Will Crumbling School Buildings Get a Piece of the Infrastructure Pie?

Originally published in The American Prospect on February 8, 2017
—–

Paul L. Dunbar Elementary school, a historic, four-story building of orange brick located in North Philadelphia, looks solid and imposing from the outside. But inside Dunbar, water leaks from the school’s aging roof into classrooms, the windows are in need of repair, and the heating system only works some of the time.

Dunbar is one of hundreds of schools in Philadelphia and throughout the country that is literally falling apart. From fire code violations to faulty boilers that make it too hot or too cold for students to concentrate in class, structural problems plague as many as two-thirds of America’s schools. By one 2016 estimate, it would cost $145 billion a year to properly repair and maintain the nation’s school buildings.

So when President Donald Trump flagged school infrastructure investments in his first speech following the presidential election, public school advocates sat up and took notice. “We are going to fix our inner cities and rebuild our highways, bridges, tunnels, airports, schools, hospitals,” Trump declared. “We’re going to rebuild our infrastructure, which will become, by the way, second to none.”

But excitement turned to uncertainty a few weeks later when Trump gave his inaugural address. The president talked again about infrastructure spending, but this time made no mention of school facilities. In fact, Trump actually argued that America’s education system—as opposed to being starved for investments—is “flush with cash.”

It’s been like that a lot for public school advocates toiling to drag the nation’s crumbling school buildings into the 21st century. A full two decades ago, the U.S. Government Accountability Office reported that as many as 28 million students attend schools under conditions that are unhealthy, uncomfortable, or even unsafe. Yet virtually no federal funding has been set aside to address these infrastructure problems. That burden falls on the shoulders of local districts. And since some localities possess far more power to raise money for repairs than others, the condition of schools in wealthy versus low-income districts varies wildly.

The last time the nation debated school infrastructure spending in 2009, billions of dollars were set aside to renovate school buildings in disrepair. The school infrastructure money had been proposed as part of President Obama’s economic stimulus bill following the 2008 financial crisis. Advocates of that bill, the American Recovery and Reinvestment Act, needed to secure the vote of Maine Senator Susan Collins, one of three Republicans who held the key to its passage. But Collins argued that education facility spending should be a local, not a federal matter, so the school repair money was stripped out at the last minute.

“Her reasoning was that the federal government shouldn’t be involved in public schools, that it was a local issue,” recalls Jared Bernstein, a senior fellow at the center on Budget and Policy Priorities and the former chief economist to Vice President Joe Biden from 2009 to 2011. “We tried to explain that this is just a one-time jolt of infrastructure money to help them improve their facilities, maintenance, and energy efficiency. This was about the quality of the buildings kids would be walking into, not the federal government coming to take over your curriculum.”

School repair advocates tried again in 2011, when Democrats Senator Sherrod Brown of Ohio and Representative Rosa DeLauro of Connecticut introduced the Fix America’s Schools Today Act, which would have authorized $25 billion in federal school improvement funds. The legislation would have distributed 40 percent of the money to the 100 largest high-need school districts, and the remaining 60 percent would have been split among state education departments and administered through competitive grants. But the bill, too, went nowhere, and it was never reintroduced.

Now, Trump’s plans for sweeping infrastructure investments give public education advocates what some say is their best chance in decades to finally repair the nation’s dilapidated schools. Senate Democrats, for starters, recently unveiled an infrastructure bill that included $75 billion for school investments. Randi Weingarten, the president of the American Federation of Teachers, praised the Democrats’ proposal, adding that her union has “walk[ed] the walk” on infrastructure investment for years, harnessing billions in teacher pension money to pay for projects. But the size and shape of the GOP plan is unclear, and it’s anyone’s guess whether Republicans will include in their legislation the repair money that school facility advocates seek.

Convincing Congress to spend big on school infrastructure could be an uphill battle. Unlike the highway and railway lobbies, school infrastructure advocates don’t have a well-funded institutional presence on K Street. Moreover, advocates also lost a key political champion when Senator Tom Harkin, a Democrat from Iowa, retired in 2015. Harkin had chaired the Senate Health, Education, Labor, and Pensions committee in 2009, and had been one of Capitol Hill’s strongest champions for school infrastructure funding.

Still, advocates of school buildings are gearing up to make their case. One promising new weapon in their arsenal is the National Council of School Facilities, a nonprofit organization formed in 2012 to support state agency officials responsible for public school facilities. Late last year, the group issued a resolution calling for pre-K–12 public school buildings and grounds to be included in federal infrastructure programs. Though the group has a tiny budget, it is the first federal lobbying vehicle for state leaders to advocate on behalf of school repairs.

Proponents of increased school infrastructure spending have their work cut out for them, says Mary Filardo, executive director of the 21st Century School Fund, a national nonprofit that advocates for improved public school facilities. Our “feet are still a little flat,” she admits. “States are not prepared to make as strong a case as they need to about the importance of school buildings, and their role in economic change.”

