As the Education Department Strips Away Civil Rights Protections, New Coalition Aims to Fight for Students

Originally published in The Intercept on November 10, 2017.
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The Department of Education has become a civil rights nightmare. During her Senate confirmation hearing, Education Secretary Betsy DeVos admitted she didn’t know that the Individuals with Disabilities Education Act was federal law and suggested perhaps states should decide how to educate students with disabilities. A month later, the Trump administration rescinded protections that allowed transgender students to use whichever bathroom they felt most comfortable in; while DeVos reportedly objected at first, she ultimately green-lit the move. By June, the Education Department had announced it would be scaling back on civil rights investigations and proposed cutting more than 40 positions from its Office for Civil Rights.

Since then, the Education Department has decided to postpone protections for student loan borrowers and withdraw Obama-era protections for survivors of campus sexual assault. When a reporter explicitly asked DeVos if she would support increasing federal funding for IDEA, she wouldn’t say yes.

All this and more has prompted the start of a new coalition – the Education Civil Rights Alliance – to pool time, skills, and resources to defend students’ civil rights. It launched last week, and members say they’re aiming to fill a void the Trump administration has helped create.

ECRA is comprised of national legal and education groups, including the Lawyers’ Committee for Civil Rights Under Law, the Leadership Conference on Civil and Human Rights, the National Disability Rights Network, the American Federation of Teachers, the National Education Association, and the American Civil Liberties Union.

ECRA members emphasize they have never seen an Education Department disregard civil rights in this way. Speaking on a panel last week at the National Press Club, NEA President Lily Eskelsen García said even when her union has had disagreements with Republican and Democratic administrations, they’ve “always been able to count on the Education Department’s Civil Rights Office.”

These concerns were elevated further last month when the Education Department’s Office of Special Education and Rehabilitative Services sent out a newsletter announcing it had eliminated 72 special education guidance documents related to IDEA enforcement. The department gave no explanation beyond saying the documents were “outdated, unnecessary or ineffective.”

Advocates felt confused and blindsided. After further investigation, they discovered the Education Department had quietly scrapped the documents over two weeks earlier. Parents of students with disabilities took to social media in protest – the hashtag #ThisIsMyChild became their rallying cry.

Several days later, the Education Department released a revised list of the rescinded documents, including brief explanations for why each one was cut. Some were scrapped because of updated versions also on the books, others because they had been applicable to programs that no longer exist. A spokesperson for the department stressed that “there are absolutely no policy implications” to their actions, and that students with disabilities would not be affected.

But parents and advocates for students with disabilities are not convinced.

Amy Woolard, an attorney and policy coordinator for the Legal Aid Justice Center in Virginia, told The Intercept that for families and students with disabilities, advocating for rights under IDEA means “near-constant vigilance” throughout a student’s school career.

“Guidance may not have the force of law, but it’s certainly a critical advocacy tool and helps states and families steer a very large ship in a consistently choppy sea,” said Woolard. “To revoke dozens of guidance documents so quickly and without much notice — even if outdated or redundant, as the department claims — is going to create a great deal of uncertainty and concern, both for states and for a community that has only had the protections of IDEA itself for a few decades.”

In an interview with The Intercept, Liz King, education policy director for the Leadership Conference on Civil and Human Rights, said, “We do not believe that the decision to rescind the guidance was in response to confusion in the field.”

The Education Department did not return multiple requests for comment on whether it acted in response to complaints or requests from the public.

Denise Marshall, executive director of the Council of Parent Attorneys and Advocates, a national group that defends the legal and civil rights of students with disabilities, told The Intercept that while her organization’s initial analysis indicates students will not be impacted by the department’s rescinded documents, it is disappointed by the way the Education Department made its announcement, which led to real chaos for many people.

“We know this is just the first step in the process, yet we continue to lack any information from the department on next steps, so it’s premature to know what the full impact will be or if substantive feedback provided by stakeholders will be considered,” said Marshall.  “Suffice it to say, we remain very concerned.”

Some national Democratic leaders spoke out against the department’s move.

“There isn’t a basic protection for students that Secretary DeVos hasn’t tried to undermine, and I fear this issue will be no different,” said Sen. Bob Casey, D-Penn., in a statement to The Intercept. “[She] is turning the Department of Education into some far-right experiment that does the bidding of special interests in Washington.”

Kamala Harris, a senator from California and potential 2020 presidential candidate, took to Twitter to blast the Education Department’s actions.

 

Going forward, the new Education Civil Rights Alliance says it will focus on protecting students – especially students with disabilities, students dealing with sexual assault, and transgender, immigrant, and Muslim students. The alliance says it is hearing lots of anecdotal reports about increases in school bullying and harassment and wants to help push for better data collection on these trends.

“What we’re hoping is by putting all this power together, we’re going to make sure that we have the biggest bang for the buck,” said Miriam Rollin, ECRA director.

Rollin told the Intercept that the new coalition has not yet talked to the Education Department, but “they’re hopefully on notice now.” The Education Department did not return multiple requests for comment on the ECRA or its own commitment to upholding civil rights law.

The Obama administration regularly consulted with the Leadership Conference on Civil and Human Rights, said King, the group’s education policy director, but Trump’s Education Department has rarely ever contacted them for feedback. “Their work has not been sufficiently transparent, it has not been guided by a commitment to protecting students from discrimination, and it has been reckless and irresponsible,” she said.

In October, the White House announced its nomination of Kenneth L. Marcus to lead the Education Department’s Office for Civil Rights, replacing Candice Jackson, who has served as acting assistant secretary since April. Marcus worked as the staff director of the U.S. Commission on Civil Rights for four years under George W. Bush and before that, worked in the Education Department’s Office for Civil Rights.

Many civil rights groups are waiting to cast judgment on Marcus. “He’s familiar with the law, with the work, so hopefully the Senate will fully explore how he intends to fulfill his duties,” said Rollin.

But, as The Intercept previously reported, Marcus has a history of campaigning for laws to punish people who support the Boycott, Divestment, and Sanctions movement, which encourages economic pressure against Israel for its violation of Palestinian human rights. Advocates worry that if Marcus is confirmed, he will push for similar measures in his new role, silencing pro-Palestinian voices. That would have a chilling effect on free speech — yet another attack on students’ civil rights.

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Life Lessons From A Charter School Founder

Originally published in The New Republic on November 9, 2017.
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Picking up a copy of The Education of Eva Moskowitz, you might expect a bildungsroman. You might expect to learn what really motivates the founder of Success Academy, New York City’s largest charter school network. What experiences formed her? What led to her conviction that public education demands radical change?

For over a decade, Moskowitz has led a well-publicized campaign to disrupt—or dismantle—public education. The first Success Academy charter school opened in 2006, with 165 kids in Harlem. Today the network operates 46 charters across the Bronx, Manhattan, Brooklyn, and Queens, with 15,500 public school students, 93 percent of whom are black and Latino. Known for its “high expectations” and strict disciplinary practices, the academic outcomes of Success Academy students have indeed been remarkable. In 2017, among those eligible to take state standardized tests, 95 percent scored proficiently in math, and 84 percent scored proficiently in language arts. The comparable figures for New York City Public Schools were 38 percent and 41 percent, respectively.

