Monthly Archives: March 2017

Maryland Showdown on Testing, Charters, and the Direction of Public Schools

Originally published in The American Prospect on March 29, 2017.
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Politicians and policy experts have long debated how and whether to hold schools accountable for what students learn. For 13 years under the controversial Bush-era No Child Left Behind Act (NCLB), the federal government required states to identify schools that were failing by the metric of standardized test scores, and dictated how schools should intervene. Critics said the law amounted to untenable and unacceptable levels of federal overreach, and ultimately did little to close academic achievement gaps. Defenders say the law, while imperfect, led to small yet significant gains in student achievement, particularly for black, Hispanic, and low-income children.

At the end of 2015, Congress passed NCLB’s successor, the Every Student Succeeds Act (ESSA), which limits the federal government’s role in shaping school accountability, and gives states considerably more discretion to craft their own plans. In order to receive federal funds, however, each state has to submit its plan for federal approval. These plans are due this coming fall, and the law is supposed to take full effect during the 2017-2018 school year.

A heated battle over the future of Maryland’s plan—specifically, how much weight standardized test scores should be given in determining a school’s rating, and how much power the state should have over low-performing schools—has become a flashpoint in the polarized education reform wars, not only within Maryland but across the country. At the crux of the debate are questions about who gets to speak on behalf of racial minorities and low-income children, and what school accountability should look like in the age of Donald Trump.

Last fall, the Maryland Board of Education—a 12-member body, ten of whom were appointed by the state’s Republican governor, Larry Hogan—released an initial draft accountability plan. The plan did not include details about what specific interventions should be taken if schools are deemed low-performing, but the board’s president, Andy Smarick, a former George W. Bush education official and a current resident fellow at the American Enterprise Institute, told The Baltimore Sunthat he favored “bolder” approaches than Maryland has taken in the past. In February, Governor Hogan sent Smarick and Maryland’s state superintendent of schools a letter encouraging them to include private school vouchers, charter schools, and a state-run “recovery” school district as specific interventions in Maryland’s ESSA plan. Under current Maryland law, the state education department submits the plan to the state education board, which has the final authority to approve, amend, or reject it before sending it on to the federal government.

In response, Maryland’s Democratic-controlled legislature has been working with teachers unions and education advocates on legislation that would shape the direction of the state’s accountability plan, effectively limiting how much Hogan’s appointees could decide on their own.

States have a lot more freedom under ESSA than they did before, but they don’t have total freedom. ESSA dictates that when crafting accountability plans, states must assign indicators of academic performance “much greater weight” than other measures like class size and school climate. But what this language means in practice isn’t so clear. Education reformers say it means that a significant majority of a school’s accountability rating should hinge on standardized test scores—at least 70 percent. Last week, for example, the D.C. State Board of Education approved a plan that would make 70 percent of D.C.’s school accountability rating based on student growth and proficiency scores. (D.C. reformers originally pushed for testing measures to comprise 80 percent of a school’s score, but that percentage dropped amidst criticism.)

In mid-March Maryland’s House passed a union-backed bill—“The Protect Our Schools Act”—that would cap standardized testing measures at 65 percent of a school’s accountability score. Thirty-five percent would be reserved for indicators like class size, absenteeism, and school climate. The bill also would prevent the state from using vouchers and charters as school turnaround interventions, bar the creation of a state-run school district, and require districts and the state to negotiate any school improvement plan with the local teachers union. It passed 91-46, with a veto-proof majority.

Last week, as the state senate prepared to vote on the bill, Governor Hogan called it “misguided and horrible” and vowed to veto it should it land on his desk. In a press conference, the governor claimed the bill “will make it nearly impossible for [Maryland] to save some of these persistently failing schools.”

Maryland’s state board of education also expressed strong opposition to the bill. Chester E. Finn, Jr., the vice president of Maryland’s school board and a Distinguished Senior Fellow at the Fordham Institute, a conservative education think tank, called the passage of the Protect Our Schools Act “painful.”

Market-driven education reform organizations also moved into high gear to defeat the bill. MarylandCAN, a reform advocacy group, released a statement saying the bill “hurts children.” The head of Maryland’s Alliance of Public Charter Schools said it would be “most damaging for students within Maryland’s minority and low-income populations who need every opportunity available to them to lower the achievement gap—not being held to lower sub-par standards.”

