Can Opportunity Zone Tax Breaks Be a Boon for Charter Schools?

Originally published in CityLab on April 23, 2019.
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For the fourth consecutive year, the growth of charter schools—publicly funded and privately managed schools that educate nearly 3.2 million students across the country—has slowed. Between 2017 and 2018, charter schools grew nationally by 1 percent, an all-time low for the sector.

Charter industry leaders are debating the exact reasons behind the slowdown. Some say it’s rooted in school districts’ financial woes, which make leaders less inclined to open new schools that could strain budgets further. Others blame shifting political winds—fiercer backlash from charter opponents and less robust support from Democratic officials. But there’s one factor nearly everyone in the charter universe agrees on: Accessing and affording sites for these schools is a huge barrier. Many charters, denied access to public facilities, rent their buildings, opening the door to rent disputes and self-dealing scandals. Finding adequate spaces to open new schools, or to expand to bigger buildings if the charter operator wants to increase its student enrollment, remains an elusive and expensive challenge for charter leaders in virtually every state.

To help slake the movement’s thirst for new facilities, charter supporters have been eyeing a new pot of money with growing interest—Opportunity Zones.

These are low-income, high-poverty regions of the country that, thanks to a provision of the 2017 Federal Tax Cuts and Jobs Act, have been tapped to receive new investments. The Investing in Opportunity Act gives major tax breaks to those willing to direct resources into economically struggling urban and rural communities. Just who should count as “economically struggling,” and whether this kind of program is likely to boost such communities or just steer investment toward places that are already on the upswing, has been a hot topic in urban economic development circles since the program was first announced.

Many experts who have studied similar kinds of place-based tax breaks, from the Enterprise Zones of the Reagan administration to the Empowerment Zones of the Clinton years, argue that they boast a poor track record of actually improving the low-income areas they’re supposed to help. In some cases, researchers have found, the tax schemes actually hurt cities overall, distributing large portions of the tax benefit to industry professionals as transaction costs. “These policies almost inevitably result in tax giveaways for investment that would have occurred anyway,” concluded Timothy Weaver, an urban policy and politics professor at the Rockefeller College of Public Affairs & Policy at the University at Albany, in a recent CityLab post.

Throwing charter schools into this mix is unlikely to settle any of these arguments.

According to a December report produced by the National Charter School Resource Center—a division of the education consulting firm Safal Partners—charter schools in 44 states might be able to access financing through the Qualified Opportunity Zone tax breaks. The report authors estimate that between 1,078 and 2,079 schools could be eligible for, or be interested in, tapping into this financing stream over the next five years to pay for new buildings or to finance renovations.

And the interest is there. In January, Nina Rees, the president of the National Alliance of Public Charter Schools, and Chad Aldis, a vice president at the Ohio-based Thomas B. Fordham Institute, wrote an op-ed detailing the challenges Ohio charter schools face in accessing facilities. In addition to recommending state-level reforms, they suggested investors try to leverage private capital through Opportunity Zones to build new schools. Ohio has designated 320 tracts as Opportunity Zones.

Aaron Churchill, the Ohio research director at the Thomas B. Fordham Institute, told CityLab that while he sees Opportunity Zones as a great opportunity for his state to support new charter facilities, he’s “not really sure it’s far along yet” and “doesn’t know if charter networks have given it a lot of thought.”

National charter organizations are trying to put this new financing opportunity on more groups’ radars. In February, the Charter School Facility Center at the National Alliance for Public Charter Schools hosted a webinar on how Opportunity Zone investments could reduce facility financing costs for schools. Former Republican House Speaker Paul Ryan has also touted charter schools a possibility for Opportunity Zone investment.

Here’s how such financing would work: Individuals or groups can establish “Opportunity Funds,” which require that at least 90 percent of the fund’s assets to go into designated Opportunity Zone census tracts. Investors can then delay paying federal taxes on the capital gains derived from the Opportunity Fund. If they hold their investment for seven years, they can reduce their tax burden by 15 percent. If they hold it for 10 years, the investor would have no capital gains tax at all on the profits from a sale of an Opportunity Fund investment.

Adam Peshek is vice-president of advocacy at ExcelinEd, a national organization founded by Jeb Bush that supports charters, vouchers, and other education-reform staples. Peshek said it’s a “no-brainer” for a lot of philanthropic groups to move some of the money they’re already spending on school facilities towards Opportunity Zone investments, where their dollars could stretch further. He said he has been talking with national charter groups and philanthropies about this and many are deliberating whether they want to create their own Opportunity Funds to generate investment or focus on encouraging private citizens to invest in existing funds.

John Bailey, a fellow at the right-leaning American Enterprise Institute who has written on this topic, has said, “One could imagine groups such as the Charter School Growth Fund or NewSchools Venture Fund creating charter-specific Opportunity Funds to scale new schools to high-needs areas.”

That’s not happening yet: Peshek said there hasn’t been a huge rush yet to seize on Opportunity Zone financing for charter schools, unlike apartments and other commercial real estate. But he says he could envision charters being integrated in the construction of new multi-use real estate developments. “Having a school in the middle of a multi-use area is always a good draw for people who want to live there,” he said.

The amount of money that could be tapped by Opportunity Zone financing could dwarf the amount that charter advocates have be able to receive from other federal financing programs, like the New Market Tax Credit. Peshek, writing in 2018, noted that if just one-tenth of 1 percent of the estimated $6 trillion in unrealized capital gains in the U.S. goes towards charter school development projects, that would amount to “nearly three times the amount of investment that the NMTC spurred over more than a decade.”

Some states are looking at other ways the Opportunity Zone designation could help grow charter schools. In Florida, Republican Governor Ron DeSantis has said he hopes to leverage the tax incentive to launch a five-fold expansion of charter schools in his state. DeSantis’s plan would effectively link an existing state program called Schools of Hope to Florida’s designated Opportunity Zone areas. This could then boost the number of schools eligible for the Schools of Hope funding from 47 schools to 247.

Supporters of traditional public schools also see potential opportunity in Opportunity Zones. Mary Filardo, the executive director of the nonprofit 21st Century School Fund, which advocates for improved school facilities, told CityLab there are some 13,000 traditional public schools located in Opportunity Zones, predominately serving low-income and non-white students.

While charters are better positioned to leverage Opportunity Zone financing (since in many cases the school is already in a privately held building), Filardo said her group has been working with school districts “which really have far more need” for school modernization to figure out if they might be able to access some of this funding too.

One idea, she said, is to use Opportunity Zones to help break the political gridlock on school infrastructure funding. Polls may show bipartisan support for federal investment in school facilities, but on Capitol Hill, she said, a bill to make that happen has only garnered Democratic co-sponsors.

“The issue has become completely partisan in Congress, and one of the things we’ve been interested in is if we can convince Republicans to agree to direct federal funding for public school facilities located in the Opportunity Zones,” she said. “The rationale would be your other business investments—like your senior living retirement complexes or your tourism—would do better if the public infrastructure were in good shape.”

There’s considerable evidence that investing in capital assets like school facilities is an effective way to boost local wealth, in ways that differ from simply adding new high-end housing, retail, or restaurants, Filardo said. Having better school buildings also helps retain teachers and local businesses and attract new families.

But she also acknowledges that there’s a lot of skepticism surrounding these types of tax breaks and whether they generate true revitalization. Adding schools, whether charter or traditional public ones, to that story could be a novel twist. “School facilities,” she said, “just have not been past focuses of Enterprise and Empowerment Zone investments.”

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Maine AFL-CIO Becomes First State Federation to Support a Green New Deal Bill

Originally published in In These Times on April 22, 2019.
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On Tuesday, Maine lawmakers will hold a hearing for “An Act to Establish a Green New Deal for Maine”—a new climate and jobs bill that has the notable support of Maine’s AFL-CIO, the first state labor federation to endorse a Green New Deal-themed piece of legislation. The bill calls for 80 percent renewable electricity consumption by 2040, solar power for public schools, the creation of a task force to study economic and job growth, and a commission to help facilitate a just transition to a low-carbon economy. Its backing from a coalition of over 160 labor unions offers an instructive lesson for other states looking to build union power to tackle a warming planet.

The bill is the brainchild of Chloe Maxmin, a 26-year-old state lawmaker elected in November, and the first Democrat to ever represent her district. Maxmin, who has been an environmental activist since she was 12 years old, and co-founded the Harvard fossil fuel divestment campaign while in college, said she knew if she was voted into office she would approach climate politics in a different way.

One of the criticisms of the national Green New Resolution sponsored by Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Senator Ed Markey (D-Mass.) is that it lacked a broad coalition of supporters when it was first introduced. But Ocasio-Cortez and Markey’s political strategy, they’ve explained, is to use the aspirational framework as an organizing tool over the next two years, to bring more key partners on board.

Maxmin, by contrast, sought to bring allies into her coalition prior to going public with the legislation, and Maine labor and environmental groups did not have a deep history of working together before. “I’ve been an organizer for a long time, and to build power and to really create something inclusive I knew it had to be inclusive from the beginning,” she told In These Times. “The traditional strategies that we’ve used around climate and climate policy just have not really gotten us very far.”

Maine has some unique characteristics: It is the most rural state in the nation, the whitest (roughly ­tied with Vermont), and the oldest. It’s also, as of 2019, one of just 14 states where Democrats control all three branches of state government.

While she knows her bill will be associated with the federal resolution, Maxmin stresses that hers should be understood as targeted legislation, specifically tailored to her state’s needs. “Of course, there are national parallels with not only the name but also echoing the themes of economic justice and opportunity, but it’s a very Maine-specific bill, and not meant to cover every component of the climate crisis,” she said.

Matt Schlobohm, the executive director of the Maine AFL-CIO, praised Maxmin for her deliberate efforts to “create a policy that was ambitious, aspirational and do-able” for working-class people. Maine’s labor community, which has about 12 percent union density, has not historically focused on climate issues or climate justice. Schlobohm thinks this legislation is a real chance for unions “to build trust and develop their analysis and capacity” in a meaningful way.

The bill sets less ambitious targets than the national Green New Deal resolution, which, among other things, calls for 100 percent renewable energy in 10 years, and includes language around reducing emissions from transportation and agricultural sectors. While the Maine Sierra Club supports the legislation, Maxmin acknowledged that some environmental activists have criticized her bill for not going far enough.

