New Massachusetts Law Paves The Way for Police-Free Schools

Originally published in The Appeal on February 12, 2021.

In Massachusetts, those who want police out of public schools are one step closer to making it happen. Lawmakers recently struck down a requirement that all school districts in the state have at least one “school resource officer”—a moniker for school cops. Now just two states—Florida and Maryland—have laws requiring police in schools, and advocates are pushing them to follow suit.

Massachusetts adopted the school police requirement in 2014 in response to the 2012 Sandy Hook Elementary shooting in Connecticut where 26 people were killed at school, including 20 young children. Since then, the number of cops assigned to work in Massachusetts schools has steadily grown, as school shootings nationwide have continued.

Last summer, in response to the racial justice protests sweeping the country after the police killing of George Floyd in Minneapolis, civil rights attorneys, parents and students across Massachusetts formed a coalition to press for the removal of the state mandate. Advocates pressured the legislature to address the school-to-prison pipeline, which refers to overly harsh school discipline measures that disproportionately affect students of color. Despite Black and Latinx students representing 27 percent of Massachusetts students  in 2016, for example, they accounted for 64 percent of all school-based arrests.

The coalition’s demands were partially met with an omnibus police reform package that passed in December, which was watered down and full of compromises on issues like police training and facial recognition technology. Lawmakers agreed to remove the school police mandate, though they left it to local superintendents to decide whether to retain police; advocates wanted that power to rest with school boards, which tend to be more accountable to voters. Now some activists are gearing up to make the case for police-free schools to their local superintendents.

The legislation also calls for increased transparency, with annual reporting on school-based arrests, referrals to court, and the amount spent on school cops. “Schools have been supposed to be sharing that kind of information with the Department of Education since 2018, but there has been just a shameful lack of compliance,” said Leon Smith, executive director of Citizens for Juvenile Justice in Massachusetts.

Bay State residents were not the only ones pushing to reduce reliance on school police and redirect funds from law enforcement to restorative justice and mental health services. Last summer, school boards in cities like Minneapolis,MilwaukeeDenver and Portland, Maine,voted to end contracts with local police, and activists in Los Angeles pressed leaders to divest $25 million from the school police budget, and steer the funds to social workers and counselors. On the federal level, Democratic Representatives Ayanna Pressley and Ilhan Omar and Senators Chris Murphy and Elizabeth Warren introduced legislation to end federal funding for school cops. New bills introduced this year in states like Connecticut and Oregon would also phase out police from public schools.

School police presence has increased sharply over the last few decades. According to federal data, roughly 43 percent of public schools, and 71 percent of high schools reported the presence of armed law enforcement officers during the 2015-16 school year (the most recent year for which this data is available). While states can play a significant role in shaping school police policy, only Florida and Maryland currently have laws that explicitly require schools to have police or a security presence, according to an analysis prepared for The Appeal: Political Report by the Education Commission of the States.

In Florida, the law requires all districts to station at least one armed officer on every K-12 campus, and Maryland’s law requires every school to have either an assigned police officer or a plan for “adequate local law enforcement coverage.” 

Both states passed their mandates after the 2018 Marjory Stoneman Douglas High School shooting, where a gunman opened fire and killed 17 people and injured 17 others in Parkland, Florida. Activists in Florida and Maryland are pushing hard now to repeal those state-level mandates, which they also opposed at the time of passage.

Local efforts to remove police from schools have existed in Howard, Montgomery, and Prince George’s counties in Maryland for several years. But a statewide coalition formed over the summer and made five key demands of lawmakers, among them to remove police from Maryland schools.

Two state delegates from Montgomery County responded with a legislative package to prohibit school districts from contracting with local law enforcement agencies, and to reallocate the $10 million in state funding currently set aside for school police into mental and behavioral health programs. The legislation would also disband the Baltimore City School Police Force, the only sworn school police force in the state.

While it’s unclear whether the bills will pass, Renuka Rege, a staff attorney with the Public Justice Center’s Education Stability Project in Baltimore, noted that past legislative efforts to arm teachers failed to gain traction in Maryland. That could be a sign that the school police reforms have a chance of success. Maryland’s 2018 law, she adds, was a “knee-jerk reaction” not only to Parkland, but also to a fatal school shooting in Maryland that occurred two days before the state’s Senate Budget and Taxation committee took up the bill.

In Florida, activists statewide have been reeling from a widely publicized January video of a school police officer body-slamming and handcuffing a Black teenager at a high school in Central Florida. The teen, Taylor Bracey, suffered memory loss, blurry vision and headaches after the incident, which is under investigation.

It’s not the first time Florida has earned national headlines for viral footage of arrests of young people at school. Body camera footage released last year showed a police officer arresting a 6-year-old girl in 2019 as she cried to be let go. The ACLU of Florida published a study in 2020 finding that the increase in Florida school police since 2018 led to an increase in school-based arrests. The ACLU urged a repeal of the state mandate and a return to local community discretion.

Maria Fernandez, a senior strategist for the Advancement Project’s #PoliceFreeSchools campaign, told the Political Report that the campaign is supporting youth efforts to remove police from school in cities like Philadelphia, Washington, D.C., Phoenix, New York City, New Orleans, and Oakland, California.

“Some folks have been working on these issues for a long time, and we also have been receiving more calls for help since the racial justice protests began,” said Fernandez. Many youth activists, she added, are focused on their fast-approaching city council budget fights.

“Money for school police often comes from the city budget, so folks are looking and thinking about that,” she said, pointing to New York City, where the mayor’s newly proposed 2022 budget includes $445 million for school police, compared to $100 million for school nurses and $180 million for school social workers. “You don’t need to be a math genius to do the analysis here,” wrote Alexa Valera, a Brooklyn high schooler and member of the Urban Youth Collaborative in a recent op-ed. “New York City is spending less money on supportive programming to help students than on police to criminalize us.”

In Massachusetts, advocates say next steps for them will involve ensuring that the transparency and reporting requirements of the 2020 reforms are honored, and they will continue to advocate for enhanced state funding of student mental health services.

“Looking at the pandemic, it’s just irresponsible and unacceptable to continue to throw money at cops when you know kids’ mental and social needs are greater than ever,” said Smith, of Citizens for Juvenile Justice.

Some activists in Massachusetts—including in Worcester, and New Bedford—are working to  pressure their school superintendents to get rid of school police. In Framingham, leaders with the grassroots group Framingham Families for Racial Equity in Education say that after meeting with the superintendent,  Robert Tremblay, he “made it clear he does not intend to remove SROs.” (A spokesperson for Tremblay did not respond to the Political Report’s request for comment.)

Cleopatra Mavhunga, an alumnus of Framingham Public Schools and a member of the Framingham Families for Racial Equity in Education, says despite the superintendent’s resistance, the group doesn’t plan on giving up its push for police-free schools.

“Right now the best thing we can do is rally the public,” she told the Political Report. “We need to have people understand what’s really going on.”

Biden’s Goal to Open Most Schools in 100 Days Is Not a Long Shot

Originally published in Bloomberg Businessweek on February 9, 2021.

Joe Biden pledged in early December to reopen most U.S. school buildings within his first 100 days as president: “It should be a national priority to get our kids back into school and keep them in school,” he said. Soon after, however, he narrowed that goal to a majority of elementary and middle—rather than all K-12—schools. And on Jan. 28, Anthony Fauci, Biden’s chief medical adviser, warned that meeting even that lower target “may not happen.”

Technically, in fact, it may have happened already. There’s no comprehensive list of nationwide school reopenings. But according to a tracker by Burbio, a company that specializes in aggregating school calendars, more than half of the 53 million K-12 students in the U.S. had access to some in-person learning during the first week of February, and the number of students attending virtual-only schools trended down throughout January.

A reopened school isn’t necessarily one where all students learn in person five days a week; many students are likely to shift to a hybrid schedule with a mix of online and in-person learning, as millions of kids have so far. The arrangement is often necessary to keep class sizes small enough to meet social distancing requirements and prevent the coronavirus’s spread. Other students could opt to stay virtual full-time if their families have the choice.

Although the White House can work with industry to ramp up vaccine production and mobilize federal agencies such as the Federal Emergency Management Agency to help distribute it, school decisions ultimately rest at the state and local level.

Political leaders want more schools reopened not just to aid the economic recovery but also to provide much needed relief to students and families. Douglas Harris, the director of the National Center for Research on Education Access and Choice at Tulane University, warns of learning loss, mental illness, child abuse, and malnutrition resulting from keeping schools closed.