Federal school infrastructure investments are important, Filardo and her allies say, because aside from creating jobs and directly providing resources for school repair, the feds can also help motivate states that are currently contributing nothing to building repairs in local districts to step up and help out.

Currently, local communities pay more than 80 percent of capital costs for school buildings. Over the past two decades, by contrast, states covered only 19 percent of school facility capital spending on average, according to the 21st Century School Fund. And in 2015, 12 states provided no school repair funding at all.

Even more importantly, school repair advocates see federal investments as the only real means to eradicate the gaping disparities between school buildings in wealthy versus low-income communities across the nation. “When facilities are just funded locally, how much you can spend is entirely a function of the wealth of your community,” says Filardo.

The school infrastructure crisis has been building for decades. In 1995, the GAO issued a report estimating that $112 billion was needed to repair and modernize the nation’s school facilities. By 2013, in the wake of the 2008 financial crisis, the American Society of Civil Engineers gave public school facilities a “D+” grade on its national report card. The group found that school construction had diminished to approximately half the level spent before the recession, even as public school enrollment continued to grow.

And last year, yet another report, issued by the 21st Century School Fund, the National Council on School Facilities, and the Center for Green Schools, estimated that it would cost roughly $145 billion a year to maintain, operate, and modernize school facilities to the point where all American students could learn in safe and healthy environments.

If there’s one lesson school facility advocates say they’ve learned from the past few decades, it’s that money doesn’t just trickle down to the schools and districts that need it most.

“From 1995 to 2004, there was tremendous growth in the U.S. economy, and I wondered whether because of this, low-wealth zip codes would get plenty of school construction money,” says Filardo. “What we found is that there was no trickle down—the poor districts were starved compared to the wealthiest districts, except where there had been court cases, and even then it still didn’t compensate for the differences in where they started out.”

In the decade following the GAO’s seminal 1995 report, the nation’s most disadvantaged students received about half the funding for their school buildings ($4,800 per student) as their more affluent peers ($9,361 per student), according to a study led by Filardo’s group. The 21st Century School Fund found that poor schools were most likely to use their limited funds for basic repairs, like asbestos removal or new roofs, while schools in more affluent communities tended to use repair money for things like constructing new science labs and performing arts centers.

These findings underscore why throwing money at schools is, by itself, not enough, say public school advocates; infrastructure investment must be consciously directed to districts with the greatest needs. Otherwise, any school repair money allocated in a Trump administration infrastructure package could just deepen the colossal disadvantages students in poor communities already face.

 

DeVos Might Not Force Private School Vouchers on States — But She Could Promote Them

Originally published in The American Prospect on February 6, 2017.
—-

In 1997, when Arizona launched the nation’s first tax-credit scholarship program, allowing individuals to receive tax credits for donating to nonprofits offering private school tuition grants, legislative aides estimated it would cost the state $4.5 million annually. By the 2015-16 school year, the yearly cost of the program had grown to more than $140 million, even though private school enrollment was actually below its 1997 levels.

Florida launched the nation’s second tax-credit private school voucher program in 2001, with a cap of $50 million. Today the program tops out at $559,000,000 annually, and will increase to $699,000,000 in the next fiscal year.

Pennsylvania’s tax-credit school voucher program, also launched in 2001, was originally capped at $30 million. Designed to provide tuition assistance to private schools, pre-K programs, and “innovative” public school initiatives, it now hits $175 million annually.

Tomorrow the Senate will hold its final vote on Donald Trump’s nominee to lead the federal education department, Betsy DeVos, a billionaire Republican donor who has spent decades advocating for charter schools, private schools, and virtual education. No other Trump appointee has faced the same magnitude of opposition, with hundreds of thousands of Americans calling, emailing, and faxing their senators in protest.

Though it’s widely expected that she’ll be confirmed on Tuesday, the past few months of anti-DeVos campaigning have created some new fault lines within education reform coalitions. In addition to labor unions and civil rights groups, more liberal school choice organizations, like Democrats for Education Reform and Education Trust, have lined up against DeVos’s nomination. Billionaire Eli Broad, who funds charter schools in Los Angeles, New Orleans, and other cities, penned a letter last week against his fellow billionaire education reform champion. On the other hand, Eva Moskowitz, founder and CEO of Success Academy, the largest charter school network in New York City, has emerged as one of DeVos’s most ardent supporters.

One major concern critics have voiced about DeVos is whether she will use her federal perch to push school privatization. She’s referred to the public education system as a “dead end” and has neither attended a public school, nor worked in one. In her home state of Michigan, DeVos has spent years (unsuccessfully) pushing private school vouchers, and has funded voucher efforts in other states.