Success Academy has earned a mythic reputation in the nation’s education reform movement. It’s proof, reformers say, that low-income, minority children can perform just as well as white, affluent, suburban kids. “Success Academy’s closest peers are the state’s richest school districts like Jericho, Syosset and Scarsdale,” their website proclaims. Critics, in turn, say that Success Academy’s academic outcomes need to be regarded skeptically: The network’s “high expectations” can prevent certain students from enrolling and can push out weaker students who have enrolled. Success Academy schools also have high suspension rates, and, when children leave, they have refused to backfill open seats. All of this, critics say, can help build a test-taking population that may be less representative than the network purports.

By 2024, Moskowitz aims to operate 100 such schools. Not only has the network’s expansion been inextricably bound up in Moskowitz’s rising profile, but her hard-driving style has become emblematic of the city’s—and the nation’s—school reform movement. What shaped this vision?

Moskowitz’s memoir certainly includes some biographical details—we learn about her grandparents and parents, how she fell in love with her husband, her struggles initially to conceive (she’s now the mother of three children). We learn where Moskowitz went to school, her brief stints in academia and documentary filmmaking, her six years on the New York city council. But these personal asides, which seem largely calculated for humanizing effect, don’t shed much light on Moskowitz’s ideas or goals. Because while Moskowitz evidently set out to tell a personal story, the book quickly and primarily becomes a vehicle for its author to relitigate battles with her enemies—namely teacher unions, New York City Mayor Bill de Blasio, and the media.


Moskowitz has, she claims, never gotten a fair hearing in the press. “Rule number one of journalism,” she says, “is that trying to get in between a journalist and a story he wants to tell is like trying to stop a herd of stampeding cattle.” From the start to end of her book, she attacks the media, describing reporters as irresponsible, unprofessional, and out of control. She calls out individual journalists, such as John Merrow—PBS’s education correspondent for over four decades—and Juan Gonzalez of the New York Daily News. The hostility in her critiques is sometimes startling, but what’s really notable is how Moskowitz swings between insults and praise, sometimes in the same paragraph. At one point, she calls Gonzalez “monomaniacal,” and “smart and industrious,” before lamenting a “sad waste of his talents” all in the space of four sentences.

Do most journalists lie? Not exactly, she admits—but they leave out critical context, and spin facts into preconceived, negative narratives. Moskowitz thinks that the New York Times’s education reporter, Kate Taylor, and her editors—Amy Virshup and Wendell Jamieson—publish critical stories about Success Academy “because they just [don’t] understand the need for it given their backgrounds.” Moskowitz suggests the Times writers may have blind spots, given their prestigious educational credentials. (Moskowitz doesn’t explain how she—a graduate of New York City’s most selective public high school, the University of Pennsylvania, and Johns Hopkins University—has overcome the same blindspots herself.)

Moskowitz comes across most sympathetic when describing how upsetting it feels to be misrepresented. She thinks she is “relentlessly vilified” by the press and her political foes. A New York Times article from 2004 outlined her “aggressive, confrontational style” and said her “ambitions exceed her political skills.” In a 2005 editorial, the Times described her as a “smart and driven … expert on education issues” but noted that her “abrasive” attitude made her ill-suited for the political seat she was campaigning for. The gendered overtones of the headlines are clear enough. “Some believed I favored conflict because it would advance my political career,” she writes, in reference to her Success Academy notoriety. “My detractors claimed that my every action was in service of a Machiavellian plot to become mayor.”

However, Moskowitz doesn’t hold back from relentlessly vilifying her own political opponents—which are many. She paints New York City Mayor Bill de Blasio as a duplicitous operator, who helps unions mainly to advance his own career. She suggests the NAACP battles with her schools because it receives teacher union money and has many unionized teacher members. Moskowitz even describes American Federation of Teachers president Randi Weingarten as “aggressive,” echoing the criticisms that, when lobbed at her, she found unfair.

And for all the education reform rhetoric around trusting and empowering families, Moskowitz depicts parents who protest her plans as having been “shamelessly exploited” and “manipulated” by teacher unions and union-backed groups. (“I think parents are far more sophisticated than we give them credit for,” she said in an interview about school choice earlier this year.) Moskowitz struggles even to offer compliments without punching at the opposition. “She wasn’t a big fan of charter schools,” she writes of the New York assembly’s education committee chair. “But, unlike some of our opponents, she had common sense and a good heart.”


And yet there’s a distinct sense throughout the book that these are yesterday’s battles. Reading the memoir, one gets the impression that its author longs for the heyday of Obama’s early presidency, when more Democratic politicians tiptoed around Wall Street investors, when Joel Klein ran New York City’s education department, when Waiting for Superman was making a splash.

Moskowitz’s treatment of economic disparities is illustrative. In her memoir she urges the public to approach the income inequality issue “delicately in an age when hedge fund managers can work from anywhere in the world with an Internet connection”—a warning to not bite the hand that feeds you, lest Wall Street titans decide to pick up and leave New York. She scolds Bill de Blasio’s “class-warfare rhetoric” as “imprudent and dangerous.”

When it comes to education, she defends her school’s regular use of suspensions—saying they’re equivalent to home time-outs, and help foster safety, community values, and norms. This perspective, too, has fallen out of fashion in recent years. Other statescities, and even some charter networks have worked to reduce reliance on exclusionary school discipline, policies which disproportionately impact poor, black, and Latino students. Moskowitz also dismisses the idea that governments need to spend more on public education, saying “it’s not even clear it would help anyway.” (There’s strong evidence that it does.) Indeed, the biggest barrier to educational success, she tells readers over and over, is not our president, or racial segregation, or the inequitable distribution of resources. No, for Moskowitz the cause has been long clear: It’s teacher unions and their stifling contracts.

It is hard to escape the conclusion that Eva Moskowitz does not think very highly of most teachers. Overhauling work rules and job protections for school employees, Moskowitz stresses, is the most critical factor needed to foster academic excellence. She chastises educators for their low expectations and low effort in the classroom. “Most teachers in America could dramatically improve their teaching if they just made every second count,” she writes. She dismisses criticisms that her staff is overworked, even though her own employees responded to a Success Academy-commissioned survey by saying they lacked work-life balance. “[N]obody at Success worked as hard as big-firm lawyers or investment bankers,” Moskowitz asserts. Teaching in her schools, she admits, “wasn’t a nine-to-five,” but she argues “we were seeking to revolutionize urban education and revolutions don’t lend themselves to forty-hour workweeks.” (Leaked documents from Success Academy’s leadership reveal that other senior officials have felt deeply stressed about the network’s high staff turnover, and ambivalent about their CEO’s rapid expansion plans.)

Though charter teachers around the country have started organizing unions for a greater say over their working conditions, Eva Moskowitz does not hide her animus towards the idea. She makes clear that if an educator objects to Success Academy’s pedagogical style, it’s time for them to find a new place to work. “No matter how good a teacher is, if that teacher won’t play as part of the team, you’re better off without her,” she writes.

This “my way or the highway” attitude isn’t reserved exclusively for teachers, either. “Parents who don’t like Success should find a school they do like,” she says. “For someone to enroll their child at Success and insist we change our model is like a person walking into a pizzeria and demanding sushi. If you want sushi, go to a sushi restaurant!” But the analogy doesn’t work. Public schools are democratic institutions where community input is supposed to be valued. Moreover, the whole idea behind the school choice movement is that low-income parents lack quality school options. If they don’t like their local charter, where, exactly, should they turn? It’s a particularly worrying stance since Moskowitz doesn’t treat Success Academy as a bespoke option for a handful of children, but rather sees such schools as the future of urban education.


