Originally published in The Nation on February 11, 2019.
——

On a Saturday morning in mid-January, 150 residents crowded inside the Hartford Public Library to commemorate the 30th anniversary of Sheff v. O’Neill, a court case that transformed public education in Connecticut. Seven years after that filing, the state’s Supreme Court ruled that racially segregated schools denied Hartford children their right to an equal education. As a result, nearly half of all Hartford students learn in integrated settings via magnet schools or by enrolling in nearby districts. Participation is voluntary, and the plaintiffs vow they will not stop fighting until every student in Hartford who wants to attend an integrated school can do so.

At the anniversary event, students and graduates gave speeches about their educations, and the original lawyers and plaintiffs shared remarks about their journey and where the movement should go next. “It was never about me, or trying to get something for myself,” said 40-year-old Milo Sheff, who back in 1989 was a fourth-grade Hartford student and the plaintiff for which the case was named. “It was always about Hartford and what we could do to make Hartford better.” (Sixteen other students were named as plaintiffs—for a total of five black children, six Latino, and six white.)

Milo’s mother, Elizabeth Horton Sheff, still a leading Sheff advocate, echoed her son’s comments: “When I entered this lawsuit, I was clearly aware that my son would not benefit from the fruits of this labor. I never entered this action for my son, I entered it for our children.”

The keynote speaker was freshman Representative Jahana Hayes of Connecticut’s 5th Congressional District and the 2016 National Teacher of the Year. Hayes told the crowd that she has two pictures hanging in her new Washington, DC, office: a photo of her and President Barack Obama when she was honored for her teaching, and a print of Norman Rockwell’s 1964 painting showing 6-year-old Ruby Bridges on her way to an all-white public school. Hayes emphasized that the civil-rights work is not over: “We have a responsibility to respond to the time and the generation that we’re in.”

But amid the joy of that celebration loomed an existential threat to Hartford’s educational model. In 2018, the Pacific Legal Foundation—a conservative law firm based in California known for challenging affirmative action, the Voting Rights Act, and bilingual education—filed a federal lawsuit to dismantle Hartford’s integrated system, alleging “rampant unconstitutional discrimination.”

Three decades ago, 80 percent of Connecticut’s black and brown students were concentrated within 14 of its 165 school districts. At the time of Sheff’s filing, students of color comprised more than 92 percent of Hartford’s public-school enrollment, while in the 21 surrounding suburbs, only seven had school districts with minority enrollment that exceeded 10 percent.

While schools in the Hartford region are more integrated today, the Sheffremedy has fueled resentment among those still enrolled in traditional public schools, with some parents feeling like their children are losing out in a two-tiered system. Sheff is also unpopular among many of Connecticut’s politicians. State leaders resent the amount of money they’ve spent on policies they feel a court has forced them to green-light, and local officials don’t like ceding some decision-making power to the plaintiffs, who privately negotiate policy that otherwise would be handled by elected representatives.

For a school to be considered integrated under Sheff, no more than 75 percent of a school’s student body can be black or Latino, and no less than 25 percent can be white or Asian. In 2017 the state tried loosen these benchmarks, in an effort to open up more magnet seats to minority students. The plaintiffs, and ultimately the judge, rejected this. “Equity cannot favor more segregation,” ruled Superior Court Judge Marshall K. Berger. Now Sheff plaintiffs are waiting for a new trial date, to push the state to fund additional magnet-school seats.

In 2017, after reading a series of articles published in the Hartford Courant detailing issues with Sheff and featuring students who were not able to land spots in the coveted magnets, the Pacific Legal Foundation went searching for local Hartford parents they could recruit for a lawsuit. The articles “opened my eyes,” said Joshua Thompson, the lead Pacific Legal Foundation attorney on the case. “I made a couple of trips out to Hartford after that, and six or seven months later I found LaShawn.”

LaShawn Robinson is the named plaintiff on the new federal suit, Robinson v. Wentzell. A Hartford mother of five, she’s suing against what she believes is a racially discriminatory system that barred her African-American son, Jarod, from accessing a magnet-school education. After multiple years applying through the Sheff lottery system, Jarod couldn’t get off the wait list. Robinson said her son was getting a “decent education” at his neighborhood school, but she wanted him to have an “extraordinary” one.

This past October, the Pacific Legal Foundation argued before a District Court judge for their suit to move forward. “We’re challenging the racial quotas that require all magnet schools to be 25 percent white, and we’re challenging the lottery system itself,” Thompson said, alleging the lottery discriminates based on race, though officials stress the lottery is race-blind.

Cara McClellan, an attorney with the NAACP Legal Defense and Educational Fund, vehemently denied the suggestion that there are racial quotas being used. “The Pacific Legal Foundation is completely mischaracterizing and misrepresenting what’s going on,” she said, adding that the lottery system “uses perfectly constitutional tools” to further integration. In 1971 the US Supreme Court ruled unanimously that flexible racial targets were distinct from rigid racial quotas, and affirmed that state and local school authorities could set such targets for integration purposes. “School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to White students reflecting the proportions for the district as a whole,” the Court held in Swann v. Charlotte-Mecklenburg Board of Education. “To do this as an educational policy is within the broad discretionary power of school authorities[.]”

The NAACP LDF intervened in the Robinson suit on behalf of the Sheff plaintiffs, and McClellan stressed the importance of seeing the case within a larger context of the Pacific Legal Foundation’s broader assault on civil rights. “We know this is not just a threat to Hartford, but for the development of law in this country,” she said. Indeed, the Pacific Legal Foundation has been open about its hope to use Robinson to set federal precedent around removing race-conscious measures for promoting diversity.

In 2007, the last time the US Supreme Court heard a case concerning school integration, the justices upheld, in a 5-4 decision, the ability to use certain strategies to advance racial diversity, like drawing attendance zones that take into consideration the demographics of students’ neighborhoods, and allocating additional resources for programs like integrated magnets. “This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children,” Justice Anthony Kennedy wrote in his concurring opinion.

While the 2007 decision did limit the available legal options to further racial integration, “the Supreme Court’s decision does not stand for the proposition that school districts can’t think about race, or plan for racial integration,” Phil Tegeler, the executive director of the Poverty & Race Research Action Council explained in 2017.

Rachel Martin, the interim executive director of the Sheff Movement, a coalition of parents, teachers, and students in Greater Hartford who support the 1989 decision, said her group sees the Robinson case as a reflection of the nationally divisive moment we’re in. “In this political climate, there’s been a lot of unfortunate sentiment coming out of different sources around racial issues, fears are being stoked, and we really see Pacific Legal Foundation taking advantage of all that to push their agenda forward,” she said. “They don’t actually care about Hartford, or our families, or our students.”

Martin says ultimately her organization and the Robinson plaintiffs want the same thing, which is greater access to magnet schools. For Sheff advocates, that means ramping up pressure on the state to expand the number of seats it will fund, until demand is fully met and there are no more student wait lists.

Some worry a win for the Robinson plaintiffs will mean a loss of funding for Hartford’s traditional public schools. As a result of Sheff, state legislators have spent substantially more money per-pupil on Hartford students than in other racially segregated parts of the state. While some Hartford City Council members and school-board reps say they’ve tired of the lawsuit and want more say in how those additional dollars get spent, legal experts say it’s unlikely the state would continue spending on Hartford at its current levels if it weren’t bound by Sheff rules.

The state of Connecticut opposes the Robinson case, but they’re not exactly fans of Sheff, either. “The state has sought to dismiss our case, but they’re certainly not arm-in-arm with the Sheff plaintiffs,” said Thompson. “They see themselves as between a rock and a hard place.”

A spokesperson for Connecticut’s attorney general declined to comment for this story.

On the campaign trail, Connecticut’s newly elected Democratic governor, Ned Lamont, said he’d oppose opening new magnet schools, and would support efforts to free the state from Sheff’s legal mandates. “I think we can take a pause on this, on the legal remedies,” he told The CT Mirror in October. Lamont wants to focus his attention on investing in neighborhood schools, though he also pointed to declining enrollment in suburban schools, and said maybe financial incentives could help induce those schools to voluntarily enroll more Hartford students, too. Lamont’s Democratic predecessor, Dannel Malloy, was also notably hostile to Sheff, going so far as to call the lottery discriminatory and likely unconstitutional.

Sheff advocates counter that state legislators’ hand-wringing over their constitutional obligations is why parents had to file the lawsuit in the first place.

There are signs that the Pacific Legal Foundation is preparing to mount a second challenge in Connecticut, against a statewide law passed in 2017that requires all magnet schools, even those outside the Hartford region, to maintain the Sheff racial-diversity standards. “You should stay tuned,” said Thompson. “The justification for expanding this statewide is even more tenuous than with Hartford.”

The New Haven Independent reported in September that a local education-reform group, the Connecticut Parents Union, was aiding the Pacific Legal Foundation in finding plaintiffs for a second case. Gwen Samuel, the founder of Connecticut Parents Union, says her group has 125 members statewide, and has also been helping to build support for the Robinson lawsuit.

On the other side, rallying proponents of Sheff to defend the lawsuit can be difficult. “Parents are busy, they have to get dinner on the table, and homework done, and, frankly, for parents whose kids are already benefiting from a magnet school, it’s a little harder to convince them to come out and fight for that opportunity for more students,” said Martin.

Martha Stone, the executive director of the Center for Children’s Advocacy and the lead attorney for the Sheff plaintiffs, said there’s a lot of myths surrounding the Sheff lawsuit, including that there aren’t enough white families interested in attending the magnet schools. “White families are on the wait lists too,” she said. “We have the wait list data, and there’s a lot of interest broadly in attending these schools.” Stone acknowledged that’s a separate matter from whether there’s adequate mobilization to support the magnets. “I think that’s where there’s been some difficulty,” she said. While there have been some bills to increase funding for magnets, and there has been some local organizing, it’s still been fairly limited. “No one can afford to hire a full-time organizer,” Stone said.

The backdrop to all these legal battles is the fact that Connecticut has one of the largest achievement gaps between poor and wealthy students in the nation, as well as one of the largest household-income gaps. Connecticut relies more heavily than most states on local property tax to fund public schools, which means affluent towns have more dollars flowing into their schools than those in poorer communities. On top of all this, Connecticut is one of just nine states with a shrinking population, and its nonpartisan Office of Fiscal Analysis has projected budget deficits in the coming years.