Though DeVos has promised she would not “force” voucher programs on states, there are other ways she could support their growth if she’s confirmed as education secretary. She might get behind what’s known as “Title I portability”—a policy that would allow states to use federal dollars earmarked for low-income students to follow them to the public or private school of their choice. At $14.5 billion annually, Title I is the federal government’s largest program for K-12 students. Some congressional Republicans tried to include Title I portability in the federal education law that passed in 2015, but Barack Obama said he’d veto any bill that contained it. Democrats and Obama’s administration maintained that such a policy would significantly harm poor students by directing federal funds away from high-poverty school districts.

Title I is likely to come up again, given that in early January Donald Trump tapped Rob Goad, a senior education adviser to Representative Luke Messer of Indiana, to join his administration. Messer is known as one of the most vocal Congressional advocates for Title I portability, and Goad will serve as the key education expert on Trump’s White House Domestic Policy Council. A DeVos-backed Title I portability amendment to the Every Student Succeeds Act could win congressional approval unless Senate Democrats successfully filibuster it.

DeVos is also likely to support states establishing education savings accounts, which are voucher-esque subsidies that can go toward expenses like tutoring and homeschooling, as well as private school tuition. In December, right-leaning education reformers gathered together in Washington, D.C., for a conference hosted by the Foundation for Excellence in Education, an education advocacy group on whose board Betsy DeVos served until recently. At the conference leaders spoke animatedly about setting up vouchers or education savings accounts in every state across the country.

Noting the liberal opposition to DeVos’s nomination, some education analysts have suggested that private school vouchers are unlikely to expand beyond conservative legislators and red states. However, the reality is that private school voucher programs are often pushed in blue cities and purple suburbs—where a plethora of religious schools are located. In fact, it’s Republican-leaning rural areas that tend to have some of the greatest opposition to private school vouchers, given their scant school options.

Indeed Maryland, a blue state that went for Hillary Clinton by 26 points, established its first private school voucher program last year, appropriating $5 million to the effort. While school voucher initiatives are often pitched as vehicles to help poor, black students escape their local public schools, data from the first year of Maryland’s program reveal that more private school vouchers went to white students than black students, and 78 percent of the 2,464 vouchers issued went to students who were already enrolled in private schools. Maryland’s Republican governor Larry Hogan says he wants to double the funding for the voucher program over the next three years.

“In Maryland, no one has lobbied harder or been more excited about Governor Hogan’s voucher program than religious schools,” says Sean Johnson, the legislative and political director for the Maryland State Education Association. “Despite the rhetoric you hear on vouchers from President Trump, Governor Hogan, and Betsy DeVos, vouchers are less about moving kids from public schools and more about moving taxpayer dollars to private and religious schools. We can’t afford to fund two different school systems—public taxpayer dollars should be spent improving our public schools, not subsidizing expensive private schools.”

Meredith Curtis of the Maryland ACLU says what’s happening in Maryland is similar to what’s happened in other states, where private school voucher programs start out small, but continue to steadily grow, even as public school budgets are cut.

“Maryland public schools have tremendous needs that need to be addressed by the state, but we have no promises from the governor to meet those urgent needs, and yet he proposes increasing funding to religious schools,” Curtis says. “What we’ve seen in other states is that once allocations for vouchers are set in place, they just continue to increase, but there’s no accountability for benchmarks to compare the quality of education. We support [the right of] private schools to set their own curriculums, but we object to publicly funding [them].”

Assessing the educational value of private school voucher programs has been difficult. As Erin Richards details in The American Prospect’s most recent issue, Wisconsin, which launched the nation’s first private school voucher program 27 years ago, still lacks high-quality data for assessing performance, and still lacks robust mechanisms to hold private schools that receive public dollars accountable.

DeVos, congressional Republicans, and a host of GOP governors around the country may be enthusiastic about increasing the number of students enrolled in private schools, but public support for such policies is actually falling. According to an annual poll conducted by Harvard’s Education Next journal, nationwide support for vouchers targeted at low-income students fell from 55 percent to 43 percent between 2012 and 2016, and support for universal vouchers fell from 56 percent to 50 percent.

If private school vouchers become increasingly associated with Donald Trump, the nation’s staggeringly unpopular new president, then public support for vouchers may fall further yet.

 

New Jersey Supreme Court Blocks Chris Christie’s Efforts to Bypass Teacher Union Contracts, Alter School Funding

Originally published in The American Prospect on February 2, 2017.
—–

New Jersey Governor Chris Christie’s post-election tribulations continue to pile up. In September, Christie’s administration petitioned the New Jersey Supreme Court to vacate a 2011 ruling that found his prior education funding cuts unconstitutional. The petition also requested authority to bypass teachers’ collective bargaining agreements and tenure laws. The outspoken Republican, a long-time foe of organized labor, claims that these employment rules, not school funding levels, squander already scarce dollars and harm students in low-income districts.