The last twelve months have proved especially challenging for Moskowitz. Following the 2016 presidential election, she emerged as a prominent ally of Trump’s education secretary Betsy DeVos. Some of Success Academy’s largest benefactors have also included Trump donors like John Paulson and Robert Mercer. Moskowitz’s refusal to condemn the administration—even as other education reform leaders were speaking out in protest—cost her greatly within the school reform movement. By August, the president of Democrats for Education Reform—a vocal Trump critic—had resigned from Success Academy’s board. Success’s board chair, billionaire investor Daniel Loeb, was also quoted that month saying that a black state senator who supported teacher unions had “done more damage to people of color than anyone who ever donned a hood.” The timing couldn’t have been worse: Loeb’s comments surfaced just days before the violent white nationalist rally in Charlottesville, Virginia.

After Charlottesville, Moskowitz finally took steps to distance herself from the president. She also publicly criticized Daniel Loeb’s remarks, though defended his right to remain as board chair. That same month Education Next, an education policy journal, released its eleventh annual public opinion poll, finding a dramatic 12-percentage-point drop in support for charter schools between spring 2016 and spring 2017. Support among black and Hispanic respondents also fell 9 and 5 percentage points, respectively. A week later Gallup reported diminishing enthusiasm for charters among Democrats, at 48 percent, down from 61 percent five years earlier.

All this chaos notwithstanding, President Trump, Betsy DeVos and the charter movement’s wavering public support are not subjects explored in The Education of Eva Moskowitz. And in the end, that’s Eva Moskowitz as she wants to be seen: as the center of a story that’s about her victories, and her enemies. When she’s the sole author of that story she can render her cause uncomplicated and unimpeachable. Out in the real world, things are looking more complicated all the time.

Puerto Ricans Fear Schools Will Be Privatized In the Wake Of Hurricane Maria

Originally published in The Intercept on November 8th, 2017 — with Aida Chávez, who traveled to Puerto Rico last month.
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As Hurricane Maria departed Puerto Rico, leaving utter ruin in its wake, one community in Vieques picked itself out of the wreckage by focusing on getting its school back open.

“The community took out of their own time and said ‘let’s do this, we need to repair and reopen this’ and we started working,” Josuan Aloyo told The Intercept in Spanish. “Cleaning out the trash and debris, and trying to find people that had the proper tools.”

Aloyo, assistant director of Escuela Adrienne Serrano, said the school opened up immediately — and without authorization. Aloyo said they were determined to take in as many students as possible in hopes of giving even a bit of order back into their lives.

Right after the hurricane, Escuela Adrienne Serrano had 40 students, a number that steadily increased each week until they managed to bring 80 students back. Then on October 18th Humacao school district’s regional director told Escuela Adrienne Serrano to suspend classes.

School administrators were told they “couldn’t have students until they authorized us to open the school, we couldn’t have classes until the firefighters certified us,” Aloyo said. “Ever since that moment, we didn’t listen to them. We kept receiving the students that arrived but Friday, we ran out of potable water so we had to start turning down students…we hope tomorrow, if we get water, we can start receiving students. Whoever shows up, we’ll receive them. If there’s no food in the cafeteria, well we can just cook for them ourselves and make a simple breakfast and lunch.”

The guerilla campaign to open schools is running headlong into a separate effort from the top, to use the storm to accomplish the long-standing goal of privatizing Puerto Rico’s public schools, using New Orleans post-Katrina as a model. Last month Puerto Rico’s Public-Private Partnerships Authority director spoke optimistically about leveraging federal money with companies interested in privatizing public infrastructure.

Puerto Rico’s Education Secretary Julia Keleher has already called New Orleans’s school reform efforts  a “point of reference” — tweeting last week that Puerto Ricans “should not underestimate the damage or the opportunity to create new, better schools.” She repeated these sentiments on Monday, saying that the aftermath of Maria provides a “real opportunity to press the reset button.”

“Of the things I need to worry about — the buildings, the poisoning from rats being around, the flooding, moving kids, transportation, sliding roads — the thing that worries me the most is that somehow I’m not going to deliver on this learning opportunity, this transformational opportunity for us to start to think fundamentally differently about what it is to be in school, and how one goes about getting an education,” Keleher told The 74, an education news site funded by charter supporters. Before her appointment in January, Keleher ran a DC-based management consultant firm she founded in 2009.

Jeanne Allen, founder and CEO of the Center for Education Reform, told The Intercept that after helping students in short-term emergency settings, reformers “should be thinking about how to recreate the public education system in Puerto Rico.” Allen, who was involved in the New Orleans school reform efforts, says charter operators across the country as well as virtual education providers should be thinking about how they can get involved in Puerto Rico’s post-Maria landscape.

Allen says few education reform groups have yet tackled this topic directly. “We really thought there would be a much larger conversation going by now and so far the it seems to be limited to the grasstops, not the grassroots,” she said, referring to Keleher talking with state departments of education.

For the island’s 347,000 students, their concerns are more immediate. All 1,113 schools across Puerto Rico shut down after the hurricane, and as of Monday 598 were still closed; 200 of those don’t have water, and 43 are badly damaged. Thousands of students and teachers fled to the mainland in the storm’s aftermath, and though teachers have until January 8th to return and reclaim their jobs, nobody knows how many actually will.

Puerto Rico’s Department of Education gets to determine which schools reopen, but the process has been anything but transparent. Public school advocates fear that the Department’s refusal to open habitable schools foreshadows permanent closures and school privatization. The Department has already estimated up to a fifth of schools will never reopen.

Following Hurricane Katrina in 2005, Louisiana lawmakers granted the state’s so-called Recovery School District authority to take over underperforming New Orleans public schools. More than 100 schools were converted to charters, which are publicly funded and privately managed. Today New Orleans is the only city in the nation to have a school system comprised entirely of charters.

Tulane education researcher Doug Harris described the storm as creating “a political vacuum for a few powerful leaders to step in” and revamp the school system, which “wasn’t really a community decision.” (Harris’s research shows the city’s schools have improved over the last decade, in part by increasing school funding)

Puerto Rico’s economic crisis had already been ravaging the island’s school system months before Hurricane Maria, forcing the closure of nearly 200 schools. Puerto Rico’s federally appointed financial oversight board had recommended closing 300 schools, and furloughing teachers two days a month to save money.

Ana María García Blanco, executive director of Instituto Nueva Escuela, a nonprofit focused on expanding Montessori schooling in Puerto Rico, is worried about how the slow return to school will impact students. She says all the talk of school privatization concerns her, and like other advocates, feels frustrated with what she describes as the “callousness” of school reformers.

“The school department should now be a source of relief and of acompañamiento for the community,” García Blanco told The Intercept. “We should not be talking about how we can save money in schools or restructure schools or using the money in a better way. The question is, how can we serve our children so they can go back to a normal day?”

Accessing food remains difficult, especially in the central and southeastern parts of the island where the hurricane hit hardest. García Blanco wants schools to open not only to give children the education they’re entitled to receive, but also to help serve food during the crisis.

Lulú Arroyo, an assistant to the executive director of Instituto Nueva Escuela, fears Puerto Rico’s Education Department is purposefully putting off opening of schools to justify permanent closures down the road.

The Department of Education has not clearly defined their criteria for determining whether or not a school is ready to open. As a result, frustrated community members and public school advocates have blasted the department for what they consider a blatant lack of transparency.

But Keleher told The Intercept that the company contracted to conduct school inspections, CSA Group, had “no explanation for why schools weren’t being turned around.” She said the company was slow going through the process and not providing the information the department needed, adding that everyone’s frustration “leaves her in the middle to explain.”