If the Robinson plaintiffs are successful, integration advocates worry Connecticut will see a return to de facto segregation. In 2014, Robert Cotto Jr., the director of Urban Educational Initiatives at Trinity College, published a report that found Connecticut charters were racially segregated, despite a statutory requirement to reduce racial and ethnic isolation. Connecticut’s Sheff magnet schools were the only choice-based option Cotto found that significantly reduced segregation. Charter schools are relatively limited in the state, though some would like to increase their number. Shavar Jeffries, the president of Democrats for Education Reform, a pro-charter organization, recently identified Connecticut as a state where his allies “have a strong foothold” after the 2018 election.

Sheff supporters recognize the politics are challenging, in both Hartford and on the state level. And while the plaintiffs repeatedly put forth ideas to make Sheff more popular, including giving priority to people who have been on the wait list for multiple years, opening more dual-language magnets to attract more English-language learners, or requiring more regional coordination from the many small towns in the Hartford metro area, the state, thus far, has rejected all these ideas, citing cost pressures and fears of backlash.

“Folks often feel like if we’re talking about integration, then we’re taking time and money away from supporting neighborhood schools, but we can do both,” said Martin. “This is one of the richest states in the nation, and governments find money for things they need to find money for.”

Originally published in The Intercept on February 8, 2019.
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Originally published in Washington City Paper on January 30, 2019.
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Liz Koenig has been working in D.C. charter schools for seven years, and at the same charter for the last five. She used to be a lawyer. “My first-year salary as a teaching assistant was less than my year-end bonus as an attorney, which blew my mind,” she recalls.

When Koenig took her current teaching job, she didn’t know anything about her charter’s salary schedule, other than what she had been offered to start. In the middle of her third year, she asked HR if she could review her school’s pay scale, because she was trying to figure out how her salary might increase if she obtained additional teaching credentials.

“I’ve always been interested in getting a master’s in dual-language teaching for ELL [English language learner] students, or a master’s in curriculum and instruction of literacy, but I’m a mother of two kids, and before I take that leap, I wanted to understand what I could expect to earn at my school if I did get those credentials,” she says. “I can’t take on any more debt. I still have debt from law school I’m paying off.”

But Koenig was denied that information, as are most charter teachers in D.C. “There are 120 schools but you can’t just call them up and learn their salary schedules,” she says. “It puts us in a position where we can’t make informed choices about where we work. Charter schools are free markets for all the parents and kids, but screw those teachers.”

Koenig says if she leaves her school, she’ll probably head to DC Public Schools, “where at least I’ll have the transparency.” Even without getting extra credentials, Koenig estimates she could be earning about $15,000 more right now in DCPS.

D.C. is nationally noted for its above-average teaching salaries—the minimum starting rate for a full-time DCPS educator is $56,313, and the average DCPS teacher earned over $76,400 in the 2016-17 school year. But publicly available information about D.C. charter school salaries is surprisingly scant. And unlike DCPS, charter schools are exempt from the Freedom of Information Act.

This past fall, the State Board of Education released a report on teacher retention in D.C. schools, prepared by Mary Levy, an independent budget analyst. As part of her research, Levy combed through the annual reports published by each individual charter school organization, where, in addition to publishing information about teacher attrition, most schools also report their minimum, maximum, and average teacher salary. The DC Public Charter School Board requests charters report this information, but does not require it, and so some charters, like DC Prep and Washington Global, decline to provide the salary data.

Still, using what information she could find, Levy estimated the average D.C. charter school teacher salary in the 2016-17 school year amounted to $60,499.

Yet she has reason to question the precision of these self-reported figures. When Levy was compiling data for her SBOE report, she found that most of the charter schools that reported attrition of over 50 percent in fact had far less. “What that says is there’s an assumption that nobody would look at these annual reports, and whoever filled it out apparently confused the words ‘attrition’ with ‘retention,’” she says. “It makes a big difference if anyone actually uses the data. Then the people who are submitting the information tend to be more careful.”

Tomeika Bowden, the spokesperson for the DC Public Charter School Board, confirmed that her organization does not collect any additional information on charter teacher pay.

City Paper asked the State Board of Education if it had ever tried to learn the salaries of D.C. charter school teachers. “The SBOE has not requested that information because it does not fall within the purview of the Board’s work,” answered John-Paul Hayworth, the board’s Executive Director. When pressed on how that squares with the SBOE’s focus on teacher retention, Hayworth said the State Board generally avoids making recommendations on hiring practices, including contract length, performance assessments, and salaries. While the board might recommend that schools report the overall expenditure on teachers in a school, Hayworth added, it “wouldn’t request individual-level information.”

***

Though charter teachers earn much less than their DCPS counterparts, administrative pay in the charter sector has been rising at a fast clip, according to public records.

According to salary information posted each year on the DC Public Charter School Board’s website, between 2016 and 2018, staff working at the DC Public Charter School Board received raises averaging 12 percent annually. And in 2017, according to nonprofit tax filings, the average annual salary for the top leader at each D.C. charter was $146,000. Only three charter heads earned less than $100,000, and eight earned more than $200,000.

Summary statistics aside, the sector is replete with examples of steep salaries and quick raises. Allison Kokkoros, the head of Carlos Rosario International Public Charter School and the highest-paid charter official in D.C., received a 24 percent salary increase between 2015 and 2016, from $248,000 to $307,000. Then, in 2017, she received another 76 percent increase, bumping her compensation to $541,000. Patricia Brantley, head of Friendship Public Charter School, received a 33 percent raise between 2016 and 2017, increasing her pay from $231,000 to $308,000.

Outside of school heads, other high-ranking charter administrators also claimed significant salaries. In 2017, KIPP DC had four administrators making approximately $200,000 annually, and its president earned $257,000. The chair of Friendship, Donald Hense, earned over $355,000 annually between 2015 and 2017, and its CFO earned between $171,000 and $197,000 in each of those years. DC Prep’s Chief Academic Officer earned $203,000 in 2015, and $223,000 one year later. The board chair of AppleTree Early Learning earned over $231,000 annually each year since 2015, reaching $245,000 in 2017. 990 tax forms list another 110 charter administrators earning between $100,000 and $200,000 annually, although this list is likely not comprehensive, as schools are only required to disclose their top five highest-paid employees. 2018 figures are not yet available.

In one remarkable instance, Sonia Gutierrez, the founder and former CEO of Carlos Rosario, who now sits on the school’s board, earned $1,890,000 between 2015 and 2017. Board chair Patricia Sosa, when contacted about this large sum, says much of that had been awarded as deferred compensation from Gutierrez’s time working between July 2010 and December 2015. However, according to tax records, she was also paid an average of $326,000 annually during that period.

Research conducted on other cities has shown that administrative spending tends to be higher in charter sectors than in traditional public school districts. Still, administrative spending has also been a concern in DCPS, and it was one of the major points Washington Teacher’ Union leaders brought up during their last round of contract negotiations. And in Denver, Colorado, public school teachers are currently threatening to go on strike over wages, with teachers calling attention to Denver’s above-average spending on school administration.

For their part, charter school executives defend their current salaries as standard for the sector and necessary to retain top-tier personnel. But there may be a risk that within-sector salary comparisons result in administrator paychecks rising in sync with each other, rather than reflecting an underlying demand for staff.

***

Ironically, as charter administrators claim they need high salaries to compete for executive leadership, teachers complain that the opacity of their salaries makes bargaining for higher pay near impossible.

Last week, Cesar Chavez Public Charter Schools for Public Policy—a network of four charter schools in D.C.—announced it will be unilaterally closing its Chavez Prep Middle School next year, and merging its two high schools. The network says this new closure and merger are due to lower-than-expected student enrollment, i.e. a revenue shortfall.

Chavez Prep is the city’s sole unionized charter school, and Christian Herr, a sixth grade science teacher at the school, says the lack of a clear salary schedule was one of the main reasons he and his colleagues were motivated to form a union. “When we were organizing our union, we learned things were just all over the place in terms of who got paid what, and there wasn’t a clear progression,” he says. “Your salary basically depended on how much a principal liked you, or what you were willing to ask for, or demand. The people with the same amount of experience and degrees got paid differently.”

The Chavez Prep union has been negotiating its first contract since the summer of 2017, and establishing a more transparent salary schedule has been one of their top priorities. What will happen to the union next year is not yet clear, and teachers say they plan to launch a full investigation into the reasons behind the closing of Chavez Prep.

Emily Silberstein, the CEO of the Cesar Chavez network, tells City Paper that her organization “has a long history of implementing a teacher pay scale that includes educational degrees and years of experience as factors in pay. Each year, the pay scale is reviewed as part of the network’s budgeting process. When updating the Chavez pay scale, we consider the network budget, pay in the D.C. charter sector, and the DCPS teacher pay scale.”

Silberstein says their updated pay scale is shared annually with teachers, and she defends her network’s compensation rates as competitive with other D.C. charter schools—citing a recent study by EdFuel, a nonprofit that helps schools recruit and retain teachers.

City Paper reached out to EdFuel to review the aforementioned compensation study, but Kelly Gleischman, a managing partner, said the study is not publicly available, as it’s currently shielded under a non-disclosure agreement. She says it was published March 1, 2018, and is under an NDA for eighteen months after that.

DCPS gets about $16,000 per pupil from the city’s operating budget, and charters receive a little less than $15,000—though charters also shoulder some additional costs like retirement and building maintenance. Silberstein says she understands why teachers would choose to teach in DCPS if pay was a top consideration. “For highly effective teachers, DC Public Schools is one of the highest-paying school districts in the country,” she says. “I admire DCPS for that and wish D.C. charter schools received the same kind of public and philanthropic support to make such salaries possible.”

“Speaking personally,” says Herr, “if I were at DCPS I would get paid $14,000 more than I do now, and my wife, who has worked at Chavez Prep as long as I have and has two master’s degrees, she’d get paid $19-to-$20,000 a year more.”

Originally published in The Intercept on January 29, 2019.
—

#REDFORED, THE NATIONAL teacher-led movement that started last year, continues to flex its muscles. On the heels of a successful six-day strike in Los Angeles, teachers in Virginia, Colorado, and elsewhere in California are voicing their demands for better working conditions, and, in some cases, threatening to strike.

On Monday, thousands of public school teachers flooded into Richmond, Virginia, for a one-day demonstration to pressure state lawmakers to increase funding for public education. The Richmond day of action was organized by a grassroots educator group, Virginia Educators United. It came after about nine months of planning, according to a Virginia Educators United spokesperson, and was backed by an “independent coalition” of stakeholders who support public schools, including union members, non-union members, educators, parents, administrators, and policymakers. Like the teacher uprisings in other states, supporters wore red in solidarity.