“Aside from their parents, there’s nothing children depend on more than their schools,” Harris says. Where it’s safe to do so, he adds, “it’s important to give students the option of in-person instruction as soon as possible.”

Recent research indicates that it’s safe to reopen schools where community spread of the virus is low. There’s less agreement on whether that’s the case where spread is higher. Some experts say it could still be safe to reopen as long as infection controls are in place. Rates of spread tend to be lower in younger grades than in high school, possibly because it’s harder to enforce social distancing with teens.

The vaccine rollout should help hasten reopenings, but supply chain challenges suggest it will take weeks, if not months, to inoculate educators. (There are no vaccines approved for children under 16 yet.) Districts are grappling with whether to require staff to return before getting vaccinated, and sometimes meeting opposition from teachers unions—most notably in Chicago, the nation’s third-largest district, which narrowly avoided a teachers’ strike in the first days of February.

In Ohio, teacher vaccinations have begun, but Republican Governor Mike DeWine acknowledged it’s unlikely that staff will have been fully vaccinated by March 1, the statewide reopening deadline he has set for all schools. (Forty-six percent of Ohio students were already attending school in person full-time as of Jan. 28, according to data DeWine shared.) Teachers union presidents for Ohio’s eight urban school districts protested that DeWine has pegged teacher vaccinations to schools committing to reopen, accusing him of using vaccines as a “bargaining chip.”

In California, Democratic Governor Gavin Newsom’s plan to give money to schools to reopen has sparked opposition from administrators as well as teachers. Los Angeles Unified School District superintendent Austin Beutner said in a statement that it “falls well short of what’s needed to help our schools” and that local case numbers remain “dangerously high.” Beutner reiterated that infection rates were too high for reopening after an L.A. councilman threatened to bring a lawsuit on Feb. 4.

Randi Weingarten, president of the American Federation of Teachers, a national union, would not directly say if all teachers should be fully vaccinated before reopening schools, but says the AFT is pushing to “align vaccine availability with school openings.”

Biden has suggested educators could return to classrooms without the vaccine if schools do regular on-site testing, take sufficient sanitation measures, and upgrade their ventilation systems. That position is endorsed by some public health experts, including those at the Children’s Hospital of Philadelphia (CHOP), which has been advising school districts in southeastern Pennsylvania through the pandemic. Amid a virus surge in November, CHOP urged all schools to remain virtual; it now says reopenings can be done safely, particularly with rapid testing regimes in place.

On his second day in office, Biden signed an executive order directing the U.S. Department of Education and the U.S. Department of Health and Human Services to provide clear guidance on masks, testing, and cleaning, and to create a clearinghouse of best practices from schools across the country. The president’s Covid relief plan calls on Congress to allocate at least $130 billion in dedicated funding for schools, and $350 billion in flexible state and local funding could help school districts avoid layoffs and plug budget holes that might hobble their reopening efforts. Republicans in Congress offered $20 billion to schools in a recent counterproposal.

As Biden offers the carrot of funding, state and local politicians are using sticks to try to get schools open again. In South Carolina, the state board of education has threatened to revoke teachers’ licenses for up to a year unless they return to classrooms. Maryland’s Republican governor, Larry Hogan, said that his administration will “explore every legal avenue at our disposal” to reopen schools by March 1.

Experts predict that the negative academic effects of closures will fall disproportionately on low-income Black and Latino children. But racial disparities are also likely to persist in the return to the classroom. A recent survey found that parents of Black students were 19 percentage points less likely than White parents to choose to a fully in-person option when it was available to them and that parents of Hispanic students were eight percentage points less likely. Among communities where the virus has taken a heavy toll, where schools have the fewest resources, and where access to high-quality health care is least guaranteed, many families think the risk of infection is just too great.

Among schools that have reopened, some, like New York City’s, are randomly testing staff and students weekly to monitor asymptomatic spread; other schools are prioritizing tests for those more likely to have been exposed to the virus, such as students participating in indoor sports. Some are finding that staffing is a challenge. Subs are in short supply, and educators who quarantine because of exposure or sickness can leave schools in the lurch and make social distancing more difficult.

Success Academy, New York City’s largest charter school network, announced in January it will remain remote for the rest of the school year, primarily to avoid the disruption of closing and reopening buildings, often on short notice. At the time of the charter network’s announcement, more than 300 public schools in New York City that had reopened were shuttered again because of Covid-19 cases.

Even if Biden makes good on his 100-day pledge, reopenings are likely to be fairly bumpy through the spring—especially if more contagious strains of the virus take hold. For many American families, it’s unlikely to feel like success.

There Could Be an Energy Bill Debt Tsunami, Too

Originally published in City Lab on February 4, 2021.

When the pandemic hit in March, as millions lost jobs and struggled to pay their bills, 34 states ordered mandatory moratoriums on utility shutoffs — measures that were all more critical as families were asked to stay home. The lockdowns translated into higher utility bills: One economist estimated that residential electricity use spiked 10% on average between April and July 2020, leading to households spending nearly $6 billion on extra usage. Another home energy monitoring company reported that April demand increased 22% from 2019.

Yet despite the need never dissipating, most states eventually lifted their utility shutoff moratoriums; by the end of October, just 16 states and Washington, D.C., had active moratoriums in place, covering 40 percent of the U.S. population, according to the National Energy Assistance Directors’ Association. Other states regularly halt utility shutoffs in winter, or when the temperature reaches a particularly cold level. NEADA estimates that 13 states are now relying primarily on these annual seasonal respites. 

Even in households that still have their heat on and water running, millions of customers are racking up significant debts as unpaid bills mount. And advocates worry that shutoffs, like evictions, are just being kicked down the road. 

new economics working paper from Duke University released last week underscored the public health dimension of their concerns: Researchers estimated that, had Congress implemented a nationwide moratorium on utility shutoffs between March and November, Covid-19 infections could have been reduced by 8.7%, and Covid-19 related-deaths by almost 15%. The patchwork of shutoff moratoriums that did exist during that time, the economists found, reduced infections by nearly 4%, and mortality rates by 7.4% by making it easier for people to shelter at home. Without water or electricity, households can be forced to stay with relatives or other families, exacerbating crowding and disease transmission. “Ensuring that people have access to housing and essential services for water and electricity within their housing is necessary in any adequate government response to the housing precarity created by the COVID-19 pandemic,” the researchers wrote. 

On Jan. 13, more than 600 organizations sent President Joe Biden and Vice-President Kamala Harris a letter urging them to authorize a nationwide shutoff moratorium on water, electricity, broadband, and heat. Such a national ban on utility shutoffs was included in both versions of the House Democrats’ HEROES Act, which passed in May and October. But despite authorizing a national eviction moratorium on his first day in office, Biden has so far resisted calls to extend the ban to utilities: Instead, he’s asked Congress to authorize another round of stimulus relief, with $25 billion in rental assistance and $5 billion for energy and water assistance. 

Utility companies have been unenthusiastic about shutoff moratoriums. In the  Washington Post last week, Adam Benshoff, vice president for regulatory affairs at the Edison Electric Institute, which represents investor-owned electric utilities, said that “customers with unpaid bills will not work with their electric companies on a payment plan until they receive a disconnection warning.”  (EEI did not respond to CityLab’s request for comment.) 

NEADA executive director Mark Wolfe told CityLab that while Biden’s proposal would surely help, they are concerned that the $25 billion in funding for renters will do little for homeowners who are behind on their bills. “We are also concerned that local agencies that will be charged with administering the funds might not have the resources to coordinate the payment of rent and utility, and as result only rental bills will get paid,” he said.

Different estimates of outstanding debt abound. Wolfe estimates between 9 million and 12 million households have unpaid bills, with those households being on average $6,500 behind on rent and utilities. A Moody’s Analytics report released in January estimated Americans’ back rent stood at $57 billion. Chief economist Mark Zandi said the average “delinquent renter” will owe $5,600, as they’ll be almost four months behind on monthly rent of $1,130 and utilities of $290. 

Clear data can be hard to come by. Civil rights groups like the NAACP have long called for federal reporting requirements on utilities, but most states do not require electric or gas providers to disclose how customers are accessing or retaining services, and utility companies have historically fought efforts to publish the information, aware of the public relations fallout that disclosing shutoffs could bring. In a report published in August, Michael Thomas, founder of the energy-efficiency startup Carbon Switch, mined data from state websites on expiring utility moratoriums to find that 34.5 million households would lose shut-off protections in the next month, leaving 9.5 million unemployed people at risk by Oct. 1. In a second report from October, he found that four states did let their moratoriums expire in September, affecting 16 million households, with 2.3 million of those below the poverty line before the pandemic started.

