneiderman to investigate why Families for Excellent Schools made a multimillion-dollar contribution, now that the Massachusetts Office of Campaign and Political Finance has acted.

“This group spent $2.5 million on a Massachusetts ballot initiative. That is a screaming siren, a flashing red light,” says Michael Kink, executive director of the union-backed Strong Economy For All Coalition in New York.“I think it’s something the AG absolutely should look into. A number of other groups are aware of this potential violation, and we’re talking to each other. A substantive investigation is clearly needed.”

A spokesperson for Schneiderman’s office declined The Intercept’s request for comment.

“I’d be willing to bet my serious money that Mr. Schneiderman will look into this,” says Marcus Owens, the former director of the IRS’s Exempt Organizations division from 1990 to 2000. “He’s an aggressive attorney general when it comes to charity money.” Earlier this summer, Schneiderman’s office announced it would be looking into the financial practices of Eric Trump’s charitable foundation.

On November 8, 2016, when Massachusetts voters went to the polls, the most hotly contested vote was not the presidential one (Hillary Clinton’s victory there was all but assured). The real political battle for Bay State voters was a ballot initiative known as “Question 2,” which proposed lifting the state’s charter school cap.

It was easily the most expensive ballot measure in Massachusetts history, with more than $40 million raised by both sides. Teachers unions provided nearly all the money to fight the measure, while Boston’s business community and out-of-state donors gave most of the money in support. In the end, the measure came nowhere close to passing, with cities all over Massachusetts, including Boston, voting against it.

The $426,500 penalty — which was the amount of cash FESA and Families for Excellent Schools had on hand as of August 21 — represents the largest civil forfeiture negotiated by the OCPF in the agency’s 44-year history. The OCPF charged that FESA violated state campaign finance laws by receiving individual contributions and then funneling those funds to Great Schools Massachusetts, a ballot committee that supported Question 2. Ballot committees are required to disclose their donors, but with FESA acting as an intermediary, individuals could shield their names and contributions.

“A review of bank records showed that FESA’s transfers to the ballot question committee closely followed FESA’s receipts from individuals,” the OCPF said in a press release. “Additionally, the money received by FESA significantly increased during the four months before the Nov. 8 election, and then dropped significantly afterward, further suggesting that FESA solicited or received contributions with the intent to give the money to the ballot question committee.”

As part of the settlement, in addition to the fine, FESA agreed to disclose its donors, to dissolve as a 501(c)(4), and for Families for Excellent Schools to avoid fundraising and participating in any election-related Massachusetts activity for the next four years.

“OCPF is a real beacon to the state. What they did was heroic,” says Maurice Cunningham, an associate professor of political science at the University of Massachusetts Boston, who tracked dark money during the 2016 election. “This kind of thing doesn’t happen in many places.”

Adam Smith, communications director for Every Voice, a campaign finance group, says the new Massachusetts OCPF settlement really points to the importance of state elections enforcement agencies having teeth. “With so much shady money sloshing around politics these days, it’s critical that watchdogs have what they need to defend election and campaign finance laws and hold violators accountable,” he says. “Nobody ever expects the FEC (Federal Election Commission) to do anything, and you don’t want that same expectation at the state-level.”

FESA gave $15 million to the Great Schools Massachusetts ballot committee. According to their recent donor disclosures, most came from wealthy Boston individuals — notably Seth Klarman, a billionaire hedge fund investor who contributed $3.3 million; co-chair of Bain Capital Josh Bekenstein and his wife Anita, who together gave $2.5 million; and Jonathon Jacobson, CEO and managing director of the Highfields Capital Management hedge fund, who gave $2 million. Other large donations came from Walmart heiress Alice Walton, who gave $750,000, and Paul Sagan, chair of the Massachusetts Board of Elementary and Secondary Education, who gave $496,000.

While it was long suspected that these wealthy individuals provided most of the money behind efforts to lift the charter school cap, the $2.5 million donation from Families for Excellent Schools was a genuine surprise.

In the OCPF legal settlement, FESA and Families for Excellent Schools denied all “wrongdoing, fault, or liability” under Massachusetts state law. Families for Excellent Schools did not return The Intercept’s requests for comment.