The teachers’ demands for increased funding come amid a steep drop in resources over the last decade. According to the Commonwealth Institute for Fiscal Analysis, a Virginia think tank, per-pupil state funding for the 2018-2019 school year was 9.1 percent lower in real dollars than in 2008-2009.

The march garnered local and national teacher union support. Randi Weingarten, president of the American Federation of Teachers, marched in Richmond on Monday alongside Lily García, president of the National Education Association.

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“Our folks, we’re not big in Virginia, but we’re mighty, and we have three or four very active locals that have been working closely with the Virginia Educators United,” said Weingarten in an interview Monday afternoon. “Virginia is a pretty rich state, but actually spends about a billion dollars less in education than it did before the recession, which means its priorities need to be reordered.”

Weingarten said the last straw for many Virginia educators was seeing how readily lawmakers were able to come up with a “bountiful set of tax breaks” for Amazon to open its HQ2 in the state. If the state can competitively invest in business development, the teachers say, it should be able to invest in its schools and teachers. According to data from the NEA, Virginia ranks 34th nationally when it comes to teacher pay, with the average teacher earning $51,049.

Virginia’s Democratic Gov. Ralph Northam expressed support for the rallying teachers.

About 1,670 miles west, in Denver, teachers are also preparing to go on what would be their first strike since 1994. While the strike was scheduled to take place on Monday, last week, Denver’s public school district requested state intervention, a move that could delay the strike for up to 180 days. Democratic Gov. Jared Polis has 14 days to decide if he will intervene, and his office has so far said he is undecided. If the state intervenes, Polis could call for a neutral fact-finder to assist in negotiations, or offer resources like arbitration or mediation. A strike in the middle of state intervention would be illegal, and teachers, guidance counselors, and nurses could face financial penalties and even the revocation of their licenses.

Lisa Calderón, a Denver mayoral candidate, urged Polis to stay out of the situation. “This is not a state issue, this is a local workers’ issue,” she said recently.

The Denver school district and union are at odds over teacher pay, as well as the size of bonuses for educators who work in schools where there are high levels of poverty among students. Denver educators are also highlighting the fact that administrative spending remains much higher in their city than in other parts of the state. Throughout 2018, there were signs of growing teacher militancy in Denver, and many parents, community members, and teachers began talking about the likelihood of a strike months ago. This past April, thousands of teachers descended on Denver, the state capital, to call on lawmakers to increase funding for public education. These demonstrations weren’t technically strikes (educators called them “walkouts”), as most school districts closed down beforehand in support of the teachers.

Teacher pay in Colorado ranks 31st in the country, and last year, the average educator earned just under $53,000, according to the state’s education department. Pay can vary widely across Colorado, with some districts averaging salaries above $70,000 and others with pay closer to $30,000. Last year in Denver, the average teacher pay (before bonuses) was $50,757.

In Northern California, the Oakland Education Association has called for a four-day strike authorization vote to begin Tuesday. Oakland educators, like their counterparts in LA, have been calling for smaller class sizes, more school nurses and counselors, and higher pay. They have been working without a contract since July 2017. In 2010, Oakland teachers went on strike for one day, and in 1996, they took the streets for 26 days.

Los Angeles teachers returned to work last Wednesday after a six-day strike, their first labor stoppage since 1989. Following the strike, 81 percent of United Teachers Los Angeles members voted to ratify their new contract, which includes new caps on class sizes and commitments to hire more nurses and librarians. The union also won a commitment from the Los Angeles Unified School District to develop a plan to reduce the number of standardized tests and explore limits on charter school growth, a big point of contention in the strike. Teachers also agreed to salary increases of 6 percent, which is what the district had offered prior to the strike.

Originally published in The Intercept on January 23
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WHEN KARA EASTMAN pulled off a primary upset this past spring in Nebraska’s 2nd Congressional District, a swing seat in the Omaha metro region, she did so with no help from the national Democratic party. Eastman, a social worker and first-time candidate running on an unapologetic left-wing platform, was competing against former Rep. Brad Ashford, who served for years in the Nebraska legislature and one term in Congress between 2014 and 2016.

Despite Ashford’s long track record of supporting abortion restrictions, pro-choice groups like EMILY’s List, Planned Parenthood, and NARAL Pro-Choice America opted to stay out of the race. The Democratic Congressional Campaign Committee, or DCCC, elevated Ashford to their “Red to Blue” list, a signal of official party support for competitive races, and political action committees controlled by House leader Nancy Pelosi, D-Calif., and Rep. Steny Hoyer, D-Md., kicked in over $28,000 to Ashford’s bid.

Eastman, who embraced not only reproductive freedom but also policies like “Medicare for All,” tuition-free college, a $15 minimum wage, and increased gun control, struggled early on to compete. While her proposals and personal story were popular, finding donors was hard.

Yet by the time her primary rolled around, Eastman emerged the winner, raising close to $400,000  and benefitting from a flurry of late-stage media coverage. Using a new digital fundraising company to target customized groups of donors across the country — such as all Democrats who identify as social workers or those who back “Medicare for All” — Eastman’s team was able to change the trajectory of the race.

Her campaign credits Grassroots Analytics, an obscure tech startup that’s quietly shaking up the Democratic campaign finance world. Not a single article has ever been written about or even mentioned it, despite the company having aided some of the biggest upsets of the 2018 cycle, including Joe Cunningham in South Carolina, Lucy McBath in Georgia, and Kendra Horn in Oklahoma.

“Grassroots Analytics absolutely was what allowed us to be competitive in the primary and get on TV, otherwise there is no way we would have won,” said Dave Pantos, the finance director for Eastman’s campaign. “We were definitely not the mainstream candidate, and we didn’t have access to donor lists that more establishment candidates have.” Eastman ended up losing the general election, earning 49 percent of the vote, but has already announced that she’s jumping back in the fray for 2020.

Grassroots Analytics says it wants to level the playing field and to make it easier for candidates to run who don’t already have a built-in network of wealthy family, friends, and co-workers. Using an algorithm to clean and sort publicly available data spread across the internet, the company provides campaigns with customized lists of donors who they believe are most likely to support them. If you’re involved in the world of political fundraising, a thought has probably occurred to you just now: Wait, isn’t that illegal? Hold that thought.

Establishment groups like the Democratic National Committee, the DCCC, and EMILY’s List have largely given the firm the cold shoulder, despite its goals and the fact that it worked with 137 campaigns in the last cycle. Not even mainstream progressive organizations like Our Revolution or Justice Democrats would return Grassroots Analytics’s entreaties to work together.

DANNY HOGENKAMP, THE 24-year-old founder and director of Grassroots Analytics, wasn’t expecting to end up in this kind of business. He had no background in politics; he studied Arabic at the University of North Carolina at Chapel Hill and assumed he’d end up doing foreign policy or refugee resettlement work after college.

But after graduating in 2016, with no job yet to speak of, he decided to go crash with some relatives in Syracuse, New York, where he was born, and try his hand in a congressional campaign. He enlisted with first-time candidate Colleen Deacon, a 39-year-old single mother who had worked as Sen. Kirsten Gillibrand’s regional aide in upstate New York. Deacon, who previously lived on Medicaid and food stamps, campaigned on putting herself through college with minimum wage jobs and student loans.

Hogenkamp was placed on the finance team, where he was charged with raising money and managing a team of 20 unpaid interns. It was there that he first encountered the opaque world of political fundraising — a world that even many organizers, pundits, and journalists can hardly grasp.

“I had no idea what campaigns were like, and it turns out that literally what candidates actually do to raise money, unless you’re really well-connected and famous, is sit in a room and call rich, old people to beg for $1,500, $2,000, or preferably [the federal maximum] of $2,700,” he said.

To run a competitive House race, Deacon’s campaign knew it needed to raise between $1.5 million and $2 million. Syracuse is one of the poorer metropolitan areas in New York, and after the campaign exhausted all the local prospective donors it could think of, the next step was the big open secret in political campaigning: finding similar candidates in other states and races and then researching who donated to their campaigns. So, for example, Deacon staffers would search for similar candidates — like Monica Vernon, who was running for Congress at the same time in Iowa — and then try and track down the contact information for the donors listed on their Federal Election Commission reports.

“Our interns would literally just Google people and try to find their phone numbers,” Hogenkamp said. “But donors change their numbers all the time, and they’re hard to find.”

The whole thing was invariably slow and disorganized. “It was the stupidest process,” he said. “It’s not digitized; there’s no math; it’s just random and stupid.”

Hogenkamp, still pretty much an idealistic novice, was convinced that there had to be a better way, some obvious step he was missing. So, from his perch as a relatively high-level finance staffer on Deacon’s team, he reached out to everyone he could think of — like the DCCC, EMILY’s List, liberal consulting firms, and other politicians — to find out how to make this fundraising process easier. “No one had any good answers; they said, ‘Well, this is just how you do it,’” he said. Hogenkamp recalled Gillibrand’s team telling him about its personal wealthy contacts in New York and how fundraising for the campaign meant going to those people and asking each of them to go out and find 10 more donors within their own networks.

Eventually, Hogenkamp connected with David Chase, a Democratic political operative who was then managing the campaign for Rubén Kihuen in Nevada’s 4th Congressional District. Chase offered a bit of help: He had developed a very rudimentary tool to aid his team’s fundraising efforts.

“Using OpenSecrets, I built some product that allowed you to search through all the federal and state contributions,” Chase told The Intercept. “It was very simple — I don’t have any advanced technological skills — but I wrote a script that allowed you to upload a list and it spit back the stats on the amount of times someone had given to state races and their average contributions.” In other words, for someone looking to discover who had given $500 or so to multiple candidates, Chase’s tool provided a way to more quickly glean that information.

Chase explained his tool, and Hogenkamp realized that there was a lot more he could do with an idea like that. During college, he had interned at the Consumer Financial Protection Bureau, where he learned to model how likely students were to default on their student loans. “I just randomly had a background in R and Python and zero-inflated negative binomial regressions from my time at the CFPB, so it was really just serendipitous that I actually knew what to do,” he said. Following that conversation, Hogenkamp went back and recruited a bunch of Syracuse University computer science students to help him build out his vision.

