Who’s Trying to Kill BDS on Campus?

Originally published in Jewish Currents on January 21, 2019.
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Josh Nathan-Kazis, a staff writer at The Jewish Daily Forward for nearly a decade, has published a series of explosive articles over the past half-year looking at some of the most important and poorly understood changes in the fight against BDS on college campuses— namely, a new, more aggressive approach to taking on critics of Israel. Freelance journalist Rachel Cohen talked to Nathan-Kazis about his reporting on these new developments. This interview has been lightly edited and condensed; shortly after it was conducted, the Forward announced that it was shuttering its 122-year-old print edition and laying off almost 30 percent of its staff. 


Rachel Cohen: For those of us who haven’t been paying close attention, why don’t we start with Canary Mission. What is that?

Josh Nathan-Kazis: I first heard of Canary Mission in the spring of 2015. I forget how I saw the website originally, but they had this video where they said very explicitly that they were seeking to highlight the radicalism of various student activists and make it more difficult for them to get work after college. There have been other efforts over the years to do online blacklists of pro-Palestinian activists, but this one struck me for two reasons: One, it seemed specifically and explicitly targeted at students, and two, it was anonymous. We tried to see who set up the website but we couldn’t.

So we ran these stories in August that were really trying, for the first time, to highlight a bunch of disparate tactics that were appearing on college campuses, that taken together, were part of this new hardline approach from various pro-Israel actors. It was part of a new, emerging strategy.

RC: I graduated college in 2014, I was very involved with Israel/Palestine activism as a student, and so I felt like I had had a pretty good handle on the crazier aspects of those campus dynamics. Reading your stories made me see how significantly things have changed even from when I was in school. Can you describe, for instance, the Canary Mission anecdote you reported on from George Washington University?

JNK: As often happens on college campuses, there was an effort to pass a BDS resolution in some form last spring at GW, and in this case there was some odd pushback. The most dramatic thing that happened was on the night of the vote, two people showed up in big yellow canary costumes outside of the building where the student government was meeting. It was clearly meant to intimidate people and clearly a reference to Canary Mission. It is not clear that Canary Mission actually was behind it—we don’t know who they were—but regardless they were using the threat of Canary Mission, the real fear people have of them, to send a message to these students.

RC: Tell me about your second story that paired with this one.

JNK: Our next story looked at how the threat of Canary Mission had grown beyond college campuses. Increasingly we were hearing reports about people who were being questioned at the Israeli airport by border officials, and they believed those who were doing the questioning had seen their Canary Mission profiles.

RC: Were these people likely to have been detained anyway?

JNK: For the named sources in that story, like Andrew Kadi—he’s a relatively high-profile Palestinian activist and he’s often been questioned by border authorities. But what he realized on this particular visit, in December 2017, was that they were now using his Canary Mission profile.

The context here is that a lot more people who are critical of Israel are getting detained, as part of policies put in place over the last year or so. The reason this is relevant is that students who have family in Israel or the West Bank now fear, not without reason, that they will have trouble visiting their relatives if they’re listed on Canary Mission. There’s definitely a feeling in the student activist community that especially among Palestinian-American students, there are real risks to being listed on there.

RC: In one of your stories you list a host of Jewish groups that do anti-BDS work on campus, including StandWithUs, CAMERA, the David Project, the David Horowitz Freedom Center, AIPAC, the Maccabee Task Force and Zionist Organization of America. You say, “the total amount of American Jewish and Israeli government funds flooding the anti-BDS effort is easily in the tens of millions of dollars each year.”

You also talk about the Israel on Campus Coalition, or ICC, and how that particular organization has changed its practices in the past few years. 

JNK: The ICC is the most interesting story here, to me at least, because when it was created it was a branch of Hillel International, and then it split off, but it was still just a mainstream pro-Israel group. It wasn’t particularly active, it didn’t have particularly high visibility. What happened in the last few years is that they got a lot more money and became a central player in this new hardline anti-BDS strategy. What they talk publicly about doing is making connections among all the pro-Israel group on campus so they can work together if something like a BDS vote is coming up. But what we’ve found is that they also engage in what they internally call “anonymous digital campaigns.”

We’ve uncovered two of these campaigns. One we wrote about in a September report with ProPublica, where ICC created these Facebook pages, like “San Jose Students Against Hate” and “John Jay College Students Against Hate.” The pages ran paid ads against visits to those campuses by Remi Kanazi, a Palestinian-American poet who tours colleges as an activist. The ads were designed to look like they were coming from student organizations, but were actually run by DC political operatives with the Israel on Campus Coalition.

RC: One might assume the ICC was a student organization.

JNK: They have student fellows, but it’s a very, very professional DC-based pro-Israel organization. They also contract with really top-tier political professionals, like this Republican political consulting firm called FP1 Strategies, or this one guy [Jeff Berkowitz] who used to be on staff at the Republican National Committee and is known for his opposition research.

RC: Has there been a backlash to Canary Mission?

JNK: I’m not sure “backlash” is the right word. Canary Mission is not something that Hillel professionals or students ever asked for. I quote multiple Hillel leaders and students who are pretty critical of Canary Mission. This whole wave of hardline tactics and entities—it came from ideas developed by think tanks in Israel, and leaders of the American-Jewish community.

I think there are a lot of people in the Jewish establishment who think Canary Mission is a bad idea. And lot of establishment groups have criticized them at one point or another—though not always out loud, or super vociferously. The ADL is a little odd here. They’ve criticized Canary Mission, and then walked back the tone of their criticism.

RC: It seems rather ruthless to insert yourself into a campus’s political scene, and not care if you’re even helping the students or not. 

JNK: I’m sure the people behind this think they’re helping students on campus. I wouldn’t assume they’re being disingenuous in thinking that they’re being helpful. One thing is some of the stuff on Canary Mission is legitimately disturbing. At times, they are finding bad, harmful stuff — legitimately anti-Semitic stuff. So you could see how lots of people would think that’s useful. But it’s difficult because they don’t actually come out and make their case. They have press releases and blog posts they put out arguing why they’re important, but they don’t sit for interviews necessarily, so it’s hard to really know what their side is.

RC: Canary Mission has some 2,000 people profiled on their site now. Can you talk a little bit about what you learned regarding the structure of the organization, both here and in Israel? 

JNK: We learned a number of things. The most surprising thing we found was that one large amount of money going to Canary Mission had come from a foundation—the Diller Family Foundation—which is controlled by a large Jewish federation in California. The Diller Family Foundation is what’s called a “supporting foundation” of the Jewish Community Federation of San Francisco, and it’s a complicated tax structure but the basic point is that the board of Diller is controlled by the San Francisco Federation, which is one of the largest Jewish charities in the country. An important point is that this is not money that the staff of the San Francisco Federation controlled.

RC: Did the Federation comment on your reporting?

JNK: Not initially. But later that day they said they wouldn’t give those donations anymore, so I wrote another story reporting that.

RC: And how did you find this all out?

JNK: In their 990 nonprofit tax filings, Diller had made a grant to the Central Fund of Israel, which is essentially a charity that allows American donors to donate to Israeli charities and get a tax deduction. So Diller had given money to the Central Fund, and in their 990 Diller wrote that this money was for “CANARY MISSION FOR MEGAMOT SHALOM.” I had never heard of Megamot Shalom, but we looked it up, and we sent some people to pull some files in Israel, and went to the address that they listed. We learned it was run by a guy also linked to Canary Mission.

RC: Were any other federations funding Canary Mission?

JNK: I called all the big ones to ask and what I found was that the LA Jewish Community Foundation—not the federation, but their big communal donor advised fund—had also made a grant to Megamot Shalom. Money you put in a donor-advised fund legally belongs to the charity; it’s the foundation’s money, though you can give advice on who to donate it to. So some donor—we don’t know who it is—advised the LA Jewish Community Foundation to give money to Megamot Shalom. This wasn’t like foundation staff saying to do it, but it was the foundation’s money, and they could have said no.

RC: They told you they gave the donation?

JNK: They told me. I called them all to ask, and I was also pressuring everyone by tweeting my call list as I went through.

RC: How have students adapted to the advent of Canary Mission?

JNK: I spoke to students who made decisions about who would be the public faces of their pro-Palestinian student groups based on who could risk being listed on Canary Mission. So they chose who the public members of their SJP would be, based on who could take that risk. I’ve also learned of people who chose not to become active on the Palestine issue specifically because they feared the repercussion of being on Canary Mission. Alex Kane has also looked closely at this issue. Some student governments have also moved to taking these BDS votes now by secret ballot, in light of Canary Mission.

RC: Can you get off Canary Mission? Have any defamation suits been filed?

JNK: Canary Mission says they’ll take you off if you apologize, and they’ve posted these apologies of former “canaries.” They take your name off, but frankly they’re not very good at redacting the information to make the identity less obvious. I’m not aware of any lawsuits—successful or otherwise. And there are reasons for that, they are pretty careful about what they post.

RC: In a big piece you published at the end of December, you look at a lot of the recent political developments taking place in Israel and the U.S. that may have contributed to this new strategy for anti-BDS campus activism.

JNK: Yeah. In 2010, after the 2008-2009 Gaza war, this particular Israeli think tank, Reut, laid out a strategy to be used against a so-called “delegitimizer” of Israel—a hardline Palestinian activist of a certain sort. Reut laid out certain tactics in a 2010 strategy document, which we begin to see appear in 2015. I don’t think one should assume that Reut agrees with the ways some of these organizations started doing things, the tactics were applied to a far broader group of people than Reut had suggested, but it is worth pointing out that these ideas, about naming-and-shaming in particular, were developed around 2010.

RC: FIFA played a major role in this story too.

JNK: When you talk to security strategy types in Israel, many will say that these BDS movements are not always at the front of their minds, because there are other more immediate threats that the government is dealing with. But as it happened in 2015, there was this difficult political moment—there was an election, and the results of the election were sort of unclear, it was difficult for anyone to form a government. And just as Netanyahu was finally successfully pulling a government together, this odd thing happened where Palestinians put in a complaint with FIFA (which is the international soccer organization) and basically threatened to hold a vote at an upcoming FIFA conference that would effectively mean Israeli teams wouldn’t be allowed to play in international competitions anymore.

Soccer is a very big deal in Israel and apparently this threat was a major, major story in Israeli media. It also happened at a moment when the new Israeli government was coalescing, and setting its priorities for the next few years. And as that all happened, Gilad Erdan, who is a powerful member of the Likud party, was given a number of portfolios including the Ministry of Strategic Affairs. That ministry didn’t away have a big budget, but Erdan was able to get a big budget with the idea that he would oppose the BDS movement. In fact, in a statement he made when he got this job Erdan specifically referenced the FIFA threat, and talked about how it would be his job to counter these kinds of efforts.

RC: What kinds of efforts has Erdan been linked to in the US?

JNK: I did a story earlier this year about how the Ministry of Strategic Affairs tried to give grants to American-Jewish organizations, and the groups turned that money down because they worried they would be required to register as foreign agents if they accepted it. The money was supposed to be for trips to Israel for influencers. Some of these groups were already running those kinds of trips, but the Ministry of Strategic Affairs wanted to expand them. As far as I know they all turned down the grants. They do have this network of pro-Israel groups though that they work with called the Blue Network. Membership is not publicly known.

RC: Sounds very spy-like.

JNK: The Ministry of Strategic Affairs does model a lot of their operations on the Israeli intelligence community. They were the agency responsible for the new list of organizations and activists banned from entering Israel.

RC: I’d be remiss if I didn’t ask you about the Campus Maccabee Summit, and what that convening signified.

JNK: So in the summer of 2015, Sheldon Adelson and Haim Saban invited donors and Jewish non-profit officials to a conference in Vegas to talk about ways to fund pro-Israel activity on campus and counter BDS. It was about figuring out new strategies and creating a pool of money. What ended up coming out of it is a new organization called the Maccabee Taskforce.