“Our approach was targeted legislation focused on economic and job growth in Maine,” she said, pointing to the solar projects for schools, and the jobs-focused task force which would report on its findings by next January. Like the state’s opioid task force which has paved the way to new state policies, Maxmin said she expects to be able to introduce more specific job legislation generated by the task force’s research next year. “There are other [environmental] bills going through the State House around transportation and agriculture,” she said. “This [bill] is for workers, low-income Mainers, and economic growth in Maine.”

Haley Maurice, a junior at Bowdoin College involved in the Bowdoin Climate Action group and a student leader with the national Sunrise Movement, has been involved in discussions with Rep. Maxmin to shape the bill. (Sunrise also endorsed Maxmin’s bid for office.)

“We started meeting in early February, and [Rep. Maxmin] was just really forward in saying we need young people involved,” she said. “I’ve been very impressed by her adamant belief in the democratic nature of the bill and in making sure that everyone who is affected by this is considered and at the table.”

Maurice said that while “other climate bills proposed in the Maine legislature have very ambitious timelines,” this is the first bill she believes really prioritizes how the energy transition will take place, and constitutes “a very strong starting point” for Maine. The legislation outlines requirements for a commission to study and track progress towards a low-carbon economy, particularly for those most adversely impacted: people from demographic groups that have been historically affected, and people who are low-income and cannot participate in energy efficiency programs.

Moreover, Maurice doesn’t think a state bill on a less ambitious timeline is at odds with the work that she and her Sunrise colleagues are pushing for on the national level. If anything, Maurice said, it just reinforces why the federal government needs to also be involved in the process.

“When you say we need 100 percent renewable energy by 2030, and we need a faster timeline, you need to think about the burden that places on Mainers here,” she said. “And if state bills have a slower timeline than what science is saying we need, I don’t think that is necessarily contradictory to our values. States need to push forward in the ways we can now while ensuring these transitions are happening in an equitable way, and we need a federal Green New Deal to bolster the work of the states.”

The Maine AFL-CIO’s support for the bill is an important milestone, as labor remains devided on the Green New Deal nationally. While the AFL-CIO’s Energy Committee responded critically to the Green New Deal resolution, unhappy with both some of its specific language and its lack of specifics, other labor organizations have started to mobilize in support. In late March the Los Angeles County Federation of Labor approved a resolution in support of “a Green New Deal or similar effort” to address climate change and economic inequality. In mid-April, Sara Nelson, the international president of the Association of Flight Attendants, which represents 50,000 flight attendants across 20 airlines, wrote an op-ed in in support of the Green New Deal, and the general urgency of tackling climate change.

Schlobohm said if he were to give advice to environmental leaders about how to organize effectively with labor, he’d encourage them to make deliberate efforts to understand unions, and engage them in a good-faith process. “And I think just the basic organizing 101 of showing up for each other,” he said. “There’s a lot of strikes and picket lines these days. Do environmental organizations show up at teacher strikes and grocery worker strikes? The same question should be asked of unions, but I think there’s just opportunity to build solidarity in this moment.”

For his labor allies, Schlobohm says the energy transition is going to happen, so it can either happen “with us or to us” and “one option is far superior than the other.”

Ultimately Schlobohm feels optimistic about the future of climate-labor organizing, says there are lots of opportunities for “win-wins”—and points to the recent organizing done by climate and labor groups in New York.

“There are renewable energy policies moving in every state in the country,” he said. “And every single one of those policy frameworks has the opportunity and levers for job quality and labor rights standards.”

 

House Majority Leader Steny Hoyer Is Facing A Primary Challenge

Originally published in The Intercept on April 19, 2019.
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MCKAYLA WILKES, a 28-year-old administrative assistant, part-time student, and mother of two, has had enough. In late March, she announced that she was mounting a bid for Maryland’s 5th Congressional District, aiming to unseat one of the oldest and most powerful Democratic members, House Majority Leader Steny Hoyer. Wilkes is running on a host of progressive policies, but plans to put particular focus on Medicare for All, a Green New Deal, and affordable housing.

A student of political science, Wilkes hasn’t formerly been involved in politics before, but thinks the moment is too urgent to wait. She wants more “relatable people” in Congress and is fed up with Hoyer’s record, which she says does not adequately represent the needs of those living in his district. “We need someone who will be a voice for us, who knows what we go through as daily constituents, and Steny Hoyer has been in office so long he’s never really had to be a regular constituent,” she said. Hoyer, who is 79 years old, was first elected to Congress in 1981.

Wilkes’s challenge comes after an election year in which insurgent progressives like Alexandria Ocasio-Cortez and Ayanna Pressley toppled entrenched incumbents, making it to Congress and, along the way, showing that it is possible to shake things up and succeed. The Democratic Party has grown increasingly wary of these types of challenges and is trying to make it difficult for candidates like Wilkes to find support for their campaigns. The Democratic Congressional Campaign Committee last month said it would cut off vendors that work with primary challengers.

Mark McLaurin, the political director of SEIU 500, said the climate is ripe for taking down veteran lawmakers in Maryland. He pointed to the 2018 cycle, when progressives unseated some of the most powerful politicians in the state, including state Sen. Thomas Middleton, the chair of the Senate Finance Committee, who represented part of Hoyer’s district.

“I think you could see that kind of wave continue to crest in the Democratic primaries, and anyone who has been there a long time who doesn’t seem terribly in touch with the needs of their increasingly diverse electorate could find themselves on the losing end,” McLaurin said. “I honestly don’t think in this environment anyone is safe, and certainly not Congressman Hoyer.”

Wilkes is counting on the fact that a lot of people might be interested in unseating an old, centrist white man who seems often out of touch with the more progressive direction of his party.

Her political strategy was on display this past week, in response to a tweet by the president of the United States that included a misleading video that suggested Minnesota Rep. Ilhan Omar downplayed the 9/11 terrorist attacks. Wilkes blasted Hoyer as a “coward” for not only his failure to quickly defend Omar, but also for his thinly veiled criticism of the Muslim representative at the recent American Israel Public Affairs Committee policy conference.

On Thursday, following the release of the redacted version of special counsel Robert Mueller’s report, Hoyer quickly dismissed the idea of impeachment hearings against President Donald Trump, despite its strong evidence of potential obstruction of justice. Hoyer said that “going forward on impeachment is not worthwhile at this point.” A few hours later, after public backlash, he walked back his comments to say “all options ought to remain on the table.”

By contrast, Wilkes voiced her unwavering support for impeaching the president. “It’s always been necessary but I think now more than ever,” she told The Intercept after Hoyer’s initial statement. “We can’t risk Trump running in the next election. He simply needs to be stopped and I don’t understand why Democratic leadership is denying this.”

WILKES’S CAMPAIGN IS just getting off the ground, backed so far by volunteers, including a group of students at the University of Maryland, College Park. She’s planning a kickoff event for the end of May.

She admits that she hasn’t really figured out yet how much money she’ll need to be competitive, but insists that she’s not worrying about that right now, and doesn’t have a set overall fundraising goal. Her first benchmark is to raise $25,000 by the end of the month.

Hoyer has not faced a serious primary challenger in years, and, in that sense, Wilkes is entering into unknown political territory. In 2018, Hoyer won his election with 70 percent of the vote and won his primary contesta gainst Dennis Fritz, a U.S. Air Force veteran, with 84 percent of the vote. Fritz raised less than $5,000 and  had “no campaign platform” because “the platform is of the people.” He had previously run for Congress in 2014 as an independent write-in candidate.

Wilkes’s challenge could become more potent if she gets the support of local and national groups, which would work to help elevate her profile and reach new voters. She said she’s had conversations with Justice Democrats, the group that backed Ocasio-Cortez and Pressley, but is not officially associated with them. Evan Weber, the political director at the Sunrise Movement, the youth-led group that helped put the Green New Deal on the map, recently reached out as well.

The primary election is one year away, and many political groups have not yet begun reaching out to candidates they might support. Larry Stafford Jr., the executive director of Progressive Maryland, one of the state’s largest grassroots advocacy organizations, told The Intercept that they haven’t been in touch with Wilkes, but also haven’t begun their 2020 endorsement process.

In early April, she said that her campaign was having some trouble finding a filmmaker due to the DCCC’s primary blacklist, but Wilkes told The Intercept that they did end up finding people interested in helping her with campaign videos.

“I feel confident that my campaign will be able to find alternative vendors, but primarily because I am running against Steny Hoyer,” she said. “I worry about the other progressive candidates running against lesser-known incumbents.” (Justice Democrats has launched an effort to help challengers find alternative firms.)

There are a few other factors that could work in Wilkes’s favor. McLaurin of SEIU 500 pointed out the relevance of Maryland’s closed primaries. Thomas Middleton, for example, lives in a majority-white district but one that’s majority black in the Democratic primary. “We made it about race in the primary and black people woke up and said, ‘Oh wait, why do we keep voting for the white guy?’ and that’s how he lost,” said McLaurin, whose group backed Middleton’s primary challenger, Arthur Ellis. “Like nobody cared in Charles County that Middleton was the chair of the Senate Finance Committee. At the end of the day, nobody cared.”

The state’s increasingly younger electorate could also hurt Hoyer, McLaurin added. “I can guarantee you there are less fervent Hoyer supporters than four years ago because four years ago, more of them were alive,” he said. “The folks who vote for the longtime incumbent reflexively, they die. The newer folks don’t have that kind of allegiance to Hoyer or anyone.” The median age in Maryland’s 5th District is 38, according to the U.S. Census Bureau’s 2017 American Community Survey.

Wilkes will likely benefit from the presidential campaigns actively trying to turn out the progressive base of Maryland voters, McLaurin said. “Kamala Harris has her headquarters in Maryland, and Bernie [Sanders] will be campaigning here, and by the time the Maryland primary rolls around, they’ll all be desperately trying to turn out voters, many of whom are not necessarily beholden to Hoyer or anyone else,” he said. If Wilkes wins the April 2020 primary, her odds of winning the general election are not long. Trump earned just 33 percent of the vote in District 5 in 2016.

Wilkes describes the whole process as an exciting adrenaline rush. “It’s like wow, I’m actually doing what I’ve always wanted to do, which is fight for what I believe in,” she said. And while she aims to be elected, she said she also wants to send the message that anyone can run and step up to the plate.

“I want to win, but it’s not all about winning,” she said. “If I don’t win, then at least someone will be holding Steny Hoyer accountable.”