To bolster their case that Schneiderman should pursue an investigation, activists point to one that former Attorney General Kamala Harris launched to unmask secret donations that poured into California’s 2012 election. In 2013, after Harris’s investigation concluded, California levied a record $16 million penalty on groups linked to the Koch brothers that had secretly funneled money to two California ballot initiatives. The improperly disclosed funds went toward fighting Proposition 30, which would have hiked taxes on the wealthy to fund schools, and Proposition 32, which would have limited unions’ political power. Though California’s campaign finance laws prevented the groups from revealing their donors, some names were unearthed, among them Los Angeles billionaire Eli Broad, a prominent education reform backer. Broad had donated $1 million to a Virginia-based group, that then transferred funds to an Arizona-based nonprofit, which then transferred money to a California political committee working to oppose the tax hike. Broad had said publicly that he supported the tax increase.

How and whether the four-year ban on Families for Excellent Schools will affect education reform politics in Massachusetts remains to be seen. Liam Kerr, the Massachusetts state director for Democrats for Education Reform, had no comment on the OCPF settlement or its implications for the group’s work.

In February, following the 2016 election, a new education group called Massachusetts Parents United launched, which claims to be “the independent voice of parents in the Commonwealth.”

Keri Rodriguez Lorenzo, who founded the group, served as the former Massachusetts state director for Families for Excellent Schools, and also serves as an advisory board member for DFER Massachusetts. Massachusetts Parents United receives funding from the Walton Family Foundation and the Longfield Family Foundation, both known for supporting education reform efforts.

“To some extent, the [Families for Excellent Schools] suspension could be whack-a-mole — they can form new groups,” says Cunningham, the political science professor. “But what’s going to chill anyone in Massachusetts is that the OCPF has shown it will be very aggressive in following the law.”

A Legal War in Arkansas Threatens Abortion Rights Everywhere

Originally published in VICE on September 7, 2017.

When Donald Trump ran for president, despite his long history of pro-choice positions, he essentially offered evangelical Christians a dealHelp elect me, and I will appoint pro-life, conservative justices to the Supreme Court. Sure enough, less than three months into his presidency, Trump’s first SCOTUS appointee—Neil Gorsuch—was confirmed, and anti-choice advocates seemed to be one step closer to their ultimate goal of overturning Roe v. Wade.

It may take another appointee to truly tilt the scales of justice against reproductive rights in America’s highest court. But in the meantime, conservatives have been eyeing the Eighth Circuit Court of Appeals, based in St. Louis, Missouri, as a vehicle to bring such a challenge. That’s where, in 2015, appellate judges urged the nation’s highest court to revisit existing abortion jurisprudence, and turn matters over to the states, as conservatives have long dreamed.

Now that same federal appeals court, which may be more hostile than any other to abortion rights, is getting a bunch of new opportunities to go after a woman’s right to choose in Arkansas—and maybe even set the stage for the end of Roenationally.

Over the past several years, legislators in Arkansas—one of seven states under the Eighth Circuit’s purview—have passed some of America’s most restrictive abortion laws. Already in 2017, Arkansas passed a statute that would criminalize doctors who perform dilation and evacuation (the most common second-trimester procedure), and also permit husbands to sue to doctors to prevent their wives from obtaining abortions—with no exceptions even for rape or incest.

Set to go into effect on July 30, the law was blocked after the American Civil Liberties Union, the ACLU of Arkansas, and the Center for Reproductive Rights sued over it and three other recently-passed abortion restrictions. Lawyers brought the suit on behalf of a physician working at one of the last two abortion clinics in the state, and argued the laws posed unconstitutional burdens on a woman’s right to choose.

On July 28, federal judge Kristine Baker blocked the laws’ enforcement, and Arkansas Attorney General Leslie Rutledge filed for an appeal two weeks ago. A spokesman for the AG did not return multiple requests for comment.