The bill’s supporters rallied to its defense. On Monday, the Maryland State Education Association (MSEA) put out a statement that said, “while the Protect Our Schools Act is supported by teachers, the Maryland PTA, civil rights groups—including the ACLU of Maryland and CASA de Maryland—and leading education scholars, it is only opposed by national school privatization advocates and Governor Hogan’s administration.”

Linda Darling-Hammond, a Stanford education professor and the president of the Learning Policy Institute, sent a letter to the Maryland state Senate last week to voice her support for the bill. “While academic outcome indicators are important, it is equally important to include indicators of student and school conditions that predict outcomes, so that educators have information to use for diagnostic purposes and improvement decisions,” she wrote. “By including school quality indicators [such as access to effective teachers and college-ready coursework] and using them in meaningful ways, parents, educators, and education stakeholders can have a richer understanding of what is going on in a school and what is fostering or delaying its success.”

Pedro Noguera, a professor at UCLA’s graduate school of education, also sent a letter to the senate expressing support for the bill, saying he felt it would provide Maryland with “the strong accountability system that it needs and enable it to be positioned to monitor school and student performance, and draw attention to inequities in learning opportunities that research has shown obstruct effort to close achievement gaps.”

Education reform groups opposed to the bill argue that it will have the opposite effect, actually obfuscating information about achievement gaps and inequities.

On Tuesday morning, the Maryland Senate passed the Protect Our Schools Act with a final vote of 32-15. The House concurred Tuesday night, also with a veto-proof margin, and it now heads to Larry Hogan.

Teacher unions and other education advocates who favor the bill have been stressing that the Protect Our Schools Act serves as a preemptive measure against school privatization, particularly since Trump and Education Secretary Betsy DeVos, both advocates of charters and vouchers, now guide federal policy. The MSEA also claims that Hogan has ignored their efforts to collaborate on school improvement.

“Since the day after his election, we’ve reached out to the governor repeatedly to try and put partisanship aside and work with him on reducing over-testing and other education issues,” says MSEA’s communication director, Adam Mendelson. “We’re still waiting on him to return our calls and include public educators’ voices in his policy development.”

How far Hogan will go in fighting the Democratic-controlled legislature over school reform remains an open question. Despite his statewide popularity, the Republican governor is expected to face a tough reelection battle in 2018, and Maryland voters express strong support for public education.

The Washington Post recently found that 41 percent of registered voters said they’d support Hogan for a second term, down from 46 percent in September. Maryland went for Hillary Clinton in the 2016 presidential election by 26 points.

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

Originally published in VICE on March 22, 2017.
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On Tuesday, New York City mayor Bill de Blasio announced that America’s largest public school system will prohibit federal immigration agents from entering their buildings without a warrant signed by a judge. While there have been no reports of Immigration and Customs Enforcement (ICE) agents rounding up kids at school, de Blasio was echoing similar shows of support for immigrant children made over the past several months by mayors and school officials across the United States.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Hour of the Attorneys General

This article appears in the Spring 2017 issue of The American Prospect magazine.
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On a Tuesday night in early February, not three weeks after Donald Trump’s inauguration, three federal judges in San Francisco heard arguments about whether to halt his first major policy undertaking. Trump had issued an executive order banning hundreds of thousands of travelers from entering the country, including citizens of seven Muslim-majority countries, and all refugees. As many as 60,000 individuals had their visas revoked. Almost immediately, a pair of Democratic attorneys general, Washington state’s Bob Ferguson and Minnesota’s Lori Swanson, brought suit against Trump’s executive order, arguing it violated the 14th Amendment’s guarantee of equal protection under the law as well as the First Amendment’s Establishment Clause, harmed all Washington and Minnesota businesses and communities, and was “undermining [their] sovereign interest” as welcoming destinations for immigrants and refugees.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chicago Teachers May Launch Nation’s Largest Charter School Union

Originally published in The American Prospect on March 7, 2017.
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Teachers at Chicago’s biggest and best-regarded charter school network have set out to form a union, a move that if successful would create the largest charter school union in the nation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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