WILKES’S PLATFORM, and specifically her plank on criminal justice, is in part shaped by her own experiences. She decided early to come out andshare that she has a criminal record, an unconventional move that she hopes will help her earn voters’ trust. Her aunt, Sharon Carver, was a civilian employee killed at the Pentagon on 9/11, and after her death, Wilkes started acting out. “I skipped class and I ran away from home,” she tweeted. “I was in and out of the juvie from the ages of 14-17.”

Wilkes said this experience exposed her early to the abuses of the criminal justice system, and later on as a teen, she was arrested for having marijuana, though never charged for possession. She said she’s also had her license suspended for not paying traffic tickets on time, something she didn’t do because she was “in an extremely rough spot financially.” Wilkes was then charged with driving on a suspended license, but said if she didn’t drive to work, she would have lost her job.

Wilkes told The Intercept that she felt nervous about sharing those details of her past. “I was intimidated and I felt kind of ashamed,” she said. “But then I thought about it and I need to be transparent because I’m not alone, and my experiences really show how they punish the impoverished.” Wilkes ultimately got out of debt with help from her family. “Thank god I had my family there, it was just unbearable. At one point, there was like $800 in tickets to pay,” she said.

These criminal penalties she faced, which critics say amount to a criminalization of poverty, are increasingly controversial, and some states have taken steps to end the practice. On Thursday, Montana’s state legislature passed a bill that would end the suspension of driver’s licenses over unpaid fines and fees, coming on the heels of Virginia, which passed a similar measure earlier this month. Wilkes, for her part, wants to tackle these issues from Congress. “Our criminal justice system must be one of rehabilitation, not punishment,” her platform reads. “It must stop going after people of color for low-level drug offenses and make it easier for low-income individuals to defend themselves.”

Julián Castro Got Off Easy for Ethics Trouble In The Last Presidential Campaign

Originally published in The Intercept on April 10, 2019.
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IN 2016, THEN-SECRETARY of Housing and Urban Development Julián Castro violated a federal law while campaigning for Hillary Clinton, but the Obama administration chose not to fine or reprimand him. Instead, they praised him for “own[ing] up” to his “inadvertent error.”

Castro himself is now running for president. Aside from his short stint leading the federal housing agency, Castro served as mayor of San Antonio, Texas, from 2009 to 2014; before that, he worked as an attorney. Yet despite his legal background, his Harvard Law School education, and his having attended four federal briefings on how to comply with the Hatch Act — the federal law passed in 1939 that bars most employees in the executive branch from using their official authority or influence to shape an election — Castro claimed in 2016 that he was unaware of his error.

The U.S. Office of Special Counsel launched an investigation following a complaint filed against Castro on April 11, 2016, and ultimately concluded that he had violated the ethics law.

One week earlier, Castro did an 18-minute interview with Katie Couric on Yahoo News. According to the special counsel investigation, Yahoo News requested the interview in February 2016 and indicated that it wanted to focus on both Castro’s work for the Department of Housing and Urban Development and his role as a surrogate for the Clinton campaign. The details were arranged by HUD’s Office of Public Affairs, and three days before the interview, Castro received a briefing memo from his agency’s press shop outlining that potential questions could pertain to his work at HUD, the growth of cities, and his time as a Clinton supporter during her campaign.

At the time, the primary contest between Clinton and Vermont Sen. Bernie Sanders was still going on. Clinton had swept five key states on March 15 and appeared to be pulling away from Sanders, but New York had yet to vote, and the insurgent campaign was hoping for an April upset there (that didn’t materialize).

In 2012, Castro delivered the keynote speech at the Democratic National Convention, and from then on, he was routinely referred to by journalists and political observers as a “rising Democratic Party star.” In 2016, Castro was reportedly being vetted by the Clinton campaign as a potential running mate; he had endorsed her for president in October 2015.

The Yahoo News interview was conducted remotely, with Castro sitting in HUD’s broadcast studio in Washington, D.C. The official HUD seal was displayed behind Castro. After about seven minutes of discussing HUD initiatives, he was then asked about his endorsement of Clinton. “Now, taking off my HUD hat for a second and just speaking individually, it is very clear that Hillary Clinton is the most experienced, thoughtful, and prepared candidate for president that we have this year,” he said.

Castro then went on to describe Clinton’s record as secretary of state and touted her ability to excite the electorate, including Hispanic and black voters. “In the end, the American people understand she has a positive vision for the country that includes opportunity for everybody, and she can actually get it done,” he said.

Despite receiving the briefing memo saying he could expect questions on his time as a Clinton supporter, Castro claimed later, according to the special counsel investigation, that he “expected that Ms. Couric’s questions would focus primarily on HUD’s activities and the growth of cities.”

Castro said he believed at the time that he was complying with the Hatch Act, though he “now understand[s]” that an interview like that “is problematic.” Castro joined the Obama administration in 2014, and prior to his violation, according to the special counsel’s office, he had attended four briefings on the Hatch Act in which he was advised by federal ethics officials on how to properly comply with the law. Castro’s most recent briefing before the violation was in February 2016.

At the briefings, according to the Office of Special Counsel’s report, Castro was told by ethics advisers that if he is speaking in his official capacity about HUD matters and is asked a political question, then he should respond by saying that he is not there to talk about politics. Relatedly, he was advised that if he speaks at a political event in his personal capacity, then he should not talk about HUD or use the title “secretary.” At one of the briefings, Castro reportedly asked an ethics adviser what to do if a journalist asks him about HUD while he’s at a political event; he was told that he should tell the journalist that since he’s at a political event in his personal capacity, he cannot answer questions about HUD.

Based on his training, HUD ethics officials told the special counsel’s office that Castro “should have known that he could not switch from speaking in his official capacity to speaking in his personal capacity at an event or during an interview.”

“In responding to [Katie Couric’s] question about the 2016 election, I offered my opinion to the interviewer after making it clear that I was articulating my personal view and not an official position,” Castro wrote following the Office of Special Counsel’s investigation. “At the time I believed that this disclaimer was what was required by the Hatch Act. However, your analysis provides that it was not sufficient.”

The Obama administration did not reprimand Castro. “So, look, I think to his credit, Secretary Castro acknowledged the mistake that he made,” said then-White House press secretary Josh Earnest at the time. “He owned up to it and he’s taken the necessary steps to prevent it from happening again.”

The Castro campaign did not return a request for comment.

A Black Woman Said She Was Afraid of The Police. A Nearly All-White Disciplinary Panel Said We Don’t Believe You.

Originally published in The Intercept on April 5, 2019.
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A STATE ETHICS panel in New Jersey, which included a former police officer indicted for killing an unarmed black man, has recommended a six-month suspension for a school board member whose own tense 2018 encounter with a cop went viral. Stephanie Lawson-Muhammad told the panel that she reacted irrationally to the officer because she was upset and afraid, but the panel concluded, in its official condemnation, that Lawson-Muhammad was lying, and that her use of an “epithet” could give her local community reason to believe she was, in fact, the real racist.

In late April 2018, Lawson-Muhammad was driving her daughter to school in South Orange, New Jersey, when she got pulled over for going 12 miles-per-hour over the speed limit. She was already having a bad morning, running late to get her daughter to school, and knowing she also had to circle back home to get her other daughter to her school in time to take the state’s standardized test. When the police officer approached her car, she quickly introduced herself, identified herself as a school board member and community member of South Orange, and apologized for potentially speeding.

When the police officer, Shaun Horstasked to see Lawson-Muhammad’s registration, she started crying and voiced her fears about getting her other daughter to school in time for her test. “And I’m scared of cops because you guys hurt black people,” she added, in tears. The cop then asked her if she wanted him to call her an ambulance — something Lawson-Muhammad perceived as mocking her anxiety. “That’s an insult,” she replied sharply. “OK, I’m just wondering,” he said. “You look like you might be having a panic attack.” When he then asked for her driver’s license, registration and insurance, she reiterated his ambulance question was “a fucking insult.”

Lawson-Muhammad asked the police officer if he could call her daughter’s middle school to let them know she’d be late for the state exam, a request he promptly declined. Upon learning he was a South Orange police officer, she said, “OK, I’ll call Sheena right now” referring to Sheena Collum, the South Orange Village President. She could not find her driver’s license, her car insurance was out of date, and she couldn’t find her updated one. “I’m freaked out right now,” she told the officer.

The anxiety, she later explained to the commission and in an interview with The Intercept, went beyond fear of a ticket or being late to school. Her Facebook feed had long been saturated with stories of police shootings of black people, and her past encounters with police left her feeling anxious, often not because the police had done anything in particular. She noticed a skull tattoo on the officer’s arm, which she said heightened her anxiety, fueling what she called the spiraling “irrational” response.

The cop returned to his vehicle and wrote her two court summonses, for speeding and not having an up-to-date insurance card. (During that time she found her license and waved it out the window so he knew not to sanction her for that.) When he returned to her car, Lawson-Muhammad had her husband on the phone, who said he could send the insurance card over immediately, but Horst said it was too late as the summons was already written. Lawson-Muhammad grew upset and confused. “I don’t want to go to court! I have insurance! He can text you a picture of it right now!” Then Lawson-Muhammad said again she would call Sheena Collum, “and your skinhead cop chief” — referring to the South Orange Police Chief, Kyle Kroll.

Things spiraled from there. Dash-cam video footage of the encounter leaked shortly after, including to the South Orange Board of Trustees, an elected body of six. Nobody had subpoenaed the footage, and nobody seemed to know about it outside the police force, the type of body which normally fights hard against efforts to pry loose dash-cam videos.

“There’s clearly something political happening when police officers are trying to release videos they think might portray political figures to look bad,” said Khadijah Costley White, founder of SOMA Justice, a local racial justice group. “And I say this as an activist. I don’t want to feel like I need to worry about a police officer pulling me over and recording me in a bad moment and then releasing that video.”

The trustees voted unanimously to send the video and a letter of concern to the school board president, Elizabeth Baker. Another person who obtained the video footage, in what he describes as an “unmarked package” from an anonymous source, was Walter Fields, a local education advocate and a longtime critic of the school board of which Lawson-Muhammad is a member. Fields wrote the board president on May 16 and called for Lawson-Muhammad’s resignation. He also said the board president should resign too if she had prior knowledge of the video. Fields then sent the footage to Village Green, a local community newspaper.

