Monthly Archives: February 2018

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

Originally published in The Intercept on February 25, 2018.
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In the middle of last week, Dixon O’Brien, a 60-year-old engineer, and his union, the International Union of Operating Engineers Local 150, quietly filed a federal lawsuit against Lincolnshire, a village in a northern suburb of Chicago. Together they raised issue with Lincolnshire officials using taxpayer dollars to fund a statewide lobbying group, the Illinois Municipal League, which advocates for things like limiting collective bargaining and reducing pension benefits. “O’Brien objects to the use of his tax money to fund private organizations that lobby and/or engage in other political activities that run directly against his economic interests and his political beliefs,” the complaint reads.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who helped craft the bill is not entirely clear.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Originally published in The Intercept on February 1, co-authored with Zaid Jilani.
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Draft legislation obtained by The Intercept suggests the Department of Housing and Urban Development is eyeing a proposal to overhaul the federal government’s administration of subsidized housing, through measures such as rent hikes and conditioning aid on employment.

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

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

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

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

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

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

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

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

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

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