But Tuesday, New Jersey’s high court denied the Christie administration’s attempts to link tenure and collective bargaining to school funding. Long regarded as a national leader in progressive school finance, the Garden State’s funding formula is the result of three decades of state Supreme Court litigation: The Abbott v. Burkecases determined that in order for the state to provide a “thorough and efficient” education to every student, New Jersey must send additional funds to 31 disadvantaged school districts across the state. Christie argues that these monies have been wasted, pointing to the districts’ low test scores and graduation rates.

In his ruling, the chief justice, Stuart Rabner, noted that the Abbott cases did not cover tenure and collective bargaining and declined to “exercise original jurisdiction” on those areas. He also emphasized that the court was not “opin[ing] on the merits of the issues or arguments” when it came to the teacher employment rules.

David Sciarra, the lead Abbott counsel and executive director of the Education Law Center, a New Jersey legal advocacy group, praised the court’s decision. “Issues related to collective bargaining and teacher layoffs were never in the Abbott cases, which has been singularly focused on ensuring adequate funding and resources for students in New Jersey’s poorest schools,” he said in a statement.

The state teachers union has argued that Christie’s efforts were politically motivated from the start, since the administration filed its legal petition just as the high-profile Bridgegate trials were getting started. “The court’s thorough rejection of Governor Christie’s frivolous but costly legal action demonstrates that his political Hail Mary lacked any solid legal basis,” New Jersey Education Association president Wendell Steinhauer said in a statement. “It was simply another taxpayer-funded Christie boondoggle, designed to divert attention from his many political woes.”

NJEA’s Steinhauer also commended the court for declining to rule on collective bargaining agreements and tenure. Calling Christie’s efforts an “attempted power grab” the union president said, “The court was wise to realize, as the Legislature long has, that no governor or commissioner of education should be given that amount of unchecked authority.”

New academic studies also challenge Christie’s contention that it is wasteful to direct supplemental funding to poor school districts. A 2016 National Bureau of Economic Research paper compared student test scores in 26 states that altered their school funding formulas since 1990, usually in response to court-orders like Abbott, with 23 states that had not. Researchers found that funding reforms that increased dollars sent to low-income school districts improved achievement and outcomes for those students. Another recent study found that poor children in districts subject to funding court-orders attended school longer, and earned higher wages as adults, compared to poor students in districts that were not under court-order.

The state Supreme Court ruling marks a setback to Christie’s education agenda. The governor shocked the nation this past summer when he announced his intention to upend his state’s school funding formula—declaring “no child in this state is worth more state aid than another.” Rather than direct more money to the poor, urban districts that have high concentrations of low-income students, Christie proposed distributing the exact same amount of funding to every school district in New Jersey. Only that, he insisted, would be fair. If implemented, Christie’s plan would have had crippling impacts on certain communities. NJ Advance Media found that the governor’s proposal would reduce state aid to Camden, one of the poorest cities in the United States, by 78 percent, and 37 other districts would see funding reductions exceeding 50 percent.

But, Democratic lawmakers, who control both the General Assembly and the Senate, plan to negotiate a new school funding formula  and have already expressed opposition to Christie’s proposals.

Meanwhile, challenges to teacher employment statutes in New Jersey are not over. In November, six Newark parents filed a lawsuit challenging the constitutionality of the state’s “last in, first out” law, which requires teacher layoffs to be made exclusively on the basis of seniority. The plaintiffs say the current law violates students’ right to an education by ignoring individual teachers’ records when determining which teachers to let go.

The Newark parents’ lawsuit mirrors a California case, Vergara v. California, which argued that teacher tenure, seniority, and other employment rules violated the state’s constitutional responsibility to provide students with an equal education. The California plaintiffs won the that case in 2014. But in a unanimous 2016 decision, the California Court of Appeals struck down that ruling and the state Supreme Court declined to take up case. Similar lawsuits challenging teacher job protections have also been filed in New York and Minnesota.

Teachers Union Battle Escalates at KIPP Charter School

Originally published in The American Prospect on January 30, 2017.
—-

Public school advocates and labor unions have been pressuring members on the Senate education committee to vote Tuesday against Betsy DeVos, Donald Trump’s controversial pick to head the federal education department. Pointing to the Republican billionaire’s track record in politics, advocacy, and philanthropy, critics argue that she represents an existential threat to public schooling.

Flying under the radar of this high-profile fight is a little-known labor battle escalating at one of the nation’s most well-regarded and politically powerful charter school networks. With 200 schools across the country, the Knowledge Is Power Program, or KIPP, is known for boosting student achievement among low-income students, and elevating the “no excuses” style of teaching to the national stage.