Another local news outlet, TAPinto, published a report about the video that day, and the footage quickly went viral across the country, with Fox News affiliates clamoring to cover the story. Lawson-Muhammad issued a public apology on May 17 for what she called her “irrational” behavior, and announced she had also apologized to Officer Kroll in person. Pastor Terry Richardson, the head minister at First Baptist Church in South Orange who facilitated the meeting between Kroll and Lawson-Muhammad, told The Intercept that Kroll said Lawson-Muhammad “was very sincere” and “expressed genuine heartfelt regret” and that was the reason Kroll felt committed to moving forward. (Lawson-Muhammad had also tried to meet with Kroll prior to the video going public, but the meeting did not happen until the story had already made news.)

But the episode divided the racially diverse suburbs of South Orange and Maplewood. Many called Lawson-Muhammad’s language shocking and racist, while others defended her and said the public’s reaction revealed their callousness toward the legitimate fears black people have when dealing with police. Still others said the community could use this as an opportunity for mutual healing and relationship-building.

Walter Fields, though, was not finished. He soon filed a formal complaint against Lawson-Muhammad with the New Jersey School Ethics Commission, alleging she had tried to use her position on the school board to evade legal accountability. He filed a separate ethics complaint against the school board president for withholding information about the video. Many in the community saw these efforts as politically motivated, as Fields was simultaneously suing the school district and fighting with the school board over other unrelated issues.

Last week, the School Ethics Commission, a body comprised of no African-American members and no women, issued a recommendation to suspend Lawson-Muhammad from the South Orange Maplewood Board of Education for six months. The commission — whose members, including a former DEA officer who was indicted for killing a black man, were all appointed by former Republican Gov. Chris Christie — concluded they found Lawson-Muhammad’s explanations for her behavior neither “credible or convincing.”

WHEN STEPHANIE LAWSON-MUHAMMAD and her husband moved into South Orange in 2011, they were actually bucking some broader demographic trends. South Orange and Maplewood (which share one school district) were historically known for their racial integration, but since 2010 the two suburbs have been growing whiter and wealthier. Black student enrollment in the local public schools fell 18 percent between 1998 and 2014.

Lawson-Muhammad, a trained electrical engineer who works in the wireless industry, and her husband Khalil Muhammad, a Harvard scholar of race and history and the great-grandson of Nation of Islam leader Elijah Muhammad, are no strangers to racial issues. “My whole career has been in technology,” she said. “I’m typically the only black person in the room, the only woman in the room.”

In 2013, Lawson-Muhammad decided to run for school board, in the district where three of her children were enrolled and because of longstanding issues around equity and race in the public school system. The following year, the Office of Civil Rights at the Department of Education announced it was entering into an agreement with the South Orange-Maplewood School District to ensure that black students were afforded equal opportunities to enroll in advanced courses, after investigating and finding that they were significantly underrepresented in those classes.

Walter Fields, a former leader in New Jersey’s NAACP chapter, founded the Black Parents Workshop in 2015 to advocate for black children. Though she didn’t know him well, Lawson-Muhammad said she appreciated his presence and perspective at school board meetings. She wasn’t involved in his group but thought it had promise. Over time though, she said, it eventually became clear “he was never looking to partner with members on the school board who were already fighting for equity.”

Paul Williams, a black parent in the district, told The Intercept that he doesn’t know any black parents in South Orange or Maplewood who are active in the group, and that “it seems like one or two self-appointed individuals” who run the whole thing. Fields told The Intercept that the Black Parents Workshop is not a membership-based organization and that its board makes decisions.

Near the end of 2017, the South Orange-Maplewood school board reportedwhat steps the district had taken since entering into an agreement with the Office of Civil Rights and outlined some additional goals for the years ahead. But three months later, the Black Parents Workshop filed a new federal lawsuit against the district, alleging racial discrimination in course offerings — the same thing the school board said it was tackling. “We had literally just made public statements and launched work that already was addressing many of the same things he outlined in the lawsuit,” said Lawson-Muhammad.

Fields told The Intercept that the group’s legal counsel is currently in discussions with the district about a possible settlement.

A few months after the Black Parents Workshop filed its legal challenge against the South Orange-Maplewood school district, a coalition of civil rights advocates across New Jersey filed a new integration lawsuit, calling on the state to desegregate New Jersey public schools. The UCLA Civil Rights Project ranks New Jersey as the sixth most segregated state in the U.S. for black students, and seventh for Latinos. It’s a rare suit—only the fifth, in four states, to mount a school segregation challenge as a violation of a state constitution. Brown v. Board of Education and almost all other well-known segregation lawsuits have been filed in federal court. But given New Jersey’s particular constitution and its history of strong pro-integration court decisions, legal observers say the plaintiffs have an unusually strong chance for success.

Lawson-Muhammad would soon emerge as a prominent voice championing the goals of the statewide lawsuit, which went public just weeks after the now notorious traffic stop.

SHORTLY AFTER THE video went public and viral, Fields testified at a school board meeting and called on Lawson-Muhammad to resign, alleging she had tried to use her position as a school board member to get out of the speeding ticket. Many others in the community made no secret of their disdain for her, and claimed she was the real racist.

“I had to will myself to go to the grocery store,” said Lawson-Muhammad. “I didn’t know if someone was going to come up and spit on me.”

Some local groups jumped to her defense. Founding members of Parents in Partnership for Respect and Equity, or PARES, wrote a letter to “vehemently condemn the attack and salacious media circus” against Lawson-Muhammad and said the attacks appear politically motivated. “We fear that attacking Ms. Lawson-Muhammad is a blatant ploy to sow dissent and encourage discord among the BOE, just as it embarks on its plan to desegregate our school district.”

Another group, SOMA Justice, wrote a letter urging the school board and village president to not accept or request Lawson-Muhammad’s resignation, and noted they “strenuously disagree” with the characterizations of her behavior made by Walter Fields.

White, the SOMA Justice founder, told The Intercept that her group wanted to make clear that a black woman’s fear against the police is legitimate, justified and should be taken seriously. “From my perspective trying to make clear she is a good resident and good citizen is actually a very legitimate response to interacting with the police when you never know if you can be seriously hurt or injured or maimed and killed,” White said. “That this is something that is always on the presence of black people’s minds when they interact with the police is something I think most of my white neighbors don’t think about.”

In late 2018, NJ Advance Media for NJ.com reported that a black person in South Orange was nearly 10 times more likely to face use-of-force by the police than a white person. And in Maplewood, the journalists found, police use-of-force was more than three times the state average. The findings came from a 16-month investigation that involved analyzing records from every local police department in New Jersey over the last five years.

In response to claims from community members that Fields’s complaint was politically motivated, he denied that his ethics complaint had anything to do with Lawson-Muhammad’s work on the school board. In September, the School Ethics Commission director said they found no evidence that Fields had filed his complaint “in bad faith solely for the purpose of harassment, delay, or malicious injury.”

However, in August, as advocates for the statewide integration lawsuit were preparing to meet with high-level members in Democratic Gov. Phil Murphy’s administration, Fields sent a stern email to one of the meeting organizers, condemning Lawson-Muhammad’s participation in the event. “We take offense to her inclusion given the failure of the South Orange-Maplewood School District to address the over two decades of segregation in its school district,” he wrote. “Ms. Lawson-Muhammad has been complicit in the district’s failure to address issues of equity and her participation in your panel is wrought with fraud.”

Fields went on to cite his organization’s own lawsuit, and said “Ms. Lawson-Muhammad’s tenure on the Board of Education has been marked by denial, defense and outright ignorance regarding the plethora of data that confirms the damage done to Black students by the district’s practices.” He told the organizer, Paul Scully of Building One America, that he would be making his concerns about Lawson-Muhammad known to the governor’s staff, and that any school integration effort that includes Lawson-Muhammad would not succeed.

Lawson-Muhammad told The Intercept the complaint against her — and the second one against Baker, the school board president (which was eventually dismissed) — was “absolutely” a chance for Fields to swipe at his political opponents. “He saw it as an opportunity to bring down the board, one hundred percent,” she said. “He’s suing the board, and he’s been against the board since before me.”

LAWSON-MUHAMMAD WASN’T overly concerned going into the state ethics hearing in November, because she knew the arguments Fields had been using against her weren’t true. She hadn’t tried to use her position on the school board to evade a ticket, she was just upset and scared, and wanted the cop to understand she wasn’t a threat. Her lawyer said the worst outcome she would probably get was a censure.

Seven commission members were present at the hearing—all Chris Christie appointees, including two of the former governor’s senior legal staff. One of the commissioners was Jude Tanella, a former Drug Enforcement Administration agent who was indicted by a New York State grand jury for first-degree manslaughter after shooting a black man in the back in 2002. The charge was later dismissed by a federal judge who said Tanella had acted reasonably in the situation, with “demonstrated restraint, sound judgment and courage in the proper exercise of his sworn duty to protest the public.” Under the federal Supremacy Clause, Tanella was then immune from state prosecution.

Tanella’s history of having shot and killed a black man while in law enforcement has not previously been tied to his role on the school board, but all evidence indicates that Tanella the officer and Tanella the panel member are the same person. Reached by phone, Tanella declined to comment for the story and referred all questions to Kathryn Whalen at the School Ethics Commission. The commission told The Intercept that Whalen could not speak with the press and referred calls to the Department of Education’s communications office. Mike Yaple, the Director of Public Information at the New Jersey Education Department, said his agency “does not play any official role” in selecting who serves on the School Ethics Commission, and that the State Ethics Commission — a separate entity — would be the body to determine when recusals are warranted.

Reached again by phone, and asked directly if he had been indicted in 2002 for manslaughter, Tanella asked, “What paper are you with?” He then added, after asking where The Intercept is based, “I have no comment,” and hung up.

The dots aren’t hard to connect: The Tanella on the School Ethics Commission is a resident of Verona, New Jersey. The commission declined to share contact information for individual commissioners, but The Intercept was able to confirm that just one Jude A. Tanella lives within 100 miles of Verona — and that same individual is the only Jude Tanella who lives within 100 miles of New York City. That Jude Tanella was born in October 1963, which is consistent with the Jude Tanella who married his wife Nancy at age 34 in 1997, and is consistent with the 39-year-old Jude Tanellawho was appealing his indictment in 2003. The indicted Jude Tanella was a former police officer in Old Bridge, New Jersey, and when he got married, his wedding announcement said he was working as a detective in Old Bridge. The Jude Tanella living in Verona works as a consultant, in a home which he owns with a woman named Nancy Tanella. On his consulting firm incorporation documents, he lists Peter Tanella as his daytime contact. Peter Tanella and Jude both share a late father named Jude Tanella.