For a school to be reopened, according to the department, the U.S. Army Corps of Engineers must first inspect it. To pass inspection, a school must be cleaned, repaired, and disinfected. In many cases, this work has been done entirely by teachers and community members.

Last week the Asociación de Maestros de Puerto Rico, the island’s American Federation of Teachers affiliate with 40,000 members, called forgreater transparency over school inspections. The teachers union also demanded transparency over the terms of the contract established between the Puerto Rican government and CSA Group.

On Friday, after Asociación de Maestros de Puerto Rico raised the alarm, the government cancelled its contract with CSA Group, a company that had been investigated in the past for conflicts-of-interest. “We are looking for more effective and faster alternatives,” said Puerto Rico’s governor, Ricardo Rosselló Nevares.

A representative from CSA Group did not return The Intercept’s request for comment.

“Now that our schools have cleaned, like the school staff and the community has helped clean the schools, the government hasn’t gone there [to inspect],” Arroyo said. “Usually an engineer comes, they do an inspection. Our suspicion is that the longer it takes to reopen the school, the more of a reason they’ll have not to open the schools and then more people keep leaving Puerto Rico to find a school for their kids in the U.S.”

According to Arroyo, the majority of public Montessori schools still haven’t been inspected. And while the Education Department has been telling school leaders they can’t open their schools because they aren’t ready yet, many of those same schools have been used as community centers to assist Puerto Ricans displaced by the storm.

“The Department of Education is saying ‘Oh you can’t open your school because it’s not ready’ but it is ready, and if it can be used as [a community center] why can’t it be used for its normal operation?” Arroyo said. “There’s no good reason for it, no real humanitarian reason. If you’re actually looking out for the students and their families then you’d let them open the schools…why aren’t they doing it?”

Juan Agosto-Alicea, the former Puerto Rico Secretary of Treasury, told The Intercept that the Education Department’s plan is to reopen schools by “region” rather than individual school. A region could include up to 10 or 15 towns.

“Make the decision [to reopen] by school,” Agosto-Alicea argued. “If the school is ready, the director says it’s ready, then let’s go. You know why? Because these people, they may not have food on the table. And they don’t do anything during the day, we bring them here to the school, they have breakfast, they have lunch and they are with the other kids. I think it would really help the community, otherwise we have to wait one or two months until the whole region is ready?”

Keleher confirmed the Department is opening schools by region, saying that on October 23rd schools in Bayamón opened and last week schools in Ponce did.

Some schools have been operating without authorization, desperate to restore order and provide children with food and learning opportunities.

“We’re reopening the schools without permits or anything,” Arroyo said. “The Department doesn’t really have a reason not to let us open if the schools are already open…we don’t really know what’s their agenda but our mission is for all schools to open as soon as possible.”

Arkansas and Hawaii Lawsuits Present Challenges and Opportunities For Medication Abortion

Originally published in The American Prospect on November 3, 2017.
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The U.S. abortion rate recently hit its lowest level since Roe v. Wade, but medication abortion—non-surgical abortions induced through drugs—has increased in popularity since the Food and Drug Administration first approved Mifeprex in 2000. (Medication abortions typically involve using both Mifeprex—colloquially known as “the abortion pill”—and another drug, misoprostol.)

Yet despite the proven efficacy of medication abortion for safely terminating early-stage pregnancies, a series of regulatory and statutory restrictions have prevented many women from being able to use this abortion option. Two different legal battles taking place right now—in Arkansas and Hawaii—illustrate why.

In 2015, Arkansas passed a law requiring physicians who prescribe drugs for non-surgical abortions to secure contracts with a second doctor who has hospital-admitting privileges. The American College of Obstetricians and Gynecologists and the American Medical Association have both said that there is “no medical basis” for such mandates.

It can be difficult for abortion providers—especially ones in conservative states like Arkansas—to obtain admitting privileges, because hospitals tend to avoid partnerships that could produce a backlash from anti-choice groups. When Texas passed a law in 2013 requiring all abortion clinics to obtain hospital-admitting privileges and to meet ambulatory surgical center building standards, nearly half of the state’s clinics shut down soon afterward. The U.S. Supreme Court overturned the package of restrictions in 2016, concluding they posed an unconstitutional burden on Texan women seeking to end their pregnancies.

In March 2016, U.S. District Judge Kristine Baker issued a preliminary injunctionblocking the Arkansas admitting-privileges law from taking effect while Planned Parenthood Great Plains sued the state. But this past July, an Eighth Circuit Court of Appeals panel lifted Baker’s injunction, concluding that she would need to show more specifically how Arkansas women would be harmed by the law. Planned Parenthood maintains that its two abortion facilities in Little Rock and Fayetteville would no longer be able to provide medication abortion if this law were to take effect, and that neither of those centers provide surgical abortions.

Following the July decision, Planned Parenthood requested that the Eighth Circuit’s full bench of judges review the panel’s ruling. But in late September, the Eighth Circuit declined to do so. “The extremists who put this law into place will now be responsible for the lives they’ve put in harm’s way,” said Aaron Samuleck, the interim president and CEO of Planned Parenthood Great Plains, after the September decision.

The Eighth Circuit is one of the most conservative appellate courts in the country. In 2015, its judges recommended that the U.S. Supreme Court “reevaluate its jurisprudence” on abortion, urging the high court to return greater reproductive decision-making power to the states.

Now Planned Parenthood Great Plains has notified the U.S Supreme Court that it intends to file what’s known as a petition for a writ of certiorari, which essentially means that the organization plans to ask the high court to review their case. When they do file their petition, Planned Parenthood also plans to also ask the Supreme Court to issue a preliminary injunction to block the admitting-privileges law from taking effect. Planned Parenthood has also gone back to the Eighth Circuit to ask that the appellate court refrain from enforcing the law while they petition the Supreme Court—a request the Eighth Circuit granted in mid-October. So for now, the law remains on hold.

Meanwhile, a very different sort of medication abortion challenge is under way in Hawaii. The FDA has Mifeprex (mifepristone) on its Risk Evaluation and Mitigation Strategies list (REMS), a designation the government uses when it determines that increased restrictions are necessary for a drug’s benefit to outweigh its risks. Because the abortion pill is on the REMS list, the FDA can require that only certified medical professionals in hospitals, medical offices, or clinics administer it. In other words, women can’t fill a prescription for Mifeprex at their local pharmacy. But just as it can be difficult for abortion clinics to obtain hospital-admitting privileges because of political objections, many medical centers also encounter political resistance to stocking and distributing Mifeprex.

In early October, the American Civil Liberties Union filed a lawsuit against the FDA, charging that the agency was both violating its own statutory authority, as well as the Constitution’s due process protections, by preventing commercial pharmacies from filling Mifeprex prescriptions. The lawsuit was filed on behalf of a Hawaiian doctor on Kauai, who cannot stock Mifeprex in his office or direct women to nearby abortion clinics since there are none on the island. If patients come to him seeking early-stage abortions, he has to tell them to fly to another island for the procedure—something that can both increase a patient’s costs, as well as delay it for weeks, if not entirely.

Reproductive rights advocates say there’s no reason for the FDA to put Mifeprex on the agency’s list of particularly risky drugs. In 2016, the American Congress of Obstetricians and Gynecologists stated that putting the abortion pill on the REMS list “is inconsistent with requirements for other drugs with similar or greater risks, especially in light of the significant benefit that mifepristone provides to patients.” In their new lawsuit, the ACLU argues that the restrictions are unscientific and onerous. They note that blood thinners, Viagra, and other drugs carry greater risks than Mifeprex, yet local pharmacies can fill prescriptions for these medications.