There are differences between the Campus Maccabees and the ICC, but I think what this gets at is it’s a complex landscape of many different campus groups, there’s not one coordinated effort. There are a ton of these groups doing a ton of different things, they have differences sometimes with one another, and they have different donors.

RC: What has the public reaction been like to your reporting?

JNK: In this news environment, it’s really easy to not connect dots, and it’s really easy to miss these stories that don’t touch on the biggest issues of the day. I think people didn’t have a sense of what the Jewish community and what the pro-Israel apparatus has been doing over the last few years to try to make its case on college campuses. It’s gotten very aggressive, and very hard-nosed. And I think people have been surprised that some relatively mainstream groups have been connected to some of this stuff.

Look, a lot of other people say that groups like Canary Mission are exposing real antisemitism and we shouldn’t be reporting critically on them. I hear a lot of that, too. But nobody knew who was funding Canary Mission, even people who are very, very involved and interested. This was not an open secret. The broader picture that we’re painting here—of a lot of very aggressive efforts targeting students—is a story most people didn’t know.

RC: Do you see a connection to your reporting with the pro-Israel loyalty oaths, and the new bills in Congress penalizing those who boycott Israel?

JNK: I haven’t done much reporting on those personally. But I did do a story a few weeks ago about Anti-Defamation League staff who wrote an internal memo in 2016 saying that anti-BDS laws were bad for the Jews and likely unconstitutional. The ADL leadership has taken a different position. I can’t really say more right now, but it’s relevant that these things have all come up around the same time.

RC: Are there still related questions you’re pursuing?

JNK: There are projects I’m still working on. Now that these campaigns are getting more attention, and the people behind them are being exposed a little bit, does that make them less attractive or more attractive to donors? There are certainly stories along this thread that I am still pursuing.

RC: What did you find most challenging about this reporting?

JNK: Different things were hard at different times. When I couldn’t figure out how to get past the wall of anonymity for Canary Mission’s website, that was really frustrating for a really long time. Once we began to break through, I was really frustrated by the disclosure laws for charities that make it so easy to hide so much. You don’t have to say who the recipients of your foreign grantees are anymore. That was not the case when I started at the Forward in 2010. The state of nonprofit reporting and what the IRS requires means it’s very difficult to track contributions, and it’s gotten harder over time.

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LA Teachers Are Mad About Charter School Growth. Why Won’t Democrats Acknowledge That?

Originally published in The Intercept on January 15, 2019.
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In the first major strike since the U.S. Supreme Court struck a blow to public-sector unions last June, more than 30,000 Los Angeles public school teachers took to the rainy streets Monday to launch the LA teachers union’s first labor stoppage in 30 years. It’s the seventh major teacher protest over the last year, but unlike their counterparts in Arizona, Oklahoma, and West Virginia, the Los Angeles teachers are not striking against austere Republican state legislatures. Rather, they are striking against the policies of their Democratic-controlled school district, city, and state, and are framing their efforts as a fight for the future of public education.

As the strike enters its second day, the Los Angeles Unified School Districtis keeping schools open for students to attend, including regularly scheduled morning and after-school programs, and meal service. District officials also authorized spending $3 million to find substitute instructors, offering to pay them substantially more than K-12 substitutes normally earn. Still, roughly 360,000 students were absent from the nation’s second-largest school district on Monday, as families pulled their children from school in support of the striking teachers or to shield them from the chaos of an understaffed school.

Negotiations between the district and the teachers have dragged slowly since April 2017 and collapsed last month over demands to reduce class size and hire more teachers, nurses, counselors, and librarians. United Teachers Los Angeles President Alex Caputo-Pearl says it’s not unusual for class size to exceed 45 students in middle and high school, and for there to be 25 to 35 students per elementary school class.

But perhaps more notably, the teachers are also striking against school privatization. In December, the union called for a moratorium on the opening of new charter schools, which are publicly funded but privately run. Los Angeles has 224 charter schools, more than any other city in the country. On Tuesday, the union plans to protest outside the offices of the California Charter Schools Association, the politically powerful lobbying arm of charters in the state.

The centrality of opposition to charter school growth in the LA protests has put many Democrats in an uncomfortable position. The Democratic Party has long straddled an awkward political balancing act between the charter school and labor movements, which both fund Democratic candidates but war with each other. Today, with people across the country focused on the LA teachers, most Democratic lawmakers have stayed silent, and even those who have weighed in have mostly avoided commenting on the union’s opposition to charter school growth.

Rep. Alexandria Ocasio-Cortez, D-N.Y., is so far the only Democratic congressional legislator to acknowledge that the teachers are striking over school privatization. Sen. Bernie Sanders, I-Vt., tweeted last week in support of the striking teachers and linked to a Jacobin article about school privatization, but he did not mention it explicitly in his statement. (Sanders has spoken out about school privatization before, including last year when Puerto Rico announced its plans to open charter schools in the wake of Hurricane Maria.)

The Intercept reached out to all 47 members of the Senate Democratic caucus to ask if they wanted to weigh in on the LA teachers strike and the demands that teachers are striking over. All Democratic senators were also asked to clarify their general views on charter school growth.

Only seven of them responded.

A spokesperson for Sen. Kamala Harris, D-Calif., referred The Intercept to a tweet Harris posted on Monday in support of the striking teachers, and said the senator is “particularly concerned with expansions of for-profit charter schools and believes all charter schools need transparency and accountability.” In September, California legislators passed a ban on for-profit charters in the state.

Harris’s spokesperson also pointed to a probe that Harris launched as state attorney general into a for-profit charter school company that ran virtual charter schools in California. Harris alleged at the time that the charter chain used false advertising, inflated its student attendance numbers to collect extra state funds, and saddled the virtual schools with debt. The charter company settled with the state in 2016 for $168.5 million.

Martina McLennan, a spokesperson for Sen. Jeff Merkley, D-Ore., responded with a statement that did not directly address the LA strike:

Senator Merkley fully supports teachers’ right to use collective bargaining to fight for fairer wages and better schools. He’s seen up close the disturbing trend of disinvestment in public education and growing class sizes: His children attended the same public schools he did, but faced much larger class sizes and fewer elective options. We’re a wealthier nation than we were 40 years ago, so there’s no excuse for our public schools to be more poorly funded, or to offer less to low-income and working families. That’s why Senator Merkley plans to introduce legislation soon that would present a national plan for reinvesting in public education and reducing class sizes across America.

Ohio Sen. Sherrod Brown’s statement also did not directly address the strike. “I support the rights of all workers to join together and fight for better working conditions,” he said. “But it’s shameful that American teachers have to fight so hard just to get the basic supports they need to serve their students. We need to do better as a country investing in public education and public school teachers.”

Saloni Sharma, a spokesperson for Sen. Elizabeth Warren, D-Mass., referred The Intercept to a tweet Warren posted on Monday in support of the striking teachers. She also added that the senator believes rapid charter school expansion can pose a threat to the financial health of traditional public schools, which is why Warren opposed a ballot measure in 2016 that would have allowed up to 12 new charters to open in Massachusetts per year. “While she generally shares the concerns voiced by LA teachers on this and other issues, she can’t really speak to the charters’ specific impact on LA schools — the LA teachers are the best experts on that,” Sharma said. “We should listen to them.”

Ryan King, a spokesperson for Nevada Sen. Catherine Cortez Masto, said his boss “believes that teachers in Nevada, and across the country, should be treated with dignity and paid a living wage for the work they do in educating our kids. The senator believes that Congress must do all it can to support quality public education in America and ensure our nation’s teachers have the resources and support they need to educate students.”

Only two other people responded. Jonathan Kott, a spokesperson for Joe Manchin of West Virginia, declined to comment, saying “we are not weighing in on a local issue in California” and that the senator’s “record on charter schools is well-documented.” (Manchin, who voted against Betsy DeVos’s nomination for education secretary, specifically cited her support for charters and private school vouchers as reasons.) Keith Chu, a spokesperson for Ron Wyden of Oregon, also declined to comment.

Sanders did not respond to a query about his position on charter schools, but he, Warren, and Brown remain the only likely 2020 presidential hopefuls in the Senate who’ve had anything to say about the strike at all. Sens. Kirsten Gillibrand of New York, Amy Klobuchar of Minnesota, and Cory Booker of New Jersey did not respond to our questions, nor have they publicly commented. California Sen. Dianne Feinstein has also stayed notably silent on the teachers strike happening in her own state.

On the House side, Rep. Ro Khanna, D-Calif., was one of the first to express his solidarity with the striking teachers.

In 2016, Khanna said he sees himself as more independent-minded in terms of supporting charter schools than some other Democrats. The Intercept reached out to Khanna’s office for comment on his current views about charter school growth.

“I have the same position on this as Randi Weingarten, president of American Federation of Teachers,” said Khanna in response. “I am supportive of the original concept of charters as laboratories of innovation within the public school system and in collaboration with teachers and administrators in the district. That was the vision [former President of the American Federation of Teachers] Albert Shanker had. I am opposed to the expansion of private charters that siphon resources from public schools, that do not have the same standards as public schools, or that exploit their staff and prohibit their employees from forming unions.”

Khanna went further and said that in the context of the LA teachers strike, he “share[s] the concern of the teachers that the district should not have private companies run the charters. These charters are mostly not unionized, and they are not serving students with disability or the children of immigrants who don’t speak English. Charters were never supposed to be a substitute for good public education as they have become in the LA school district.”

On Monday, Reps. Ilhan Omar of Minnesota, Mark Pocan of Wisconsin, and Pramila Jayapal of Washington state also tweeted in support of the striking teachers, though they did not mention charter schools. Like Ocasio-Cortez and Khanna, they are all members of the Congressional Progressive Caucus.

On the local level, Reps. Ted LiuAdam SchiffJimmy GomezBrad Sherman, and Nanette Barrágan, who represent parts of Los Angeles, voiced support for the striking teachers but did not mention charter schools in their statements.

THE DEMOCRATIC DEBATE over school privatization intensified in 2016, when high-profile candidates like Hillary Clinton affirmed their support for charter schools but also began articulating opposition to for-profit charter schools, a small but politically influential part of the charter movement. That same year, the party included opposition to for-profit charters in its platform for the first time.

The next year, when President Donald Trump named billionaire DeVos to lead the Education Department, liberals who back education reform were put on the defensive. Their school choice rhetoric shared broad similarities with the Trump administration’s, yet charter-supporting Democrats maintained that their vision was different and that they shouldered no blame for the escalating attacks on public education. A Gallup poll released later in 2017 showed a growing partisan divide on charters, with Democratic support standing at 48 percent, down from 61 percent in 2012. (Republican support stayed steady at 62 percent.)

Pro-charter school Democrats have suffered a number of defeats at the ballot box since 2016, including a high-profile ballot measure to lift the cap on charter schools in Massachusetts and an expensive election for state superintendent in California. New York Rep. Hakeem Jeffries’s November election as Democratic House caucus chair marked a significant win for that wing of the party, as The Intercept reported at the time. Jeffries started his political career in 2006 with the help of the Democrats for Education Reform, or DFER, a political action committee that fundraised for him in his 2012 congressional bid too. But even as DFER cheered Jeffries’s elevation in the ranks of party leadership, his spokesperson, Michael Hardaway, called this reporter to say that he didn’t understand why Jeffries would be linked to DFER and that the congressman is “absolutely not involved with them in any capacity.” In New York, Jeffries has “pretty much stopped talking about charters for the last 2 years (ie post Trump.),” according to New York Times education reporter Eliza Shapiro.

It’s with this skittish context in mind that Democrats’ response to the striking teachers should be understood. While voicing support for teachers and public education is relatively safe territory for any politician, weighing in on the teachers’ opposition to charter schools comes with the possibility of upsetting powerful donors or the growing number of families who enroll their children in the schools. (Charters educate roughly 3.2 million students across the country, and most are concentrated in liberal cities.)

Tom Perez, chair of the Democratic National Committee, released a statement in support of the teachers on Monday afternoon. “I stand with the Los Angeles teachers marching for the pay, resources, and working conditions they deserve. These educators are responsible for molding our next generation leaders. When they succeed, our children and our country succeed. Like educators across the country, Los Angeles teachers are fighting for the children they teach to have the resources they need to achieve and flourish.”