Lawson-Muhammad said she’s been in total disbelief since learning last week that Tanella from her hearing might be the same Tanella who was charged with killing a black man seventeen years ago. The possibility was first brought to her attention by Scully, of Building One America, who started searching online for more background on the commissioners after reading their recommendation to suspend her for six months. “To know that one of the people sitting there could have been involved in something like that and not recused himself just makes no sense at all,” Lawson-Muhammad said. “And this is an ethics board, so they should know about recusing. We have people on our [school] board who recuse themselves for miniscule things, and this isn’t miniscule at all.”

At her hearing, staring at an almost entirely white male panel, Lawson-Muhammad explained that contrary to Fields’s accusation, she was not trying to use her privilege to get out of a traffic ticket and was rather trying to convey to the white officer that she was not a threat.

“I needed to credentialize myself for him, so that he knew I was not some dangerous black woman, and nothing would happen, bad,” she told the commissioners. “It was about a bad outcome, not a ticket — about some dangerous, violent outcome. Me wanting to ensure that he knew that I was a good person.”  She also denied she invoked Sheena Collum’s name as a way to intimidate Officer Horst or use her privilege as a school board member; rather, Collum was someone who came to her mind as someone concerned with the well-being of the community. “Because I had anxiety, and that was a bad interaction for me, and that was what came out of my mouth,” she said. “I did not pick up the phone. I did not call her. But my instinct was, I want to talk to her because I don’t like how this feels.”

Lawson-Muhammad also said the officer’s tattoo of a skull on his arm made her nervous, and that recent incidents she had observed personally and seen on the news and social media involving black people and the police were fresh on her mind, including one that involved the son of a good friend of her’s and the South Orange Police Chief whom she later called a “skinhead.” She apologized for her behavior and said she wasn’t proud of it. “My reaction was something that I would never have wanted anyone to see and my own [child] had to see in the car,” she had said. “When [my child] came home, [my child] said mommy you were not nice to that officer, you owe him an apology. And I knew that.”

The ethics commission, however, did not believe Lawson-Muhammad’s testimony about her state of mind and motivations. “Based on its review of the testimonial and documentary evidence, the Commission does not find Respondent’s testimony about why she immediately identified herself as a Board member (i.e., safety concerns) to be credible or convincing,” their opinion read.

The commission insisted that Lawson-Muhammad was trying to “leverage her position” to get out of a court summons, and that she mentioned Sheena Collum’s name in order to “impress upon the police officer that she knew and had a relationship with the Village President.”

The commission went further in chastising Lawson-Muhammad for her “offensive and inappropriate language” and her “verbal abuse” and said it could have given the impression that she or the school board “is biased and/or not impartial.” And while she met with Chief Officer Kroll in person and issued a public apology that praised Officer Horst for his patience during their interaction, the Commission criticized her for never “personally apologizing” to Horst.

The School Ethics Commission sent its recommendation for a six-month suspension to the governor’s office, and the findings or recommended penalty can be appealed. Murphy’s office did not respond to questions on the commission’s proposed suspension, or on whether Tanella should have recused himself.

So far, the South Orange-Maplewood Board of Education has not issued any statement on the recommendation, and Board President Annemarie Maini told The Intercept she does not have any authority to speak on behalf of the board on any matter. “Our by-laws do not empower the president to speak on behalf of the majority of the board, and in the past we have been unable to gain unanimity on statements,” she said. Village President Collum and Chief Officer Kroll also did not return requests for comment.

Fields cheered the School Ethics Commission’s decision. “We absolutely applaud it,” he said. “I brought that complaint because she was in the wrong, and I think they saw the truth and agreed that she violated the state’s ethics laws and that none of her defenses for her behavior were credible.”

Lawson-Muhammad said she definitely plans to fight the decision. “It’s just wrong and sets bad precedent,” she said. “It erases reality for me as a black woman and to have people that are like ‘I don’t believe you’ is just completely unacceptable.”

Baltimore Has an Ongoing Debate About Arming School Police

Originally published in Next City on April 3, 2019.
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Over the last year, since 17 students and staff were killed at Marjory Stoneman Douglas High School in Parkland, Florida, politicians and school districts across the U.S. have been grappling with the issue of guns, school safety and school climate. Some conservative elected officials, like the president of the United States and U.S Senator Ted Cruz, have endorsed arming teachers. Others have proposed ramping up security cameras or beefing up mental health support.

In Baltimore, a heavily Democratic city that starves for necessary resources for its public schools, local leaders haven’t been debating whether to arm teachers, but they have been wrestling with whether to arm school police officers.

The debate wasn’t sparked by the Parkland shooting, and actually traces its roots back to 2015, when two state legislators quietly introduced bills to remove restrictions on Baltimore school police carrying guns. They were introduced at the request of the school district, which is the only one in the state where law enforcement officials cannot carry weapons. But Baltimore is also the only Maryland jurisdiction with its own sworn school police force; all others dispatch armed local police or sheriff deputies to patrol schools.

Many in Baltimore reacted to the bills at the time with fury, and the legislation quickly died. This was before Baltimore’s four-year spike in homicides, and this past fall, State Delegate Cheryl Glenn reintroduced a new version of the bill. The president of the school police union, Sgt. Clyde Boatwright, has been advocating for his colleagues to be permitted to carry weapons, warning the city could join Parkland and Newtown, Connecticut, in tragedy if the law isn’t changed.

Community advocates, students and civil rights groups rallied against the proposal — pointing to a lack of evidence that arming school police helps to reduce school shootings, and protesting an increased militarized presence in public schools.

In late January the 10-person Baltimore school board voted unanimously against the proposal, prompting Glenn to withdraw her bill. Roughly two weeks later, an employee was seriously injured in a shooting at a high school. In light of the incident the school board reconsidered the proposal, and ended up approving it in a 8-2 revote. The injured staff member supported the measure.

Glenn quickly reintroduced her bill, but in mid-March, the full House delegation from Baltimore voted 10-5 against arming the city’s roughly 100 school police officers. While that effectively killed the bill for now, Glenn, the delegation chairwoman, suggested she may try again next year. Glenn’s office declined to comment for this story.

This isn’t the first time in recent years Baltimore lawmakers felt political pressure to pass new gun measures in response to violence, even when those measures were not backed by evidence. In 2017 the Baltimore City Council voted 8-7 in support of establishing a new mandatory minimum penalty for someone caught carrying an illegal gun. The bill was weakened after public protest — it ended up adding a $1,000 fine to existing state law that already imposes a one-year minimum sentence on second-time offenders. Gun experts noted there was no research to show the additional fine might deter crime. Still, the bill, in both its original and final form, was supported by the city’s police commissioner and the mayor. The mayor, police commissioner and the state’s attorney had all also advocated unsuccessfully for new statewide mandatory minimums.

Ebony McKiver, a Baltimore high school teacher and member of the city’s Parent and Community Advisory Board — which under Maryland state law every school district must have to advise the local school board on various issues — says her group worked to solicit feedback on the proposal to arm school police officers and the response was overwhelmingly negative.

“People are not wholly opposed to having armed school police officers, but there are so many issues that need to be dealt with in our community first before arming them,” she says. “I believe all schools have to practice an annual active shooter drill, but how many are practicing with fidelity, how many have classrooms with doors locked at all times? Some schools don’t even have doors that lock.” McKiver suggests that for the estimated price tag of the school police force — $ 7 million — the city could fix every door that doesn’t lock, develop more sophisticated safety protocols and ensure all security cameras are working.

Melissa Schober, a local parent, also argues the money could be better spent elsewhere, saying the school district spends more on school police than on social emotional learning, climate and wellness interventions. Schober also says that even though the city’s school enrollment was 82 percent African-American in 2016, 98.9 percent of those arrested in school were black.

Student activists with the Baltimore Algebra Project say that going forward, they plan, among other things, to push for a national student bill of rights, to see if there are alternative ways to conduct local decision-making, including by potentially adding students to the school board or creating an independent youth body. Students also plan to press for more accountability measures for school police and a redirection of money that would have gone to arming school police to maintaining and updating school police camera systems.

McKiver says she hopes the city and school board take the time to study the issue thoroughly before it is potentially reintroduced next year, by commissioning a formal study.

“Now is the time, and I just don’t know if it’s a priority anymore now that the bill has been killed,” she says. “And I can understand why because there are so many issues, with funding and everything else, but this is also the perfect time and I don’t want this to be where it comes up again next year and people are grappling with it in the two weeks before a vote is held.”

Free Prison Calls Could Be Coming to Connecticut

Originally published in The Intercept on April 2, 2019.
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CONNECTICUT MAY SOON be the first state in the nation to make calls from prison free for incarcerated people and their families, following on the heels of New York City, which became the first city to do so last year. Decades of research have shown that keeping in touch with loved ones while incarcerated greatly improves an individual’s chance for successful re-entry when they are released and that the financial toll of maintaining contact disproportionately falls on low-income family members.

A hearing for the bill — H.B. No. 6714 — was held in Hartford in late March, and advocates are cautiously optimistic it will be voted out of the state’s House Judiciary Committee next week. The bill was introduced by Rep. Josh Elliott, a progressive elected in 2016 to represent Connecticut’s 88th District, and drafted by Worth Rises, a national nonprofit focused on ending the influence of commercial interests in the criminal justice system.

According to a recent report by Prison Policy Initiative, Connecticut charges more for in-prison phone calls than any other state in the nation aside from Arkansas. A 15-minute call from a Connecticut prison costs $3.65, nearly five times the cost of calls from prisons in neighboring states like Rhode Island and New York (71 cents and 65 cents, respectively). Advocates say the high rates are due to Connecticut poorly negotiating its telecommunications contract with Securus Technologies, the national prison telecommunications corporation it has contracted with since 2012.

In addition to making phone calls free, the bill includes language stipulating that if Connecticut implements video conferencing for prisoners in the future — which it doesn’t currently offer, but other states have slowly begun to — then those communications should be free of charge too. The bill also maintains that Connecticut shall not limit in-person visitation if it makes phone calls and video conferences free. (The Prison Policy Initiative estimates that 74 percent of U.S. correctional facilities have reduced or eliminated in-person visitation since implementing video conferencing.)