Charlie Harak, a senior attorney for energy and utilities issues at the National Consumer Law Center, says it’s also impossible for advocates like him to know exactly how many homeowners are behind on their utilities because companies don’t disclose arrearages by homeowners versus renters. Harak is based in Massachusetts, which has better reporting requirements than most other states. As of November, he says, 500,000 residential customers in his state were more than 90 days in arrear, owing an average of $1,000. “When our state moratorium ends, that’s a big number,” he said. “These families are at high risk of being terminated.”

Harak has been working to figure out how much money would be needed nationwide to address the outstanding utility debt, largely by extrapolating from Massachusetts’s data. “If you’re trying to pay down 100% of the arrearages — which is a better situation than pre-Covid, or if you’re trying to pay down the percentage needed so people don’t get shut-off, I think it’s reasonable to assume the number is between $10 billion and $30 billion, and that’s not including money for broadband or water.”

For now, cities have been trying to leverage federal stimulus money by establishing emergency funds for residents. In Columbus, Ohio, for example, the city awarded grants of up to $750 for water bills, and up to $500 for power bills. In Henderson, Nevada, residents could apply for aid up to $1,000 for utilities, and up to $360 for internet.

In December NEADA and 31 other groups representing state and local energy organizations sent a letter to congressional leaders asking for an additional $10 billion allocated to the federal Low Income Home Energy Assistance Program (LIHEAP) to help up to 7 million families pay off their utility debt. Prior to Covid-19, they noted, approximately 26 million households were eligible for low-income fuel assistance. NEADA projected in December that an additional 5 million households would be eligible for LIHEAP “as a direct result of virus-related layoffs.”

Bolstering money to LIHEAP, the energy groups said, is better than the alternatives, where utilities could offer repayment plans, but those could take households years to pay off, and slow families from getting back on their feet. Alternatively, utilities could raise rates on all their customers to cover the arrearages, which also would mean further strain on households after the pandemic.

On Jan. 28, Democratic representatives Annie Kuster and Peter Welch responded to that call, introducing the Energy Debt Relief for American Families Act, focused exclusively on trying to help families bring down their utility arrearages. The billwould likely not cover the full scope of need, but would provide $10 billion to states to pay off debts through LIHEAP. (Up to 15%  percent of those funds could be spent on administrative purposes, like contacting eligible families to make sure they know relief is available.)

As the pandemic stretches deeper into winter, advocates haven’t given up hope of a national shutoff ban, and the new Democratic majority in the Senate gives them the ability to get it through a budget reconciliation process. And the timing might be right, especially when paired with momentum for an eviction ban. Senate Majority Leader Chuck Schumer endorsed the utility shutoff measure last year, as did Harris, before joining the White House. Senator Jeff Merkley, who introduced the Emergency Water and Energy is a Human Right Act in July, told the Washington Post he wants the president and his colleagues “to use every available tool at our disposal to put in place a national disconnection moratorium.”

Chicago Teachers Might Strike. A Group of Parents, Backed by a Right-Wing Law Firm, Stands to Sue.

Originally published in The Intercept on February 3, 2021.

THIS WEEK IN Chicago, as the local teachers union considers whether to strike over the safety of the city’s school reopening plan during the pandemic, a group of at least nine parents represented by the Liberty Justice Center, a conservative public interest law firm, say they’re ready to sue if educators vote for a work stoppage.

Lawyers with the Liberty Justice Center — the same legal organization which brought the landmark Janus v. AFSCME lawsuit in 2018 to the U.S Supreme Court — argue a Chicago Teachers Union strike would be in violation of Illinois law and the union’s current collective bargaining agreement. The CTU contract commits to avoiding strikes or pickets while the agreement is in effect. “That doesn’t change even if [Chicago Public Schools] engages in an unfair labor practice or allegedly requires teachers to work in an unsafe environment,” attorney Jeffrey Schwab wrote recently in the Chicago Tribune. “It has become clear that kids are collateral damage for the union’s political and financial leverage.”

Chicago is not the only city where the anti-union law firm is seizing on parents’ frustration with virtual learning to help bring challenges against one of their long-standing political targets. The Liberty Justice Center is also representing parents in Chandler, Arizona, and Fairfax County, Virginia, where educators have organized sick-outs to protest school reopening plans. The group is an affiliate of the right-wing State Policy Network and has ties to the Bradley Foundation and the Koch network. Kristen Williamson, a spokesperson for the Liberty Justice Center, told The Intercept their lawyers stand ready to sue if teachers “use the illegal tactic again” and that they represent parents free of charge.

In late October, the Fairfax Education Association, which represents about 4,000 teachers and staff, urged its members to call out sick for a mental health day, as the union determined proposals to resume in-person learning. The vast majority of students in Fairfax County, the 10th largest school district in the country, have been learning from home since the coronavirus pandemic began last March. (A district spokesperson said the impact on instruction from the sick-out was minimal.) In December, the Liberty Justice Center sent a demand letter to the union and the school district warning them that the sick-out had been an illegal strike under Virginia law. The attorneys promised to sue if teachers take that step again.

Nellie Rhodes, a Fairfax County parent, is one of a handful of plaintiffs who have been working with the Liberty Justice Center. Her son, a freshman in high school, has been struggling with remote learning. “We heard about their work and reached out,” Rhodes told The Intercept. “They’re helping us in an effort, and we need their help. They’re putting the unions on notice that if they do something illegal, go on protest, have a sick day, we’re going to sue.”

In Fairfax County, the school board voted Tuesday to bring all students back for hybrid learning next month, beginning on March 16. The teachers union has indicated it wants to wait until all staff have received their second dose of a Covid-19 vaccine; 65 percent of staff have so far received their first dose. In Chicago, the school district has been trying to bring back K-8 students to the classroom, though currently has no plan or timeline for high schoolers.

Different parent groups have different goals for what reopening schools would look like, and multiple parent groups sometimes exist within the same city. Cristy Hudson, a mother of three in Fairfax who helped launch a grassroots group, Open Fairfax County Public Schools, over the summer, told The Intercept while they’re glad the school board is moving forward with reopenings, they’d like to see “a pretty quick expansion to kids back in school five days a week.” Another parent group, the Open FCPS Coalition, is currently focused on recall efforts of school board members they believe have delayed in-person learning too long. A new parent group that formed in January, the Chicago Parents Collective, says it’s pushing for clarity and commitments on reopening. “Let’s take baby steps, none of this is going to be perfect, we recognize that,” Ryan Griffin, a parent member, said in a local radio interview. “But we cannot let this pursuit of perfect get in the way of making some incremental progress on the education of our children.”

Other conservative organizations are capitalizing on parent frustrations with school closures to further political goals around weakening labor unions and public education. Since March, the Heritage Foundation, a right-wing think tank in D.C., has been urging state and federal lawmakers to push private school vouchers and new subsidies for homeschooling in light of the pandemic. And this year, a wave of new private school voucher bills have been introduced in over 15 states across the country, with lawmakers hoping to advance the policies with less public resistance than they might typically face.

Jennifer Berkshire, a journalist who monitors education privatization efforts, says the school reopening debates have fascinated her, as they’ve activated a group of parents that school choice groups have historically struggled to mobilize.

“Many of these upset parents are in elite suburban districts who paid a lot of money to move specifically to those communities for those public schools,” she said. “They’re not the families who have historically embraced school choice and defunding schools.” Berkshire notes that State Policy Network affiliates have “seen the anger of those parents as something that can be weaponized” and have stepped in to offer themselves as a resource.

“It’s not a coincidence that you’re seeing these huge proposed voucher expansions now in all these different states,” Berkshire added. “And I think their hope is to basically mobilize parents who’ve never been interested before, or at least there will be less opposition.”

Charles Siler, a former lobbyist for the libertarian think tank Goldwater Institute, says conservative groups have been looking for new ways during the pandemic to drive a wedge between parents and their individual schools. Parents typically give their own schools high marks in public opinion surveys, even if they have broader critiques about the public education system writ large. A 2019 national survey by the educator professional association Phi Delta Kappa found 76 percent of parents gave their own child’s school an A or B grade. A Gallup poll released in August found K-12 parents’ satisfaction with their child’s education fell 10 percentage points from a year earlier, though it still stood at 72 percent.