The DNC’s statement did not mention charters or privatization.

Los Angeles Teachers Poised to Strike

Originally published in The American Prospect on January 7, 2019.
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The first major teachers’ strike of 2019 could start this Thursday if the nation’s second largest school district and the 35,000-member United Teachers Los Angeles fail to reach a contract agreement. It would be the first teacher strike for the Los Angeles Unified School District since 1989, and the first large-scale teacher strike in a blue city since the national #RedforEd movement took off last February. Educators in Oakland, six hours north, are also currently engaged in fraught contract negotiations, and have signaled they too could strike later this month.

To understand the state of LA school politics right now, think of a pot that is nearer and nearer to boiling over. On top of its threat to strike, the union recently called for an “immediate halt” on all new charter schools; both the district and the teachers union have filed complaints with the state’s Public Employment Relations Board, each alleging the other is negotiating in bad faith. Moreover, a special election for the swing seat on the school board—which will tip its balance to the advocates or opponents of charters—is scheduled for March. Ten candidates are competing for the coveted spot, which was vacated last summer after a board member pled guilty to a charge of conspiracy. As if this weren’t enough, the superintendent is currently drafting a plan to restructure the LAUSD, fueling teachers’ suspicion that more dramatic privatization is just around the corner.

The union and school district started negotiations in April 2017, and remain at odds over how much money is available to spend. The union brought three buckets of demands to the bargaining table: first, such traditional economic ones as higher pay, reduced class sizes, and the hiring of more nurses, librarians, counselors, social workers, and special education teachers. Second are such non-economic demands as cutting back on the amount of standardized testing and increasing parent and teacher voice in local school decision-making. The third bucket consists of “common good” demands, in which the union, having surveyed members, parents, students and community groups, crafted proposals for more green space at schools and for using district property to build affordable housing. The union points to LAUSD’s $1.8 billion surplus, and says claims that the district can’t afford to spend more are lies. The district had a $500-million surplus five years ago, and also insisted back then that its belt needed to be tightened.

But the district, in turn, says the union is exaggerating the financial picture, and that “simple math” shows their reserves would be depleted if they agreed to the union’s demands. Plus, it contends, some of that $1.8 billion has already been allocated in negotiating sessions to finance teacher raises. California law requires that one percent of the district’s budget be placed in reserve, and LAUSD leadership anticipates that a significant chunk of its surplus will shrink in the next few years due to increased spending and decreased enrollment.

“You have a district that feels it’s in more economic peril than it is, and the board wants to say, sure, they have money now but they won’t in two to three years out,” says Jackie Goldberg, the union-endorsed candidate for the open school board seat, who served two terms on the board from 1983to 1991, followed by six years in the state assembly. “I can clearly show them using their own figures that they’ve been saying this stuff since I served on the board since the 1980s. The doomsday never seems to come, unless there is a recession, and that comes whether you saved money or you didn’t save money.”

Nick Melvoin, the vice president of the school board, says board members don’t want a rainy-day fund for the sake of having a rainy-day fund, and notes that a new recession is not an unrealistic possibility. “Could we dip into our reserves a little more?” he asks. “Yes. We’re very willing to compromise, and I’d love to have that conversation with UTLA.”

So what would happen if the union went on strike, affecting about half a million students, of which 85 percent come from low-income households?

LAUSD says all students are still expected to attend school in the event of a strike, and that school hours, morning and afterschool programs, and regularly scheduled meal service “will NOT change.” The district’s FAQ website emphasizes that classroom instruction will continue, led by staff, substitute teachers, and administrators. Approximately 400 substitute teachers have already been hired, a move UTLA blasted as illegal.

Alex Caputo-Pearl, the president of UTLA, says that if the union is compelled to strike, a few days of disruption would be justified by the things they’re fighting for. “If we’ve got to have some temporary days of disruption to correct something that’s been a problem for 25 years, then we’ll do that,” he told the Prospect. The strike date was announced weeks in advance, he adds, so that families would have time to prepare. For parents who keep their kids home from school as a statement of solidarity with the teachers, Caputo-Pearl says his union is working to set up meal programs.

Melvoin, who was elected in 2017 with the backing of the charter school movement, understands that distrust between the union and the district has been growing for years, but believes the union leadership has a vendetta. “Striking a school district that gets [almost all of its] money from the state [which is how California’s schools have been funded since the 1978 passage of Proposition 13] is really counterintuitive and doesn’t address other issues—like that only 40 percent of our kids can read on grade level,” he says. “To me it’s disingenuous.”

Undergirding some of the distrust is news that Austin Beutner, the superintendent, is working on a confidential plan to dramatically reorganize the school district he assumed leadership of in May. The Los Angeles Times reported in November that Beutner, a former investment banker with no background in education, was working to divide the district up into 32 smaller “networks”—shrinking the central office and devolving power to neighborhoods. The Times reported that Beutner was working with consultants paid for by outside philanthropy, consultants with prior experience working on education reform efforts in other cities.

This wouldn’t be the first time a superintendent has tried to revamp LAUSD’s structure. In 1993, the school district even announced it would be dividing itself up, also into 32 smaller clusters, though that plan and its successors all failed, partly because they lacked clear execution plans, and partly because local leaders weren’t prepared to assume new responsibilities.

Caputo-Pearl says he believes the current plan is more about setting the stage for privatization. District leaders deny this, and say they just want to reduce bureaucracy and give more flexibility and funds to schools.

While Beutner has declined to comment on the plan publicly, saying to do so would be premature, Melvoin dismissed the idea that their plan is being developed in secret, and said the board would be criticized no matter how they moved forward. “If we had put out a plan and then sought input, we would have been criticized for doing it secretly in the beginning,” he says. “Instead we’ve been out there holding listening sessions and the superintendent has been meeting with teachers, parents, principals and community members and there’s no plan to share right now because we’re in the process of developing it.”

Then there’s the high-stakes upcoming school board election. In 2015, charter advocates spent more than $2 million to elect Ref Rodriguez, a former charter school operator, to the school board. Two years later, charter proponents won three more seats, giving the seven-member board a one-seat pro-charter majority for the first time. The 2017 contests were the most expensive school board races in U.S history, with the charter movement spending $9.7 million, and the union spending $5.2 million.

But then several months later, the LA County District Attorney filed criminal charges against Rodriguez, who by this time was serving as board president. Rodriguez was accused of laundering money into his 2015 political campaign. He pled guilty to conspiracy and resigned this past summer.

Following his resignation, Goldberg, who is 74 years old and a well-known figure in local and progressive politics, offered to serve in an interim capacity until Rodriguez’s term officially ended. She had previously represented his district on the school board and in the state legislature.

“I spent about a month talking to each of the board members, and assured them I would come in just for the short-term, and would publicly renounce any chance of running in 2020,” Goldberg explained. “I felt the fact that I had served on the board before and in other public offices including on the state assembly education committee, would be helpful to prevent a strike with UTLA and save the district millions of dollars for an expensive special election.”

But the board couldn’t agree to this, so the special election for District 5 was set. If none of the ten candidates receives at least 50 percent of the vote in March, a runoff between the top two finishers will be held in May.

Goldberg told the Prospect she decided to run because she feels passionate about stopping privatization and wants to ensure there’s balance on the board with the pro-charter wing. She says she’s not anti-charter, but does have friendly relations with labor, and opposes the competition for dollars between public and charter schools that was established by the state’s charter law.

“I represented 80 percent of the voters of [District 5] for 22 years, so people actually know who I am and what I’ve done,” she says. “They don’t have to wonder what I’ve been like.” She commissioned a private poll that, she says, “showed a very large percentage of people knew who I was, and that I had a high approval rating.”

Students in District 5 are predominately Latino, and there are seven Latino candidates also vying for the school board spot. At least five Latino candidates voiced concerns in mid-December that the most powerful endorsements, from the teachers union, SEIU, and the California Charter Schools Association, might all go to white candidates. UTLA ended up endorsing Goldberg, who is white, SEIU endorsed Heather Repenning, a longtime mayoral aide, who is also white, and the CCSA eventually announced it would be making no endorsement for the March contest.

Observers have noted that the California Charter Schools Association could still endorse a candidate for the May runoff, and many suspect that given the stakes, the lobby won’t be sitting on the sidelines before then either. California charter advocates suffered two major political losses in 2018, after spending $23 million backing Antonio Villaraigosa in a failed gubernatorial primary bid, and more than $36 million on another candidate’s failed bid for state superintendent of public instruction.

The CCSA declined to answer whether it will be running any independent expenditure campaigns or financially supporting any pro-charter school board contenders.

IN LATE DECEMBER, UTLA called for a moratorium on new charter schools. Los Angeles currently has 224 charters, more so than any other city. California’s new state superintendent for public instruction, Tony Thurmond, has also called for a pause on charter school growth throughout the state.

Melvoin says he’s not surprised the union is taking the opportunity to talk about halting new charters, which are mostly non-union schools. “I would love it if we never had a new charter again but the way I want to get there is by improving our schools so much that parents don’t feel the need to create new options,” he says.

One thing the union and the district agree on is a measure that will appear on California’s 2020 ballot that would end a tax loophole on commercial property owners, raising between $6 and $10 billion for local governments and public schools. (In essence, the measure would repeal Proposition 13 for commercial properties, but not for residential units.) The LA school board passed a resolution in September supporting the ballot measure.

If the district goes on strike this week, Goldberg says she’ll be marching alongside the teachers who are calling for smaller class sizes, less testing, and more nurses and staff.

“I’ve been on strike twice as a teacher myself, and once we did well and once we got creamed,” she said. “But there are times when they’re refusing to hear you, and you just can’t not do something.”

New Jersey Is Getting Sued Over School Segregation

Originally published in CityLab on January 3, 2019.
—–

This past May, on the 64th anniversary of Brown v. Board of Education, a coalition of civil rights groups and students sued the state of New Jersey, calling on its leadership to desegregate New Jersey’s public schools. Nearly half of all black and Latino students in the state, roughly 270,000 children, attend schools that are more than 90 percent non-white. According to the UCLA Civil Rights Project, the Garden State ranks as the sixth most segregated state in the U.S. for black students, and seventh for Latinos.
 

It’s a rare legal challenge: Since Brown, almost all legal attacks on school segregation have been mounted in federal court. New Jersey’s lawsuit is is only the fifth, in four states, to be brought in state court, relying on a state constitution. The U.S. Supreme Court has held that unless it could be shown that a district deliberately sought to discriminate against students by race, it could not be held responsible for school segregation. By taking aim at state constitutions, lawyers hope to avoid these factual questions about intent.

The first such case, filed in Connecticut in 1989, ended with a state Supreme Court decision declaring that racially segregated schools in the Hartford metropolitan region denied students their right to an equal education. Connecticut has been implementing the unusual Sheff v. O’Neill remedy ever since. The second case was filed in Minnesota in 1995, and initially resolved in a settlement; it was refiled in 2015 and is now winding its way through the courts. The third case, which took on segregation in the schools of Rochester, New York, was dismissed in 2000. New Jersey is the fourth state to jump in the fray.*Already a national leader when it comes to school funding and fair housing litigation, New Jersey’s school segregation suit could cement the state at the forefront of civil rights. But beyond diversifying its public schools and sending a message to other states weighing whether to file their own integration cases, many advocates are hoping New Jersey’s new suit could help leaders address other longstanding, regional planning woes as well.

***

No other state in the country has a legal framework more hospitable to this kind of lawsuit.

Beginning in 1881, the state of New Jersey enacted a statute that banned segregated schooling based on race. A little over 65 years later, New Jersey adopted a state constitutional provision to ban segregation in public schools—the only state constitution to have such an explicit clause.