A Securus spokesperson noted that their company offers not only a way for families to keep in touch but also “critical security features that prevent victim harassment, violent crime and other criminal activity.” With respect to the jurisdictions considering paying directly using taxpayer funds, the Securus spokesperson said, “we welcome discussions regarding financing models with all the agencies we serve, in order to determine the most effective way to pay for technology that keeps people both connected and safe.”

Karen Martucci, the director of external affairs for the Connecticut Department of Correction, said her agency “is supportive of efforts that increase communication between offenders and their loved ones, which will hopefully help to reduce the rate of recidivism.”

State data shows that Connecticut residents pay roughly $15 million annually for prison phone calls, with the state taking 68 percent as a kickback. A spokesperson for the state’s judicial branch testified at the hearing that losing prison phone call commission fees would result in cutting several important adult probation officer positions, illustrating how the state relies on revenue extracted from incarcerated people and their families.

One Republican legislator, Rep. Craig Fishbein from Wallingford, raised objections at the hearing and suggested that the bill would be too expensive and would seemingly allow for unlimited calls every day. He suggested making calls free on holidays like Christmas and Thanksgiving, instead.

Bianca Tylek, the executive director of Worth Rises, dismissed Fishbein’s proposal and told The Intercept that his comments reveal a fundamental misunderstanding of what advocates aim to achieve with the legislation.

“This bill was not introduced so people can talk on Christmas. It’s so family ties can be fostered, which we know leads to so many improved outcomes for children with incarcerated parents, for people on the inside to lower recidivism, and improving re-entry outcomes on the outside,” she said. “None of that is resolved with a few free days throughout the year.”

THE EXORBITANT COST of prison phone calls exacts a heavy psychic price as well. Some prisoners are able to use their meager prison wages to cover the costs, which leaves them with no savings when they finish their sentence. Many, though, must rely on family members to pick up the tab. Every minute they’re on the phone, they’re aware of the literal cost their incarceration is putting on their loved ones, straining the types of relationships that are key to re-entry.

If the state of Connecticut assumed the costs of prison phone calls, Tylek said, it should revise its contract with Securus or another company to be a flat, fixed rate.

“It would be absolutely inappropriate and imprudent for the state to continue to pay for a contract that assumes the liability of costs on a per-minute basis,” she said. “Think about your state legislature. All elected officials have telephones in their offices, and some provider, maybe it’s Verizon or AT&T — that provider isn’t saying to the state legislator you’ll pay on a per-minute basis. In no place in the country are we doing that except in prisons.”

Tylek also dismissed the idea that this would mean people would have unfettered access to phones, noting prisons still need to establish systems so that the phones can be shared equitably. Tylek suggested that a solution may be limiting phone use to 90 minutes per day (or up to six 15-minute phone calls). “We’ve done surveys across the country and found that, on average, 90-120 minutes is what people are looking for, so we might actually look to codify something like that in the bill,” she said.

New York City passed a law in August 2018 to eliminate the charge for prison phone calls, making it the first city to do so; the change is set to go into effect in May. New York City will assume the costs of paying Securus for the phone services and will forego the $5 million it had annually collected in commission fees.

Aside from Connecticut and New York City, other states and cities are now also considering eliminating phone costs on prisoners and their families, including Massachusetts and San Francisco. In November, Shelby County, Tennessee, announced it would no longer charge juvenile detainees and their families for making phone calls; shortly thereafter, in North Carolina, the Mecklenburg County Sheriff’s Office also agreed to stop charging juveniles in custody at county jails for using phones.

The new legislative traction comes after years of activists raising alarm about the high costs of prison phone calls. In 2000, Martha Wright, a grandmother in Washington, D.C., filed a lawsuit against the private prison where her grandson was living, saying that the costs of calling him were unconscionably steep. The court ruled that Wright’s complaint was an issue for the Federal Communications Commission to handle; she then moved to petition them to intervene. In 2013, the agency finally acted, voting to cap rates for interstate phone calls in jails and prisons. Two years later, the FCC also capped the amount an incarcerated person could be charged for calling someone within their state.

The major prison telecommunication providers — including Securus Technologies, Global Tel Link, and CenturyLink — all challenged the FCC’s authority to regulate the rates, and in 2017, the U.S Court of Appeals for the D.C. Circuit ruled against the FCC. As The Intercept reported at the time, the court decision came amid political turnover at the federal agency, with the individual who voted against the FCC’s 2013 proposal, Ajit Pai, having been recently named commission chair by President Donald Trump. Pai praised the D.C Circuit for agreeing with him that the FCC overstepped its authority.

Last month, the National Consumer Law Center issued a new report detailing consumer abuses wrought by private companies that extract profits from the criminal legal system and highlighted the kickbacks that cash-strapped governments accept in exchange for things like offering exclusive contracts.

Report author Brian Highsmith, who testified in favor of Connecticut’s bill to make prison phone calls free, told The Intercept that it’s important for the public to understand that this is not just a criminal justice issue, but a fiscal policy and consumer protection issue too.

“Candidly, that changes the advocacy strategy,” he said. “One of the reasons we have arrived at this moment, in having created a system of mass incarceration and social control, is because it’s very easy for people to imagine that this stuff doesn’t affect you, and so many of these abusive practices have escaped widespread public awareness.”

While Highsmith thinks there can be a role for the federal government to play, he emphasized that many of these exploitative policies are set at the state and local level, and so will have to be tackled with laws like the ones proposed in Connecticut.

“This all really gets at the intersection of two of the worst trends,” he said. “One is offloading tasks to the private sector, which comes with reduced accountability and transparency, and the other is cost-shifting,” where governments rely on bails, fines, and fees imposed on people who interact with the criminal legal system to cover the costs of policing.

The New Politics of the Retirement Crisis

Originally published in the April 2019 issue of The New Republic magazine.
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In 2014, 64-year-old Jim Whitlock was earning a good salary as an inspector at Boeing, where he planned to work for another six years. His wife, Cheri, who was 54, was investigating public records for a title insurance company. Then Jim’s diabetes, sleep apnea, and chronic fatigue dramatically worsened. In May of that year, he was forced to retire early, and Cheri found herself serving as his primary caretaker in addition to working full-time. “The financial hit of it all was quite frankly pretty hard,” Cheri told me. Some months, she had to choose between making her next car payment, purchasing groceries, or paying the electric bill.

Two years later, when Jim was diagnosed with early onset dementia, small luxuries the Whitlocks had long taken for granted—like going to a movie or buying yarn for knitting—began to feel out of reach. Caring for her husband taxed Cheri, too. Her doctor worried about her skyrocketing blood pressure and how little sleep she got every night.

Cheri assumed she would never be able to retire. “All of Jim’s retirement funds were going to his care, we were looking at the potential of losing our house, and I was looking at a very destitute future for myself,” she recalled.

As dire as their financial situation was, Cheri and her husband were still better off than many Americans. Jim had an employee pension from Boeing, and when he passed away last July, after a rapid decline, he had a life insurance policy that doled out just enough money to keep Cheri out of poverty—and will, one day, allow her to retire. Very few Americans can say as much. Today, almost half—​45 percent—have $0 saved for retirement. Roughly the same number don’t simply worry about being financially insecure when they retire; they actually expect it. Indeed, just within the last few decades, retirement and senior care have become some of the most intimidating and untenable costs people face in their lifetimes, a burden more crushing than paying for college or buying a house.

Our modern system for dealing with the elderly emerged during the New Deal, when very different social and economic conditions reigned. The average life expectancy was 61 years old, most women didn’t work outside the home, and many workers had pension plans that provided them with a steady source of income in their old age. Private pensions were themselves a relatively new invention. In 1875, American Express offered the first such plan to employees who had been “injured or worn out” working its rail, barge, and horseback delivery lines. At the turn of the century, railroad barons implemented them, eager to remove aging workers from their ranks without political blowback. Many of those pension funds went bust during the Great Depression. Observing the decimation of millions of dollars in life savings, the federal government recognized that it needed to step in, and created the Social Security Act of 1935.

Over the next 30 years, life expectancy rose, the economy boomed, and in 1965, with flush federal coffers, the government passed Medicare to aid the growing elderly population. Both Social Security and Medicare, however, were designed to be supplemented by other sources. Benefits were nothing if not modest​—enough to keep people out of poverty but hardly enough to live on. Lawmakers had assumed that people would be able to draw on individual savings to augment their government subsidies. And for much of the twentieth century, they were right. Between World War II and the 1990s, most of the middle class earned enough from their jobs to enjoy a fairly comfortable retirement. But during that same period, an ideological shift was underway, as employers began scaling back the benefits workers relied upon to provide for themselves in their old age.

In 1982, when Social Security almost went bankrupt, some of the new think tanks that were establishing themselves in Washington at the time—like the Heritage Foundation and Cato Institute—pressed President Ronald Reagan to privatize the program. But when they realized doing so would be politically perilous, given Social Security’s strong support among seniors, strategists decided to promote a different approach. Politicians would assure seniors their Social Security benefits would remain the same, tell young people they could expect no benefits to be left when they retired, and convince current workers that private investment was a safer, more lucrative option.

The retirement vehicles known as 401(k)s first appeared in 1978, and within five years, nearly half of all large firms were offering them. Advocates made rosy projections, promising things like 7 percent annual compounded returns. “There was a complete overreaction of excitement,” Bank of America’s head of retirement services recalled in a 2017 Wall Street Journal articleBut when recessions hit in the 2000s, millions lost their savings. Today, these early enthusiasts admit their analyses failed to account for a trifecta of factors: the large swings in the stock market, the ordinary investing mistakes people routinely make, and the huge fees charged by money managers. (For the typical worker, fees can easily eat up 20 percent of a retirement fund over time.)

A century after railroad companies introduced some of the nation’s first pension programs, employers have all but relinquished their sense of obligation to care for their workers in their old age. Today, pensions are nearly gone, and most small businesses don’t even offer 401(k)s. In 2013, just 28 percent of large companies in the United States provided retiree health coverage, down from 66 percent in 1988.