In late June, the United Federation of Teachers (UFT), New York City’s teachers union, filed a grievance on behalf of staff at the Bronx-based KIPP Academy Charter School, which became the first KIPP school in the city when it opened 16 years ago. (Eleven operate in New York City today, making KIPP one of the largest charter chains in the city.) The union accused KIPP Academy of failing to provide its employees with a host of basic labor rights they’re entitled to under the citywide collective-bargaining agreement. Specific grievances included a failure to provide teachers with summer vacation pay, an appropriate number of sick days, and sufficient rest periods on the job.

The battle has since metastasized into a wider legal fight, when KIPP Academy launched an ostensibly unrelated effort to encourage its employees to decertify their union.

KIPP’s academic model, defined by longer school days and school years, is also known for its high teacher turnover—fueling criticism that it’s an unsustainable model for school reform. A 2013 study published by the policy think tank Mathematica found KIPP teacher turnover was 21 percent during the 2010-2011 school year, compared with about 15 percent nationally for public schools. The study also found 86 percent of KIPP principals said teacher vacancies were hard to fill.

While most charter schools are staffed by non-union teachers, KIPP Academy is one of four so-called “conversion charters” in New York City, meaning it was formed by converting an existing public school into a charter. David Levin, co-founder of the KIPP Foundation, had launched KIPP as a program within P.S. 156 in 1995, and in the spring of 2000, he applied to expand it from a program into the entire school. As part of his application filed to the New York City Schools chancellor, Levin submitted a copy of an agreement between the UFT and the school district that said any conversion charter school “shall be subject to collective bargaining agreements for like titles or positions … including but not limited to salary, medical, pension and welfare benefits and applicable due process procedures.” The agreement also said the charter’s board of trustees could negotiate changes to the collective-bargaining agreement.

When KIPP Academy Charter School launched in September 2000, all of its initial employees had been previously employed by New York City Public Schools, all had worked in the P.S. 156 KIPP program, and all had been represented by the teachers union. KIPP Academy’s original students were all also former P.S. 156 students.

Last spring, 16 years later, about 20 staff members approached the UFT to raise concerns about their working conditions.

“Our day runs from 7:20 in the morning to 5:15 in the afternoon, so we’re there for nine hours and 55 minutes a day, and most of the time there are no breaks,” says Fatima Wilson, a fourth grade science teacher at KIPP Academy, and one of the teachers to approach the union. Even going to the bathroom becomes an ordeal, Wilson says, as teachers must inform the entire staff if they need to relieve themselves. “We often have to hold it in, and risk urinary tract infections, kidney infections. This is life as we know it,” she said in an interview with The American Prospect. “It winds up being a long day, an unsustainable day, but you know we still come to work because we love our kids.”

Wilson, who is in her second year at KIPP and her ninth year as a classroom teacher, wants to work at KIPP until she retires. She’s “embarrassed” by how terrible the staff turnover is, and says it’s because of the labor conditions.

The UFT filed its grievance on behalf of KIPP Academy teachers on June 28, 2016; when KIPP did not respond, the union sent a letter in late October announcing its intent to move forward with arbitration—a process of settling legal disputes outside of court. UFT filed for arbitration on November 7.

Shortly thereafter, KIPP representatives began talking with staff about decertifying the union—a process to revoke UFT’s legal representation.

Some KIPP Academy teachers had actually tried to do this once before. In 2009, employees filed a petition for union decertification, but under the law at the time, KIPP teachers would have needed to garner a third of the entire citywide public school bargaining unit—then 75,780 employees—to hold an election. In a 2010 hearing before the New York Public Employees Relations Board, an administrative law judge rejected the teachers’ petition as being “numerically insufficient.” KIPP Academy officials also tried to argue that the UFT didn’t even represent its staff since KIPP began as a program, not a school, meaning the charter shouldn’t be considered a real “conversion charter.”

New York’s PERB didn’t buy it. “Contrary to … KIPP Academy’s argument, the fact that one of numerous letters submitted with the charter application refer[s] to KIPP [as] a program, rather than a school, does not change the fact that the charter application specifically sought charter status based on the conversion of a public school,” the judge concluded in December 2010.

After the teachers union filed for arbitration this past November, KIPP filed for an injunction. In a district court hearing held on November 29, KIPP’s lawyer, Jeffrey A. Kehl, argued that UFT does not have representation status to file grievances on behalf of KIPP Academy teachers, pointing out that the union has not bargained any agreement, processed any grievance, or attended any meetings for KIPP teachers since the charter opened in 2000.

The judge, Carol Edmead, responded that none of what Kehl said alters the fact that the UFT has “been deemed and not overruled” as the teachers’ bargaining agent. She denied KIPP’s petition to thwart arbitration.