New Jersey’s court system also took its enforcement responsibilities seriously. In 1944, 10 years before Brown v. Board, a New Jersey court ruled that, given the 1881 statute, it was illegal for a Trenton school board to bar students from enrolling at a school because of their race. In a 1965 case, New Jersey’s high court eliminated the distinction between de jure and de facto segregation—the same distinction that has foiled school segregation lawsuits on the federal level since the mid 1970s. And in a 1971 court decision, Jenkins v. Morristown, New Jersey held that the state’s education commissioner was empowered to mandate the crossing of school district boundary lines to foster racial balance.
While the majority of New Jersey’s school districts are segregated, a few notable exceptions remain, offering what advocates say is evidence of what’s possible. In 1973, following the Jenkins decision, New Jersey’s then-education commissioner, Carl Marburger, ordered the mandatory merging of the urban Morristown school district with its neighboring white suburban Morris Township school district. Marburger later lost his job, facing protest from state senators who attacked the commissioner for supporting busing. The episode discouraged future education commissioners from using their powers to consolidate school districts, but it succeeded in desegrating the Morris School District: Today, the roughly 5,000-student system remains one of the most racially diverse districts in the United States. Two years ago, The New York Times profiled the district, noting that no school within its boundaries was predominately one ethnic or racial group, and that “classrooms in the elementary schools are also carefully calibrated for diversity.” 

Another example advocates point to is Montclair, New Jersey. In 1966, a group of parents filed a lawsuit against the district’s racially segregated schools, which led the town to implement busing as a desegregation remedy. When that grew too politically contentious, Montclair tried an alternative: creating themed magnet schools that remain racially diverse to this day.

The plaintiffs to the newly filed lawsuit are not calling for any specific remedy to curb segregation in New Jersey schools, but have endorsed various strategies as “feasible” options, including magnets and inter-district transfers.***

Despite all the promising legal factors stacked in their favor, news emerged in September that the plaintiffs might opt for a settlement, to avoid litigating the issue in court. “We are encouraged to believe that an amicable resolution is possible,” wrote New Jersey’s attorney general Gurbir Grewal, in a court letter.

The office of New Jersey Governor Phil Murphy referred CityLab’s request for comment to the state Attorney General’s office. “The State is open to settling the matter, and the parties continue to engage in good-faith discussions toward that end,” a spokesperson said.

Directing the New Jersey Coalition for Diverse and Inclusive Schools, a nonprofit supporting the lawsuit, are four civil rights leaders—Gary Stein, a retired judge of the New Jersey Supreme Court; Elise Boddie, a Rutgers law professor; Paul Tractenberg, a retired Rutgers law professor; and Richard Roper, a policy consultant. The head of the coalition is widely recognized to be Stein (whose son is one of two lawyers representing the plaintiffs).

Multiple sources close to the litigation told CityLab that Gary Stein has been the leading internal advocate for settling out of court, though he did not respond to requests for comment. Boddie also declined to comment.

In an interview, Tractenberg demurred on the question of settling. “There have been some meetings and discussions between the plaintiffs and the staff, and I assume there will be some future discussion,” he said. “Whether it leads to any place productive, I think it’s too early to say.”But some other civil rights advocates in the state are critical of the idea of settling the case. “They’d be crazy to settle,” said Paul Scully, the executive director of Building One America, a civil rights organizing group based in New Jersey. “Settling without a court ruling that says the state is in violation of the law will take away the political cover the legislature will need to do anything significant.”

Scully sees a settlement as both a loss to the plaintiffs, who would be sacrificing a ruling they are likely to win if they proceeded through the courts, and a mistake for the governor, who would look like he’s pleading guilty and giving the state away. “Nothing these people can come up with without a court order will be meaningful, and they won’t be able to get anything done without doing this through the legislature,” he said.

In the mid-2000s, Scully helped lead a successful organizing effort of New Jersey clergy and community activists to push legislators to back a more robust state fair housing law. The law was borne originally out of a New Jersey state Supreme Court decision from the 1980s that said all towns must provide affordable homes for poor and working-class residents. And while Building One America has been trying to create a similar political organizing track for this school integration lawsuit, Scully says the lawyers leading the effort have been uninterested in coordinating a strategy.
 

“Organizers and lawyers both have our own blunt instruments that we like to hit people over the head with.” he said. “The lawyers think our type is uncivilized, but a lot of us think their type is pretty bad too. These guys have no idea how what they’re doing can cause a massive backlash, but they think being low-key and having no drama is better for [Governor Phil] Murphy, as opposed to letting the courts decide and then doing it big and bold.”

The two approaches reflects a fundamental disagreement over tactics, says Myron Orfield, a civil rights law professor at the University of Minnesota. “Too many civil rights lawyers don’t believe in politics, don’t understand politics, and that’s why their cases often have such limited systemic remedies.” Lawsuits, Orfield insists, are essential to “destabilizing the status quo.” But without a coordinated legislative strategy, “it’s extremely hard” to actually get anything done.Scully and Orfield both point to the makeup of New Jersey’s political establishment as a golden opportunity for school integration advocates. Most of the state’s population—and its elected Democratic officials—hail from diverse, working-class suburbs. Scully thinks the key to building support for this lawsuit is bringing those leaders on board. “The segregated urban areas in New Jersey represent a very small portion of the state with very little political power,” he said. “Focusing on them as the problem, or the solution, is a big mistake. We’ve identified about 130 districts across New Jersey moving from segregation to diversity, and in some cases toward re-segregation. It’s a swath of the state that we think is powerful, and should be organized.”

“Democrats control all three branches of government, and that always tends to help,” said Orfield. “I’ve never seen a state map where the politics align so nicely with a metropolitan remedy.”

***Could a statewide school integration lawsuit work in concert with New Jersey’s landmark fair housing rules?

As a result of a series of court decisions broadly referred to as the Mount Laurel doctrine, New Jersey limits exclusionary zoning and mandates all areas build their “fair share” of affordable housing. Progress was exceedingly slow in implementing the remedy. But in recent years—thanks in part to political organizing led by Scully—tens of thousands of affordable homes have been constructed in areas that otherwise would have avoided doing so.

Kevin Walsh, the executive director of New Jersey’s Fair Share Housing Center—which helps lead enforcement of the Mount Laurel remedy—said he does see the two lawsuits as complementary, united by a belief that separate is not equal.  “Mount Laurel is working well after a tough 15 years where there were fits and starts,” said Walsh. “But to really desegregate the state you’ll need housing and schools.” A study conducted by sociologists Rebeccca Casciano and Douglas Massey at Princeton found that low-income residents who moved into a Mount Laurel-subsidized housing development as a result of the fair housing litigation attended schools of significantly higher quality.

Walsh said the prospects for a successful school segregation lawsuit also bode well, because New Jersey has “a good, independent judiciary” that has the political space to truly enforce civil rights. New Jersey’s judiciary consists of appointed judges, who, after seven years, are evaluated and can then be tenured until age 70.

***
A court ruling that forces the state legislature to come up with a remedy could also help New Jersey tackle some of its longstanding regional fragmentation issues.New Jersey is a state comprised of a bunch of small towns, and in many cases even smaller school districts. While Pennsylvania has roughly 2,500 municipalities, it has 500 school districts statewide. New Jersey, by contrast, has 565 municipalities and almost 700 school districts. States like Maryland and Virginia have county-wide school districts. At a policy conference on school consolidation in 2017, organizers noted that while the number of school districts across the United States had declined by almost 90 percent between 1939 and 2013 (from 119,000 to 13,500), the number of school districts in New Jersey increased by over 20 percent in that same period.

Consolidating districts like these would not only help diversify the student population, but could also help communities reduce administrative costs and achieve economies of scale. A Center for American Progress study estimated New Jersey loses about $100 million per year to maintain its tiny school districts, or about $1,000 per classroom teacher.

But the politics of ceding local control can prove exceedingly difficult. When Princeton Borough and Princeton Township merged in 2013, that was the first municipal consolidation in the state in 15 years. And, as Philly’s WHYY noted at the time, “it took two very similar communities, one of which completely surrounds the other and which already shared a regional school district and planning board, four tries over six decades to accomplish.”

“New Jersey has way too many local governments, and there’s just no statewide policy for any of this,” said Massey, the Princeton sociologist.
The impacts of having such fragmented towns and even smaller fragmented school districts creates challenges not just for racial integration, but also for housing and economic development, as the smart-growth group New Jersey Future has shown.

Schools are typically the largest single expenditure any local Garden State government has to pay for, comprising more than half of all property taxes collected and spent. But the amount raised from an individual home’s property tax also falls far short of the cost it takes to educate any children who live in that home in the public school system.

As a result, said Tim Evans, New Jersey Future’s director of research, many New Jersey municipalities work to avoid building housing fit for families with children, reasoning that to do so would represent a fiscal drain. Instead, towns compete for non-residential malls, gas stations, and office buildings that generate property tax minus the tax-draining kids. “It’s a rational thing to do at the individual municipal level because that’s how you maximize your revenue stream,” said Evans. “Towns do not want families moving in, and there are only so many malls to go around.” By contrast, in places that have county-wide or more consolidated school districts, municipalities are able to more easily avoid that zero-sum fiscal game.

Every person interviewed for this story acknowledged the bleak political incentives for municipal consolidation, while recognizing the growing costs and consequences of maintaining the status quo. Housing prices in New Jersey are going up, as demand far exceeds supply. Evans says there will really be no meaningful fix without state action.“If the state were to say, ‘We’ve had enough of this, it’s a huge waste of money and it’s causing all types of dysfunctional land-use decisions, so we’re going to mandate you to consolidate,’ municipal leaders would squawk about government interference. But it’s also about time the state did its job and corrected something that’s a state-level problem,” said Evans. “It’s just not something any one municipal leader can fix on their own.”

This past summer, New Jersey Senate President Steve Sweeney said it’s time to get serious about school district consolidation. A state legislative working group released a task force report in August making fiscal recommendations for the state, including merging districts to save hundreds of millions of dollars in administrative costs, and to establish a pilot program for countywide school districts. (Sweeney’s office declined to comment for this story.)

Evans said that a court decision that ordered the state to come up with a solution for integration could also help move this tough legislative process along.

***

Regardless of whether they settle or pursue their case in court, there are still some questions the litigants in the school segregation lawsuit will wrestle with.

The lawsuit makes explicit claims about New Jersey’s charter schools, and the failure of the state’s education commissioner to monitor how those schools can exacerbate segregation. New Jersey’s charter school law has language about the need to minimize racial segregation—one of 14 states to have such a provision.But Shavar Jeffries, the president of the Democrats for Education Reform, said any suggestion that charters hold blame for present day school segregation is misguided, as charters “are already a response to residentially segregated neighborhoods.” Jeffries adds that school segregation is “a legacy of white supremacy” and charters, which have been around for about two decades, “have been a response to the legacy of white supremacy.” He voiced doubt that there’s political will to truly integrate schools. “The lawsuit could be helpful to move the needle, but I am skeptical that it could lead to the kind of racially integrated school that [creates] educational equity,” he said.

David Sciarra, the executive director of the New Jersey-based Education Law Center, and the lead litigator for a series of landmark school funding cases that brought about huge increases in state aid to poorer New Jersey school districts over the last three decades, said his organization supports the new school integration lawsuit. “The New Jersey Supreme Court has made clear it sees the state as having an affirmative obligation both to make sure that schools have the resources they need to provide an adequate education, and that the state has an affirmative obligation to advance racial balance in our schools,” Sciarra said. “We see these as complementary requirements, and not exclusive of one another.”

Tractenberg, one of the leaders of the lawsuit, said over the course of his career he’s grown more convinced that school funding inequities are tied inextricably to segregated schools. “For too long we’ve accepted the separateness of students, and said we’ll use money to make it’s equal, or better than equal,” he said. “The outcomes improved, but they’ve never fully equalized.”

 

Workers Just Notched a Rare Win In Federal Court

Originally published in The Intercept on January 3, 2019.
——

In a major win for labor advocates, a federal court issued a long-awaited ruling last week finding that corporations could be held responsible for issues like wage discrimination or illegal job termination, even if the employees were subcontractors or working at a franchised company. The U.S. Court of Appeals for the D.C Circuit determined that a business could be considered a so-called joint-employer if it exercised a certain level of “indirect control” over an employees’ working conditions, or if it reserved the authority to do so down the line. The question of who counts as a joint-employer has been integral to movements like Fight for 15, which aims to organize fast-food workers who toil away in franchised businesses.