What should worry abortion-rights advocates is that there’s plenty of reason to suspect the Eighth Circuit will be sympathetic to Rutledge’s challenge. In March 2016, Judge Baker issued another injunction against a 2015 Arkansas lawrequiring physicians who prescribe abortion-inducing drugs to secure contracts with doctors with hospital admitting privileges—a high bar to meet in the increasingly conservative state, and one the American College of Obstetricians and Gynecologists and the American Medical Association said had no medical basis. This past July, the Eighth Circuit lifted Baker’s injunction, ruling she would need to more concretely prove that a sizable number of women will face harm under that law.

In an interview with VICE, Steve Aden, chief legal officer and general counsel for Americans United for Life, said he felt the Eighth Circuit’s request for “some real math” was reasonable. He also defended the admitting privileges requirement as a common-sense measure to protect women’s health, noting that other outpatient surgical procedures generally require it. “If you or I go to a clinic and get Lasik or a colonoscopy, chances are really good that the doctors will have admitting privileges,” he said.

Meanwhile, the US Supreme Court last year heard arguments for Whole Woman’s Health v. Hellerstedt, widely considered to be the most significant reproductive rights case in nearly 25 years. In a 5-3 decision, the justices ruled that a package of Texas abortion restrictions imposed an unconstitutional burden on women seeking to end their pregnancies.

Fatima Goss Graves, the president and CEO of the National Women’s Law Center, told VICE anti-abortion opponents haven’t been much deterred by that outcome. On the contrary, she said, they are eagerly working to put more abortion cases before the Supreme Court as soon as possible. “They are still purposely trying to pass extreme laws that conflict with Whole Women’s Health, with Roe, so they’ll [then] be challenged in court,” she said. “That is the strategy.”

Another Arkansas case that could reach the Supreme Court concerns conservative boogeyman Planned Parenthood. In 2015, following the release of doctored videos purporting to show Planned Parenthood illegally profiting from the sale of fetal tissue, Arkansas Republican Governor Asa Hutchinson announced he would be terminating Medicaid contracts with the women’s health organization. Judge Baker blocked the move that September, but last month, a three-person panel on the Eighth Circuit decided Arkansas could cancel its Medicaid contract with Planned Parenthood—a notable departure from rulings in the Fifth, Seventh and Ninth Circuits. On August 30, the plaintiffs appealed to make their case again before the entire Eighth Circuit.

Aden, of Americans United for Life, thinks this case stands a shot of reaching the Supreme Court given the Eighth Circuit’s first decision diverged so sharply from other Appeals Courts nationwide.

I asked Bonyen Lee-Gilmore, a spokesperson for Planned Parenthood Great Plains (an affiliate overseeing Arkansas, Kansas, Missouri, and Oklahoma), if they would appeal to the Supreme Court, should the full Eighth Circuit uphold the Medicaid ruling. “When it comes to next steps in the legal world, we really play it one step at a time,” she said. “Every time a decision comes down, we’re evaluating all our legal options, and the reality is we could end up in the Supreme Court, but we’re not there yet. Right now we’re just seeing if we can successfully secure an en banc appeal.” (To hear a case ‘en banc’ means before the entire bench of judges, rather than a three-person panel.)

It’s worth noting that even though Arkansas’s governor cancelled state Medicaid contracts with Planned Parenthood over the 2015 fetal tissue videos, three Republican-led congressional investigations and 13 state-level probes—including one by a Texas grand jury—found no evidence of wrongdoing.

Gillian Metzger, the Stanley H. Fuld Professor of Law and vice-dean at Columbia Law School, thinks the Eighth Circuit “has really pushed the envelope” on constitutional retraction of reproductive rights in America. But whether these specific cases make it to the Supreme Court, she said, comes down—as always—to how willing justices are to engage with the abortion issue again. “The bigger question is does the Court have an appetite for this after 2016? And my guess it might wait a little bit to see how the Whole Women’s Health decision plays out,” she said.

In the meantime, President Trump will have the opportunity to fill three vacancies on the Eighth Circuit. If all are confirmed, according to longtime legal writer Rox Laird, only one of the Eighth Circuit’s eleven judges will have been appointed by a Democratic president, making it “the most ideologically lopsided of all the US Court of Appeals.”