While it might seem counterintuitive to have conservative organizations fighting to get students back into the very traditional public schools they typically rail against, Siler says, hastening teacher returns can also help advance conservative movement goals of accelerating staff departures from the public school system altogether.

“If you force teachers to return to work in an unsafe environment, especially when safe alternatives exist, a lot of teachers will retire early or choose to not renew their contracts,” he said. “Fewer people will also want to become teachers because they see what’s happening, the lack of funding and respect. This exploitative assault could cripple public education for decades.”

An American Federation of Teachers national survey conducted in August and September found one-third of educators say the pandemic has made them more likely to leave teaching earlier than they planned.

Berkshire, the education journalist, says while making the teaching profession less attractive is certainly part of the “long game” of the conservative movement, another objective is to use the pandemic and the associated teacher shortages to advance bills that remove teacher licensing requirements. Ending or easing occupational licensing is something long-sought by education reformers and opposed by teacher unions.

In July, a fellow at the American Enterprise Institute, a conservative think tank in D.C., urged states to waive their teacher licensing requirements to more quickly facilitate in-person learning. “These regulatory barriers and other concerns could hinder efforts to reopen schools,” he argued. A few months later, a fellow with the Empire Center for Public Policy, a right-wing think tank in New York, proposed “relaxing or abolishing teacher preparation program requirements” as well as easing certification rules to “invite more competition for teaching jobs.”

Shaun Richman, the program director of the Harry Van Arsdale Jr. School of Labor Studies at SUNY Empire State College, says the current distrust undergirding battles to get reluctant teachers back into the classroom is the result of years of hostile treatment from policymakers and administrators.

“Decades of union-busting attacks on teachers unions, under the guise of ‘education reform’ with the cynical manipulation of ‘civil rights’ and ‘student success’ rhetoric, have utterly destroyed the trust necessary to get school districts like Chicago to return to any form of face-to-face instruction during this actual crisis,” he said. “Anyone who’s serious about getting the buy-in from teachers that’s necessary [for reopening] needs to shun and denounce the [former Trump Education Secretary Betsy] DeVos and Janus crowd.”

How Biden’s FCC Could Bring Fast Relief To Students Struggling With Remote Learning

Originally published in The Intercept on January 26, 2021.

PRESIDENT JOE BIDEN’S recent pick to chair the Federal Communications Commission, Jessica Rosenworcel, is welcome news to those who have been fighting to help students access the internet during the coronavirus pandemic. It was Rosenworcel herself, one of just two Democrats on the five-person commission, who years back coined the term “the homework gap,” referring to inequities faced by kids living in communities with poor internet infrastructure or in households that can’t afford internet service.

The homework gap, or so-called digital divide, has been one the most difficult challenges for children throughout the pandemic. The disparity took on new urgency when schools nationwide closed to prevent Covid-19 spread in the spring, and internet providers also struggled to handle the surge in home usage among their regular customers. Ten months into the pandemic, millions of students still lack reliable connectivity, and many of those children have no plans to return to in-person school for months.

One change Rosenworcel has been advocating throughout the pandemic could now be used to address inequities in digital learning: By using her new emergency powers, she could authorize existing federal funding streams to go toward buying hot spots and tech devices for students learning at home who currently lack them. Rosenworcel did not return a request for comment. An FCC spokesperson said, “We need to put classrooms and libraries across the country on course for digital age learning, and a big part of that will be building an E-Rate program that can more fully meet these needs.” The spokesperson also referred The Intercept to Rosenworcel’s remarks before Congress in September, where Rosenworcel emphasized the FCC’s ability to get started “immediately.”

Established in 1996, the federal Schools and Libraries Program, commonly known as E-Rate, provides up to $4.15 billion annually to help connect public schools to the internet. The program was modernized in 2014 under reforms spearheaded by the Democrat-appointed FCC Chair Tom Wheeler. The goal was to help more schools access high-speed fiber broadband, but the modernization effort was opposed by then-FCC Commissioner Ajit Pai, who argued that the reforms were fiscally irresponsible and did not do enough to control fraud and abuse.

On January 18, 2017 — two days before Wheeler stepped down as chair — the FCC published a report describing the early results of its E-Rate modernization efforts. Among other things, the agency found that between 2013 and 2016, the percentage of school districts meeting minimum federal connectivity targets rose from 30 to 77 percent, and the costs schools paid for bandwidth fell dramatically. “E-Rate’s new approach to Wi-Fi has had a rapid and widespread impact,” the report concluded. “Nearly 50,000 schools and libraries received Wi-Fi support in 2015, compared to zero in funding year 2013 and 2014.”

But on February 3, 2017, shortly after President Donald Trump appointed Pai to succeed Wheeler as FCC chair, the report detailing the successes of the E-Rate reforms was retracted. Pai issued an order stating that the report “will have no legal or other effect or meaning going forward.” While a copy can still be found on the agency’s website, an FCC spokesperson told Education Week at the time that it “does not reflect the official views of the agency.” Education and tech advocates were baffled by the move, particularly since it showed that the reforms were working.

Pai’s continued opposition to E-Rate modernization was instrumental in hampering students from accessing more reliable internet during the pandemic. One little-known restriction on the program states that E-Rate’s federal funding can only go toward financing internet in physical classrooms and school libraries, meaning that the billions of dollars could not help students access at-home broadband or even subsidize internet at public libraries.

SINCE THE START of the pandemic, Rosenworcel, education advocates, and Democrats in Congress have urged Pai to use his emergency powers to lift the E-Rate restriction for virtual learning. “We should let our school libraries loan out wireless hot spots using the funding in the E-Rate program,” Rosenworcel said in August. “That’s not a radical idea. We could do that with existing law today, and we can do it at national scale.”

In March, 18 Senate Democrats, led by Massachusetts Sen. Ed Markey, sent a letter to Pai urging him to take emergency action during the crisis. In August, 38 Senate Democrats sent a similar letter. While Pai has claimed that his hands are tied and lawmakers would have to amend the federal Communications Act, which created the FCC, the senators pointed out that past FCC chairs have used their powers to reinterpret the statute, including in 2011 when then-Chair Julius Genachowski authorized a pilot funding off-campus connectivity for mobile learning devices.

In September, Colorado Attorney General Philip Weiser submitted an emergency waiver to the FCC requesting the ability to direct their E-Rate funds to students off public school campuses during the pandemic. Others have joined in support, including Karen Charles Peterson, Massachusetts’s commissioner of telecommunications and cable.

Kamala Harris was one of the Democratic senators to sign the letters sent to Pai urging the FCC to lift its restriction, and both Harris, now vice president, and Biden have emphasized the importance of addressing the digital divide during the pandemic and after it ends. Miguel Cardona, Connecticut’s education commissioner and Biden’s nominee for federal secretary of education, prioritized delivering tech devices to all students during the pandemic, and in December, Connecticut’s Democratic Gov. Ned Lamont announced that they were the first state in the nation to succeed in delivering internet and devices to every student in need.

Late last year, it looked like $3 billion in emergency funding for E-Rate was going to be included in Congress’s relief bill, but it was stripped out at the last minute.

“The FCC always had the power to utilize the E-Rate program to connect students at home for distance learning during the coronavirus pandemic, yet former Chairman Pai and the Trump administration just refused to act,” Markey said in a statement to The Intercept. “So I’m delighted that, under new leadership, the FCC is now poised to begin providing connectivity and devices to students in need.”

Sabia Prescott, an education policy analyst at New America, a think tank, told The Intercept that lifting the FCC E-Rate restriction, even at this point in the pandemic, would be an important step to getting internet to more students quickly — and it has no downside.

“The restriction has to do with where the Wi-Fi and tech devices can go, so right now schools that qualify for E-Rate can purchase Wi-Fi at discounted rates for their campus, and that’s why a lot of students have been sitting outside school buildings or in parking lots to gain access,” she said. “But with the restriction, schools can’t lend out devices or Wi-Fi hot spots that they’ve purchased or lend them to public libraries.”

Doug Levin, the national director for K12 Security Information Exchange, a nonprofit focused on protecting schools from cybersecurity threats, told The Intercept he’s pessimistic that lifting the restriction would help students much this spring, in part due to the failure of the federal government to provide earlier leadership and guidance on addressing remote learning needs.

To act now, Levin said, the FCC would realistically need to waive bureaucratic requirements like granting school districts waivers to spend E-Rate funds outside of a designated “funding window” and waive competitive bidding requirements, which “runs the political risk of future charges of waste, fraud, and abuse” by critics.