In its decision, the D.C appellate court affirmed one of the most significant and disputed labor rulings of the Obama administration. In 2015, the National Labor Relations Board ruled that companies and franchisers with both “indirect and direct control” of employees could be held liable for labor violations committed by contractors or franchisees. The line between direct and indirect control is somewhat murky, and precisely defining it has been a matter of fierce debate, but ultimately it concerns how much authority a company has over the “essential terms and conditions of employment.” Prior to this, only employers with “direct control” could be held responsible, a standard that effectively exempted businesses that hired workers through intermediaries from most labor law. “With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances,” the NLRB said at the time.

The case centered on a California business known as Browning-Ferris Industries of California Inc., which operates one of the world’s largest recycling plants. Browning-Ferris contracts with a second company, Leadpoint Business Services, to provide Browning-Ferris with employees who clean and sort recycled products, among other things. In 2013, a union petitioned the NLRB to represent Leadpoint Business Services workers, with Browning-Ferris named as a joint-employer, on the basis that the latter also controls the contractors’ wages and working conditions. Using its new, expanded joint-employer test, the NLRB ruled in favor of the workers, and Browning-Ferris has been fighting the decision in court ever since. Other major business groups and corporations, including Microsoft,have spoken out vehemently against the new standard.

In the majority opinion, authored by Judge Patricia Millett, the D.C. appellate court said that common law “permits consideration” of indirect control when determining joint-employer status, but it found that the NLRB needed to further revise its two-part joint-employer test to pass legal muster. The court sent the case back to the NLRB to fix it.

The appellate decision throws a big wrench into business groups’ plans to overturn the joint-employer standard. It also significantly constrains what the Republican-controlled NLRB can do to curtail labor rights going forward. The Trump administration, which has argued against expanding the meaning of joint-employers to include those who have indirect control over workers, will now have to comply with the court ruling.

“The court is very clear that the determination of who is an employer is a legal question, not a policy question,” said Sam Bagenstos, a University of Michigan law professor. “And for this question, which is determined by common law, the courts decide that without giving any particular deference to the NLRB. That’s a huge victory for those who want a constrained Trump-era NLRB.”

The decision also holds implications for movements like Fight for 15. Labor advocates have been arguing in court for the last few years that McDonald’s should be held liable as a joint-employer for the fast-food workers who were fired from their jobs when they engaged in nationwide protests for higher pay. An administrative law judge rejected a settlement this past summer, under which McDonald’s would not have been found to be a joint-employer. The company had offered to pay between $20 and $50,000 to individual workers who claimed that they were fired for protesting. If McDonald’s is ultimately declared a joint-employer, the road to unionizing its employees would also be made far easier.

BUSINESS GROUPS AND conservatives have made overturning the expanded joint-employer standard a top priority. After Donald Trump appointed two pro-business attorneys to the five-member NLRB, the board quickly issued a 3-2 ruling in December 2017 overturning the Browning-Ferris decision. The new case, known as Hy-Brandreverted the standard back to the old way of doing business, and the decision was celebrated by industry groups. “The 2015 Browning-Ferris ruling stacked the deck against small businesses and inserted uncertainty into day-to-day operations,” said a spokesperson for the National Restaurant Association at the time. “[Hy-Brand] restores years of established law and brings back clarity for restaurants and small businesses across the country.”

But the victory for business groups was short-lived. In an unexpected and dramatic turn of events, the NLRB Inspector General issued a report two months later finding that one of the NLRB board members, a Trump appointee named William Emmanuel, should have recused himself from the Hy-Brand vote due to a potential conflict of interest. Emmanuel’s old law firm had represented a contractor for Browning-Ferris. Had he recused himself, the vote would have been 2-2, leaving the Obama-era joint-employer standard in place.

Within weeks, on February 26, 2018, the NLRB threw out its Hy-Brand ruling on ethics grounds. A former NLRB chair told Bloomberg at the time that he believed such a move was unprecedented. “There is no decision on a matter of such high import that has been vacated based upon a breach of conflict-of-interest rules,” he said.

The NLRB went back to the drawing board to craft a new rule to reverse the Browning-Ferris standard. In mid-September, it published its new proposed rule, one in which “indirect influence … would no longer be sufficient” to establish a joint-employer designation. The board claimed in doing so, they would be promoting “predictability, consistency, and stability” for businesses.

In mid-December, the NLRB’s general counsel, a Trump appointee named Peter Robb, submitted a comment on the NLRB’s proposed rule, arguing that the board’s significantly curtailed standard still didn’t go far enough and should be even more favorable to businesses seeking to avoid joint-employer status.

The opportunity to offer public comment on the rule is open until January 14, and as of January 1, more than 25,000 comments had been submitted.

The appellate court decision could have implications for the new rule as well. “I think it’s really hard to see how the board goes forward with its proposed rule now,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School. “I think there’s a lot that’s not consistent with the majority opinion. I think the board needs to be thinking seriously about pulling back the proposed rule, or at the very least, putting the pause on to think about the implications of the D.C. Circuit decision.”

Block describes the appellate court’s decision as “not a perfect decision, but a pretty good decision” because it validates the NLRB’s Browning-Ferris ruling to take into account indirect and reserved authority when determining who counts as an employer.

Bagenstos, of the University of Michigan, said there are some real challenges with relying on old legal doctrine to address modern workplace challenges, but he said the court’s opinion “gives a pretty strong statement” that many problems with the fissured workplace can be addressed in the confines of existing law. “The Trump administration will have real issues getting around that,” he said. The standards set forth by Browning-Ferris are not codified by law, but with Democratic control of the House, it is an issue that pro-labor lawmakers could foreseeably take up.

Spokespeople for the NLRB and the National Restaurant Association did not return requests for comment.

Some business groups have also expressed interest in bringing these issues to Congress, but their attempts so far to reverse the Browning-Ferris standard through legislation have been unsuccessful. In 2017, the House passed the so-called Save Local Businesses Act, which would have done just that, but the bill has stalled in the Senate.

“The unfortunate twists and turns continue for franchise owners in this ongoing saga,” said Matt Haller, senior vice president of public affairs for the International Franchise Association, in a statement to The Intercept. “If the second-highest court in the land can’t interpret how the Obama NLRB intended for their convoluted joint employer standard to be applied, how is a small business owner supposed to figure it out? This underscores the need for rule-making or a legislative solution to clear up the uncertainty facing America’s 730,000 franchise small business owners and their employees.”

My favorite work from 2018

2018 was a busy year for me. I published more than 80 stories, across 19 different outlets. I took up a lot more investigative reporting (and discovered I quite like it). I also created this newsletter! I’m grateful for your readership, which has truly helped me make this challenging line of work possible.

In keeping with roundups I did in 20172016, and 2015, I’m going to once again take the end of December to reflect on some of the work I’m most proud of from the year.
——

1. The Intercept: “Minnesota Attorney General — Now Democratic Frontrunner for Governor — Relied On Government Employees For Campaign Work, They Say” and “It Was All True”: Minnesota Attorney General’s Former Deputy Speaks Out About Participation In Political Work

I spent the summer in Minneapolis, and while I was there published a story about Minnesota’s longtime attorney general, Lori Swanson, who former and current employees told me routinely promoted employees who worked on her political campaigns. The first piece came out on a Monday, and because it partly relied on anonymous sources, the local press and political establishment tried to sweep it under the rug. Swanson’s office also tried to spin it as an attempt by the owners of the Intercept to settle some old feud on behalf of a company Swanson sued years six years ago. But three days later I published a follow-up, one that forced the state and local media to finally take it seriously. I firmly believe that the second story, which featured Swanson’s top deputy of eight years recounting his experiences on the record, would never have been possible without the first.

2. Washingtonian: “Has The New America Foundation Lost Its Way?

I published an investigative feature into a DC think tank grappling with a high-profile scandal that raised questions about the role of corporate funding in research and policymaking. I looked at how the organization responded to this scandal, as well as how it handled other, more thorny problems that emerged as it grew in size and scale.

3. Democracy Journal: Is School A Waste of Time?”

I reviewed a trollish book published by a libertarian economist who tried to argue that education is a waste of time and money. I do not recommend the book, but I did use the opportunity to write down some of my broader thoughts on education, its value, and its relationship to the labor market.

4. Washington City Paper: “Turnaround Runaround”

I was very proud of this cover story investigation I did on the wholly unscrutinized world of charter school consulting. This particular company—TenSquare—raked in millions of dollars in DC taxpayer funds since 2012 for “school improvement” services. I looked at TenSquare’s limited level of oversight and transparency, and talked to charter school leaders about how they felt pressured to hire the company, lest they’d face consequences.

5. Washington Post: Public school buildings are falling apart, and students are suffering for it

It was an honor to write an op-ed for the Washington Post, especially on the importance of investing in quality school infrastructure.

6. City Lab: “How Should HUD Count Family Homelessness?

This story looks closely at a debate among homelessness advocates regarding who should be considered homeless. HUD uses a much more narrow definition of homelessness than other federal agencies, and this has major implications not only for who gets aid and support, but also how to understand the statistics HUD publishes about their progress reducing homelessness.

7. The Intercept: “How Labor Is Thinking Ahead to a Post-Trump World

This piece sought to answer the question of what labor leaders might push for if Democrats reclaim power in 2021, and why organized labor’s past efforts failed when Democrats had unified control in 1978 and 2009.

8. Washington Monthly: The Libertarian Who Accidentally Helped Make The Case for Regulation”

This was a magazine story about what happened when a prominent libertarian economist set out to prove that federal regulations are strangling the economy. But no matter how he sliced and diced the data, he could find no evidence that federal regulation was bad for business.

9. The Atlantic: The Teachers’ Movement Goes Virtual

There was a ton of great coverage this year of the teacher protests that swept the nation. This story was about one teacher organizing effort that went under the radar: virtual charter school teachers in California, who organized a union and voted to go on strike.

10. The Nation: “Letting Non-Citizens Vote in the Trump Era

On Election Day, for the first time, undocumented immigrants and permanent legal residents in San Francisco were able to vote for their local school board. I wrote about America’s surprisingly long history of non-citizen voting, and the cities now working to bring it back.

11. Talking Points Memo: Democrats Need Voters’ Help To Fix Gerrymandering. Will They Get it?”

I reported a feature looking at the constellation of different advocacy groups—both nonpartisan and partisan—trying to making voting rights a more salient political issue. For a long time, things like voter suppression and gerrymandering have been wonky issues mostly left to lawyers and the courts. But in 2018 there was far greater recognition that defending democracy requires a more all-hands-on-deck strategy.

12. City Lab: “A Five-Decade Fight to Improve Housing Choices for the Poor

This year was the 50th anniversary of the Fair Housing Act, and I wrote a few stories to commemorate the civil rights milestone. I especially loved doing this Q&A with Alex Polikoff, a lawyer in his 90s who is considered the grandfather of housing mobility.

13. The American Prospect “Can a Blue Wave in a Blue State Make Ben Jealous Maryland’s First African American Governor?

Unfortunately the answer to this headline’s question was no, but I was proud of the magazine story I reported during Jealous’s campaign. (I also wrote “Why Ben Jealous Lost” for The Intercept the day after the election.)

14. Washington City Paper: “D.C.’s Master Facilities Plan Will Shape the City’s Balance Between Neighborhood Schools and Charters

This cover story sought to illuminate an obscure planning process in D.C. that has big implications for the future of public education in the city.

15. The Intercept: “Nearly Every Member of the Progressive Caucus Still Takes Corporate PAC Money

As a host of progressives running for office in 2018 swore off corporate PAC money on the campaign trail, I co-wrote a piece looking at the fast-changing movement to get money out of politics, and the mounting pressure on sitting incumbents to change how they raise money.