Since then, KIPP officials have held several meetings with their staff (what the union calls “captive audience meetings”) to discuss decertification, prompting the UFT to file charges with the National Labor Relations Board on January 19. The union’s complaint accuses the school of violating federal labor law, alleging, among other things, that KIPP encouraged teachers to end their relationship with the union, and threatened teachers with termination if they did not do so.

In response, school superintendent Jim Manley sent an email to staff at all 11 KIPP schools across the city, saying the NLRB complaint, along with the union’s subsequent press release and its demand for arbitration, “highlights our concern that engaging with the UFT will fundamentally alter the way in which we have worked together over the last 22 years to keep our promises to our kids and their families.” Going further, Manley said KIPP does not believe the academic success it has achieved would have been possible under a UFT collective-bargaining agreement.

Manley also said KIPP “disagrees” that the union represents its staff. He gave no mention to the PERB decision in 2010, or to the district judge’s recent decision in November. “We disagree both because of how we have operated since our chartering and because of recent changes to the law,” Manley said, referring to an NLRB decision issued last summer that says charter school teachers should be considered private employees. (If KIPP teachers are private employees, then the number of petition signers needed for UFT decertification may no longer be a third of the entire UFT bargaining unit, as it was in 2010. This question is unsettled and would likely need to be resolved by the federal labor board.)

KIPP NYC declined The American Prospect’s request for further comment.

One KIPP Academy teacher I spoke to, who asked to remain anonymous for fear of retaliation, said that teachers became interested in the union after seeing how KIPP responded to the filed grievance. This teacher was not one of the educators to approach the union last spring, but joined on this fall after seeing the administration’s reaction. “They didn’t want to work with the union, they didn’t want to hear what teachers were saying, and that made me passionate about joining the effort,” the teacher told me. “We felt disrespected.”

That feeling informed Wilson’s reaction to her superintendent’s suggestion that KIPP Academy might not be able to do as much for its students if teachers worked under a UFT contract.

“The only way we would sign on to work long days is because we believe in the mission, the vision, and we believe in the kids and families and each other,” she said. “Our success has nothing to do with the fact that [KIPP] is breaking laws by not giving us our right to duty-free lunch, our right to uninterrupted prep periods, the right apportion of sick days. Despite everything, despite the laws KIPP is breaking, we’re still persevering because we love our kids.”

The teacher who spoke anonymously echoed Wilson’s sentiments. “We love our school and students,” she said, but “it just feels terrible to be silenced about things like your mental health and your daily life. The idea of having a real collective voice, to be part of the decision-making process—that’s what people are most interested in.”

The NLRB will now conduct an investigation into what happened at KIPP Academy, and if the federal labor board decides to issue a complaint, an administrative law judge will conduct a hearing to determine whether KIPP violated federal law.

On January 25, some of the school’s teachers filed a new union decertification petition with the NLRB. At least 30 percent had to sign on to file for an election, though it’s unclear at this time if all the signatories were employees represented by the UFT. A hearing is typically set before an election to address those concerns.

The UFT maintains that any decertification election should be seen as illegitimate, since it alleges that KIPP has already illegally encouraged, cajoled, and threatened their employees into voting against union representation.

KIPP clearly recognizes the high stakes in this battle. If KIPP Academy teachers prevail in their fight to improve their working conditions through the UFT collective-bargaining agreement, other KIPP charter school teachers in New York City, and even across the country, might consider organizing similar efforts. KIPP Academy teachers could also choose to negotiate modifications to their citywide contract—something unionized KIPP teachers in Baltimore have done. (In Maryland, all charter school teachers are automatically covered under their district’s collective-bargaining agreement.)

These sorts of charter school labor issues may soon surface at the federal level. Last week, Jason Botel, who founded a Baltimore KIPP charter school, was named as a senior education adviser to the White House. And Betsy DeVos’s nomination is still before the Senate.

Unlearning the lessons of the housing crisis

Originally published in Curbed on January 19, 2017.
—-

Nearly six million American families lost their homes to foreclosure between September 2008 and September 2015.

This unprecedented housing crisis, promulgated by well-documented Wall Street fraud and predation, led—eventually—to government action, culminating in July 2010, when President Obama signed the Dodd–Frank Wall Street Reform and Consumer Protection Act into law.

Dodd-Frank outlawed some prominent forms of predatory lending and established a new agency—the Consumer Financial Protection Bureau—whose primary mandate is to aggressively penalize firms for fraudulent and shady business practices. Three years after its launch, the CFPB had addressed more than 400,000 consumer complaints concerning issues like unauthorized credit card fees and ballooning mortgage payments, and distributed more than $10 billion in settlements back to consumers.

Another three-odd years later,  Donald J. Trump’s surprising presidential victory has sent a deep chill down the spines of housing and civil rights advocates across the country. In his capacity as a developer, Trump was a defendant in one of the largest cases ever brought by the federal government for housing discrimination against African-Americans. In his short political career, he has pledged to deregulate the housing and financial sectors, and his early cabinet appointments have close ties to Wall Street.