The result was effectively what he calls a “cleaner” of publicly available data, scraped from across the internet, that analyzes and sorts information for more than 14.5 million Democratic donors over the last 15 years. The tool would generate lists of individuals most likely to support a candidate given shared characteristics and shared views — ranging from race and ethnicity to a passion for yoga or universal health care.

“We know where you live; where you used to live; what issues you care about; if you’re trending Republican or Democrat; what other kinds of candidates you like to support; and contact information” he explained.

The lists aren’t perfect or fully comprehensive. They exclude some websites for legal reasons, and when I asked to see my own donor profile, recalling a $25 donation I gave in college to an Ohio Democrat, Grassroots Analytics had no record of it, because I’ve never given above the $200 reporting minimum to a federal candidate, and only some states and localities disclose small-dollar donations. Had I donated $5 to Stacey Abrams’s gubernatorial campaign, by contrast, I would have shown up in their system.

Nevertheless, the tool offers candidates — especially insurgent and working-class ones who lack rolodexes of wealthy friends — a real window into what is arguably the most important part of any political campaign: early-stage fundraising. The unspoken rule of viability in federal campaigning is that if you haven’t amassed at least $250,000 by your first quarter financial report, you’re probably not a candidate who people will take too seriously. EMILY’s List, an acronym for “Early Money Is Like Yeast,” was founded precisely to help female pro-choice Democrats compete against men who have long received the bulk of political contributions from the heavily white and male political donor class. Yeast makes the dough rise.

Connor Farrell, the finance director for Abdul El-Sayed, a left-wing former candidate who ran for Michigan governor this past cycle, credits Grassroots Analytics with fast-tracking his campaign’s fundraising, allowing the team to target progressives and doctors across the country. (El-Sayed campaigned on his credentials as a physician and public health expert.) “The applications of this new tool were valuable for our call-time operation, building for events, and some digital solicitations,” Farrell told The Intercept. “Grassroots saved us enormous research time, while allowing us to pivot quickly to new avenues of research. For a bootstrapped campaign, saving time and being flexible in your finance department is critical.”

IS GRASSROOTS ANALYTICS legal? And moreover, in the age when big tech companies are under fire for sharing personal information — not to mention Cambridge Analytica, the political consulting firm, hired by the Trump campaign in 2016, which gained access to more than 50 million Facebook users’ private data — is it ethical?

Depends on who you ask. Federal law prohibits “any information copied from” Federal Election Commission reports from being “sold or used by any person for the purposes of soliciting contributions or for commercial purposes.” Subsequent regulation prohibits “information copied, or otherwise obtained, from any [FEC] report or statement, or any copy, reproduction, or publication thereof” from being sold or used for soliciting contributions. But because these laws date back to before the advent of the internet, and campaigns across the country already scour through FEC lists for leads, Grassroots Analytics says it’s effectively just simplifying the process that hordes of interns and finance staffers already do every day when they set out to research donor prospects.

To comply with the legal prohibition, Grassroots Analytics bars its algorithm from scraping the FEC website and websites like OpenSecrets that aggregate data directly from the FEC. Instead, Grassroots Analytics collects campaign contribution data only from public record caches, newspaper articles, nonprofit reports, and secondary websites. However, there’s little question that most of the campaign finance information they do collect originated at some point from FEC reports.

The company, in other words, exploits an ambiguity in the law, which is whether they have in fact “obtained” information from FEC reports. How many layers removed does information have to be in the age of the internet to pass legal muster? In an advisory opinion produced at the request of Grassroots Analytics that was reviewed by The Intercept, an attorney with one of California’s top boutique firms specializing in political and election law determined that existing law, court cases, and the FEC’s enforcement history “provide no clear answer to this question.” But because Grassroots Analytics takes steps to omit FEC data and sites that aggregate directly from the FEC, the attorney hired to assess their legal status determined that the company has a “legally defensible” position that its products and services do not violate federal law and that in their expert opinion, the FEC, especially with a Republican majority, is unlikely to conclude that the firm or its clients are breaking the law.

“I obviously didn’t go into tens of thousands of dollars of credit card debt to get this thing going without getting extensive legal advice from multiple law firms,” said Hogenkamp. “I’m a little rash sometimes, but I’m not that stupid.”

But should donor information, even if it’s technically public, be made so easily accessible?

“They’re donor pimps, that’s all they are,” said one fundraiser. “If you don’t know people, if your staff doesn’t know people, then you actually shouldn’t run for office. You’re not actually a good candidate.”

Others shrug off the critics, saying that while the FEC and secretaries of state should work to clarify campaign finance rules in the age of the internet, including for political advertisements, right now it’s no secret that most campaigns utilize FEC data in some fashion for solicitation purposes. “Most people think it’s fine to use those lists to research people a little further, to get a better picture of their donor history, and then turn them into leads,” one senior finance director told me.

“I think part of the debate is that the folks who’ve traditionally run the finance side of our party tend to be a little older, more focused on relationships and identifying event hosts and bundlers,” said Chase, who now works for a Democratic consulting firm. “But I think from the last cycle or two, you’ve seen a pretty dramatic shift in the way our party raises money. Digital fundraising exploded, and with that came folks like Danny who said, ‘Well, maybe we can do some of this stuff better than the traditional way of just calling rich folks and trying to get nice checks.’”

The debate also stems partly from confusion over what Grassroots Analytics is or actually does. Some suspect they’re just farming out lists of rich people to clients and engaging in another disapproved practice that’s rampant in the campaign industry — taking donor data from one campaign to another. Trading rich donor contact information is also not unusual among senior finance staffers.

Hogenkamp understands the mistrust. “Don’t get me wrong: I’m so skeptical of everyone in this industry. I totally understand how very smart people would think we’re just some kids with a list of like a hundred thousand donors and that we just make money off that same list,” he said. “But it’s like, no, we have more than 14 million people.”

There is another data analytics company that bills itself as helping candidates (and nonprofits and universities) become more strategic in their fundraising efforts. RevUp, which promises to “revolutionize your fundraising,” was started in 2013 by a top Obama fundraiser and Silicon Valley investor named Steve Spinner. It’s a software company that works with both Republicans and Democrats, helping campaigns to analyze their existing social networks, like their email contacts or LinkedIn connections, to more efficiently find new prospects to hit up. (Grassroots Analytics also analyzes clients’ LinkedIn data for donor prospects.) In October, RevUp, which has won several campaign industry awards for fundraising and innovation, announced a new $7.5 million round of investment.

A key difference between RevUp and Grassroots Analytics is that the former doesn’t expand the universe of donor prospects beyond your own network — it just helps you navigate and analyze the contacts in your existing universe more efficiently. From one vantage point, that’s more respectful, and skirts the thorny questions of legality and ethics. From another, it doesn’t do much to change the problem of connected people hoarding access to connected people.

“At RevUp, we believe successful fundraising is all about respecting prospective donors,” Spinner told The Intercept. “Through our data analytics software, RevUp uniquely allows a candidate, staff, or volunteer to reach out to the right person, at the right time, with the right ask. Our mission is to expand the donor universe and grow the pie beyond the ‘low-hanging fruit’ — the 25,000 major donors that get constantly called.”

WHEN HOGENKAMP FIRST developed Grassroots Analytics, he hoped someone in the Democratic establishment would recognize the potential of this technology, buy him out, and give him the institutional support to make it grow. But despite his persistent appeals, almost no one would return his emails.

Yet while no groups would publicly associate with Grassroots Analytics, staffers for some major Democratic political organizations were discreetly referring their candidates to the company throughout the 2018 cycle. Two emails reviewed by The Intercept showed an EMILY’s List campaign operative connecting Grassroots Analytics to Sol Flores’s primary campaign in Illinois and to Veronica Escobar’s race in Texas. “Thanks again for all your work with all o[f] EMILYs List candidates,” they wrote.

Other emails showed Democratic consultants setting up deals with Grassroots Analytics, explaining that the DCCC would be the organization actually writing the check on behalf of their clients. (This was the case with Linda Coleman’s unsuccessful bid for Congress.)

The DCCC and EMILY’s List did not return multiple requests for comment. When the DNC rolled out its “I Will Run” program in April 2018, which was essentially a list of vetted technology companies they recommended campaigns to hire, DNC Tech Manager Sally Marx announced the committee had “surveyed the progressive tech ecosystem looking for tools that campaigns and state parties can use to upgrade their work.” Their list, the DNC said, was a “curated compilation of the best-in-class tools currently used by campaigns.”

RevUp was on there for recommended fundraising companies, but Grassroots Analytics was not. The DNC declined to make Marx available for comment, but in a statement provided by a spokesperson, the party committee claimed Grassroots Analytics “was not on our radar until recently. As we head into this cycle, we look forward to re-evaluating and potentially adding new vendors to our I Will Run marketplace.”

Spokespersons for Our Revolution and Justice Democrats also confirmed that they do not have relationships with Grassroots Analytics and have not referred their candidates to the company.

One person who did show an early interest and helped Hogenkamp break into the field was Molly Allen, a political consultant who runs the political action committee for Blue Dog Democrats. She met with him in 2017 and referred Grassroots to their first three clients.

“I’ve only met Danny a few times and haven’t formally worked with them more than a short-term one-off, so I can’t speak to their work in details, but Danny seems great and I respect his start-up idea and success!” wrote Allen in an email.

I asked Hogenkamp how he felt about his company breaking out by representing Blue Dogs, when they had envisioned being a fix to the barriers blocking progressives from running for office.

“It was weird, but I was desperate,” he said.

Over the course of the last two years, though, Grassroots Analytics has decided to work with anyone running in the Democratic caucus, a decision Hogenkamp says was made to avoid pitting themselves as arbiters of the left. (This could also just be a handy rationale to bolster their client lists and profit margins.) But Grassroots Analytics, Hogenkamp adds, does have some red lines for clients, saying they turned down someone last year who they felt had too strong of ties to charter school backers.

BUT IF THIS all could be started by a young person with barely any political experience, why hadn’t it been done before?

Multiple people interviewed for this article chalked the problem up to monopoly in the political industry and the disincentives to innovate that come with monopolies.

Sean Adler, a New York-based software engineer, said he ran into this problem when he tried to insert some innovation into campaigning four years ago. A friend of Adler’s had mounted a bid for Congress in New Jersey, and Adler, then 23 years old, started developing phone banking tools for the campaign’s volunteers. He ended up co-founding a company to sell the technology and called it Partic.