 

It’s no surprise, then, that 46 percent of Americans expect to be financially insecure when they retire, anticipating their government and employers will do next to nothing to help them. But these grim fears also open up a political opportunity. In the last election cycle, Democrats campaigned heavily on health care (by mid-October, 55 percent of their television ads centered on the issue). It’s this focus, many suspect, that helped them improve their margins among elderly voters, with seniors casting their ballots almost evenly between the two parties—a marked shift from years past.

There are signs that retirement will play a significant role in the 2020 race. In February, Bernie Sanders reintroducedthe Social Security Expansion Act, with sponsorships from three other leading Democratic presidential contenders: Cory Booker, Kirsten Gillibrand, and Kamala Harris. They belong to a congressional caucus dedicated to increasing Social Security benefits. Formed last fall, it already has more than 150 Democratic members, and Sanders and Elizabeth Warren, another presidential candidate, are its co-chairs in the Senate.

The party has come a long way from its stance a decade earlier, when few liberal politicians would endorse the expansion of Social Security. In the early 2000s, the boldest promise most Democrats would make was to “preserve” benefits or “fight cuts.” Their rhetoric only began to change after 2010, when advocacy groups like Social Security Works were launched to help transform the conversation.

Congress has signaled a willingness to consider policy proposals beyond Social Security, too. Representative Pramila Jayapal’s new Medicare-for-All bill includescoverage of long-term care, and just last year, with Republicans controlling both chambers, Congress expanded Medicare coverage to seniors with multiple chronic illnesses. The success of that bill suggests real bipartisan support exists for strengthening the national insurance program.

Encouragingly, the states have also begun to propose solutions. In 2017, Hawaii launched a program to reduce the cost of senior care, dispensing $70 a day for up to 365 days to family caregivers. In 2018, Maine voters considered a ballot measure that would have established the nation’s first universal home care program. The proposal suggested taxing Maine’s highest earners to pay for caregiving for any adult aged 65 and older who wanted it. It didn’t pass (powerful groups like the Maine Hospital Association and the Maine State Chamber of Commerce torpedoed the effort), but similar ideas will likely surface elsewhere. This year, legislators in Washington state are voting on a bill to provide residents with up to $36,500 for costs like nursing home fees, in-home care, and wheelchair ramps—assistance of a kind that Cheri Whitlock and her family would no doubt have eagerly welcomed.

Politicians who address retirement understand they can reach not only the elderly, but those who care for them. More than 40 million people provide unpaid caregiving, spending on average 20 percent of their incomes each year on expenses like mortgage payments and medical bills. The home health and personal care sector, meanwhile, employs some three million people nationwide and is one of the fastest growing in the economy. Most aides are women, who earn very little and work unpredictable hours. For them, and for families who rely on their services, a plan for universal long-term care would surely represent a welcome change. Few issues in American politics cut across so many constituencies, and affect the lives of so many.

On Beto O’Rourke and Charter Schools

Originally published in The Intercept on March 27, 2019.
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WHEN BETO O’ROURKE ran for Senate in 2018, he highlighted the importance of public education and consistently said that he stood squarely in support of teachers. Given that his opponent was Republican Sen. Ted Cruz, that was more than enough to secure endorsements from both the Texas State Teachers Association and its parent union, the National Education Association. Teachers across the country helped fuel his small-dollar donor machine.

There was little reason, then, to probe Beto O’Rourke on charter schools. In the Democratic presidential primary, he is unlikely to get the same gentle treatment — particularly given his wife Amy O’Rourke’s deep ties to the charter community.

Education in general was not a top priority for O’Rourke on the Texas campaign trail, nor did he have a robust record of tackling education issues during his three terms in Congress. Voters had a general sense of where he stood on K-12 education issues: He supported a rollback of standardized testing; he opposed the advent of private school vouchers and Education Secretary Betsy DeVos; he believed teachers should be paid more and that the federal government should fully fund the Individuals with Disabilities Act.

But O’Rourke stayed conspicuously silent on the topic of charter schooling during his Senate campaign, and his backers in the education establishment decided not to press him on it.

This is not because charter schools are not a growing issue in the state of Texas. Just this year, the Texas American Federation of Teachers called for a pause on the publicly funded, privately managed schools until the state legislature agrees to pass a series of reforms. “We’ve always been against charter expansion and school privatization, but this is the first time we’ve said, ‘Let’s take a time out,” said spokesperson Rob D’Amico.

Clay Robison, a spokesperson for the Texas State Teachers Association, told The Intercept his union is “very concerned” about charter growth in Texas, “especially the national charter chains that have been zeroing in on the state.” A recently commissioned TSTA poll found 73 percent of respondents statewide said there should be a halt on charter expansion until there’s more evidence of success. The two state teachers unions also filed a lawsuit last summer against a Texas law that encourages school districts to turn struggling schools over to charters or outside operators. That case is pending.

FOR THE LAST couple of years, the Democratic Party has been grappling with voters’ changing views on charter schools. In 2016, the party’s platform, which maintained its support for providing parents with “great neighborhood public schools and high-quality public charter schools” articulated, for the first time, an opposition to for-profit charter schools, which are a small but politically powerful segment of the movement. Other elected officials, and presidential candidates like Hillary Clinton, also began that year adopting this compromise-seeming position.

In 2016, charter advocates also suffered an expensive loss in Massachusetts, when voters across the blue state rejected a ballot initiative to lift the state’s charter school cap. The measure failed 62 percent to 38 percent, and while the initiative was being led Democrats for Education Reform, the state’s Democratic party had come out against it.

In 2017, with Donald Trump in office and GOP mega-donor Betsy DeVos appointed to lead the Education Department, the politics around charters continued to grow more thorny for liberal school choice supporters, many of whom who had long been hostile to teacher unions. That year, Gallup reported a growing partisan divide on charters, with Democratic support at 48 percent, down from 61 percent in 2012. Republican support held steady over the five years, at 62 percent. Public support for unions, meanwhile, continued to climb — climbing from 56 percent in 2016 to 61 percent in 2017, and reaching 62 percent — a 15-year high — in 2018.

Charters were further thrust in the spotlight in the 2018 midterms, as many Democratic candidates campaigned on reserved or qualified support for charters. Newly elected Democratic governors in Illinois, California, and New Mexico all said they’d back a pause on charter school expansion, and other Democratic officials grew more forthright with their critiques. The teachers strikes that swept the nation also elevated concerns around charter schools, particularly when Los Angeles educators went on strike for six days at the start of 2019.

While most Democratic candidates are likely to face questions about charter schools on the trail to the White House, that likelihood is greater for Beto O’Rourke’s than most, given his wife’s stature in the charter school movement. Amy O’Rourke is a former charter school leader and currently sits on the board of a local education reform group that supports expanding charter schools in El Paso.

“Amy is free to work wherever she chooses, that’s her choice, but I think at some point Beto is going to be asked about that and he’s going to be asked about his position on public schools and charters,” said Norma De La Rosa, the president of the El Paso Teachers Association. “He was asked during his campaign about the more pressing issues like immigration and the wall, but I can assure you, he will be asked about charters now.”

Amy O’Rourke began her education career as a kindergarten teacher in Guatemala, where she worked for one year after graduating college. When she returned to El Paso in 2004, she connected with a local community organization, Centro de Salud Familiar La Fe, and helped them launch a dual-language charter. She served as superintendent of the school, La Fe Preparatory School, from 2007 to 2012. In her application to open the school, she wrote that the local school district “failed to create an educational system that can generate true success for all students in the community” and promised to offer “a drastically different educational experience” for Segundo Barrio children. She also noted that “innovation and creativity are the backbone of charter schools” and praised other Texas charters for their commitment to “seeing the underprivileged succeed through hard work.”

Now, Amy O’Rourke serves on the board of the Council on Regional Economic Expansion and Educational Development, or CREEED, a business-backed organization that launched in 2014 to help push education reform initiatives in El Paso. Amy O’Rourke also directs CREEED’s “Choose to Excel” initiative, aimed at boosting college-readiness and which focuses, in part, on expanding charter schools in El Paso. In 2017, CREEED hosted a two-day summit, funded in part by the Bill and Melinda Gates Foundation, to strategize on how to advance education reform. Several days later, a local philanthropic group, the Hunt Family Foundation, donated $12 million to CREEED, specifically to help boost charter school enrollment El Paso. The foundation’s chair, Woody Hunt, who also serves as vice chair on CREEED’s board, told the El Paso Times that he hoped the big donation “will show large charter school backers, like the Bill & Melinda Gates Foundation, that the education community in El Paso is committed to school choice.”

The donation was slammed at the time by local teacher unions, and De La Rosa of the El Paso Teachers Association told The Intercept that her organization has been upset with the way CREEED has operated in the city. “If they are as concerned about public education and the kind of education we are providing for our students, then why did they not get involved within the public school system and work with administrators and teachers to see how they could help us change direction here in El Paso and providing those resources we desperately need?” she asked. “We’ve made it clear that their philosophy does not mesh with our philosophy of what a good public school and a good public education for all our students looks like.”

One of CREEED’s focuses over the last several years has been to bring the fast-growing charter network IDEA Public Schools to El Paso. IDEA is one of the largest nonprofit charter networks in the country; it opened 18 new schools this past fall. It’s a “no excuses”-style network, with school uniforms, longer school days, a focus on enrolling in college, and strict discipline rules.

According to Chalkbeat, the IDEA charter network hopes to educate 100,000 students in the next four years and to hit 250,000 students in the next 10. In El Paso specifically, IDEA aims to run 20 schools by 2023, with the first two campuses having opened this past year. CREEED has pledged at least $10 million to help IDEA meet their growth goals.

The Intercept contacted CREEED to speak with Amy O’Rourke about public education and charter schools, and a spokesperson said they forwarded the request to the Beto O’Rourke campaign, which did not return request for comment. Beto O’Rourke’s spokesperson, Chris Evans, also did not return multiple requests for clarification on the candidate’s position on charter schools.

Randi Weingarten, the president of the American Federation of Teachers, met with the O’Rourkes recently in Texas. In an interview with The Intercept, Weingarten said Beto O’Rourke asked her “some really good questions” about schools and emphasized that the “value statements he’s been saying and said during the campaign [about schools] are important.” Weingarten said they discussed the educators he met on the campaign trail who had to use their own personal funds to pay for classroom supplies and that they discussed the importance of community schools with wraparound social services.

She demurred on whether they talked about charter schools specifically. “I’ve been very careful to not repeat the content of conversations I’ve had with the candidates,” she said. “But the whole context of how austerity and competition have really hurt public school opportunities is something that he was very aware of, let’s just put it that way.”