In an interview with The American Prospect, Julia Kaye, a staff attorney with the ACLU’s Reproductive Freedom Project, says the Arkansas and Hawaii cases target different issues, but ultimately revolve around the same core problems: “unconstitutional and unjustified” restrictions on reproductive health care.

Moreover, despite the FDA’s stated concern about possible risks, the agency does not even require patients to take Mifeprex at a designated health-care setting; they only must obtain it there. “There is simply no safety benefit to requiring that a patient be handed a pill at a clinic to then swallow it home, rather than [receiving it] at a pharmacy,” says Kaye. (Some health-care facilities prefer patients to take the medication on site, but the FDA doesn’t require it.) The FDA’s own research also concludes that medication abortion “has been increasingly used as its efficacy and safety have become well-established by both research and experience, and serious complications have proven to be extremely rare.”

“Often health-care providers are unable to stock the abortion pill because of bureaucratic hurdles, or because of opposition to abortion by co-workers,” explains Kaye, who adds that health-care providers must navigate multiple layers of institutional approval before they can administer the drug. “The process is not only complicated and time-consuming, but because there are so many individuals who need to sign off on procurement, even a single individual who objects to abortion can significantly delay or even derail stocking this medication,” she says.

While research suggests that women generally prefer surgical abortions (which tend to be faster procedures that involve less bleeding) over medication ones, many women are unable to access surgical abortions, due to the diminishing number of abortion clinics, as well as restrictions such as mandatory waiting periods. Medication abortion provides women with much-needed reproductive health-care alternatives—especially low-income women, and women living in conservative, rural, and medically underserved parts of the country.

An ACLU win in the Hawaii case would affect FDA restrictions on Mifeprex nationwide.

Steve Bannon Tried to Recruit Teachers Union to Trump’s Agenda While in White House

Originally published in The Intercept with Ryan Grim on November 1, 2017.
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American Federation of Teachers President Randi Weingarten met one-on-one with then-White House chief strategist Steve Bannon back in March, following the announcement of President Donald Trump’s proposed budget cuts and plan to craft a $1 trillion infrastructure package. The Intercept learned of the meeting, which has not been previously reported, independent of Weingarten or Bannon. It was instigated through a mutual friend and appeared to be part of Bannon’s effort to realign the parties, according to Weingarten.

“Look, I will meet with virtually anyone to make our case, and particularly in that moment, I was very, very concerned about the budget that would decimate public education,” Weingarten said. “I wanted it to be a real meeting, I didn’t want it to be a photo-op, so I insisted that the meeting didn’t happen at the White House.”

Weingarten didn’t take notes at the meeting, which was held at a Washington restaurant, but told The Intercept she and Bannon talked about “education, infrastructure, immigrants, bigotry and hate, budget cuts … [and] about a lot of different things.”

She came away a bit shook. “I came out of that conversation saying that this was a formidable adversary,” she said.

He was looking, Weingarten said, for some common ground that could assist him in realigning the two parties, his long-term goal in politics.“I think he sees the world as working people versus elites. And on some level, he’s thought about educators as working-class folks. But what he doesn’t do is think about the other side of educators, as people who fiercely believe in equality and inclusion. It isn’t an either/or philosophy. The [Martin Luther] King philosophy of jobs and justice is not the Bannon philosophy, let’s put it that way,” she said. “He’s trying to figure out where the friction is, and how to change the alignment. I think that’s really what he was trying to do.”

Hearing Bannon attack elites, including the types of hedge fund Democrats who fund the charter school movement, in the same way she would, was surreal. “He hates crony capitalism,” Weingarten said. “The same kinds of things [we say], you could hear out of his mouth, and that’s why it’s so — you sit there in a surreal way, saying, ‘How can you sit right next to all these elites?’”

Since the election, Weingarten has emerged as one of the most vocal leaders within Democratic circles to resist Trump’s agenda – regularly speaking out against Education Secretary Betsy DeVos, deportation threats, budget cuts, and attacks on the Affordable Care Act. She was one of the first Hillary Clinton allies to endorse the Bernie Sanders-backed Keith Ellison in his race for chair of the Democratic National Committee.

Less than two weeks after the election, Weingarten and Maureen Costello of the Southern Poverty Law Center sent an open letter to the president-elect, signed by 100 other organizations, calling on him to forcefully denounce hate. “While you spoke against bullying, intimidation and hate crimes in your ‘60 Minutes’ interview, the appointment of ‘alt-right’ hero Steve Bannon as your chief strategist — which has been cheered by the Ku Klux Klan, the American Renaissance and other white supremacist groups — sends the exact opposite message,” they wrote.

Bannon’s embrace of the “alt-right” movement has at once propelled his rise and put a ceiling on it. It took him from obscurity to the White House and now to the head of a rebel conservative movement. But his ability to realign the parties is hampered by those more noxious elements of his coalition. It was reportedly Bannon, for instance, who urged Trump to not condemn white nationalists in Charlottesville, Virginia, even after one of them allegedly killed a counterprotester with his car. That makes Bannon’s hunt for allies among labor unions and within the black and brown working class that much harder.

“This is one smart guy,” Weingarten said, “but I was pretty clear with him about my criticism of the white nationalism philosophy.” For Weingarten, who is Jewish and a lesbian, Bannon’s “alt-right” politics are more than an abstract threat. Indeed, in a typical White House, a labor leader would not ask to have a meeting outside the White House and then say nothing about it for six months.

In August, just days before he was fired (or resigned) from Trump’s administration, Bannon called Robert Kuttner, co-editor of liberal magazine American Prospect, to talk about a range of issues, including trade and identity politics. Kuttner published a summary of their conversation, remarking that he left “with a sense both of [Bannon’s] savvy and his recklessness.”

Weingarten came away with the same impression: “Let me say it this way: Kuttner’s download about their meeting was not surprising to me in the least.”

At the time of the meeting, the Trump administration had proposed slashing the federal education budget by 13.5 percent, a figure that would amount to more than $9 billion in cuts. The White House also proposedcutting Medicaid by $800 billion, threatening school districts with fundingthey use to provide health and special education services.

“I saw that meeting as my doing my job of trying to find a way to convey, in any way I could, that the public and even his voters had fierce opposition to the education cuts,” she said, adding that she told Bannon their polling showed half of Trump’s voters opposed his cuts.

Bannon, meanwhile, was working hard to build a coalition to push through an infrastructure deal, as well as drive a wedge through organized labor’s longstanding support for the Democratic Party. In January, just three days after Trump’s inauguration, Trump invited five union leaders to the White House to discuss trade and infrastructure spending. Earlier that same day, Trump formally withdrew the United States from the Trans-Pacific Partnership, in an executive order that drew praise from the union leaders he was hosting. Both Teamsters President Jim Hoffa and AFL-CIO President Richard Trumka, who were not at the meeting, also released statements applauding Trump’s move.

The AFT is a key affiliate member of the AFL-CIO, the largest union federation in the country, and the White House may have recognized that Weingarten could present problems for their economic agenda. On March 13, three days before the administration’s proposed budget cuts were announced, Axios published a piece describing how the teachers union leader could complicate Trump’s infrastructure plans, because the AFT has sizable pension investments wrapped up in private equity, and the White House was hoping to leverage private equity to help fund the infrastructure package. “Weingarten doesn’t control the pension money but she’s got a substantial bully pulpit,” the Axios article said, adding that she “also holds a lot of political sway at the local and state levels, which matters because more infrastructure spending is currently financed via the municipal bond market.”