“We’re about a decade out from the housing crisis, and it’s important that we don’t succumb to this collective amnesia about what happened,” says Sarah Edelman, the director of housing policy at the Center for American Progress. “We’re at real risk of returning to predatory lending and losing the protections Congress put in place to make sure nothing like that ever happens again.”

The Fair Housing Act of 1968 bars landlords, lenders, and sellers from discriminating based on race, sex, religion, or national origin, and requires recipients of federal funds to proactively promote housing integration. In 2015, under Obama, the Department of Housing and Urban Development released a new federal rule—known as the “Affirmatively Furthering Fair Housing Rule”—to provide communities with new tools to ensure they meet their fair housing obligations.

At the time, Republicans decried the AFFH rule as government overreach. Trump’s now-nominee for HUD secretary, Ben Carson, called it a dangerous “social engineering” scheme in an opinion piece published during his 2015 primary run. And while campaigning for president, Trump said he’d rescind the rule.

Already active litigation regarding violations of housing and civil rights law would also likely be stymied by a motivated Trump administration. For context, the civil rights division of the Department of Justice filed more than 100 lawsuits between 2012 and 2015, with a majority of those casesconcerning housing and lending discrimination. Former DOJ officials predictthat Trump’s administration will not be as committed to enforcing fair housing laws, especially if the Senate confirms Alabama Senator Jeff Sessions as the incoming attorney general.

Sessions allegedly railed against the NAACP and the ACLU for trying to “force civil rights down the throats of people,” according to testimony at his 1986 confirmation hearing for a federal judgeship (he was ultimately denied the position because of such remarks). If Sessions brings this point of view to his new role, Justice Department lawyers working on fair housing cases could be reassigned, and Trump’s team could simply avoid pursuing similar suits in the future.

Stuart Rossman, a staff attorney at the National Consumer Law Center, raises several additional concerns for fair housing advocates. For the past few years, two homeowners’ insurance trade associations have been challenging a 2013 HUD rule that formalized how housing discrimination cases could be tried under the so-called “disparate impact” standard, which lets individuals allege housing discrimination without having to prove that someone intentionally sought to discriminate.

The Obama administration has vigorously defended the rule in court. “Will the [Trump] government now throw up their hands and send their lawyers home?” asks Rossman. If the rule is thrown out, individuals may find it more difficult to bring fair housing cases forward.

And then there’s the matter of proving these cases once they’re on the docket. At present, the federal government collects detailed demographic data from banks under the Home Mortgage Disclosure Act, including price data for loans and information about who has been denied service. “Banks very much want to keep this information private, because they know when it’s collected it will be scrutinized,” Rossman explains. By evaluating HMDA data, lawyers can assess if banks are treating some groups of people differently than others.

“I’m not saying there’s not overt discrimination cases out there, but the systemic, institutional type of cases which affect a broad range of individuals are far more likely to [fall under] disparate impact,” Rossman says. “The banks, auto lenders, and insurance companies are far too sophisticated to engage in overt sexism, racism, and ageism. If you can’t get that aggregate analysis to make a disparate impact claim, you’re in a really bad spot to sue.”

Since the HMDA’s passage in 1975, each administration has had a fair amount of discretion to interpret the law. If, say, Trump’s team decides they don’t need to require banks to report as much information as they do now, changing HUD’s disclosure requirements, lawyers could find themselves locked out from the sort of aggregate data needed to prove housing discrimination in court.

Rossman also points to a tactic taken by George W. Bush’s administration, which used the Office of the Comptroller of the Currency to protect banks from civil rights suits initiated by state attorneys general and private lawyers. That means there are multiple strategies the Trump administration could pursue to avoid fair housing litigation at both the federal and local levels.

On the finance side of the equation, Trump’s nominee to lead the Treasury Department is Steven Mnuchin—a Goldman Sachs veteran of 17 years. Mnuchin founded and ran a mortgage lender, OneWest Bank, that was recently accused of housing discrimination in a federal complaint filed by two nonprofit groups. According to the complaint, OneWest (now a subsidiary of CIT Bank), was far more likely to foreclose on black and Latino homes than to lend to those owners, and neglected to maintain foreclosed homes in black and Latino neighborhoods, hastening their decline, while it actively maintained foreclosed homes in majority white areas.

“Mnuchin has a lot of rhetoric about his interest in protecting working families, but that’s not what his record has shown,” says Paulina Gonzalez, the executive director of the California Reinvestment Coalition, one of the groups to lodge the complaint. “The evidence speaks for itself.” That evidence now includes a newly disclosed 2013 memo from the California attorney general’s office alleging that OneWest repeatedly flouted a variety of foreclosure laws.