“I wrote the whole thing from scratch. We took the whole data file of voters, and it would distribute lists and show a script and do all sorts of custom assignments,” he explained. “But one thing that ended up being a bummer was the DCCC had their own thing they forced campaigns to use, so we ended up only getting the real scrappy campaigns, the real mega-underdogs.” Adler was referring to VAN, an omnipresent software company that provides what they describe as “an integrated platform of the best fundraising, compliance, field, organizing, digital, and social networking products.”

Adler built a host of new design features and capabilities to make phone banking more useable and successful than he found VAN’s technology offered. Partic worked with eight campaigns in the 2016 cycle, but has since ceased operations, citing the enormous barriers new companies face to compete effectively.

“No one can enter this market without a lot of connections, and that’s fair, but the customer base of this market also completely goes away every two years, so the only people who can sustain that are people who are already in it,” Adler told The Intercept. “I think I was too much of an idealistic liberal,” he continued. “I thought, ‘Oh sure, the Democratic Party might not be as technologically advanced as Google, but they certainly wouldn’t try to shut out people with better ideas and products in order to protect their friends.’ For the state of the world to change, people like Danny have to succeed. The establishment monopoly not only screws over local candidates no one has ever heard of, but it also screws over candidates at the very top.”

Ultimately, Hogenkamp says he wouldn’t mind being put out of business, citing the new bill introduced in the House this month for publicly financed elections.

“I sort of stumbled into this. I think the whole campaign fundraising system is stupid, and you know, if our country gets serious about publicly funded elections, I would so gladly shut down the business and go work in the State Department like I had planned,” he said. “I don’t care enough about this; the whole campaign finance system needs to be completely overhauled, but until that happens, the only way you’re ever going to do it is helping Democrats raise money to win competitive elections.”

Originally published in Jewish Currents on January 21, 2019.
———–

Josh Nathan-Kazis, a staff writer at The Jewish Daily Forward for nearly a decade, has published a series of explosive articles over the past half-year looking at some of the most important and poorly understood changes in the fight against BDS on college campuses— namely, a new, more aggressive approach to taking on critics of Israel. Freelance journalist Rachel Cohen talked to Nathan-Kazis about his reporting on these new developments. This interview has been lightly edited and condensed; shortly after it was conducted, the Forward announced that it was shuttering its 122-year-old print edition and laying off almost 30 percent of its staff. 

Rachel Cohen: For those of us who haven’t been paying close attention, why don’t we start with Canary Mission. What is that?

Josh Nathan-Kazis: I first heard of Canary Mission in the spring of 2015. I forget how I saw the website originally, but they had this video where they said very explicitly that they were seeking to highlight the radicalism of various student activists and make it more difficult for them to get work after college. There have been other efforts over the years to do online blacklists of pro-Palestinian activists, but this one struck me for two reasons: One, it seemed specifically and explicitly targeted at students, and two, it was anonymous. We tried to see who set up the website but we couldn’t.

So we ran these stories in August that were really trying, for the first time, to highlight a bunch of disparate tactics that were appearing on college campuses, that taken together, were part of this new hardline approach from various pro-Israel actors. It was part of a new, emerging strategy.

RC: I graduated college in 2014, I was very involved with Israel/Palestine activism as a student, and so I felt like I had had a pretty good handle on the crazier aspects of those campus dynamics. Reading your stories made me see how significantly things have changed even from when I was in school. Can you describe, for instance, the Canary Mission anecdote you reported on from George Washington University?

JNK: As often happens on college campuses, there was an effort to pass a BDS resolution in some form last spring at GW, and in this case there was some odd pushback. The most dramatic thing that happened was on the night of the vote, two people showed up in big yellow canary costumes outside of the building where the student government was meeting. It was clearly meant to intimidate people and clearly a reference to Canary Mission. It is not clear that Canary Mission actually was behind it—we don’t know who they were—but regardless they were using the threat of Canary Mission, the real fear people have of them, to send a message to these students.

RC: Tell me about your second story that paired with this one.

JNK: Our next story looked at how the threat of Canary Mission had grown beyond college campuses. Increasingly we were hearing reports about people who were being questioned at the Israeli airport by border officials, and they believed those who were doing the questioning had seen their Canary Mission profiles.

RC: Were these people likely to have been detained anyway?

JNK: For the named sources in that story, like Andrew Kadi—he’s a relatively high-profile Palestinian activist and he’s often been questioned by border authorities. But what he realized on this particular visit, in December 2017, was that they were now using his Canary Mission profile.

The context here is that a lot more people who are critical of Israel are getting detained, as part of policies put in place over the last year or so. The reason this is relevant is that students who have family in Israel or the West Bank now fear, not without reason, that they will have trouble visiting their relatives if they’re listed on Canary Mission. There’s definitely a feeling in the student activist community that especially among Palestinian-American students, there are real risks to being listed on there.

RC: In one of your stories you list a host of Jewish groups that do anti-BDS work on campus, including StandWithUs, CAMERA, the David Project, the David Horowitz Freedom Center, AIPAC, the Maccabee Task Force and Zionist Organization of America. You say, “the total amount of American Jewish and Israeli government funds flooding the anti-BDS effort is easily in the tens of millions of dollars each year.”

You also talk about the Israel on Campus Coalition, or ICC, and how that particular organization has changed its practices in the past few years. 

JNK: The ICC is the most interesting story here, to me at least, because when it was created it was a branch of Hillel International, and then it split off, but it was still just a mainstream pro-Israel group. It wasn’t particularly active, it didn’t have particularly high visibility. What happened in the last few years is that they got a lot more money and became a central player in this new hardline anti-BDS strategy. What they talk publicly about doing is making connections among all the pro-Israel group on campus so they can work together if something like a BDS vote is coming up. But what we’ve found is that they also engage in what they internally call “anonymous digital campaigns.”

We’ve uncovered two of these campaigns. One we wrote about in a September report with ProPublica, where ICC created these Facebook pages, like “San Jose Students Against Hate” and “John Jay College Students Against Hate.” The pages ran paid ads against visits to those campuses by Remi Kanazi, a Palestinian-American poet who tours colleges as an activist. The ads were designed to look like they were coming from student organizations, but were actually run by DC political operatives with the Israel on Campus Coalition.

RC: One might assume the ICC was a student organization.

JNK: They have student fellows, but it’s a very, very professional DC-based pro-Israel organization. They also contract with really top-tier political professionals, like this Republican political consulting firm called FP1 Strategies, or this one guy [Jeff Berkowitz] who used to be on staff at the Republican National Committee and is known for his opposition research.

RC: Has there been a backlash to Canary Mission?

JNK: I’m not sure “backlash” is the right word. Canary Mission is not something that Hillel professionals or students ever asked for. I quote multiple Hillel leaders and students who are pretty critical of Canary Mission. This whole wave of hardline tactics and entities—it came from ideas developed by think tanks in Israel, and leaders of the American-Jewish community.

I think there are a lot of people in the Jewish establishment who think Canary Mission is a bad idea. And lot of establishment groups have criticized them at one point or another—though not always out loud, or super vociferously. The ADL is a little odd here. They’ve criticized Canary Mission, and then walked back the tone of their criticism.

RC: It seems rather ruthless to insert yourself into a campus’s political scene, and not care if you’re even helping the students or not. 

JNK: I’m sure the people behind this think they’re helping students on campus. I wouldn’t assume they’re being disingenuous in thinking that they’re being helpful. One thing is some of the stuff on Canary Mission is legitimately disturbing. At times, they are finding bad, harmful stuff — legitimately anti-Semitic stuff. So you could see how lots of people would think that’s useful. But it’s difficult because they don’t actually come out and make their case. They have press releases and blog posts they put out arguing why they’re important, but they don’t sit for interviews necessarily, so it’s hard to really know what their side is.

RC: Canary Mission has some 2,000 people profiled on their site now. Can you talk a little bit about what you learned regarding the structure of the organization, both here and in Israel? 

JNK: We learned a number of things. The most surprising thing we found was that one large amount of money going to Canary Mission had come from a foundation—the Diller Family Foundation—which is controlled by a large Jewish federation in California. The Diller Family Foundation is what’s called a “supporting foundation” of the Jewish Community Federation of San Francisco, and it’s a complicated tax structure but the basic point is that the board of Diller is controlled by the San Francisco Federation, which is one of the largest Jewish charities in the country. An important point is that this is not money that the staff of the San Francisco Federation controlled.

RC: Did the Federation comment on your reporting?

JNK: Not initially. But later that day they said they wouldn’t give those donations anymore, so I wrote another story reporting that.

RC: And how did you find this all out?

JNK: In their 990 nonprofit tax filings, Diller had made a grant to the Central Fund of Israel, which is essentially a charity that allows American donors to donate to Israeli charities and get a tax deduction. So Diller had given money to the Central Fund, and in their 990 Diller wrote that this money was for “CANARY MISSION FOR MEGAMOT SHALOM.” I had never heard of Megamot Shalom, but we looked it up, and we sent some people to pull some files in Israel, and went to the address that they listed. We learned it was run by a guy also linked to Canary Mission.

RC: Were any other federations funding Canary Mission?

JNK: I called all the big ones to ask and what I found was that the LA Jewish Community Foundation—not the federation, but their big communal donor advised fund—had also made a grant to Megamot Shalom. Money you put in a donor-advised fund legally belongs to the charity; it’s the foundation’s money, though you can give advice on who to donate it to. So some donor—we don’t know who it is—advised the LA Jewish Community Foundation to give money to Megamot Shalom. This wasn’t like foundation staff saying to do it, but it was the foundation’s money, and they could have said no.

RC: They told you they gave the donation?

JNK: They told me. I called them all to ask, and I was also pressuring everyone by tweeting my call list as I went through.

RC: How have students adapted to the advent of Canary Mission?

JNK: I spoke to students who made decisions about who would be the public faces of their pro-Palestinian student groups based on who could risk being listed on Canary Mission. So they chose who the public members of their SJP would be, based on who could take that risk. I’ve also learned of people who chose not to become active on the Palestine issue specifically because they feared the repercussion of being on Canary Mission. Alex Kane has also looked closely at this issue. Some student governments have also moved to taking these BDS votes now by secret ballot, in light of Canary Mission.

RC: Can you get off Canary Mission? Have any defamation suits been filed?

JNK: Canary Mission says they’ll take you off if you apologize, and they’ve posted these apologies of former “canaries.” They take your name off, but frankly they’re not very good at redacting the information to make the identity less obvious. I’m not aware of any lawsuits—successful or otherwise. And there are reasons for that, they are pretty careful about what they post.