Still, Levin notes that even a more limited impact during the spring could help provide a “proof of concept” for a permanent expansion of E-Rate to fund off-campus broadband. “That is, the need to address the homework gap during remote learning can serve as the impetus for enacting Rosenworcel’s longer-term policy agenda,” he said.

Markey, who was one of the original authors of the 1996 E-Rate legislation, also has hopes that the program will be expanded. “Make no mistake,” Markey said, “this is just a first step, and Congress must still pass my legislation to provide billions more in E-Rate dollars to ensure all students can continue their education during this crisis.”

“When there’s civil unrest, people like to come and support small business.” In Washington DC, residents enjoy a Sunday afternoon reprieve while staying vigilant

Originally published in Insider on January 17, 2021.

At the Dupont Circle farmers market on Sunday, Abbye Prelip, who traveled to Washington DC to sell vegetables, said she was keeping an eye out for “any crazies.” But apart from the enormous security presence in downtown, and some delays caused by road closures, the day had been uneventful, even busy.  

“We’ve come to the conclusion that, when there’s civil unrest, people like to come and support small business, which is really cool,” Prelip said. Shenandoah Seasonal, her business, is an organic farm about an hour-and-a-half away in Virginia. 

Washington DC was on high alert Sunday as anxious residents readied themselves for the unknown. With the city still reeling from the insurrection at the U.S Capitol, the FBI warned that violent protesters could take to the streets just days before President-elect Joe Biden’s inauguration, and thousands of National Guard troops packed downtown. 

Sunday, Jan. 17 has been marked as a day for right-wing extremists to protest President Donald Trump’s defeat since at least late November. There were calls on Parler, a social media platform used by right-wing groups that has since been shut down, for a so-called “Million Militia March” on Sunday, and the New York Times reported the extremist Boogaloo movement was also planning rallies for the 17th. Appearing on Meet the Press on Sunday morning, the city’s mayor, Muriel Bowser, said she was concerned about attacks in residential neighborhoods, where there is less of a formal security presence. The mayor recently requested that businesses hang signs that stress weapons, “including concealed firearms” are not welcome on the premises.

But with the recent crackdown on right-wing organizing by tech companies like Facebook and Twitter, and the booting by Apple, Google and Amazon of the social networking app Parler, the warnings so far appeared to be mostly false alarms. By mid-afternoon, there was an eerie calm in the city of some 700,000 residents. The Washington Post reported that two people had been arrested, a woman for impersonating a police officer and a 22-year-old Virginia man who was reportedly carrying a Glock 22 firearm and ammunition. 

It was less than two weeks after President Donald Trump rallied his supporters to “Stop the Steal” and a mob stormed the Capitol building, overwhelming police and ransacking congressional offices. Federal prosecutors now say they have “strong evidence” the rioters intended to capture and assassinate members of Congress, and  in the days since local residents have witnessed a dramatic ramp-up in policing and security, including new fencing, barriers, and closures of subways, bike-shares, streetcars, stores, and restaurants. 

For now, people are continuing to make essential trips, like scheduling their vaccine appointments and stocking up on groceries. Few if any political protesters were seen around the city.

Back at the farmer’s market, Amanda Humphrey, working a stand for the D.C-based Little Wild Things farm, which sells microgreens, said their sales were actually up on a per-hour basis from the week before. “We thought that maybe it would be dead but traffic is pretty consistent and honestly I don’t notice a real difference,” she said.

Emily Zaas, co-owner of Black Rock Orchard, a family farm in Lineboro, Maryland, said she had been doing good business. Zaas recalled almost two decades ago when there were sniper attacks in the D.C region that killed ten people and critically wounded three more. “We were afraid then that people wouldn’t come out, that there’d be no business, but the markets were so busy that weekend,” she said. 

Maybe people were looking for “a reprieve,” she said. “It’s peaceful here.”

Even local composters didn’t pass up their opportunity to drop off food scraps, taking advantage of a weekly city-wide program that launched in 2017. At the Dupont market, volunteers confirmed their compost collection was not lower than a typical Sunday. “People have a habit, and we’re going to make it easy for them to keep that going,” said Read Scott Martin, a volunteer. “This is really a city that comes together when we’ve got pressure.”

Gannon Pitre, manning the Sexy Vegie stand at the Dupont Farmers Market, which sells plant-based vegan and vegetarian food, noted one of his colleagues from Maryland decided to stay home this week. And JC Clark, owner of Capitol Kettle Corn, a local popcorn vendor, said he got a call on Saturday asking if he wanted to launch a pop-up on Sunday, meaning there were some vacancies. Clark felt comfortable saying yes, noting his normal popcorn deliveries were more challenging with all the road closures across the city.

“Yesterday I had 38 popcorn deliveries and I finished only about 20 of them,” he said. “Getting around in a car was so hard.”

How Education Secretary Nominee Miguel Cardona Works With Teachers

Originally published in The American Prospect on January 4, 2021.
Miguel Cardona, a former teacher, school administrator, and currently Connecticut’s education commissioner, was recently nominated to lead the federal Education Department. Cardona’s selection reflects a shift from those who spearheaded education policy under Joe Biden’s Democratic predecessor, Barack Obama.

As president, Obama aligned himself with the pro–charter school PAC Democrats for Education Reform, which, as co-founder Whitney Tilson put it, was founded “to break the teacher unions’ stranglehold over the Democratic Party.” Obama tapped DFER’s top choice for education secretary—Chicago Public Schools CEO Arne Duncan—and for the next seven years Duncan pushed controversial reform policies, including charter school expansion, weakening teacher tenure, and tying teacher salaries to student test scores. Unions despised Duncan, and Obama, who largely left the dirty work to his appointee, made clear he approved of the job Duncan was doing. “Arne has done more to bring our educational system—sometimes kicking and screaming—into the 21st century than anybody else,” Obama said in 2015.

While Biden didn’t go so far as picking former National Education Association president Lily Eskelsen García to lead the Education Department, the choice of Cardona has nonetheless been a relief to union advocates, who knew education reformers were lobbying behind the scenes for other candidates. It’s another example of how Democratic leaders have drifted away from the Obama-era agenda and more toward a platform focused on traditional public schools and their schoolteachers.

During his confirmation hearing for education commissioner, Cardona made clear that under his leadership, Connecticut would be focusing its energy on “neighborhood schools” rather than charters. He’s also echoed some of Biden’s criticisms of evaluating teachers by standardized test scores. “Not reducing a teacher to a test score and bringing the voices of teachers and leaders into the process of professional learning. Those are the two things I really felt like I had to champion,” Cardona told CT Mirror in 2019.

As an assistant superintendent for Meriden Public Schools—located about 20 miles south of Hartford—Cardona was intimately involved in one of the nation’s most successful so-called labor-management partnerships in public education. Cardona helped lead reforms to boost student achievement in collaboration with the Meriden Federation of Teachers, at a time when educators nationally were being framed as the barrier to such efforts.

Labor-management partnerships are collaborations between executives and their unions that extend beyond traditional collective bargaining over wages and benefits. The partnerships have existed in the private sector for decades, with firms recognizing that expanding labor’s role in decision-making can lead to improvements in productivity, quality, and overall competitiveness. Some well-known labor-management partnerships include UAW’s collaboration with General Motors in the 1970s, and health care unions like SEIU working with hospital systems to drive improvements in patient care.

In public education, these types of partnerships have been more rare. But interest in the model started picking up about a decade ago, partially in response to attacks on teachers unions, and also as a way for reformers to push their preferred policies through new vehicles.

In 2010, with a grant from the Bill and Melinda Gates Foundation, Rutgers labor scholar Saul Rubinstein and his student John McCarthy started researching labor-management partnerships in education. One school district stood out in particular, the ABC Unified School District in Cerritos, California, which put a labor-management partnership in place in 1999. That collaboration helped drive student gains in the district, and also helped ABC Unified weather the 2008 recession with no layoffs, loss of employee health benefits, or increase in class size. This surprising success led to a 2014 paper where the Rutgers academics found “strong evidence” that such partnerships can help boost school quality and student achievement.

In 2007, Meriden’s then–teachers union president, Erin Benham, shared an article with school superintendent Mary Cortright about what was happening in Cerritos. Cortright and Benham met to discuss the piece, and afterward more regularly, in part due to the growing recession. Cortright’s successor, Mark Benigni, was eager to expand the conversations, and starting in 2010, union and district leadership began scheduling regular meetings on the first Monday of every month to discuss whatever was on their minds. Cardona would sit in on the meetings, too.