The AFT was the first labor union to endorse Clinton in the 2016 election, months earlier than other unions, including the National Education Association. The AFT represents 1.7 million teachers, paraprofessionals, higher education faculty, and health care workers, among others.

Weingarten said she ultimately viewed the encounter as an opportunity to make her case for public education. “If you are the president of the union and you’re fighting fiercely to get budget restorations and to not have a dismantlement of public education or of higher education and the administration asks to – or it’s made clear to you that they want to meet – you meet,” she said. “You don’t not meet. You meet.”

In addition to the open letter sent to the Trump in November 2016, Weingarten sent another letter to the White House — which has not been previously reported — this past July. In it, she emphatically lays out the AFT’s concerns about how the president’s budget plans would impact schools, writing that she hopes Trump “can find time to discuss these issues” with her, as well as ways to strengthen public education.

Weingarten told The Intercept this meeting with Trump has not happened. Bannon declined to comment on the meeting.

Late-Stage Abortion Provider Won’t Succumb To Protestors Who Forced Him Out of His Last Maryland Clinic

Originally published in The Intercept on October 30, 2017.
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For seven years, protesters had targeted LeRoy Carhart and his abortion clinic in Maryland, one of just three places in the country women could go for late-stage abortion care. Two months ago, the protests finally worked, as Carhart’s landlord abruptly bowed to pressure and shuttered the clinic, selling the space to anti-abortion protesters instead.

But Carhart is back, with a new Maryland clinic.

Since 2010, he has commuted weekly to Maryland from his home in Bellevue, Nebraska. Carhart is a 76-year-old retired Air Force surgeon who has also owned and operated a Bellevue-based clinic with his wife Mary Lou since 1992. He began traveling to Maryland regularly when Nebraska passed the nation’s first 20-week abortion ban in 2010. Carhart’s mentor, George Tiller, used to provide later-stage abortions at his clinic in Wichita, Kansas, but was murdered in 2009 while attending church.

Maryland is one of the most supportive states in the nation when it comes to access to abortion at all stages of a pregnancy, according to Diana Phillip, the executive director of NARAL Pro-Choice Maryland. Nebraska, on the other hand, is one of the more restrictive.

Earlier this month, the U.S. House of Representatives voted along party lines in favor of a 20-week abortion ban based on the dubious scientific claim that fetuses can feel pain at that stage of gestation. A similar bill passed the House in 2015 but was blocked by Senate Democrats. Senate Majority Leader Mitch McConnell has promised to bring this new bill to a vote, and President Donald Trump has also said he strongly supports it. Though reproductive rights advocates say any 20-week federal ban would face immediate constitutional challenge, the measure nonetheless targets abortion providers like Carhart, who could face up to five years in prison for their services.

Carhart is undeniably committed to his work. In addition to the four days he spends working in Maryland, the physician works out of his Nebraska clinic two or three days per week, meaning he spends 26 out of every 28 days on the job.

“I just know it needs to be done, and it doesn’t bother me,” Carhart told me, as we sat together in his new clinic, located at the Wildwood Medical Center in the Washington, D.C., suburb of Bethesda. The walls are adorned with art and posters championing female resilience. “Feminism is the radical notion that women are people,” reads one framed poster hanging on a wall. “Females are strong as hell,” says another.

Carhart’s former Maryland clinic – Germantown Reproductive Health Services, located about 11 miles away – had been owned by Todd Stave and his sister, Nancy Stave Samuels. The two inherited it and another Prince George’s County abortion clinic from their parents; their father had been a gynecologist and obstetrician who long provided health services including abortions in the D.C.-area. While the Staves and their abortion facilities have always faced harassment, including a clinic firebomb in 1982, the pressure ramped up in 2010 when Carhart started working in Maryland. The Maryland Coalition for Life, an anti-abortion advocacy group, formed that year in response to Carhart’s arrival.

In addition to regular protests outside the clinic, calls to the landlords’ homes dramatically escalated over the last few years. A group of protesters even picketed Todd Stave’s daughter’s middle school in 2011, holding up gruesome signs along with her father’s picture and contact information.

The Maryland Coalition of Life helped raise money to close both the Germantown and the Prince George’s County clinics in one fell swoop. About half of the $1.2 million offered to Stave and his sister came from an anonymous Christian businessman, who now owns the property, and the other $600,000 from roughly 400 donors, according to Rewire.

In interviews, Stave said he felt conflicted about the move to close the two clinics, but that at the end of the day it was a dollars-and-cents decision. “There’s a lot of sadness, yeah, a feeling that we’re letting the public down,” Stave told the Washington Post“It’s a tough thing to do, there’s no question about it.” He said the rising costs of security and the declining demand for abortion ultimately drove his decision. The Guttmacher Institute reported this year that the abortion rate has fallen to its lowest level since Roe v. Wade, though the exact reasons are unclear.

It wasn’t easy for Carhart to find a new location for his clinic. “We looked at other spaces and unfortunately it’s really hard to find contractors, vendors, and landlords for abortion clinics because of the harassment,” said Chelsea Souder, a spokesperson for Carhart’s Bethesda and Bellevue clinics.  “We had two other possible places and they both fell through when the [anti-abortion activists] got wind of where and started making threats. We were really lucky to find this place.”

“I’ve got a really, really supportive landlord,” Carhart added. “I can say he’s definitely pro-choice. I have no idea if he’s pro or anti-abortion for himself, but he’s pro-choice, and that’s my ideal. That is the middle ground.”

In some ways, the new facility is more secure than the previous Germantown one. According to Souder, local police officers canvas the building and parking lot on a regular basis, and they also also coordinate with local and federal law enforcement. While anti-choice activists still plan on staging regular protests – and have already started – they can’t stand on the medical center property or outside the adjacent SunTrust bank, which has the same owners. The closest anti-choice activists can stand is on the main road, which is far enough away that they can’t be seen or heard from inside the medical facility. “And our patients have to park in the back so they don’t have to walk by protesters,” Souder said.

“We will definitely maintain a prayerful presence on the sidewalk there,” Maryland Coalition for Life Regional Director Andrew Glenn told The Intercept.

Before protests successfully bought out Carhart’s Germantown clinic, they tried other tactics to shut his facility down. In 2013, a 29-year-old teacher from White Plains, New York, died from complications resulting from a late-stage abortion Carhart performed. The activists blamed Carhart and urged the state to close his clinic, but the autopsy report produced by the state’s Office of the Chief Medical Examiner found that the woman’s death resulted from natural causes, not medical malpractice.

The Maryland Coalition for Life also bought a building across the street from Carhart’s Germantown clinic in 2012, launching Germantown Pregnancy Choices, a so-called crisis pregnancy center. CPCs are facilities that work to persuade women against having abortions, providing them with resources and support, but also often disseminating misleading or patently inaccurate medical information. With an estimated 3,500 nationwide, crisis pregnancy centers outnumber abortion clinics 3-to-1.

Shortly after Carhart’s clinic was bought out, Germantown Pregnancy Choices closed too. Janet Kotowski, the crisis pregnancy center’s former manager, told The Intercept that their focus had been on connecting women who came in from outside Maryland with supporters back where they came from. (More than two-thirds of Carhat’s Germantown patients were from out-of-state.) “Because we have multiple other pregnancy centers in Maryland that offer ultrasounds, counseling, and post-abortive services for women, we felt ours was no longer needed,” she said.