Even if pro-choice advocates secure Medicaid funding for Planned Parenthood and defeat this round of abortion restrictions in the Eighth Circuit—by no means a safe bet —advocates aren’t expecting legislators to slow down their anti-abortion efforts any time soon. In mid-August, Planned Parenthood Great Plains and the ACLU argued yet another case in Arkansas federal court, protesting a law mandating the suspension of an abortion provider’s license for any minor error found during an inspection. That rule doesn’t apply to any other licensed health center in the state.

“We’ll be on high alert when the legislature returns in 2019 and continue to fight these extreme attacks on women and their rights,” said Rita Sklar, the executive director of the ACLU of Arkansas. “Often, the only way to get Arkansas politicians out of the exam room is to take them to court.”

A Charter Union Case Heads to Federal Court

Originally published in The American Prospect on September 5, 2017.

In May 2016, teachers at International High School (IHS)—a charter school in New Orleans—voted 26-18 in favor of forming a union. Yet more than a year later, school administrators are still refusing to bargain, insisting that the teachers do not fall under the jurisdiction of the National Labor Relations Board. (There is no statewide collective bargaining law for public school teachers in Louisiana.) In February 2017, the NLRB voted 2-1 against IHS’s challenge, concluding that the teachers are indeed private workers under their purview rather than public employees.

Yet IHS, still refusing to bargain, is now taking its case to the Fifth Circuit—the first time a federal appellate court will rule on such a challenge. The outcome of this suit could affect labor law for charter teachers not only at IHS, but throughout all the Fifth Circuit states—Louisiana, Mississippi, and Texas.

Last summer the NLRB issued two decisions concluding that charter school teachers are private employees. In both cases, the NLRB ruled that charters were “private corporation[s] whose governing board members are privately appointed and removed,” and were neither “created directly by the state” nor “administered by individuals who are responsible to public officials or the general electorate.” The NLRB found that a charter’s relationship to the state resembled that of a government contractor, since governments provide the funds but do not create or control the schools.

These two decisions were important because they helped clarify whether charter school teachers fall under the legal jurisdiction of their state’s labor boards (which only exist in those states that have enacted laws granting public employees collective bargaining rights) or the NLRB. Charter operators have been known to challenge efforts to unionize under either jurisdiction, depending on which board their staff petitioned for the right to unionize.

To make its determination, the NLRB relied on NLRB v. Natural Gas Utility District of Hawkins County, a 1971 Supreme Court case where the justices found Hawkins County to be “political subdivision”—and therefore public—by looking to see if it was created directly by the state, or administered by individuals responsible to public officials or the general electorate. Applying this “Hawkins test” to charter schools, the NLRB concluded in 2016 that the publicly-funded privately managed schools do not qualify as political subdivisions.

But IHS (represented in court as Voices for International Business and Education, Incorporated) argues that the NLRB’s previous charter school rulings are not applicable to them, citing specific characteristics of Louisiana’s charter school law, and the unique reality that nearly all public schools in New Orleans are charters.

In court filings, IHS says it should be considered a political subdivision under the “Hawkins test” because their charter school is closely regulated by Louisiana, and has a board of directors that can be removed by state officials. Moreover, IHS says that since the overwhelming majority of public school students attend charters, this demonstrates that “[IHS] is a public school functioning as a political subdivision of Louisiana” since the state is obligated to provide public education.

IHS also makes a few arguments beyond the Hawkins test, such as saying that exempting the school from the NLRB’s jurisdiction “honors congressional purpose” because it would ensure that “vital public services like education are not disrupted by labor disputes.”

Although IHS is focusing specifically on its own school within the context of New Orleans, charter operators throughout the Fifth District have also weighed in to support IHS’s case. The Louisiana Association of Public Charter Schools and the Texas Charter Schools Association filed an amici curiae urging the federal court to find all public charter schools in Texas, Louisiana, and Mississippi exempt from the NLRB’s jurisdiction. According to the legal brief, Louisiana has 146 charter schools, enrolling 84,000 students, Texas has 761 charter schools, serving 315,000 students, and Mississippi has three charter schools, enrolling 400 students.