“We’d just sit there and bring up issues and use the time to hash things out,” says Benham, who retired as president in 2019 and now serves on the state education board. “We’d come up with a plan, and that just became a way of life.”

One of the biggest innovations that came from Meriden’s labor-management partnership was a push to expand the school day at three elementary schools. Research has shown that more instructional time is one of the most effective ways to boost student learning, and union and district leadership wanted to figure out how to deliver that opportunity to more students. The union applied for a $150,000 American Federation of Teachers grant in 2012, and by leveraging volunteers and community organizations, and giving annual stipends of $7,500 to staff, the district managed to offer 40 additional days of instructional time. While funding dried up after about five years, Meriden Federation of Teachers president Lauren Mancini-Averitt says they plan to bring at least one extended-learning school back after the pandemic.

A spokesperson for AFT says there are about 50 labor-management partnerships in various stages of depth and development today, but that “Meriden’s is among the most fully developed.”

Shaun Richman, a labor expert at SUNY Empire State College, says one drawback of labor-management partnerships is that union reps can end up having to do more work with management in improving the company’s product than in organizing members. Benham and Mancini-Averitt agreed the partnership was time-consuming, but defended the commitment, saying it’s proven to be the best way to actually solve problems, which is what their members want.

Richman says these partnerships sometimes draw criticism from more radical workers, who would rather spend their time fighting with management. But he said the partnerships generally tend to be quite popular, as most union members don’t want to be fighting. “For most unions, it’s this cycle where you have two years of fighting and six years of peace,” he said. “I’m a real boss hater and it’s something I struggle with, that most workers would prefer not to be fighting.”

One major initiative Cardona led as part of the labor-management partnership involved developing Meriden’s new teacher evaluation system. Unlike the dominant education reform model sweeping the nation at the time, Benham says their team wasn’t looking at teacher evaluations as a punitive tool to weed out low-performers, and instead believed evaluations should be constructive tools to help all educators improve. “We were very intentional about keeping those things separate,” says Benham. “Evaluations were about being a helping tool, not a gotcha.”

While Connecticut had some requirements to use student test scores in teacher evaluations, Meriden, under Cardona’s leadership, pushed to make those measures weigh less than they were being counted in neighboring districts. In Meriden, relevant department chairs also provided feedback for teachers, rather than just leaving evaluations to administrators less familiar with the assessed subject areas.

Cardona “was assistant superintendent for four years, and if there was any personnel issue, any really sensitive issue, he is who we would meet with,” says Benham. She praised his openness and said together they worked on areas ranging from restorative practices and professional development to improving school climate.

“He was a good partner to us, very personable, and the fact is he’s a parent,” adds Mancini-Averitt, noting Cardona has two of his own children in Meriden Public Schools. AFT president Randi Weingarten shared the enthusiasm. “There is great potential for a renaissance in public education after years and years of the school wars,” she said in a statement, adding that Cardona’s “deep respect for educators and their unions will travel with him to Washington.”

Newly Elected Michigan Prosecutor Will Stop Seeking Cash Bail

Originally published in The Appeal on January 4, 2021.

Eli Savit, the new chief prosecutor of Washtenaw County, Michigan (Ann Arbor), announced today that his office will no longer seek cash bail. His policy is the latest victory for advocates nationwide who are working to eliminate financial conditions for pretrial release. It comes on the heels of similar announcements in December by prosecutors in California and Virginia.

Savit, the county’s first new prosecutor in 28 years, ran on ending cash bail during his 2020 campaign. “One’s wealth must never play a role in their detention,” he told The Appeal: Political Report in August.

He is issuing a 20-page policy directive today that cites several reasons for opposing cash bail, including that debtors’ prisons are illegal in all 50 states and that cash bail stands at odds with the country’s legal principle of “presumption of innocence.” 

“We’re very excited about Eli’s no cash bail policy,” said Twyla Carter, national policy director at The Bail Project. “We’d love to see other elected and appointed officials follow suit, and ultimately what we want to see is the decriminalization of poverty, mental health and addiction.”

According to a state task force report released last year, people detained pretrial have comprised roughly half of Michigan’s jail population in recent decades, often because they couldn’t afford their bail. And this sparks great disparities in incarceration. Preliminary analysis by the ACLU of Michigan found that Black people in Washtenaw County were 8.55 times more likely than white people to be incarcerated because they couldn’t pay bail. 

These trends are not unique to Michigan. Nationwide Black and Latinx people are more likely to be incarcerated pretrial than whites charged with similar crimes, and nearly half a million legally innocent people sit in local jails every day, according to an analysis by the Prison Policy Initiative. 

Researchers have found even brief periods in jail can hurt job and housing prospects, negatively impact children, and increase the odds that a defendant will plead guilty

Prosecutors don’t set bail themselves, but their recommendations and motions weigh heavily on what judges do. Over the last few years, prosecutors elected on progressive platforms have reformed the use of cash bail, including Kim Gardner in St. Louis, Larry Krasner in Philadelphia, and Rachael Rollins in Boston, especially for lower-level offenses. Studies have found that jurisdictions that have experimented with bail reform have not seen an increase in crime.

“We know from our almost 16,000 bailouts, including in Washtenaw County, that when a defendant’s financial needs are met, when they have rides, text message reminders, child care, they show up to court,” said Asia Johnson, a communications associate at the Bail Project.

But only in January 2020, when Chesa Boudin became the district attorney of San Francisco, did a prosecutor announce that they would no longer request cash bail under any circumstance. 

Others have since joined Boudin. Sarah George, the prosecutor of Vermont’s Chittenden County (Burlington), rolled out a similar policy in September, followed in early December by George Gascón, the newly elected DA of Los Angeles. A few weeks later, Steve Descano, the chief prosecutor of Virginia’s largest county (Fairfax County), announced that his office would also not request cash bail, formalizing a practice he established after taking office a year ago.

“Simply put, cash bail creates a two-tiered justice system—one for the rich and one for everyone else,” said Descano in his recent announcement. 

Still, criminal justice reform advocates are wary of some limits of these prosecutorial reforms and of the continued reliance on pretrial detention, including for factors tied to money.

In Washtenaw County, according to Savit’s directive, prosecutors “can and will” still seek unsecured and surety bonds, which require payment from a defendant or third party if they fail to show up in court or otherwise break the conditions of their release.

Michigan law requires that in some cases judges must impose a cash or surety bond, though Savit’s directive also enables prosecutors to seek secured bonds more broadly. He told the Political Report this would be “very rare.” Surety bonds require a third-party to show they could afford to pay a bond if a defendant breaks release conditions, which hinders the ability of defendants with impoverished families to gain release. In some cases, surety bonds can even require a defendant to provide upfront payment to secure a third party’s intervention, but Savit said he is steering staff away from for-profit commercial bond agents. “It is not appropriate to require a defendant to secure a surety from a for-profit commercial actor,” his directive notes.

“I don’t want anybody to be put in a position where they have to pay upfront money—to the court or a third party—to secure their release,” Savit said. “If surety bonds are being used by courts to require such an upfront payment, we’ll re-evaluate and adjust as needed.”

Phil Mayor, a senior staff attorney with the ACLU of Michigan, says the “knee-jerk reaction” shouldn’t be a threat of financial penalty later in the legal process either. “We need to continue to be worried about the poverty trap that our criminal legal system easily devolves into,” he said, noting that defendants sometimes miss court hearings for fear of losing their jobs, or failing to find child care or reliable transportation. 

Savit’s prosecutors can also choose to recommend the denial of pretrial release for some serious offenses, including murder, armed robbery, and repeat violent offenses. Advocates worry that asking prosecutors to decide who presents a safety risk before they have been afforded a trial poses problems, especially when those determinations are made with algorithmic tools that researchers say are faulty and racially biased. Savit, however, is avoiding the algorithmic tools, and told the Political Report he “consciously chose not to go down that route” because he “read the studies and knows those can often reinforce human and racial biases.” 

Washtenaw  prosecutors will still be permitted to request nonfinancial conditions for pretrial release like drug and alcohol testing, GPS tethers, and in serious instances, oversight by a “responsible” member of the community, though Savit will encourage his staff to articulate specific reasons for seeking such conditions. 

In many jurisdictions the cost of GPS tethers is borne by the defendant, which can either lead to new forms of debt or an inability to leave jail altogether. Savit told the Political Report that while he sees a tether as “far preferable” to forcing someone to sit in jail, he does worry about the costs of the devices charged to the defendant. 