When asked if she expects a new crisis pregnancy to open near Carhart’s Bethesda clinic, Kotowski said she doesn’t know. “I know that people are motivated to help these women, and we have seen women who change their minds when we offer help, so we would like to have that opportunity again,” she said.

Glenn of the Maryland Coalition for Life also said the group is currently exploring all its options with regards to opening a new crisis pregnancy in Bethesda.

According to data from the Centers for Disease Control and Prevention, a little more than 1 percent of abortions in the United States occur after the twentieth week of pregnancy, which is halfway through a woman’s second trimester. Carhart’s website states that the clinic’s most common reasons for providing later-stage abortions include “the very late diagnosis of a pregnancy in a woman with a severely compromising medical condition, very young maternal age, rape and incest.”

Anti-abortion advocates insist that Carhart and the services he provides are dangerous.

“I’ve been tracking Mr. Carhart since the mid-1990s and he’s one of the most ghoulish individuals you’ll ever meet,” Troy Newman, president of the anti-choice Operation Rescue, told The Intercept. When asked if he worries the procedure will become even less safe for women if it’s forced underground, Newman shot back that it’s already unsafe. “There’s nothing safe about abortion, certainly not for the baby,” he said. “Carhart is a butcher.”

Kotowski agreed, pointing to a lawsuit filed in 2016 by a former patient alleging negligence and misconduct, but the suit settled out-of-court, with no admission of liability. And Carhart’s new clinic is licensed by the Maryland Department of Health and certified by the National Abortion Federation.

Newman of Operation Rescue spoke excitedly about the progress his allies have made in restricting access to abortion across the country. “We got Trump elected – we put a lot of effort into that, we’re putting Supreme Court justices in place, and now stacking legislation that is going to end abortion as we know it,” he said. “I think these guys should be very worried they’ll soon end up in jail.”

Despite years of threats and harassment, and the escalating anti-choice political climate, Carhart remains undeterred in his commitment to providing abortion care. One goal he has set for his new clinic is to train new abortion providers, both to increase the number of doctors who can perform the procedure across the country, and also to help him balance his substantial workload. There are fewer and fewer places that offer abortion provider training opportunities to medical residents, especially later-stage abortion care, according to Phillip of NARAL Pro-Choice Maryland.

“I’m looking to train two or three other doctors to work with me here [in Bethesda] and then start a training program for residents and fellows to work wherever they want to work,” Carhart said.

“Morale is good, it’s really good,” Souder added. “Everyone feels really excited to get back to work.”

1,500 Affordable Housing Units Headed for Baltimore Could Multiply

Originally published in Next City on October 24, 2017.
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The state of Maryland announced in October it would provide 1,500 new affordable housing opportunities in high-opportunity parts of the Baltimore region, a victory for fair housing advocates who filed a federal complaint with HUD in 2011.

The complainants alleged that Maryland administered its Low Income Housing Tax Credit (LIHTC) program in a discriminatory way, steering families with children into high-poverty, black neighborhoods, while building a disproportionate number of affordable units for seniors, especially white seniors, in the predominantly white suburbs.

This legal settlement not only requires Maryland to build new units, but also to offer incentives to developers to build affordable family-size housing, and to consider subsidizing transportation alternatives in areas that lack quality public transit.

Fair housing advocates say that getting 1,500 affordable units off the ground will make it significantly easier to build even more units in high-opportunity areas going forward.

“Once you knock down these barriers, once the development community starts changing its business model to incorporate looking for sites in high-opportunity areas, once the units get built and the sky doesn’t fall — the political opposition tends to lessen,” says Barbara Samuels, a fair housing attorney with the ACLU of Maryland. “It builds up its own momentum, and we see these 1,500 units as a step that will lead to other future steps.”

The coalition that filed the complaint, the Baltimore Regional Housing Campaign (BRHC), didn’t expect their efforts to take as long as they did, but they did expect an administrative complaint to move faster than filing a lawsuit.

In 1995, the ACLU of Maryland filed a federal suit taking aim at Baltimore’s racially segregated public housing. Though the court eventually ruled in favor of the plaintiffs, and as part of the legal remedy Baltimore has established one of the most successful housing mobility programs in the U.S., the case didn’t settle until 2012; the lawsuit approach took 17 years.

Meanwhile, the last two decades have brought about increased attention to segregation in the LIHTC program. Florence Roisman, a law professor at Indiana University, published a law review article in 1998 arguing that the LIHTC program, which is run by the Treasury Department, not HUD, was operating outside the confines of civil rights law. As LIHTC is the largest federal program to subsidize place-based affordable rental housing, Roisman urged corrective action.

In 2002, the Connecticut ACLU sued the state’s housing finance agency, arguing that LIHTC units in Hartford led to increased racial segregation, in violation of state law. In 2004, fair housing advocates in New Jersey sued their state, saying its LIHTC policies encouraged racial segregation, in violation of the Fair Housing Act. These and other developments influenced advocates in Maryland, who convened in early 2006, to explore what barriers prevented LIHTC units from being developed in higher-opportunity areas of their state.

It became clear then that one of the largest impediments standing in the way was Maryland’s policy of requiring local officials to sign off on LIHTC development, effectively empowering politicians with a pocket veto, no matter how important the affordable housing project was. A HUD study published in 2015 and conducted by New York University’s Furman Institute singled out Maryland’s local approval policy as one that led to notable increases in LIHTCs being deployed to develop housing in poor neighborhoods. Advocates tried to pressure Maryland to abandon this policy, but when efforts at voluntary persuasion failed, the BRHC filed its complaint.

In 2014, in response to the complaint and increased local advocacy, Maryland’s legislature opted to get rid of its local veto requirement. As part of the new legal settlement announced this month, the state has agreed to never reinstate it.

“If we can accomplish all this here, we can do it anywhere,” says Samuels. “You don’t need to go back far to remember when Baltimore was known as the city that killed [the] Moving to Opportunity [program].” Moving to Opportunity was a housing experiment that ran from 1994 to 1998 and involved moving individuals out of high-poverty areas with vouchers into low-poverty census tracts, to see how this would improve their lives. But politicians and racist homeowners in suburban Baltimore County rebelled early on, and U.S. Senator Barbara Mikulski of Maryland led the effort to kill funding to expand the program nationally.

Now, though, Maryland has a well-regarded mobility program, revamped LIHTC policies as a result of the BRHC fair housing complaint, and in 2016, Baltimore County settled another fair housing complaint, agreeing to spend $30 million over the next decade to support developers building 1,000 affordable units in higher-income neighborhoods. Baltimore County also agreed to establish its own mobility program, to assist families in predominantly black, poor neighborhoods in relocating to more affluent suburbs.

In 2015, a team of Harvard researchers published a study examining the long-term impacts of the Moving to Opportunity program. They found that poor children who moved to better neighborhoods were more likely to attend college and earned more in the workforce when compared to similar adults who hadn’t moved. The researchers also found that of the nation’s 100 largest counties, Baltimore ranked last in terms of facilitating upward mobility — partly due to its high degree of racial and economic segregation. Fair housing is no silver bullet, but Maryland’s renewed commitment to integrated housing is a bright spot for civil rights.

Civil Rights Group Sue Ben Carson For Delaying Anti-Segregation Housing Reform

Originally published in The Intercept on October 23, 2017.
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A coalition of civil rights organizations filed a lawsuit on Monday against the U.S. Department of Housing and Urban Development and its secretary, Ben Carson. The suit is aimed at stopping a move by Carson the civil rights groups say will only further racial and economic segregation.