***
Thanks for reading! I’ll see you in 2019.

Could Expanding Employee Ownership Be The Next Big Economic Policy?

Originally published in The Intercept on December 26, 2018.

Two likely Democratic presidential contenders in 2020 have made quiet strides in recent years to bring into vogue a little-known policy that could reduce economic inequality — one that harnesses current law to expand workers’ ability to become owners in their place of employment.

Sens. Bernie Sanders, I-Vt., and Kirsten Gillibrand, D-N.Y., have worked to advance legislation on employee stock ownership plans, or ESOPs, which are retirement vehicles that allow a business owner to sell their company stock to a trust co-owned by the company’s employees. The company typically purchases the owner’s shares with a loan, divides the shares among the staff, and then repays the debt annually with pre-tax payments from the company’s profits. When a worker leaves or retires, the company buys back that worker’s stock at fair market value, giving them a slice of the company’s capital earnings.

A bipartisan group of legislators first took up ESOPs in Congress in 1974, but when that generation of lawmakers retired, their successors did not embrace employee ownership with the same enthusiasm. The focus on deficit reduction, coupled with a few bad employee ownership scandals in the ’80s, ’90s, and early 2000s, led many otherwise receptive politicians to steer clear. Federal incentives for employee ownership began to dwindle, beginning under George H.W. Bush and continuing through the next three presidential administrations.

Last year, however, Sanders took up the mantle. He introduced legislationto expand state centers that provide training and technical support for establishing cooperatives and ESOPs, modeled off the successful Vermont Employee Ownership Center in his home state. Gillibrand also signed onto that legislation, which never made it through Congress.

This past summer, for the first time in more than two decades, Congress passed a pro-ESOP piece of legislation. Introduced by Gillibrand in the Senate and Rep. Nydia Velazquez, D-N.Y., in the House, the Main Street Employee Ownership Act makes it easier for small businesses to establish ESOPs and co-ops. It was included in the defense bill that President Donald Trump signed in August. (Another likely 2020 presidential contender, Sen. Elizabeth Warren, D-Mass., introduced legislation this year for a different type of employee ownership. Known as co-determination, it would require companies with revenue over $1 billion to allow workers to elect at least 40 percent of their board of directors.)

Unlike conservatives, who have defended employee ownership on the grounds that it’s most certainly not socialism — indeed, it turns laborers into capitalists — liberals have taken to ESOPs because they strengthen worker power, boost worker income, and increase corporate transparency. Workers, the arguments goes, care as much about their employment as they do about corporate profitability, so they won’t advocate for a strategy that leaves them jobless, even if it is better for the short-term bottom line. “Simply put, when employees have an ownership stake in their company, they will not ship their own jobs to China to increase their profits; they will be more productive, and they will earn a better living,” Sanders said last year.

Some progressives have criticized ESOPs, with the argument that they are little more than tax breaks for corporations that don’t give workers real ownership of a company or a meaningful say in its management. ESOPs can also create tensions with traditional labor unions, as the latter seeks to organize workers, while ESOPs tend to blur the relationship between workers and owners.

Indeed, not many unionized ESOP companies exist. Some unions — like the International Brotherhood of Electrical Workers and Steelworkers — have been open to the idea. Others, “like the [United Automobile Workers], are inherently distrustful,” said Loren Rodgers, executive director of the National Center for Employee Ownership, a national nonprofit based in Oakland, California. “In the auto industry, the threat of strikes is really important, and it’s harder to get people to strike against something when that might hurt the value of the shares in their retirement account.”

MORE THAN 14 MILLION current and former private sector workers have participated in ESOPs, according to the National Center for Employee Ownership. They work in almost every industry, from supermarkets, like the chain Publix, to policy research, like the firm Mathematica. About 7,000 companies today have the retirement plans. Research released earlier this year estimated that the average worker in an ESOP had accumulated $134,000 in retirement wealth from their stake.

Joseph Blasi, an economic sociologist who directs the Institute for the Study of Employee Ownership and Profit Sharing at Rutgers University, has long championed ESOPs because he believes they benefit both workers and companies, and are a way to transfer wealth to the middle class. Blasi points to studies showing that workers at ESOP companies tend to earn 5-12 percent more in wages than those at traditionally owned companies, have retirement accounts that are 2.2 times larger, and are far less likely to be laid off during economic downturns.

Sobering statistics about growing wealth inequality — like that the top 10 percent of households owns 80 percent of the financial assets, and the top 1 percent owns more wealth than the bottom 95 percent combined — underscore the need for economists, activists, and policymakers to figure out ways to counteract these trends.

“I’ve been working on them for over 40 years and only now have ESOPs become cool,” said Blasi.

A PAPER PUBLISHED this summer by a young economics researcher in Denmark has reinvigorated interest in ESOPs, as his findings suggest that the financial benefits of the retirement vehicle may be even greater than previously understood.

Esben Baek, who grew first interested in employee ownership after living in San Francisco and discovering pizza and bakery co-ops, pivoted from his traditional labor economics research to begin studying ESOPs in 2016.

Baek’s University of Copenhagen master’s thesis makes use of a previously untapped data source: the 1997 National Longitudinal Survey of Youth. He found that ESOP participation boosted wages for U.S workers by nearly 13 percent, much more than the 8 percent figure ESOP researchers typically cite. Baek also found that male and female workers enjoyed near-equal economic gains under ESOPs, more so than other variables, like union membership or being married, on the panel survey. Baek is presenting his research at an ESOP conference in New Jersey next month.

Graphic-Esben-R.-Thomasen-Baek-University-of-Copenhagen-1545339729

Douglas Kruse, a Rutgers University economist who studies employee ownership, was “thrilled and surprised” to learn of Baek’s work, he said, as it helps address a persistent issue that has plagued the ESOP community.

There have been many ESOP studies over the years, looking at things like productivity, employment stability, satisfaction, and organizational commitment. While the research has generally shown positive results, some economists have remained skeptical, because if workers have to decrease their wages and benefits in exchange for owning a piece of the company, then ESOPs would generally be considered too risky of a bet for workers to make.

Yet the existing empirical studies have suggested that isn’t the case; when scholars like Kruse and Blasi looked at cross-sectional and administrative data, workers who owned shares in their company also tended to have higher wages and benefits compared to those in non-ESOP companies. ESOPs appeared almost too good to be true, drawing skepticism from other economists about the underlying data.

“What Esben has done, the reason his data is especially good, is because with cross-sectional studies, maybe the workers are somehow better or they have higher credentials, and that’s why you see them receiving higher pay,” Kruse explained. “But with this national longitudinal data set, you can compare workers before and after joining the ESOP companies, and when you do, you see the pay goes up, and it appears to go down when they leave the ESOP.”

Kruse suggests this may be driven by the economic principle known as “efficiency wages,” in which ESOP companies recognize that paying higher wages on top of the employee-owned stock is really the most effective way to get more committed workers and boost productivity. “If a company establishes an ESOP but then cuts worker pay, then workers could start to see that as a financial risk,” Kruse explained. “Whereas if they get the ESOP on top of regular pay and benefits, then it’s like, ‘Hey, this company is doing well for me,’ and really helps create that sense of ownership and community.” Both Kruse and Baek agree that further research is needed to help explain what’s going on.

ASIDE FROM BEING a way to address inequality, the impending “silver tsunami” — the wave of baby boomer retirements expected over the next decade — is another reason ESOPs are gaining traction. According to a 2017 study by the worker ownership group Project Equity, 2.3 million businesses are owned by baby boomers who are approaching retirement, and these companies employ almost 25 million Americans.

While many of these business owners will fold quietly and sell their companies to competitors or private equity firms, ESOPs offer owners another alternative: selling the company to its workers. Advocates say this can help to better ensure that jobs remain in the local community, while still allowing the retiring owner to cash out. According to Project Equity, one-third of business owners over age 50 report having a hard time finding a buyer for their company. As a result, many just quietly close up shop, often without even considering selling their company to the staff.

But if ESOPs really can yield such positive results — for workers, owners, and local economies — why do they remain so obscure?

Most people have heard of 401(k) plans, a different kind of retirement vehicle authorized in 1978. Unlike ESOPs, employees pay for 401(k) stock through pre-tax wage deductions.

J. Michael Keeling, president of the ESOP Association, said 401(k) plans have been far more common among small businesses that offer retirement plans, because they require less overhead to administer properly. “Most nations have something like social security and a mandated retirement program every employer has to contribute to,” said Keeling. “But in America, retirement programs are voluntary, so businesses usually go for the cheaper option.” (According to the National Institute on Retirement Security, about 45 percent of all U.S. households have zero retirement savings.)

Most people with ESOPs also have 401(k) plans, a recommended best practice to reduce financial risk. It’s not good for workers to have their retirement savings wrapped up in the fate of a single company, as the Enron disaster of 2001 showed. “There’s no question in my mind that if a worker has holdings in an ESOP, they should have a separate, diversified 401(k),” said Blasi from Rutgers University. “What we say, though, is that workers who have both accumulate more for retirement than workers with just one.”

One study, published in 2010 using Labor Department data, compared roughly 4,000 ESOP companies to all other non-ESOP companies with 401(k) plans. The researchers found the net assets per ESOP participant to be 20 percent higher.

“We’ve got a marketing problem,” said Rodgers from the National Center for Employee Ownership. Rodgers’s group was founded in 1981 and has spent most of its time conducting research and connecting worker-owned companies with one another. Since 2010, though, the organization has been trying to play a bigger role in getting the word out.

Rodgers has a few theories for why ESOPs aren’t more well-known. Some of it he chalks up to the incentives of the business adviser world: If you’re a broker, like an investment banker or personal wealth adviser, the fees you take home at the end of the day would be higher if you encourage your client to sell their company to a private equity firm or another corporation, rather than their employees, he said. Financial advisers also tend to advise owners on things they know how to do themselves, and ESOPs are highly regulated, complex structures. “If you, as a CPA, advise a business owner to sell to their employees, you’re probably advising them on something you personally don’t know how to do,” said Rodgers.

From the owner’s perspective, selling one’s company to an outside firm is generally going to be a more lucrative option, and often easier, than creating an ESOP, Rodgers explained. “It’s hard to say no to more money, and it certainly can look easier, because you just sell your business and walk away.”

Further complicating things are several past ESOP scandals that haunt the field. One such incident occurred when United Airlines went bankrupt in 2002, leaving its employees with ESOP stock in the lurch. In some other cases, owners who sold their company to their employees had their businesses assessed at way too high of a value, so that when they sold their shares to an ESOP, they made off like bandits and left the workers paying an outsized loan. But the Labor Department has been cracking down on that overvaluation issue, and since 2014 especially, ESOP advocates say, worker safeguards have grown to be far more defined.

A number of groups have been ramping up efforts to educate the public and the business community about employee ownership. This past spring, Rutgers University approved the establishment of the Institute for the Study of Employee Ownership and Profit Sharing, the world’s first research center of its kind. In 2016, the Pennsylvania Center for Employee Ownership, the nation’s first state center dedicated exclusively to promoting awareness of ESOPs and co-ops, was founded. Kevin McPhillips, the executive director, told The Intercept that he travels around talking to businesses and elected officials, trying to help get the ESOP and co-op message to owners who are beginning to plan for retirement. A few other state centers have long existed to provide technical assistance to worker-owned companies, like those in Vermont, Ohio, and Colorado.

It’s well past time for leaders to take the prospect of employee ownership more seriously, Blasi says. “It’s not a panacea, but neither is regulatory reform or raising the minimum wage.”

Special Ed. Advocates Call for Investigation Into Unlicensed Company Serving Charter Students

Originally published in Washington City Paper on December 19, 2018.
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There’s no sign on the small house on Minnesota Avenue SE—no way to know that this isn’t a home, but a kind of school, specifically meant for charter school students who are being transitioned between different parts of D.C.’s special education system. Tucked away in the Fairlawn neighborhood, the Future Family Enrichment Center has no website, no business license, and no known accreditation. That hasn’t stopped at least six D.C. charters from sending children there for interim instruction.