But which side of the public-or-private controversy charter schools come down on seems to vary with political geography. While in the IHS case, the state charter associations insist that all charter schools should be considered political subdivisions (and therefore public) under the “Hawkins test,” when charter teachers at the Chicago Mathematics & Science Academy filed for union representation with the Illinois Educational Labor Relations Board in 2010, the school responded by saying its teachers fell under the purview of the NLRB, because their charter was a privately incorporated nonprofit, governed by a corporate board. The National Alliance for Public Charter Schools, the most prominent national charter advocacy organization, filed an amicus brief in support of CSMA’s position, arguing that “charter schools are intended to be and usually are run by corporate entities that are administered independently from the state and local governments in which they operate.”

The difference, of course, is that in Illinois, a state where public employees have collective bargaining rights, charter teachers will more likely be able to win unionization campaigns as public employees. In Louisiana, Mississippi, and Texas, where most public employees have no such rights, a court ruling that the teachers are public employees and not under the jurisdiction of the NLRB will mean that management is under no legal obligation to enter into bargaining with them.

The National Alliance for Public Charter schools did not return The American Prospect’s request for comment on the IHS case and how it relates to the Alliance’s CSMA brief.

IF IHS’S ARGUMENTS SUCCEED in court, there are a number of different ways the Fifth Circuit could rule. At its narrowest, the appellate court could say that this particular charter school does not fall under the NLRB’s jurisdiction. Going a bit further, the court may instead say that the NLRB does not apply to this type of charter school; Louisiana has five different categories of charters, and IHS is designated a “Type 2” school. The Fifth Circuit could go even broader, ruling that no charter school in the state of Louisiana falls under the NLRB’s purview. Or at its most broad, the appellate court could rule that no charter in the entire Fifth Circuit (Texas, Louisiana, and Mississippi) falls under the NLRB’s jurisdiction, which is what the state-level charter groups are pushing for.

When courts have overturned an NLRB ruling, they have generally tended to tailor their decision narrowly. Still, the Fifth Circuit is hardly a left-leaning court, so it’s hard to predict how the judges might rule.

Legal battles aside, many of the teachers who voted for the union in May 2016 no longer work at IHS, citing harassment and intimidation they experienced during the subsequent school year.

One teacher, Chvonne Simmons, left IHS at the end of May, after teaching science there for four years. “I was not offered a contract to return, and it blew me away because the year before I was the science department chair,” she says. Simmons felt the 2016-17 academic year was very hostile, and she believes that union-supportive teachers were singled out for punishment. “In all my years of teaching and my years at IHS I had never been written up, and all of a sudden I was getting in trouble,” she says.

Another pro-union teacher, Jennifer Boyce, left IHS on her own last month, saying she had felt targeted, and ostracized. “After voting ‘yes’ for the union I was written up three times, after having taught for 13 years and never receiving a corrective action,” she told me.

There is no statewide collective bargaining law for public school teachers in Louisiana, but collective bargaining is still legal (unlike in other southern states such as Texas and North Carolina). Some public school teachers in Louisiana—such as in St. Tammany Parish and Jefferson Parrish—have negotiated contracts, but that’s because there were union-friendly school boards willing to do so. There is nothing in state law that can compel a Louisiana school board to bargain if it doesn’t want to.

So in some ways, charter school teachers in Louisiana actually have more legal protections right now than traditional public school teachers, since falling under the NLRB’s purview means the federal labor board can compel schools to bargain with unions. If IHS wins its court, charter teachers at that school, and perhaps across the state, would still be allowed to bargain contracts, but would no longer have the federal labor board’s help in compelling their employer to do so. In other words, it gets a lot harder.

A representative from International High School told The American Prospect they do not have any comment, as the court case is open.

“On the surface, this case is about an arcane question of federal agency jurisdiction; in reality, it is about union busting, plain and simple,” says Randi Weingarten, the president of the American Federation of Teachers. “Justice delayed is justice denied, and I am hopeful that the court sees through the administration’s bullying and acknowledges the educators’ right to bargain a fair and flexible contract, just as their peers have done at hundreds of other charter schools in New Orleans and around the country.”

It will be several months before the Fifth Circuit issues its decision.