RC: In a big piece you published at the end of December, you look at a lot of the recent political developments taking place in Israel and the U.S. that may have contributed to this new strategy for anti-BDS campus activism.

JNK: Yeah. In 2010, after the 2008-2009 Gaza war, this particular Israeli think tank, Reut, laid out a strategy to be used against a so-called “delegitimizer” of Israel—a hardline Palestinian activist of a certain sort. Reut laid out certain tactics in a 2010 strategy document, which we begin to see appear in 2015. I don’t think one should assume that Reut agrees with the ways some of these organizations started doing things, the tactics were applied to a far broader group of people than Reut had suggested, but it is worth pointing out that these ideas, about naming-and-shaming in particular, were developed around 2010.

RC: FIFA played a major role in this story too.

JNK: When you talk to security strategy types in Israel, many will say that these BDS movements are not always at the front of their minds, because there are other more immediate threats that the government is dealing with. But as it happened in 2015, there was this difficult political moment—there was an election, and the results of the election were sort of unclear, it was difficult for anyone to form a government. And just as Netanyahu was finally successfully pulling a government together, this odd thing happened where Palestinians put in a complaint with FIFA (which is the international soccer organization) and basically threatened to hold a vote at an upcoming FIFA conference that would effectively mean Israeli teams wouldn’t be allowed to play in international competitions anymore.

Soccer is a very big deal in Israel and apparently this threat was a major, major story in Israeli media. It also happened at a moment when the new Israeli government was coalescing, and setting its priorities for the next few years. And as that all happened, Gilad Erdan, who is a powerful member of the Likud party, was given a number of portfolios including the Ministry of Strategic Affairs. That ministry didn’t away have a big budget, but Erdan was able to get a big budget with the idea that he would oppose the BDS movement. In fact, in a statement he made when he got this job Erdan specifically referenced the FIFA threat, and talked about how it would be his job to counter these kinds of efforts.

RC: What kinds of efforts has Erdan been linked to in the US?

JNK: I did a story earlier this year about how the Ministry of Strategic Affairs tried to give grants to American-Jewish organizations, and the groups turned that money down because they worried they would be required to register as foreign agents if they accepted it. The money was supposed to be for trips to Israel for influencers. Some of these groups were already running those kinds of trips, but the Ministry of Strategic Affairs wanted to expand them. As far as I know they all turned down the grants. They do have this network of pro-Israel groups though that they work with called the Blue Network. Membership is not publicly known.

RC: Sounds very spy-like.

JNK: The Ministry of Strategic Affairs does model a lot of their operations on the Israeli intelligence community. They were the agency responsible for the new list of organizations and activists banned from entering Israel.

RC: I’d be remiss if I didn’t ask you about the Campus Maccabee Summit, and what that convening signified.

JNK: So in the summer of 2015, Sheldon Adelson and Haim Saban invited donors and Jewish non-profit officials to a conference in Vegas to talk about ways to fund pro-Israel activity on campus and counter BDS. It was about figuring out new strategies and creating a pool of money. What ended up coming out of it is a new organization called the Maccabee Taskforce.

There are differences between the Campus Maccabees and the ICC, but I think what this gets at is it’s a complex landscape of many different campus groups, there’s not one coordinated effort. There are a ton of these groups doing a ton of different things, they have differences sometimes with one another, and they have different donors.

RC: What has the public reaction been like to your reporting?

JNK: In this news environment, it’s really easy to not connect dots, and it’s really easy to miss these stories that don’t touch on the biggest issues of the day. I think people didn’t have a sense of what the Jewish community and what the pro-Israel apparatus has been doing over the last few years to try to make its case on college campuses. It’s gotten very aggressive, and very hard-nosed. And I think people have been surprised that some relatively mainstream groups have been connected to some of this stuff.

Look, a lot of other people say that groups like Canary Mission are exposing real antisemitism and we shouldn’t be reporting critically on them. I hear a lot of that, too. But nobody knew who was funding Canary Mission, even people who are very, very involved and interested. This was not an open secret. The broader picture that we’re painting here—of a lot of very aggressive efforts targeting students—is a story most people didn’t know.

RC: Do you see a connection to your reporting with the pro-Israel loyalty oaths, and the new bills in Congress penalizing those who boycott Israel?

JNK: I haven’t done much reporting on those personally. But I did do a story a few weeks ago about Anti-Defamation League staff who wrote an internal memo in 2016 saying that anti-BDS laws were bad for the Jews and likely unconstitutional. The ADL leadership has taken a different position. I can’t really say more right now, but it’s relevant that these things have all come up around the same time.

RC: Are there still related questions you’re pursuing?

JNK: There are projects I’m still working on. Now that these campaigns are getting more attention, and the people behind them are being exposed a little bit, does that make them less attractive or more attractive to donors? There are certainly stories along this thread that I am still pursuing.

RC: What did you find most challenging about this reporting?

JNK: Different things were hard at different times. When I couldn’t figure out how to get past the wall of anonymity for Canary Mission’s website, that was really frustrating for a really long time. Once we began to break through, I was really frustrated by the disclosure laws for charities that make it so easy to hide so much. You don’t have to say who the recipients of your foreign grantees are anymore. That was not the case when I started at the Forward in 2010. The state of nonprofit reporting and what the IRS requires means it’s very difficult to track contributions, and it’s gotten harder over time.

Originally published in The Intercept on January 15, 2019.
———

In the first major strike since the U.S. Supreme Court struck a blow to public-sector unions last June, more than 30,000 Los Angeles public school teachers took to the rainy streets Monday to launch the LA teachers union’s first labor stoppage in 30 years. It’s the seventh major teacher protest over the last year, but unlike their counterparts in Arizona, Oklahoma, and West Virginia, the Los Angeles teachers are not striking against austere Republican state legislatures. Rather, they are striking against the policies of their Democratic-controlled school district, city, and state, and are framing their efforts as a fight for the future of public education.

As the strike enters its second day, the Los Angeles Unified School Districtis keeping schools open for students to attend, including regularly scheduled morning and after-school programs, and meal service. District officials also authorized spending $3 million to find substitute instructors, offering to pay them substantially more than K-12 substitutes normally earn. Still, roughly 360,000 students were absent from the nation’s second-largest school district on Monday, as families pulled their children from school in support of the striking teachers or to shield them from the chaos of an understaffed school.

Negotiations between the district and the teachers have dragged slowly since April 2017 and collapsed last month over demands to reduce class size and hire more teachers, nurses, counselors, and librarians. United Teachers Los Angeles President Alex Caputo-Pearl says it’s not unusual for class size to exceed 45 students in middle and high school, and for there to be 25 to 35 students per elementary school class.

But perhaps more notably, the teachers are also striking against school privatization. In December, the union called for a moratorium on the opening of new charter schools, which are publicly funded but privately run. Los Angeles has 224 charter schools, more than any other city in the country. On Tuesday, the union plans to protest outside the offices of the California Charter Schools Association, the politically powerful lobbying arm of charters in the state.

The centrality of opposition to charter school growth in the LA protests has put many Democrats in an uncomfortable position. The Democratic Party has long straddled an awkward political balancing act between the charter school and labor movements, which both fund Democratic candidates but war with each other. Today, with people across the country focused on the LA teachers, most Democratic lawmakers have stayed silent, and even those who have weighed in have mostly avoided commenting on the union’s opposition to charter school growth.

Rep. Alexandria Ocasio-Cortez, D-N.Y., is so far the only Democratic congressional legislator to acknowledge that the teachers are striking over school privatization. Sen. Bernie Sanders, I-Vt., tweeted last week in support of the striking teachers and linked to a Jacobin article about school privatization, but he did not mention it explicitly in his statement. (Sanders has spoken out about school privatization before, including last year when Puerto Rico announced its plans to open charter schools in the wake of Hurricane Maria.)

The Intercept reached out to all 47 members of the Senate Democratic caucus to ask if they wanted to weigh in on the LA teachers strike and the demands that teachers are striking over. All Democratic senators were also asked to clarify their general views on charter school growth.

Only seven of them responded.

A spokesperson for Sen. Kamala Harris, D-Calif., referred The Intercept to a tweet Harris posted on Monday in support of the striking teachers, and said the senator is “particularly concerned with expansions of for-profit charter schools and believes all charter schools need transparency and accountability.” In September, California legislators passed a ban on for-profit charters in the state.

Harris’s spokesperson also pointed to a probe that Harris launched as state attorney general into a for-profit charter school company that ran virtual charter schools in California. Harris alleged at the time that the charter chain used false advertising, inflated its student attendance numbers to collect extra state funds, and saddled the virtual schools with debt. The charter company settled with the state in 2016 for $168.5 million.

Martina McLennan, a spokesperson for Sen. Jeff Merkley, D-Ore., responded with a statement that did not directly address the LA strike:

Senator Merkley fully supports teachers’ right to use collective bargaining to fight for fairer wages and better schools. He’s seen up close the disturbing trend of disinvestment in public education and growing class sizes: His children attended the same public schools he did, but faced much larger class sizes and fewer elective options. We’re a wealthier nation than we were 40 years ago, so there’s no excuse for our public schools to be more poorly funded, or to offer less to low-income and working families. That’s why Senator Merkley plans to introduce legislation soon that would present a national plan for reinvesting in public education and reducing class sizes across America.

Ohio Sen. Sherrod Brown’s statement also did not directly address the strike. “I support the rights of all workers to join together and fight for better working conditions,” he said. “But it’s shameful that American teachers have to fight so hard just to get the basic supports they need to serve their students. We need to do better as a country investing in public education and public school teachers.”

Saloni Sharma, a spokesperson for Sen. Elizabeth Warren, D-Mass., referred The Intercept to a tweet Warren posted on Monday in support of the striking teachers. She also added that the senator believes rapid charter school expansion can pose a threat to the financial health of traditional public schools, which is why Warren opposed a ballot measure in 2016 that would have allowed up to 12 new charters to open in Massachusetts per year. “While she generally shares the concerns voiced by LA teachers on this and other issues, she can’t really speak to the charters’ specific impact on LA schools — the LA teachers are the best experts on that,” Sharma said. “We should listen to them.”

Ryan King, a spokesperson for Nevada Sen. Catherine Cortez Masto, said his boss “believes that teachers in Nevada, and across the country, should be treated with dignity and paid a living wage for the work they do in educating our kids. The senator believes that Congress must do all it can to support quality public education in America and ensure our nation’s teachers have the resources and support they need to educate students.”