A policy known as the Small Area Fair Market Rent rule was set to go into effect on January 1, 2018, after years of advocacy, research, and public debate. In August, however, HUD abruptly announced it would be delaying the rule’s implementation for two years, claiming that further study was needed.

Brian Sullivan, a HUD spokesperson, told The Intercept that while his office cannot comment on any pending litigation, the delay of the Small Area rule does not represent any change in agency policy. “I gather there are some who believe this is a change of policy, or that it might signal a change in policy, but there is no change in policy,” he said. Sullivan also referred to a blogpost HUD posted on August 25 reiterating this point, specifically that the delay was a decision “informed by research” and that waiting until next summer when the pilot’s final report is released will allow for more successful implementation.

More than 5 million people in 2.2 million households use federal housing choice vouchers — colloquially referred to as Section 8, referencing the statute that created the subsidies — to help afford rent on the private market. The subsidies, however, are based on metropolitan-wide rent formulas, meaning that many low-income families are often relegated into communities with few job opportunities, poor schools, and high crime. The rule change would have required — or will require — public housing authorities to calculate so-called fair market rents based on ZIP-codes instead.

While tweaking a rent subsidy formula sounds minor and technical, the policy could impact millions of low-income people, especially African-Americans, who represent a disproportionate number of voucher-holders.

“The delay of this rule will have a segregative effect, denying these primarily African-American families who would want to move out of their neighborhoods the chance to do so,” said Ajmel Quereshi, a senior counsel with the NAACP Legal Defense and Educational Fund, one of the groups that filed the lawsuit. “This case is about more than just housing. Of course they hope to live in a higher-quality residences, but it’s really about people who want to move to better and safer neighborhoods but they can’t because of the value of their voucher. It’s about schools and transportation and doctor visits and grocery stores that people want to be able to access to support their families.”

One such voucher recipient is Crystal Carter, an African-American woman living in Hartford, Connecticut, and a plaintiff in the suit. Carter had been looking forward to January, so that she could finally move herself and her five children out of their low-income neighborhood into a safer, nearby suburb.

The Small Area Fair Market Rent rule would, in effect, make housing vouchers worth more in more affluent areas, and worth less in poorer communities. As it stands now, most voucher recipients like Carter can’t afford to move into nicer  neighborhoods because their subsidy isn’t large enough to cover rent.  Landlords in segregated neighborhoods can, in turn, price gouge their voucher-holding tenants, who have little choice but to pay up.

The lawsuit — brought by attorneys with the NAACP Legal Defense and Educational Fund, the Poverty and Race Research Action Council, the Lawyers’ Committee for Civil Rights Under Law, Public Citizen, and Relman, Dane and Colfax — argues that HUD’s failure to implement the Small Area rule violates the Administrative Procedures Act, the statute which governs how federal agencies propose and implement regulations. The attorneys have called on the U.S. District Court of the District of Columbia to temporarily and permanently enjoin the suspension of the rule.

This lawsuit is the latest in a series filed over the past nine months against the Trump administration for violating the act. When Trump’s Environmental Protection Agency rescinded a rule requiring dental offices to reduce the amount of mercury they discharged into the environment, anadvocacy group sued, arguing that the EPA violated the Administrative Procedures Act by failing to provide sufficient notice or opportunity for public comment. (The EPA has since reinstated the rule.) When 19 Democratic state attorneys general sued the Department of Education in July forindefinitely delaying rules that would provide increased protection for student loan borrowers, they argued that the department violated the Administrative Procedures Act, again failing to give sufficient notice and time for comment.

“So much about this administration’s violation of norms is about pushing the envelope, seeing how much they can get away with before the courts step in,” said Megan Haberle, a Poverty Race and Research Action Council attorney involved with the new HUD lawsuit.

The new lawsuit was borne out of an earlier HUD case, filed in 2007 by the Inclusive Communities Project, a Texas-based fair housing organization. The group challenged HUD’s policy of setting a single fair market rent for the 12-county Dallas metropolitan region, alleging that its formula violated the Fair Housing Act by effectively steering black renters away from predominantly white areas, and confining them into poorer, segregated ones. The lawsuit was settled in 2010, with HUD agreeing to institute fair market rents at the ZIP-code level in Dallas. In 2014, researchers published an independent study of Dallas’s experiment with ZIP-code level rent subsidies, finding that the new policy enabled many low-income voucher holders to move into more affluent communities and at no net-cost to the government.

Fair housing advocates who wanted to see the Small Area rule expanded beyond Dallas kept up pressure on HUD to revamp its policies across the board. The federal housing agency eventually responded by launching a pilot study in 2012, testing the policy in five states. By 2016, HUD had collected enough data to determine that voucher recipients’ average neighborhood poverty level decreased after switching to Small Area Fair Market Rents and that the moves were relatively cost-effective.

On November 16, 2016, HUD published its final rule requiring 187 public housing authorities across 24 metropolitan regions to adopt Small Area Fair Market Rents. The metro regions — selected for their degree of voucher concentration and their housing vacancy rates — were given until January 1, 2018, to implement the new ZIP-code-level formula.

Advocates were incensed when the Trump administration pulled the plug a little over two months ago, without offering clear explanation why.

“HUD is required by law to go through a process that opens what it’s doing to public comment, to be transparent, and they’ve shirked that obligation very clearly,” said Haberle, the Poverty Race and Research Action Council attorney. “As far as is there a speculative rationale here even if HUD isn’t articulating it? No.”

Haberle emphasized that HUD’s rule drafting process was painstaking, beginning with the Dallas lawsuit, the pilot studies and their evaluations, and many stakeholder consultations thereafter. Moreover, four days after HUD announced it would be delaying the rule, it released its interim pilot report, finding that the Small Area rule was working largely as expected.

The Small Area rule has been opposed by housing industry groups such as the National Association of Home Builders, the National Apartment Association, and the National Multifamily Housing Council. The National Association of Home Builders applauded the Trump administration’s suspension of the rule, which they had urged Carson to rescind in a private June meeting.

Under the Fair Housing Act of 1968, HUD carries an affirmative obligation to reduce racial segregation in federal housing programs. As HUD made clear in 2015, this means it must take proactive steps to “overcome the legacy of segregation, unequal treatment, and historic lack of opportunity in housing.”

“Violations in every Administrative Procedures Act case sound so boring, but this lawsuit is significant not only because it challenges the way the Trump administration tries to break the law, but also because of what’s actually at stake for the people who were counting on access to these vouchers,” said Allison Zieve, an attorney with Public Citizen. “This will have a concrete effect on real people who were counting on this.”

The Rift Among Charter Schools

Originally published in The American Prospect on October 20, 2017.
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I
t’s a surprisingly challenging moment for the charter school movement. In August, Education Next—an education policy journal published by the Hoover Institution at Stanford—released its 11th annual public opinion poll examining Americans’ views on K-12 education. They reported a stunning 12-percentage-point drop in support for charters from spring 2016 to spring 2017—from 51 percent to 39 percent. African-American support fell from 46 percent to 37 percent, and Hispanic support fell from 44 percent to 39 percent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Desegregated, Differently

Originally published in the Fall 2017 issue of The American Prospect. 
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Hartford, Connecticut, is struggling. Teetering on the brink of bankruptcy, the state’s tiny capital wrestles with many of the same economic challenges as other predominantly poor post-industrial cities along the East Coast. Yet Hartford boasts one remarkably unique feature: Nearly half of its public school students attend desegregated schools.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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