Federal law sharply regulates the teaching of students with disabilities. Teachers cannot subject special education students to repeated disciplinary action if their misbehavior is related to their disability. If teachers and parents determine that a special education student needs new arrangements, such as a transfer to a different school, the District must provide the student with access to a general education curriculum while those arrangements are being made. For some parents, that means homebound tutoring. D.C.’s traditional public school system also provides a dedicated school for this purpose, known as C.H.O.I.C.E. Academy. But some charters have looked to other options, including the Future Family Enrichment Center.

Now the Enrichment Center program is under scrutiny from city agencies. Advocates have expressed alarm over a number of features of the program, including the quality of services it provides and its lack of identifiable accreditation. Combined with its low profile, these characteristics have raised worries that, by placing students in the program, participating charters are keeping special education students “out of sight, out of mind.” Neither the Office of the State Superintendent of Education nor the Enrichment Center itself were able to confirm the exact number of charters using the Center’s services, meaning the actual figure may be higher than six.

Two weeks ago Maria Blaeuer, an attorney and program director with Advocates for Justice and Education, a DC nonprofit focused on helping parents of students with disabilities, contacted the DC Public Charter School Board with a range of concerns, which she described in an email.

Both OSSE and the PCSB have since launched investigations.

Blaeuer sent her email after learning about the experience a 5th grade student had at the Future Family Enrichment Center earlier this year. The student’s charter boarding school, Monument Academy, suspended him ten times between the start of the school year in mid-August and early October. All students in special education have what’s known as an Individualized Education Plan, or an IEP, which is a document outlining how schools will appropriately serve a child with special needs. Students also have legally required IEP teams, and this student’s team consisted of three Monument representatives, his mom, and a parent advocate from the nonprofit So Others Might Eat. Together, following the tenth suspension, they determined that the child needed an alternative school to meet his needs. After an IEP team makes this kind of decision, OSSE has up to 45 days to help identify a school—known as a “non-public placement.”

According to the mother, Loretta Jones, and the parent advocate, Jennifer Fox-Thomas, Monument told Jones they would continue to suspend her son if necessary while OSSE looked for a non-public placement. Fox-Thomas responded that such warnings are illegal, because after ten suspensions, if it’s determined that a student is being disciplined due to problems caused by their disability, a school must find alternative ways to address the child’s problems during the 45-day transition. Monument recommended sending the student to the Future Family Enrichment Center, a move described to Jones as a “lateral placement.” Monument CEO Emily Bloomfield tells City Paper that her school intended the phrase as a synonym for “interim alternative educational setting”—which is a permitted temporary solution under the federal Individuals With Disabilities Education Act.

“Because they told me they would keep suspending my son I felt as though I was forced into putting him in the lateral placement,” says Jones.

Bloomfield says that while state and federal law prevent her from commenting on specific cases directly, her school sees the facts and timeline of this situation differently.

The child began at Future Family Enrichment Center in mid-October, and Jones and Fox-Thomas describe growing increasingly concerned by the quality of instruction he was receiving. Jones says that when she first visited she found her son doing worksheets on a first and second grade level, and had to ask the program director, Sharon Holley-Ward, to provide him with more rigorous work.

Fox-Thomas says she made two visits to the program to check up on Jones’ son. “I spent ten years as a special educator and two years as a special education coordinator at a charter school, and I’ve never seen anything like this,” she says. “It was nothing but busy work.”

Fox-Thomas describes the child’s worksheets as ranging from a first-grade level to a seventh-grade level. “I think [Holley-Ward] just downloaded handouts and passed them out willy-nilly without any instructional plan. There was no consistency,” she says. “All these things were ungraded, there was no apparent teacher response, and I completely got the sense that this is what every student there was doing.” Fox-Thomas says she was told the Center relies  exclusively on Khan Academy web videos to deliver instruction.

Jones’ son finally began attending his non-public placement last week, though Fox-Thomas says it could have been sooner if Monument had handled some logistics more quickly. Fox-Thomas and Blaeuer prepared to file a complaint over this, and have a mediation with Monument scheduled for next month..

City Paper visited the Enrichment Center twice over the past two weeks. On the first visit, one student was there, and the director, Holley-Ward explained that she started her company less than a year ago after providing homebound tutoring services. Her goal, she said, was to provide a place for students who needed educational services to go, so they would not end up on the streets and potentially in jail.

“I’ve been a principal at a DC public school so what I do is when [charter schools] have a student who is suspended or expelled, while they wait to do a [nonpublic] placement, I provide them the academic services,” she said. “And that’s pretty much it.”

City Paper could not confirm what school, and what years, Holley-Ward worked as a DCPS principal. She is the founder of and pastor for Greater Faith Ministries, a church in Prince Frederick, Maryland. She lives in Port Republic, Maryland and also owns the Minnesota Avenue SE property, according to city records.

Holley-Ward says she keeps her program small, limiting it to no more than seven students at one time. It typically runs from nine in the morning to two in the afternoon, and she accepts all grade levels. She says her job is to make sure that schools stay compliant with IEPs, and that their website is under development.

“I don’t have ties or commitments with no schools, no charter, no nothing,” she said. “It’s just if they call me and they say ‘hey can you service a kid.’”

Holley-Ward shared her cell phone number and said to call back if this reporter had any more questions. Two days later, City Paper called back with some follow-up inquiries. Holley-Ward answered the phone and said to call back in two hours. She did not ultimately answer the follow-up call, and ignored other subsequent calls and text messages.

City Paper went back to the property on Monday to find out who exactly works there and what the qualifications of the staff are. Holley-Ward opened the door and at least four students stood behind her. She refused to answer questions, including about her credentials or those of her staff, and asked this reporter to get off her property.

Emily Bloomfield, the Monument CEO, says that while Monument officials had not visited the program, her charter had contracted with the Future Family Enrichment Center on the recommendation of their attorney, Lauren Baum, who knew of other schools that were satisfied with its services. “I think very highly of Lauren Baum,” says Bloomfield. “She’s someone who always points out what we should do to satisfy the spirit and letter of IDEA and what’s right for students.” City Paper learned of at least one other charter network—Cesar Chavez—that Baum has referred to the program.

Baum tells City Paper that she has also never visited the Future Family Enrichment Center, but heard about it from a charter colleague who had been pleased with the services rendered. “In my experience, schools are utilizing FFEC as an interim alternative educational setting in a way that is compliant with what the laws governing the education of students with disabilities allow,” Baum says.

Bloomfield explains to City Paper that Monument only uses interim alternative educational settings as a “last resort”, and that she believes the Enrichment Center provided “the services necessary for the student to make progress toward their IEP goals and continue to participate in the general education curriculum,” as required by federal law. Bloomfield refutes accusations that Monument has ignored or forgotten any child sent to the program, and says their special education coordinator checked in with Holley-Ward on at least a weekly basis to monitor student progress and ensure IEP goals were being met.

“Monument is not bypassing any rules through its use of FFEC,” Bloomfield says. “We chose this option because we were searching for a new alternative to homebound services.” Homebound services are another way to meet a student’s IEP goals if a child is suspended, expelled, or transitioning to a non-public placement. Tutors either come to the student’s home to provide instruction, or they meet in a public location like a library.

However, Bloomfield says that while a total of three Monument students have been sent to FFEC, her charter ceased its relationship with the program on Monday “in light of concerns recently shared about business licensing and related regulatory issues.”

***

Last week, following Blaeuer’s email, representatives from OSSE and the Public Charter School Board visited the Future Family Enrichment Center and began reaching out to charter schools to learn more about their experiences with the program.

The PCSB declined an interview with City Paper, citing their recently launched investigation. “We’ll have more to say after that is completed,” says spokesperson Tomeika Bowden.

“OSSE’s top priority is the safety and well-being of all students attending public schools across the District,” says OSSE spokesperson Fred Lewis. “The agency is investigating the Future Family Enrichment Center and working with [local education agencies] to ensure they are following the alternative placement process to best serve students.”

It is not clear at this time how much money FFEC is earning from charter schools for its services. City Paper filed a public records request to review any contracts submitted to the PCSB, but the results of that FOIA are not due until January. However, the most recently available nonprofit tax filing for Somerset Prep DC Public Charter School listed the school paying the Future Family Enrichment Center $114,660 for special education services. Somerset Prep did not return a request for comment on this story.

OSSE has claimed unfamiliarity with the Future Family Enrichment Center, but Baum, the charter school attorney, tells City Paper that an OSSE administrative hearing officer “recently determined that, pursuant to federal and local law, the program was an appropriate interim alternative education setting for a student.” OSSE says that the hearing was adjudicating just one student’s situation, and that the hearing officer works for the Office of Dispute Resolution and is not an OSSE employee. Yet OSSE’s website describes the dispute resolution office as an OSSE subdivision.

Baum says that it is her understanding that the Enrichment Center’s services are provided “by certified and/or highly qualified staff in accordance with each student’s IEP.”

Fox-Thomas, meanwhile, struggled to determine the level of qualifications for those working at the Center, and does not think Holley-Ward has a teaching certification. Her biography on her church website lists her as having a Bachelor’s in English from the University of Maryland, and Masters’ in Social Work and Divinity, both from Howard.

What the law in D.C. requires for students to receive their entitled special education services is somewhat contested.

Lauren Onkeles-Klein, the director of the Juvenile and Special Education Law Clinic at the UDC Law School, says that D.C. charter schools have more leeway with some local regulations regarding education, “but the federal rights for students with disabilities apply equally to students in all public schools—DCPS and charters.” Onkeles-Klein says federal law requires that “highly qualified instructors implement a student’s IEP with fidelity,” but notes that the requirements “get a little mushy” when it comes to these alternative placements. “Kids must continue to receive educational services and supports that allow them to access the general education curriculum while making progress toward their IEP goals, but the educational setting they are provided may not be structured like their school, or like a school at all,” she says.

OSSE takes a somewhat different view. In 2016 it issued guidance that says that special education teachers in charter schools only need have bachelor’s degrees. By contrast, all DCPS special education teachers must have some sort of certification or license to work with students with disabilities.

Loretta Jones, the parent, tells City Paper she was upset by her recent experience and feels her son fell further behind academically than he would have if he had been welcome to stay at Monument before transitioning to a non-public placement.

For other charter school families, a program like Holley-Ward’s can offer a valuable alternative to homebound tutoring services. Sometimes parents are uncomfortable inviting tutors into their homes, or the tutoring hours don’t quite work out with their work schedules. Students enrolled in the traditional public school system have more options, because they can attend C.H.O.I.C.E. Academy, a DCPS school for at-risk students in grades 6 through 12 who are in a long-term suspension or expulsion status.

Onkeles-Klein has had experiences with the Future Family Enrichment Center, and says she’s seen how parents of students who are suspended may appreciate having somewhere safe for their children to go during the day other than staying at home or out on the streets.

“We wish there were more interim and also long-term options that are being offered for parents and caregivers and advocates to consider when children present a danger to themselves or others,” says Bloomfield.

Blaeuer says she was encouraged when the Public Charter School Board launched an immediate investigation into the program following her email. “We know that charter schools, especially smaller [ones], often struggle to provide the full continuum of placements required by the law for students with disabilities,” she says. “We hope that OSSE and the PCSB will work with parents and the charter school community so that students with disabilities have the same access to school choice as their non-disabled peers.”

Emails Show Political Group No Labels Gave Work To Firms Linked To Founder’s Husband

Originally published in The Intercept with Ryan Grim on December 19, 2018.
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No Labels, a group that works to elect centrist candidates from both parties, has been grappling internally with conflicts of interest tied to its use of political consulting firms linked to the group’s leadership, according to documents and email correspondence obtained by The Intercept.

It’s been a rough few weeks of public scrutiny for No Labels. A Daily Beastinvestigation published earlier this month revealed that despite the group’s professed interest in reducing partisanship, it had solicited money from wealthy, partisan donors, many of them from the world of finance, on both sides of the political spectrum, and had considered making Democratic leader Nancy Pelosi a “bogeyman.”