“We need to put our heads together and work collaboratively, and some of this probably will take changes at the state level,” he said. Michigan’s legislature recently enacted some reforms spurred by the state task force on pretrial justice, but lawmakers have yet to tackle bail.

Mayor, who consulted on the new Washtenaw policy, told the Political Report that he had urged Savit to make any pretrial restrictions limited and rare. “I think his new written policy reflects that, but the proof is going to be in the implementation,” he said. “I have strong optimism that it is Eli’s intent to implement things in a way that’s designed for pretrial detention to be the dramatic exception and not the rule, but the test will be in the buy-in from line prosecutors and judges.”

There have been similar concerns in Fairfax, Virginia, where advocates note that an end to cash bail—while positive—will not inevitably lead to justice or even pretrial release.

“What’s been more prevalent in Fairfax is the over-conditioning of release—like requiring a probation officer, mandatory drug testing or mental health treatment,” said Bryan Kennedy, a public defender in the county. “The judges definitely over rely on it, and prosecutors ask for it more than they should.” Kennedy says Descano has also stayed fairly quiet when judges send people back to jail for missing court hearings due to poverty-related issues, and there have even been times when Descano appealed a circuit court’s decision to release somebody pretrial. (Descano told the Political Report that’s “not something that happens regularly.”)

In Virginia, unlike other states, there is also no constitutional right to bail, which means the list of eligible offenses for detention without bail includes everything from driving without a license to murder. Kennedy says he and his colleagues worry that, without addressing that on the state level, judges might just detain more people if cash bail is not an option. 

Descano has called on the state legislature to reform the pretrial system and end cash bail, as did the association of progressive Virginia prosecutors in a letter released today.

Michigan organizers say they will keep an eye on how things unfold in Washtenaw as well.

Trische’ Duckworth, an organizer of anti-police brutality protests in Washtenaw County and the executive director of Survivors Speak, told the Political Report that she’s thrilled about Savit’s new cash bail policy and that she didn’t have to “twist Eli’s arm” to take it on. “He came in with a vision,” she said. 

“But I tell him all the time, ‘I’m watching you,’” she added. “I say, ‘Don’t get your first protest.’”

Liberal Legal Organization Renews Amazon VP’s Position On Its Board Despite Member Protest

Originally published in The Intercept on December 22, 2020.

IN LATE MARCH, following an employee walkout at an Amazon warehouse in Staten Island to protest the lack of safety protections amid the new pandemic, Amazon fired the lead organizer, Chris Smalls, with the public rationale that he had violated rules around social distancing. Under pressure, Amazon pledged in early April to ramp up its distribution of personal protective equipment, but a leaked memo from a private meeting revealed company executives had discussed how to smear Smalls and damage any potential union efforts. Smalls is “not smart, or articulate,” argued Amazon’s general counsel David Zapolsky, who urged the company to tell reporters Smalls’s conduct was “immoral, unacceptable, and arguably illegal.”

Zapolsky’s comments outraged many left-leaning groups, including a group of lawyers and law students affiliated with the American Constitution Society, a self-described progressive legal organization that was created in 2001 to help build the bench of liberal judges and act as a countervailing force to the conservative Federalist Society. More than 100 individuals sent a letter to ACS’s president, Russ Feingold, the former Democratic senator from Wisconsin, and the ACS board of directors protesting the inclusion of a deputy of Zapolsky’s, Andrew DeVore, in its leadership ranks. DeVore, an Amazon vice president and associate general counsel, reports to Zapolsky and manages Amazon’s “labor and employment” issues, among other areas.

The signatories argued that Amazon’s conduct around Smalls was no isolated incident when it comes to “trampling worker rights” and also blasted the company’s record on privacy, surveillance, tax avoidance, anticompetitive practices, contracts with ICE, and bullying of local governments. “We urge you to ask for Mr. DeVore’s immediate resignation from the Board of Directors,” the letter read. DeVore was appointed in 2017.

Following the letter, ACS sought to handle the internal uprising in several ways, including organizing a virtual town hall for local chapter leaders with Feingold to discuss their concerns.

Feingold “expressed ACS’s respect for workers rights, but my feeling was he treated the meeting like a politician as a way to pacify the opposition rather than committing to specific actions,” said Hooman Hedayati, a member of the Washington, D.C., ACS chapter board who attended the town hall. Feingold declined to share with attendees how much money ACS receives from Amazon (it’s listed as a 2020 corporate sponsor on its website) but insisted the amount was negligible.

ACS also released a public statement reiterating the organization’s support for workers’s rights, and urged “employers to support the right of their employees” to form unions and demand safe working conditions.

Hedayati noted the statement failed to name-check Amazon specifically. “I think it was very concerning that ACS as a progressive organization won’t make a statement that specifically calls out Amazon and its bad track record,” he told The Intercept. “It makes me question to what degree they’d really be willing to speak up in support of the labor movement.”

Feingold also made a few personal calls, including to Leo Gertner, a labor lawyer and lead organizer of the letter, to suggest that the problem will basically go away when DeVore’s three-year term expires at the end of the year. “Feingold was very nice, diplomatic, and courteous and told me he was very supportive of our effort, but that the board was not interested in voting to remove Mr. DeVore or change his status in any way,” Gertner said. “But he told me DeVore was up for reappointment soon and his term was going to end this year.”

Since April, Amazon has continued to face charges of anti-worker activity, most recently this month, when attorneys for the company sought to blunt a union effort at an Alabama warehouse.

But in response to questioning, ACS confirmed to The Intercept that DeVore’s position on the board was actually renewed this year for another three-year term. David Lyle, ACS’s senior counsel for communications, said in a statement that keeping DeVore on “does not affect ACS programming or other decisions, at the national or chapter levels,” but maintained that leadership found him “to be a very engaged board member” and “valu[ed] representation of a diversity of experiences.”

ACS’S TIES TO Silicon Valley do not end with DeVore. Apple’s in-house counsel, Philippa Scarlett, was appointed to the board of directors in 2017, and now serves on ACS’s board of advisers, though her affiliation with Apple is not actually disclosed in her bio.

Over the last decade, ACS has taken at least $290,000 from Google, Microsoft, and Facebook, with other corporate sponsorships coming from Verizon and Amazon, according to pages detailing ACS convention donors. The contributions have raised questions among its members about how ACS positions itself on matters of antitrust, bankruptcy, and corporate power — areas where ACS has less clear stances than it does on issues around reproductive and civil rights. Some members say this is because ACS has molded its politics in the image of the corporate-minded Senate that serves as gatekeeper to the judiciary.

“ACS is an elite-driven organization based in D.C. with a board of directors full of Harvard, Yale, and Stanford alums, where most of those folks cut their teeth in corporate law and advised those megacorporations,” said Gertner. “I think they have an interest in putting themselves out as liberal and progressive because they have genuinely pro-choice views and are mildly anti-war, but the capture of the elite stratum by corporations is pretty much complete.”

ACS doesn’t shy away from questioning corporate power, though the bulk of its interrogation has been confined to panel discussions. Anti-monopoly advocate Barry Lynn of the Open Markets Institute says ACS could be doing more to offer a progressive vision on these issues, in the way the Federalist Society helps train and educate its conservative members on monopoly and antitrust.

Following the election of Donald Trump, some antitrust advocates, including Lynn, reached out to ACS to encourage the legal organization to take a firmer stance on these issues. In February 2017, Lynn, his colleague Lina Khan, antitrust attorney Jonathan Kanter, and Andy Green of the Center for American Progress met with Kara Stein, ACS’s vice president of policy and program.

“We said, ‘Hey, at least do no harm, don’t support people who are hardcore conservative on corporate welfare,’” Lynn said. “We want them to be a counterweight to the Federalist Society. Maybe they won’t take as radical a position as us, but we do think they should be pretty critical and at least work to educate its members about why the right takes the positions it does.” Lynn says the response they received was relative openness — if anti-monopoly advocates could fundraise for the work.

“They basically told us, ‘Well, if you really want us to engage on these issues around monopoly, then the way to do it would be to give us some money, build up a program,’” Lynn said, adding that Washington, D.C., “is full of these pay-to-play places.” David Lyle, ACS’s senior counsel for communications, didn’t deny Lynn’s characterization of the meeting and said it “was like many ACS holds regularly to explore partnerships and ways to collaborate on topics and issues.”

ACS has sponsored local and national events that have been critical of corporate power and encouraged stronger antitrust work, including an antitrust conference Khan organized at Yale. Hedayati says his ACS chapter has hosted several antitrust events in recent years — including one last month on political influence around antitrust investigations and a film screening in 2019 where members discussed shortcomings of antitrust law.