Only two other people responded. Jonathan Kott, a spokesperson for Joe Manchin of West Virginia, declined to comment, saying “we are not weighing in on a local issue in California” and that the senator’s “record on charter schools is well-documented.” (Manchin, who voted against Betsy DeVos’s nomination for education secretary, specifically cited her support for charters and private school vouchers as reasons.) Keith Chu, a spokesperson for Ron Wyden of Oregon, also declined to comment.

Sanders did not respond to a query about his position on charter schools, but he, Warren, and Brown remain the only likely 2020 presidential hopefuls in the Senate who’ve had anything to say about the strike at all. Sens. Kirsten Gillibrand of New York, Amy Klobuchar of Minnesota, and Cory Booker of New Jersey did not respond to our questions, nor have they publicly commented. California Sen. Dianne Feinstein has also stayed notably silent on the teachers strike happening in her own state.

On the House side, Rep. Ro Khanna, D-Calif., was one of the first to express his solidarity with the striking teachers.

In 2016, Khanna said he sees himself as more independent-minded in terms of supporting charter schools than some other Democrats. The Intercept reached out to Khanna’s office for comment on his current views about charter school growth.

“I have the same position on this as Randi Weingarten, president of American Federation of Teachers,” said Khanna in response. “I am supportive of the original concept of charters as laboratories of innovation within the public school system and in collaboration with teachers and administrators in the district. That was the vision [former President of the American Federation of Teachers] Albert Shanker had. I am opposed to the expansion of private charters that siphon resources from public schools, that do not have the same standards as public schools, or that exploit their staff and prohibit their employees from forming unions.”

Khanna went further and said that in the context of the LA teachers strike, he “share[s] the concern of the teachers that the district should not have private companies run the charters. These charters are mostly not unionized, and they are not serving students with disability or the children of immigrants who don’t speak English. Charters were never supposed to be a substitute for good public education as they have become in the LA school district.”

On Monday, Reps. Ilhan Omar of Minnesota, Mark Pocan of Wisconsin, and Pramila Jayapal of Washington state also tweeted in support of the striking teachers, though they did not mention charter schools. Like Ocasio-Cortez and Khanna, they are all members of the Congressional Progressive Caucus.

On the local level, Reps. Ted Liu, Adam Schiff, Jimmy Gomez, Brad Sherman, and Nanette Barrágan, who represent parts of Los Angeles, voiced support for the striking teachers but did not mention charter schools in their statements.

THE DEMOCRATIC DEBATE over school privatization intensified in 2016, when high-profile candidates like Hillary Clinton affirmed their support for charter schools but also began articulating opposition to for-profit charter schools, a small but politically influential part of the charter movement. That same year, the party included opposition to for-profit charters in its platform for the first time.

The next year, when President Donald Trump named billionaire DeVos to lead the Education Department, liberals who back education reform were put on the defensive. Their school choice rhetoric shared broad similarities with the Trump administration’s, yet charter-supporting Democrats maintained that their vision was different and that they shouldered no blame for the escalating attacks on public education. A Gallup poll released later in 2017 showed a growing partisan divide on charters, with Democratic support standing at 48 percent, down from 61 percent in 2012. (Republican support stayed steady at 62 percent.)

Pro-charter school Democrats have suffered a number of defeats at the ballot box since 2016, including a high-profile ballot measure to lift the cap on charter schools in Massachusetts and an expensive election for state superintendent in California. New York Rep. Hakeem Jeffries’s November election as Democratic House caucus chair marked a significant win for that wing of the party, as The Intercept reported at the time. Jeffries started his political career in 2006 with the help of the Democrats for Education Reform, or DFER, a political action committee that fundraised for him in his 2012 congressional bid too. But even as DFER cheered Jeffries’s elevation in the ranks of party leadership, his spokesperson, Michael Hardaway, called this reporter to say that he didn’t understand why Jeffries would be linked to DFER and that the congressman is “absolutely not involved with them in any capacity.” In New York, Jeffries has “pretty much stopped talking about charters for the last 2 years (ie post Trump.),” according to New York Times education reporter Eliza Shapiro.

It’s with this skittish context in mind that Democrats’ response to the striking teachers should be understood. While voicing support for teachers and public education is relatively safe territory for any politician, weighing in on the teachers’ opposition to charter schools comes with the possibility of upsetting powerful donors or the growing number of families who enroll their children in the schools. (Charters educate roughly 3.2 million students across the country, and most are concentrated in liberal cities.)

Tom Perez, chair of the Democratic National Committee, released a statement in support of the teachers on Monday afternoon. “I stand with the Los Angeles teachers marching for the pay, resources, and working conditions they deserve. These educators are responsible for molding our next generation leaders. When they succeed, our children and our country succeed. Like educators across the country, Los Angeles teachers are fighting for the children they teach to have the resources they need to achieve and flourish.”

The DNC’s statement did not mention charters or privatization.

Originally published in The American Prospect on January 7, 2019.
——

The first major teachers’ strike of 2019 could start this Thursday if the nation’s second largest school district and the 35,000-member United Teachers Los Angeles fail to reach a contract agreement. It would be the first teacher strike for the Los Angeles Unified School District since 1989, and the first large-scale teacher strike in a blue city since the national #RedforEd movement took off last February. Educators in Oakland, six hours north, are also currently engaged in fraught contract negotiations, and have signaled they too could strike later this month.

To understand the state of LA school politics right now, think of a pot that is nearer and nearer to boiling over. On top of its threat to strike, the union recently called for an “immediate halt” on all new charter schools; both the district and the teachers union have filed complaints with the state’s Public Employment Relations Board, each alleging the other is negotiating in bad faith. Moreover, a special election for the swing seat on the school board—which will tip its balance to the advocates or opponents of charters—is scheduled for March. Ten candidates are competing for the coveted spot, which was vacated last summer after a board member pled guilty to a charge of conspiracy. As if this weren’t enough, the superintendent is currently drafting a plan to restructure the LAUSD, fueling teachers’ suspicion that more dramatic privatization is just around the corner.

The union and school district started negotiations in April 2017, and remain at odds over how much money is available to spend. The union brought three buckets of demands to the bargaining table: first, such traditional economic ones as higher pay, reduced class sizes, and the hiring of more nurses, librarians, counselors, social workers, and special education teachers. Second are such non-economic demands as cutting back on the amount of standardized testing and increasing parent and teacher voice in local school decision-making. The third bucket consists of “common good” demands, in which the union, having surveyed members, parents, students and community groups, crafted proposals for more green space at schools and for using district property to build affordable housing. The union points to LAUSD’s $1.8 billion surplus, and says claims that the district can’t afford to spend more are lies. The district had a $500-million surplus five years ago, and also insisted back then that its belt needed to be tightened.

But the district, in turn, says the union is exaggerating the financial picture, and that “simple math” shows their reserves would be depleted if they agreed to the union’s demands. Plus, it contends, some of that $1.8 billion has already been allocated in negotiating sessions to finance teacher raises. California law requires that one percent of the district’s budget be placed in reserve, and LAUSD leadership anticipates that a significant chunk of its surplus will shrink in the next few years due to increased spending and decreased enrollment.

“You have a district that feels it’s in more economic peril than it is, and the board wants to say, sure, they have money now but they won’t in two to three years out,” says Jackie Goldberg, the union-endorsed candidate for the open school board seat, who served two terms on the board from 1983to 1991, followed by six years in the state assembly. “I can clearly show them using their own figures that they’ve been saying this stuff since I served on the board since the 1980s. The doomsday never seems to come, unless there is a recession, and that comes whether you saved money or you didn’t save money.”

Nick Melvoin, the vice president of the school board, says board members don’t want a rainy-day fund for the sake of having a rainy-day fund, and notes that a new recession is not an unrealistic possibility. “Could we dip into our reserves a little more?” he asks. “Yes. We’re very willing to compromise, and I’d love to have that conversation with UTLA.”

So what would happen if the union went on strike, affecting about half a million students, of which 85 percent come from low-income households?

LAUSD says all students are still expected to attend school in the event of a strike, and that school hours, morning and afterschool programs, and regularly scheduled meal service “will NOT change.” The district’s FAQ website emphasizes that classroom instruction will continue, led by staff, substitute teachers, and administrators. Approximately 400 substitute teachers have already been hired, a move UTLA blasted as illegal.

Alex Caputo-Pearl, the president of UTLA, says that if the union is compelled to strike, a few days of disruption would be justified by the things they’re fighting for. “If we’ve got to have some temporary days of disruption to correct something that’s been a problem for 25 years, then we’ll do that,” he told the Prospect. The strike date was announced weeks in advance, he adds, so that families would have time to prepare. For parents who keep their kids home from school as a statement of solidarity with the teachers, Caputo-Pearl says his union is working to set up meal programs.

Melvoin, who was elected in 2017 with the backing of the charter school movement, understands that distrust between the union and the district has been growing for years, but believes the union leadership has a vendetta. “Striking a school district that gets [almost all of its] money from the state [which is how California’s schools have been funded since the 1978 passage of Proposition 13] is really counterintuitive and doesn’t address other issues—like that only 40 percent of our kids can read on grade level,” he says. “To me it’s disingenuous.”

Undergirding some of the distrust is news that Austin Beutner, the superintendent, is working on a confidential plan to dramatically reorganize the school district he assumed leadership of in May. The Los Angeles Times reported in November that Beutner, a former investment banker with no background in education, was working to divide the district up into 32 smaller “networks”—shrinking the central office and devolving power to neighborhoods. The Times reported that Beutner was working with consultants paid for by outside philanthropy, consultants with prior experience working on education reform efforts in other cities.

This wouldn’t be the first time a superintendent has tried to revamp LAUSD’s structure. In 1993, the school district even announced it would be dividing itself up, also into 32 smaller clusters, though that plan and its successors all failed, partly because they lacked clear execution plans, and partly because local leaders weren’t prepared to assume new responsibilities.

Caputo-Pearl says he believes the current plan is more about setting the stage for privatization. District leaders deny this, and say they just want to reduce bureaucracy and give more flexibility and funds to schools.

While Beutner has declined to comment on the plan publicly, saying to do so would be premature, Melvoin dismissed the idea that their plan is being developed in secret, and said the board would be criticized no matter how they moved forward. “If we had put out a plan and then sought input, we would have been criticized for doing it secretly in the beginning,” he says. “Instead we’ve been out there holding listening sessions and the superintendent has been meeting with teachers, parents, principals and community members and there’s no plan to share right now because we’re in the process of developing it.”