The group was also in the news because the No Labels-backed House Problem Solvers Caucus, comprised of 24 Democrats and 24 Republicans, was organizing to block Pelosi’s bid for speaker of the House unless she agreed to a series of their proposed legislative reforms. The Democratic chair of the Problem Solvers Caucus is New Jersey Rep. Josh Gottheimer, a protégé of Mark Penn, who urged Hillary Clinton to attack Barack Obama as un-American in the 2008 presidential primary. As The Intercept previously reported, Penn, a longtime partisan and the husband of No Labels’s head Nancy Jacobson, is closely involved with the group’s work.

Jacobson pushed back on Daily Beast questions about Penn’s involvement in No Labels as “shameful and sexist.” She asked if a man were running the organization, would reporters still suggest — “based on little to no evidence — that his spouse is serving as the puppet master behind the scenes?”

Emails obtained by The Intercept show Jacobson consulting her husband on No Labels decision-making, and Penn himself executing strategy for No Labels campaigns. This past May, for instance, when discussing ad buys for the congressional race in Pennsylvania’s Lehigh Valley district (No Labels backed John Morganelli, an anti-choice, pro-Trump Democrat who lost the primary to Susan Wild), Jacobson looped her husband in on discussions and said, “Mark penn can you advise?” Penn was similarly asked to weigh in on ad spending and strategy on behalf of Rep. Dan Lipinski, D-Ill., whom No Labels backed in a primary race.

The Intercept confirmed the authenticity of the emails with three sources who previously worked with No Labels.

lawsuit filed in September by the political consulting firm Applecart alleged that No Labels shorted them on millions of dollars, and terminated their relationship to hire consultants with financial ties to Jacobson and Penn. No Labels maintains that Applecart’s performance was unsatisfactory. Dan Webb, an attorney representing political organizations allied with No Labels, provided The Intercept a statement on behalf of the group. “No Labels is currently in litigation with Applecart, which limits what we can say at this time. Having botched their work for the PACs, Applecart is attempting to spin a false narrative in an effort to harm the PACs and No Labels,” he said.

In 2015, Penn founded Stagwell Group, a private-equity firm that soon bought Democratic consultancy firm SKDKnickerbocker. Stagwell also purchased a polling firm, Harris, and a minority stake in the Republican consulting company, Targeted Victory. Penn remains president and managing partner at Stagwell.

No Labels has employed the services of Harris for polling and uses Victory Passport, an affiliate of Targeted Victory, for its online fundraising. Emails show SKDK’s Andrew Shipley and Bill Knapp also working with No Labels — and Penn directly — on television ads in the 2018 primary season, though SKDK maintains that the company did not work with No Labels on anything.

One email Shipley sent in March to Jacobson, Penn, and others has the subject line “Tentative Media Buy” and is addressed to “Mark and team.”

Another March email cited Shipley as having worked on a television ad for Lipinski, though Jacobson replied that “SKDK was conflicted out” — suggesting that Shipley had either stopped at some point or been removed at the beginning.

In an earlier exchange from February, Jacobson emailed Penn for his advice on how to spend money in the Lipinski race. “Do you have a position if we should spend more?”

“My position is you need to add cable from here to election,” Penn told her.

Jacobson responded by saying that No Labels currently had no plans for cable, but she brought other members of the team into the email exchange to ask if they could trim their budgets so that Penn’s strategy could be executed.

Two days later, emails between Jacobson, Penn, and Knapp show Knapp explaining that SKDK couldn’t work on an ad for Lipinski because his company had clients on the other side of the contest: NARAL and Planned Parenthood were major SKDK clients backing primary challenger Marie Newman. Human Rights Campaign was also heavily involved in backing Newman and has been a client of SKDK.

He offered to refer the work to a separate consulting firm, 2k Strategies, owned by a former SKDK employee, but remain involved. “I would/could be on a first organizing call and will bird dog the creative to make sure it’s right,” Knapp told them on February 26.

Penn clearly believed that he was working with Knapp on the Lipinski project. Later that day, he emailed Jacobson, “Tomorrow cleared to get the ad done with bills [sic] team.”

By March 3, things were moving, and No Labels had budgeted $408,000 for an ad buy, which Knapp, with Shipley copied on the chain, was put in charge of placing. “You are scoping the buy and I’ll then decide who to use based on which one I like better,” Penn wrote to Knapp.

On March 5, Shipley wrote back to “Mark and team” with the news that “we had to go with a new buyer since two of our buyers are conflicted out between the race [and] the IE.”

Shipley on March 7 noted that a $21,000 bill for work to Penn and Jacobson was on its way. “And we have a production bill coming shortly for about 21k,” he wrote.

Knapp told The Intercept that he offered to help as a volunteer and did so by connecting Jacobson to a different media consultant. “We decided as a firm to not work for Lapinski  [sic] directly or through any third party organization/group,” he wrote in an email. “We also long ago decided as a firm not work [sic] for No Labels. Nancy is a long time friend and I sometimes look at scripts and help her, but I don’t work for her organization. We didn’t work on the race as a firm, we did not produce an ad for Lapinski [sic] and we have never worked for No Labels.” He said that the vendor erroneously sent the invoice to SKDK, so Shipley simply forwarded it to No Labels, but no money changed hands.

Newman’s challenge to Lipinski — who is anti-choice, opposed to marriage equality, hostile to immigration, and against a $15 an hour minimum wage — was the first high-profile insurgent primary of the 2018 cycle, and she had the broad support of major progressive groups. No Labels spent more than $1 million and made the difference in the race, in the assessment of operatives who worked on both sides. On Election Day on March 21, Lipinski narrowly beat Newman by just over 2,000 votes.

Officials with SKDK also got involved in the Pennsylvania race. An email on May 7 shows Shipley working on a No Labels ad for that contest, with Shipley writing, “We are working on the edit and graphics and plan to have something to share later this afternoon. In terms of a voiceover, do you have a preference of male versus female. My original thinking was going with the white male.”

Later that day, Shipley forwarded a script to No Labels. “Can we confirm this being [sic] paid for by United for Progress,” he asked, referring to a No Labels Super PAC. A No Labels consultant replied that, in fact, it was being funded by a different one, called “United Together.”

Shipley did not return a request for comment, but Knapp said that Shipley shared with him The Intercept’s inquiry and that SKDK did not work on the Pennsylvania race. “Ship knows Nancy and connected the media consultant with our production facilities and Shipley helped coordinate that,” Knapp said. “My recollection was it was a positive ad. Again, we didn’t do the race and did not make money doing the race.”

Additional emails and documents reviewed by The Intercept point to other potential conflicts of interest involving No Labels and Penn’s Stagwell Group.

In August 2017, Jacobson sent an email to No Labels staff, saying, “For republican races would like to use targeted victory.” Targeted Victory is the firm part-owned by Penn’s Stagwell Group.

On April 10, 2018, back when No Labels was still working with Applecart, Jacobson sent an email to an Applecart consultant, copying Targeted Victory CEO Zac Moffatt and wrote, “Matt you are using targeted victory for digital ads for Republicans right?”

And in late March, according to an email reviewed by The Intercept, a representative for a No Labels donor expressed concern over the organization having “perceived or potential” conflicts of interest. They urged Jacobson to disclose potential conflicts to the No Labels governing board. “We believe that all Governing Board members need to be aware of the situation in order to prevent any misunderstanding and confusion going forward,” they wrote.

No Labels then worked to prepare a list of potential conflicts. In an email dated April 13, Jacobson noted that No Labels is “no longer using targeted victory” and suggested leaving that company off its disclosure list. “Why open the door?” she asked.

In a memo prepared for the No Labels’s governing board, the group outlines business it did with Marlin Strategies, which is run by a former SKDK staffer, and Schule Media, which was referred to No Labels by SKDK. The memo says, “Mark Penn wrote and advised on the [Marlin Strategies] TV ad” but “did so pro bono.” With regards to Targeted Victory, No Labels disclosed just that the company worked on the Lipinski race.

The memo also listed business No Labels did with Rising Tide Interactive, a Democratic digital advertising firm founded by Eli Kaplan, the fiancé (and now husband) of No Labels’ vice president and chief of staff, Sasha Borowsky. Borowsky worked at No Labels from 2012 until this past October.

Mark Penn did not respond to questions about the specific nature of the work he has done for No Labels on a paid or unpaid basis, and whether he has recommended that No Labels work with any companies in which he has a vested financial interest.

How Schools Can Follow the Money That Should Be Theirs

Originally published in The American Prospect on December 19, 2018.
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Less than two months ago, hundreds of Baton Rouge educators voted to stage a walkout in protest of requests by ExxonMobil for millions of dollars in local property tax abatements. Working in conjunction with a faith-based group, Together Baton Rouge, the teachers called on the state to direct the proposed corporate subsidies back into public education. ExxonMobil has defended its tax breaks as necessary to create a stable and hospitable business climate.

Unlike teachers in Baton Rouge, who learned of the oil giant’s exemption from their state’s longstanding Industrial Tax-Exemption Program, most jurisdictions have lacked any real picture of how much money public schools are losing, or could lose, due to corporate tax abatements.

That all began to change in 2015 when the Government Accounting Standards Board, a private organization that sets professional standards for public-sector bookkeeping, issued a new rule requiring state and local governments to disclose corporate subsidies on their annual Comprehensive Annual Financial Reports (CAFRs). The Government Accounting Standards Board—“GAZ-bee,” for short—does not have legal authority, but most municipalities abide by its guidelines because doing so can help them get better credit ratings and lower interest rates. The new rule—known as GASB Statement 77—took effect in 2016. So now, for the first time, the public can finally get a broad look at the corporate giveaways that impact public education.

Armed with data from the new accounting rule, Good Jobs First, a national nonprofit that tracks corporate subsidies, put out a report this month finding that at least $1.8 billion was given away by state and local governments over the last fiscal year to attract businesses, money that otherwise would have gone to public schools. Good Jobs First tracked giveaways in 28 states, and suggests the total estimate for corporate abatements was likely much higher, since not every state and locality complied with the new reporting rule.

“While some school board members have been aware that their districts are losing money through abatements, hardly any knew how much,” says Scott Klinger, the primary author of the report. “This has been completely invisible money that they’ve been losing for years.”

The report examined financial reports of more than 5,600 of the nation’s 13,500 school districts, and found that school districts in ten states accounted for the vast majority of the (disclosed) tax giveaways: South Carolina, Louisiana, New York, Ohio, Oregon, Missouri, Pennsylvania, Michigan, Texas, and Georgia. Beyond that, Good Jobs First found that almost 250 school districts in 22 states each lost more than $1 million in revenue due to corporate tax giveaways last year. “If abatements were curtailed and the resulting tax revenues were reinvested to hire additional teachers (at each state’s average teacher salary rate), the ten most affected states could hire a total of 28,059 more teachers,” the group concluded.

Good Jobs First predicts more states and localities will comply with the new rule as time goes on, and recommends governments adopt better data reporting practices that would more easily facilitate public understanding of the information. The organization also recommends that states pass laws to prohibit tax abatements from adversely affecting school funding, something Alabama and Florida already do.

Randi Weingarten, the president of the American Federation of Teachers, cheered the new Good Jobs First report, and cited her union’s work in pushing the Governmental Accounting Standards Board to change its disclosure rules. “We will continue to fight for the funds kids and communities need and expose how these handouts hurt kids’ futures,” she said.

Klinger says he’s optimistic that the disclosures will bring about change, though it can take time. “More and more legislators are beginning to question the value of business subsidies,” he said. “A few years ago people would only say that subsidies are good, that they bring jobs. Now people are saying ‘I’m not so sure’ and I think Amazon has been a big awakening for that.”

So next time when a school board or mayor or state official says they can’t afford to raise teacher salaries, or improve classroom-based technology, or repair crumbling schools, the public can point to the specific dollar amounts of corporate tax giveaways that are draining money each year from their children’s schools. “By disclosing the money,” says Klinger, “it allows a different kind of conversation to happen.”