Weingarten acknowledged that education issues weren’t so central to the 2018 Senate race, but she expects things to be different in the months ahead. “A lot of issues did not get the same kind of airing that they will in the 2020 presidential,” she said. “And education issues will get an airing.”

A Federal Civil Rights Office Wants To Limit Access To Emotional Support Animals That Can Help With Depression

Originally published in The Intercept on March 18, 2019.
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The Department of Housing and Urban Development is moving forward with a proposal that could limit people’s right to live with so-called emotional-support animals under the Fair Housing Act.

As the landmark civil rights law that protects against discrimination in housing currently stands, individuals can keep emotional-support animals in their homes free of cost, provided that a trained professional certifies that the animal could help them cope with mental or physical issues. (A separate federal law, the Air Carrier Access Act, permits passengers to travel with their emotional-support animals on planes.) These laws have grown increasingly controversial in recent years, as a result of news reports about healthy pet owners exploiting legal accommodations to bring their pets on flights and into restaurants. Many landlords have also grown skeptical of those requesting to bypass “no pets” policies, suspecting that fraud is afoot.

As a result, housing industry groups have been lobbying HUD to crack down on suspected animal abuse, and they complain that the existing set of rules is too difficult for the average housing owner to understand. Civil rights groups meanwhile have pushed back, conscious that many landlords would love to keep their buildings animal-free however possible and recognize that many individuals struggle as is to have their right to an emotional-support animal taken seriously.

The National Apartment Association is “strongly supportive of disabled persons’ right to reasonable accommodations,” said Nicole Upano, the group’s director of public policy, but they have been asking HUD for clarity on how to handle these requests. “We would like for the average on-site staff person to be able to navigate this issue, but right now you really have to have a law degree,” she said.

As The Intercept reported last year, Anna Maria Farías, the federal assistant secretary for fair housing and equal opportunity at HUD, decided to prioritize cracking down on alleged emotional-support animal fraud. For at least the last year, HUD has been working on new administrative guidance on emotional-support animals, which would essentially be a document laying out the agency’s expectations for how the law should be interpreted and applied. Federal guidance does not carry the same legal power as laws or regulations, but, in this case, it would send a strong signal to landlords and tenants about how the federal government intends to enforce the Fair Housing Act.

“The guidance is probably going to make it a little harder for someone who wants to verify the need for animals, and they will probably cut back a little on some non-domesticated exotic animals,” said Ken Walden, a disability rights attorney with the Chicago-based Access Living.

Brian Sullivan, a spokesperson for HUD, said that the agency is currently circulating the proposed guidance among other relevant agencies, like the Department of Justice, for review. The next step would be to submit it to the Office of Management and Budget for approval. This would be at least the second time the Trump administration’s HUD tries to get guidance on emotional-support animals through OMB. In November, HUD submitted a different version of the guidance to OMB, titled, “Applying the Fair Housing Act to Decide Whether a Person’s Request to Have an Animal as a Reasonable Accommodation Should Be Granted,” but quietly withdrew it in late February. Sullivan said the guidance was removed to do more interagency vetting.

Unlike service dogs, which are permitted under the Americans With Disabilities Act and can be taken to most public places, emotional-support animals under the Fair Housing Act and the Air Carrier Access Act do not have to be trained to perform specific tasks and can only be kept at home or brought on planes. They are considered a legitimate coping method for physical and mental health issues, including anxiety, depression, and post-traumatic stress.

Civil rights advocates say that cracking down too harshly on phony service animals can further stigmatize mental health issues, while also reinforcing the idea that medication is the only appropriate response to mental illness. As of 2019, 24 states already have laws on the books criminalizing the misrepresentation of pets as service animals, and advocates worry that more restrictions from the federal government could deter individuals who have a legitimate need from seeking assistance.

WHEN CIVIL RIGHTS advocates first learned that HUD was considering this measure last year, they requested meetings with agency officials and their requests were ignored, even though HUD was meeting with representatives from the housing industry about the issue. Last spring, however, they finally got through. In May, Walden and his Access Living colleagues Marca Bristo and Mary Rosenberg held a phone call with HUD representatives to spell out their concerns. They followed up with a detailed letter to HUD, laying out a number of fears, including that HUD might impose unfair restrictions against certain breeds of animals, that HUD might make it too difficult for tenants to verify that they have a legitimate need for an animal, and that HUD might treat certain protected classes differently, such as veterans.

Following that letter, a coalition of national disability rights groups organized to present a more unified front to HUD on these issues. The groups also requested to see the draft guidance HUD was working on, but were denied. The new guidance is expected to replace an older guidance HUD issued in 2013, which concerned what housing providers’ legal obligations are in connection to the Americans With Disabilities Act. More than halfof all fair housing complaints concern individuals with disabilities, and nearly half of those involve animal-related issues.

In October, HUD convened a meeting in Washington, D.C., between civil rights advocates and Farías, the assistant HUD secretary; Timothy Petty from HUD’s Office of General Counsel; Lynn Grosso, the director of enforcement for the Office of Fair Housing and Equal Opportunity; Ashley Ludlow, the senior HUD adviser for congressional relations; and members of Democratic Illinois Sen. Tammy Duckworth’s staff. “Senator Duckworth from our state was instrumental in setting the meeting up,” said Walden of Access Living.

Representatives from the National Association of the Deaf, the Seeing Eye, the National Fair Housing Alliance, the National Council on Independent Living, the Autistic Self Advocacy Network, Rise Phoenix Rise, Paralyzed Veterans of America, the National Association of Mental Illness, the American Council of the Blind, and the National Council on Disability were in attendance.

The conversation left the advocates feeling somewhat optimistic. “I’m hopeful that it’s not going to be as bad as we feared last year, but it’s hard to know without seeing the actual guidance,” said Walden.

One area of particular concern for advocates is whether HUD will further restrict the categories of people and groups that can validate an individual’s need for an emotional-support animal. Current guidance requires the verification of “a doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability.” Advocates worry that under pressure from housing industry groups, HUD may limit this to only a doctor or medical provider, which they say would be too restrictive, especially for low-income people. Advocates have stressed to HUD that other providers who aren’t in the medical field, like social workers, case managers, counselors, and even dog trainers can reliably testify to an individual’s need.

Industry groups have been pushing HUD on this very issue. Upano, of the National Apartment Association, told The Intercept that her members believe there should be a “legitimate treatment relationship” between a provider and the person requesting verification of need. Upano, of the National Apartment Association, told The Intercept that her members believe there should be a “legitimate treatment relationship” between a provider and the person requesting verification of need. Her group’s members believe that the best way to cut down on abuse is “to require that there be a therapeutic relationship between the person who is writing the note and the person requesting the reasonable accommodation,” she said. This wouldn’t necessarily need to be a medical doctor or psychologist, she added.

Civil rights advocates had concerns at one point that HUD would treat veterans who require emotional-support animals differently than other individuals with disabilities, but they said HUD officials assured them that this would likely not be the case. “We had heard there may be different standards for veterans with PTSD than other protected classes, and it would be easier for them to get verification, but we’re pretty confident at this point that they will have the same standards,” said Rosenberg.

Another takeaway from their October meeting was that HUD will likely not differentiate between types of housing or animal breeds. “We do not expect HUD to issue separate rules for condos versus apartments versus dorms,” said Rosenberg, who added that they also expect there will be consistency applied toward animal breeds.

ADVOCATES DO EXPECT HUD to take steps to address the online cottage industry that has cropped up for the sale of cheap documentation to pet owners who then falsely identify pets as service dogs or emotional-support animals — a move that, while justified, also holds risks. Critics of these websites rightly note that this type of documentation can be useful for someone who is living in an apartment building with no disability, but wants to skirt their building’s no-pet policy or its monthly or annual pet fee. Tenants and plane passengers can’t be charged for their emotional-support animals, though regular pets can incur a fee. Cultural fears abound of individuals taking advantage of these sites. One New Yorker article from 2014 identified that the “National Service Animal Registry,” which sells certificates and badges for helper animals, signed up 11,000 emotional-support animals in 2013, up from 2,400 in 2011.

While disability advocates agree that using phony documents to bypass pet rules and faking a disability is wrong, they also caution that there is no concrete evidence of widespread fraud. Still, this is a talking point that industry groups use. “By our count, there are 20 websites that spread misinformation about who should really qualify for an emotional-support animal, and they’re also providing access to a mental health professional and it’s not clear they’ve been licensed anywhere or from where they’re providing treatment to that patient,” said Upano, who noted that sometimes the letters come with a money-back guarantee.

Morgan Williams, general counsel of the National Fair Housing Alliance, cautioned in an interview last year that not everyone who seeks out online documents lacks a legitimate need or even knows that they’re wrong to use.

“Just because someone uses one of these websites doesn’t mean they don’t have a disability,” Williams told The Intercept. “They may have no concept that they’re using a website that other people might deem problematic.”

Walden said he and other advocates have tried to stress to HUD that while there may be a cottage industry of pay-for-play licensing, at the same time, technology has advanced and many people truly do have online and remote relationships with medical providers, especially in rural areas. Outlawing all online verification, they warn, would go too far.

Upano said her organization would not argue with the perspective backed by the American Psychiatric Association that telemedicine is a low-cost, affordable option for people who need mental health services. Still, she said, housing groups would like clearer guidelines on how to verify the documentation they’re presented with.

“We understand this is a sensitive issue; we understand the housing provider shouldn’t be asking any questions about diagnosis, medical records, but being able to ask the person if they did in fact write the note, and getting that very basic information, is what we heard from our members is the best deterrent to parse out legitimate and illegitimate requests,” she said.

Upano acknowledged that there can be gray areas, in which a doctor will say someone doesn’t need an animal, but they could benefit from having one. While Farías’s team looks at this issue, the federal housing agency has continued to go after landlords who deny tenants their legal accommodations. That’s where HUD’s energy should be focused, advocates say, even if they debate whether the agency has been aggressive enough.

If HUD publishes a guidance that advocates think goes too far, Rosenberg says there are a number of ways to challenge that.

“Depending on what the guidance says, we could look and say, well, this should have gone through rulemaking,” said Rosenberg. “Or we can see if what the guidance says conflicts with what the actual Fair Housing Act and associated regulations say, which hold more weight.”