In response to questions, Lyle also pointed to a national panel ACS sponsored on consolidation of wealth and power in 2017, one on the constitutional dilemmas of Big Tech in 2018, and one on tech regulation in July. He also noted ACS has “been pleased” to publish scholars like Khan in ACS’s official law journal, and that the organization is publishing an essay by her this week with policy recommendations for the Biden administration.

In a statement to The Intercept, Khan said, “ACS’s leadership choices speak to the organization’s values, and it’s inappropriate for ACS to use my willingness to participate in past events as cover for its troubling choice to reappoint a top Amazon lawyer to the board.”

ACS declined to comment on the donations it receives from tech companies or make Feingold available for an interview. “Our work in this field, including the promotion of leading advocates of more strict antitrust enforcement and critics of technology companies speaks for itself,” said Lyle. As a U.S. senator, Feingold was a leading champion on campaign finance reform, pushing major legislation to curb the influence of money in politics. He was also known among his colleagues — and often privately resented — for his strict and obsessive fealty to the spirit of Senate ethics rules.

Lynn told The Intercept that ACS’s corporate tech donations “can’t help but affect” the organization. “When those sorts of folks are in the room they’re going to affect the policy,” he said.

Other members argue ACS’s murkiness on corporate power is less a reflection of rank corruption and points more to the reality that ACS’s aim to be a “big-tent” organization for liberals means it effectively becomes more of a networking group, with inevitable vague policy positions palatable to the full Democratic Party. In the absence of drawing clearer lines in the sand and providing a sharper vision for what progressive lawyering means in the realms of corporate power and bankruptcy law, newer organizations like Demand Justice, the People’s Parity Project, and the Law and Political Economy Project will continue to fill what its supporters say is an intellectual and advocacy void for lawyers on the left.

The Biden administration, for its part, has recently appointed a number of leaders and alumni from big tech companies, though maintains it will continue serious investigations into the practices of these firms. The Trump administration filed a major antitrust suit against Google, which will continue under the Biden administration. The suit is seen as potentially the first of several such clashes with tech titans.

“I think antitrust and antimonopoly people feel listened to on the substance by the Biden administration,” said Jeff Hauser, the director of the Revolving Door Project, which advocates for progressive executive branch appointments. “But the question is whether there will be people appointed who will be able to slow the move of the government against these companies.”

Arkansas Could Give Amy Coney Barrett Her Big Abortion Moment

Originally published in Rewire on December 16, 2020.

Amy Coney Barrett has been a Supreme Court justice for less than two months, yet Arkansas lawmakers wasted no time introducing an anti-abortion bill aimed squarely at the Court, whose new conservative supermajority puts the future of abortion rights in serious jeopardy.

Advocates have called the Unborn Child Protection Act, introduced in November ahead of Arkansas’ next legislative session, “so egregious”—particularly in light of the COVID-19 pandemic that continues to ravage the country with no federal relief bill in sight.

Arkansas already has a law banning abortion should the Supreme Court overturn Roe v. Wade20 other states have similiar laws in place.

The same lawmaker who sponsored the state’s so-called trigger ban last year, Republican state Sen. Jason Rapert, introduced this latest bill that he said was meant to more directly challenge Roe. He did not return multiple requests for comment.

SB 6 would ban all abortion unless a woman’s life was in danger, and like the trigger ban, it has language unusually directed to the nation’s high court.

“The State of Arkansas urgently pleads with the United States Supreme Court to do the right thing, as they did in one of their greatest cases, Brown v. Board of Education, which overturned a fifty-eight year-old precedent of the United States, and reverse, cancel, overturn, and annul Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey,” the legislation reads.

ACLU of Arkansas Executive Director Holly Dickson issued a statement calling Rapert’s bill “cruel and blatantly unconstitutional.” She urged state lawmakers to shelve the bill and focus on COVID-19 relief.

“Let’s be clear: if passed, this brazenly unconstitutional abortion ban will be struck down in court, and legislators who passed it will have achieved nothing but having wasted taxpayer dollars on an unlawful measure and diverted scarce resources from the urgent needs our communities face in the midst of an ongoing and devastating pandemic,” Dickson said.

Gloria Pedro, Planned Parenthood Great Plains Votes’ regional manager of public policy and organizing for Arkansas and Oklahoma, said the bill is the “equivalent of a demand letter to the Supreme Court, which is not how the Supreme Court works. And there’s already a trigger law passed, which is why this is so egregious.”

Patients can access abortion in Arkansas up to the 20th week postfertilization, or 22 weeks’ gestation. There are two clinics in the state, both in Little Rock, though only one provides procedural abortions.

Advocates for reproductive rights in Arkansas have had their hands full fighting back against anti-choice legislation over the last decade, with some bills landing in multiyear battles in federal court. Conservatives have long eagerly eyed the Eighth Circuit, a federal appellate court with jurisdiction over Arkansas, as a way to bring a challenge against Roe to the U.S Supreme Court. Back in 2015, Eighth Circuit appellate judges recommended the high court “reevaluate its jurisprudence” on abortion, and urged for more state discretion over reproductive decision-making.

One such challenge began in 2017, after Arkansas legislators passed new laws to criminalize doctors who perform dilation and evacuation (the most common second-trimester abortion procedure) and require a patient inform the person who got them pregnant before they could get an abortion. The ACLU of Arkansas and the Center for Reproductive Rights sued over those laws and additional state restrictions, like requiring doctors to notify local law enforcement when patients under 17 years old seek to terminate a pregnancy. The laws were temporarily enjoined.

This past August, a three-person Eighth Circuit panel ruled against the plaintiffs, citing Chief Justice John Roberts’ concurrence in the Supreme Court’s recent June Medical Services v. Russo decision. In that case, the Supreme Court ruled that a Louisiana law placing hospital admission requirements on abortion clinic providers was unconstitutional, echoing its 2016 position in Whole Woman’s Health v. Hellerstedt.

But in his concurring opinion, Roberts argued that while he agreed with his four liberal colleagues that the Louisiana case was virtually identical to Whole Woman’s Health, he believed the “undue burden” standard used to decide that case was wrong, and should not involve weighing costs and benefits of an abortion restriction when judging its legality.

“We don’t agree that one justice’s opinion can change the precedent set by Whole Woman’s Health that clarified the undue burden standard requires this balancing standard,” said Hillary Schneller, a senior staff attorney at the Center for Reproductive Rights, who asked the Eighth Circuit to review the decision en banc. (That means the case will be heard before the entire bench of judges, rather than a three-person panel.)

Schneller said “there’s always a chance” a case like this could wind up at the Supreme Court, but for now they’re just waiting on the Eighth Circuit.

That wait came to an end Tuesday afternoon when the Eighth Circuit summarily rejected the en banc request in a one-page order. Without further court intervention Arkansas’ restrictions could take effect as soon as December 22.

Meanwhile, reproductive rights advocates have also been dealing with harassment related to the pandemic. Arkansas health officials earlier this year sent a cease-and-desist letter to Little Rock Family Planning Services, arguing their procedural abortions were “elective” and should wait until after the public health crisis ends. State officials also tried to force patients to get negative COVID-19 tests within 48 hours of getting an abortion, even though tests were in short supply.

While advocates have successfully fended off some of the worst restrictions, reproductive rights groups concede there are more anti-choice bills passed every legislative session than could possibly be challenged.

“We can’t challenge every single restriction and those restrictions are continuing to stack on the books,” Dickson said. “They join together to create substantial obstacles and burdens for patients.” There was a 30 percent decline in the Arkansas abortion rate between 2014 and 2017, and according to the state’s health department, 2,963 abortions took place in Arkansas in 2019.

Pedro of Planned Parenthood Great Plains Votes noted that Arkansas has the fourth highest maternal mortality rate in the nation and one of the highest infant mortality rates. In 2016, Arkansas had the highest teen pregnancy rate in the country, and public schools in the state still do not provide comprehensive sex education and primarily endorse abstinence-only instruction.

“It’s not just that these bills take away reproductive rights, which is crucial, but they’re also having a real tangible impact in our state, and things are getting worse,” Pedro said.

Pedro and Dickson say the most helpful thing would be for residents to pressure their state representatives to avoid wasting energy and resources on more anti-choice bills.

“Arkansas does not need to fly the trial balloon and be the trendsetter on setting regressive law,” Dickson said. “We have so many other things that we need our state to focus on.”