Then there’s the high-stakes upcoming school board election. In 2015, charter advocates spent more than $2 million to elect Ref Rodriguez, a former charter school operator, to the school board. Two years later, charter proponents won three more seats, giving the seven-member board a one-seat pro-charter majority for the first time. The 2017 contests were the most expensive school board races in U.S history, with the charter movement spending $9.7 million, and the union spending $5.2 million.

But then several months later, the LA County District Attorney filed criminal charges against Rodriguez, who by this time was serving as board president. Rodriguez was accused of laundering money into his 2015 political campaign. He pled guilty to conspiracy and resigned this past summer.

Following his resignation, Goldberg, who is 74 years old and a well-known figure in local and progressive politics, offered to serve in an interim capacity until Rodriguez’s term officially ended. She had previously represented his district on the school board and in the state legislature.

“I spent about a month talking to each of the board members, and assured them I would come in just for the short-term, and would publicly renounce any chance of running in 2020,” Goldberg explained. “I felt the fact that I had served on the board before and in other public offices including on the state assembly education committee, would be helpful to prevent a strike with UTLA and save the district millions of dollars for an expensive special election.”

But the board couldn’t agree to this, so the special election for District 5 was set. If none of the ten candidates receives at least 50 percent of the vote in March, a runoff between the top two finishers will be held in May.

Goldberg told the Prospect she decided to run because she feels passionate about stopping privatization and wants to ensure there’s balance on the board with the pro-charter wing. She says she’s not anti-charter, but does have friendly relations with labor, and opposes the competition for dollars between public and charter schools that was established by the state’s charter law.

“I represented 80 percent of the voters of [District 5] for 22 years, so people actually know who I am and what I’ve done,” she says. “They don’t have to wonder what I’ve been like.” She commissioned a private poll that, she says, “showed a very large percentage of people knew who I was, and that I had a high approval rating.”

Students in District 5 are predominately Latino, and there are seven Latino candidates also vying for the school board spot. At least five Latino candidates voiced concerns in mid-December that the most powerful endorsements, from the teachers union, SEIU, and the California Charter Schools Association, might all go to white candidates. UTLA ended up endorsing Goldberg, who is white, SEIU endorsed Heather Repenning, a longtime mayoral aide, who is also white, and the CCSA eventually announced it would be making no endorsement for the March contest.

Observers have noted that the California Charter Schools Association could still endorse a candidate for the May runoff, and many suspect that given the stakes, the lobby won’t be sitting on the sidelines before then either. California charter advocates suffered two major political losses in 2018, after spending $23 million backing Antonio Villaraigosa in a failed gubernatorial primary bid, and more than $36 million on another candidate’s failed bid for state superintendent of public instruction.

The CCSA declined to answer whether it will be running any independent expenditure campaigns or financially supporting any pro-charter school board contenders.

IN LATE DECEMBER, UTLA called for a moratorium on new charter schools. Los Angeles currently has 224 charters, more so than any other city. California’s new state superintendent for public instruction, Tony Thurmond, has also called for a pause on charter school growth throughout the state.

Melvoin says he’s not surprised the union is taking the opportunity to talk about halting new charters, which are mostly non-union schools. “I would love it if we never had a new charter again but the way I want to get there is by improving our schools so much that parents don’t feel the need to create new options,” he says.

One thing the union and the district agree on is a measure that will appear on California’s 2020 ballot that would end a tax loophole on commercial property owners, raising between $6 and $10 billion for local governments and public schools. (In essence, the measure would repeal Proposition 13 for commercial properties, but not for residential units.) The LA school board passed a resolution in September supporting the ballot measure.

If the district goes on strike this week, Goldberg says she’ll be marching alongside the teachers who are calling for smaller class sizes, less testing, and more nurses and staff.

“I’ve been on strike twice as a teacher myself, and once we did well and once we got creamed,” she said. “But there are times when they’re refusing to hear you, and you just can’t not do something.”

Originally published in CityLab on January 3, 2019.
—–

Originally published in The Intercept on January 3, 2019.
——

In a major win for labor advocates, a federal court issued a long-awaited ruling last week finding that corporations could be held responsible for issues like wage discrimination or illegal job termination, even if the employees were subcontractors or working at a franchised company. The U.S. Court of Appeals for the D.C Circuit determined that a business could be considered a so-called joint-employer if it exercised a certain level of “indirect control” over an employees’ working conditions, or if it reserved the authority to do so down the line. The question of who counts as a joint-employer has been integral to movements like Fight for 15, which aims to organize fast-food workers who toil away in franchised businesses.

In its decision, the D.C appellate court affirmed one of the most significant and disputed labor rulings of the Obama administration. In 2015, the National Labor Relations Board ruled that companies and franchisers with both “indirect and direct control” of employees could be held liable for labor violations committed by contractors or franchisees. The line between direct and indirect control is somewhat murky, and precisely defining it has been a matter of fierce debate, but ultimately it concerns how much authority a company has over the “essential terms and conditions of employment.” Prior to this, only employers with “direct control” could be held responsible, a standard that effectively exempted businesses that hired workers through intermediaries from most labor law. “With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances,” the NLRB said at the time.

The case centered on a California business known as Browning-Ferris Industries of California Inc., which operates one of the world’s largest recycling plants. Browning-Ferris contracts with a second company, Leadpoint Business Services, to provide Browning-Ferris with employees who clean and sort recycled products, among other things. In 2013, a union petitioned the NLRB to represent Leadpoint Business Services workers, with Browning-Ferris named as a joint-employer, on the basis that the latter also controls the contractors’ wages and working conditions. Using its new, expanded joint-employer test, the NLRB ruled in favor of the workers, and Browning-Ferris has been fighting the decision in court ever since. Other major business groups and corporations, including Microsoft,have spoken out vehemently against the new standard.

In the majority opinion, authored by Judge Patricia Millett, the D.C. appellate court said that common law “permits consideration” of indirect control when determining joint-employer status, but it found that the NLRB needed to further revise its two-part joint-employer test to pass legal muster. The court sent the case back to the NLRB to fix it.

The appellate decision throws a big wrench into business groups’ plans to overturn the joint-employer standard. It also significantly constrains what the Republican-controlled NLRB can do to curtail labor rights going forward. The Trump administration, which has argued against expanding the meaning of joint-employers to include those who have indirect control over workers, will now have to comply with the court ruling.

“The court is very clear that the determination of who is an employer is a legal question, not a policy question,” said Sam Bagenstos, a University of Michigan law professor. “And for this question, which is determined by common law, the courts decide that without giving any particular deference to the NLRB. That’s a huge victory for those who want a constrained Trump-era NLRB.”

The decision also holds implications for movements like Fight for 15. Labor advocates have been arguing in court for the last few years that McDonald’s should be held liable as a joint-employer for the fast-food workers who were fired from their jobs when they engaged in nationwide protests for higher pay. An administrative law judge rejected a settlement this past summer, under which McDonald’s would not have been found to be a joint-employer. The company had offered to pay between $20 and $50,000 to individual workers who claimed that they were fired for protesting. If McDonald’s is ultimately declared a joint-employer, the road to unionizing its employees would also be made far easier.

BUSINESS GROUPS AND conservatives have made overturning the expanded joint-employer standard a top priority. After Donald Trump appointed two pro-business attorneys to the five-member NLRB, the board quickly issued a 3-2 ruling in December 2017 overturning the Browning-Ferris decision. The new case, known as Hy-Brand, reverted the standard back to the old way of doing business, and the decision was celebrated by industry groups. “The 2015 Browning-Ferris ruling stacked the deck against small businesses and inserted uncertainty into day-to-day operations,” said a spokesperson for the National Restaurant Association at the time. “[Hy-Brand] restores years of established law and brings back clarity for restaurants and small businesses across the country.”

But the victory for business groups was short-lived. In an unexpected and dramatic turn of events, the NLRB Inspector General issued a report two months later finding that one of the NLRB board members, a Trump appointee named William Emmanuel, should have recused himself from the Hy-Brand vote due to a potential conflict of interest. Emmanuel’s old law firm had represented a contractor for Browning-Ferris. Had he recused himself, the vote would have been 2-2, leaving the Obama-era joint-employer standard in place.

Within weeks, on February 26, 2018, the NLRB threw out its Hy-Brand ruling on ethics grounds. A former NLRB chair told Bloomberg at the time that he believed such a move was unprecedented. “There is no decision on a matter of such high import that has been vacated based upon a breach of conflict-of-interest rules,” he said.

The NLRB went back to the drawing board to craft a new rule to reverse the Browning-Ferris standard. In mid-September, it published its new proposed rule, one in which “indirect influence … would no longer be sufficient” to establish a joint-employer designation. The board claimed in doing so, they would be promoting “predictability, consistency, and stability” for businesses.

In mid-December, the NLRB’s general counsel, a Trump appointee named Peter Robb, submitted a comment on the NLRB’s proposed rule, arguing that the board’s significantly curtailed standard still didn’t go far enough and should be even more favorable to businesses seeking to avoid joint-employer status.

The opportunity to offer public comment on the rule is open until January 14, and as of January 1, more than 25,000 comments had been submitted.

The appellate court decision could have implications for the new rule as well. “I think it’s really hard to see how the board goes forward with its proposed rule now,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School. “I think there’s a lot that’s not consistent with the majority opinion. I think the board needs to be thinking seriously about pulling back the proposed rule, or at the very least, putting the pause on to think about the implications of the D.C. Circuit decision.”

Block describes the appellate court’s decision as “not a perfect decision, but a pretty good decision” because it validates the NLRB’s Browning-Ferris ruling to take into account indirect and reserved authority when determining who counts as an employer.

Bagenstos, of the University of Michigan, said there are some real challenges with relying on old legal doctrine to address modern workplace challenges, but he said the court’s opinion “gives a pretty strong statement” that many problems with the fissured workplace can be addressed in the confines of existing law. “The Trump administration will have real issues getting around that,” he said. The standards set forth by Browning-Ferris are not codified by law, but with Democratic control of the House, it is an issue that pro-labor lawmakers could foreseeably take up.

Spokespeople for the NLRB and the National Restaurant Association did not return requests for comment.

Some business groups have also expressed interest in bringing these issues to Congress, but their attempts so far to reverse the Browning-Ferris standard through legislation have been unsuccessful. In 2017, the House passed the so-called Save Local Businesses Act, which would have done just that, but the bill has stalled in the Senate.