Mnuchin isn’t the only Goldman alum lined up to set financial policy in the Trump era. The president-elect has also named Gary Cohn, the president and COO of Goldman Sachs, to direct the National Economic Council, the president’s main forum for economic policy advice. Likewise, Jay Clayton, a Wall Street attorney whose firm has long represented Goldman Sachs, was recently nominated to lead the Securities and Exchange Commission. During the last administration, SEC regulations were key to holding banks accountable for bad behavior that led to the mortgage crisis, but the New York Times calls Clayton’s appointment “a strong signal that financial regulation in the Trump administration will emphasize helping companies raise capital in the public markets over tightening regulation.”

Trump will also have the ability to appoint leaders to all three of the major financial regulatory agencies: the Federal Reserve, the Federal Deposit Insurance Corporation, and the OCC. “Though the good news is we now have legal standards that prohibit irresponsible lending, it only underscores how important those regulatory agencies are, and their leadership,” says John Taylor, the president and CEO of the National Community Reinvestment Coalition.

“These appointments are critical,” Taylor continues. “Is [Trump] finding people whose first obligation is to ensure that average working class Americans are treated fairly, or is he looking out primarily for the businesses and agencies that might be affected by regulation?”

Ultimately, housing advocates worry about what will happen if Trump and congressional Republicans deregulate the housing industry and repeal the young Dodd-Frank law. Trump’s transition team has already said it’s looking to “dismantle” Dodd-Frank and Mnuchin has said targeting it would be a top priority for him. Many experts have suggested that rather than go through the trouble of repealing Dodd-Frank entirely, Republicans may look for ways to starve it, rendering it ineffective.

David Dayen, journalist and author of Chain of Title, a 2016 bestseller on the foreclosure crisis, says Trump may even be motivated to “weaponize” Dodd-Frank—using it to selectively advance his personal goals.

For example, Obama’s Justice Department has been pressuring Deutsche Bank to pay billions of dollars for its malfeasance during the housing crisis. Trump owes Deutsche Bank $364 million. Similarly, the FDIC and the Federal Reserve have been investigating Wells Fargo for anti-consumer practices. Donald Trump owes $410 million to Wells Fargo. Dayen sums up Trump’s fiscal conflicts of interest: “Trump may find it very appealing to be able to prosecute some financial institutions and not enforce rules at others.”

The unraveling of post-housing crisis protections could be especially dangerous as Republicans talk animatedly about privatizing Freddie Mac and Fannie Mae, the quasi-public agencies that help stabilize the U.S. housing market by securing the insurance markets and keeping mortgage rates low. Mnuchin has already said the next administration will get the government out of Freddie Mac and Fannie Mae.

On top of housing discrimination fears, advocates worry about what Trump’s administration could do to exacerbate demand for affordable housing across strata: for homeowners and renters, urbanites and rural dwellers. “After millions had their homes foreclosed upon, and millions more millennials delayed homeownership due in part to crushing student loan debt, demand for rental units has reached its highest levels since the 1960s, resulting in skyrocketing rents,” explains Diane Yentel, president of the National Low Income Housing Coalition.

Between 2005 and 2015, roughly nine million households moved from owning homes to renting—the largest change over any 10-year period on record. As a result, Wall Street firms started investing more heavily in single-family rentals, and a recent report out of Atlanta found that these institutional landlords were more likely to evict tenants than mom-and-pop ones. “It’s really important to keep watching these companies as they develop, because many of them are not located in jurisdictions with strong tenant protections,” Sarah Edelman says.

The stakes are high, and the litany of housing risks is long. But, thanks to the progress made over the last eight years, advocates at least will enter the Trump years with language and policy proposals they lacked a decade ago when foreclosures hit en masse. “Back then, progressives didn’t have a shelf of ideas, or the architecture to actually make the system safer,” says Dayen. This anti-discrimination framework will be threatened, and in some cases dismantled, under Trump. But it can also be defended, and restored.

 

 

Betsy DeVos Alarms Special Education Advocates, Parents

Originally published in The American Prospect on January 18, 2017.
—-

At an hour when most parents were headed home for the evening, education secretary nominee Betsy DeVos sat down to testify before the Senate Health, Education, Labor, and Pensions Committee. The unusual evening hearing raised a number of red flags before it even began: Five Republicans on the committee together had received more than $250,000 in campaign donations from the billionaire Republican donor and her family, and the Office of Government and Ethics still had not signed off on DeVos’s financial disclosures.

So perhaps it was not surprising that the roughly three-hour hearing included several bizarre episodes. DeVos cited grizzly bears as a justification for states determining whether firearms should be allowed in schools. The nominee also insisted that student debt rose 980 percent since 2008, when it only rose 124 percent. But the most shocking moment unfolded when DeVos admitted “she may have been confused” about the 42-year-old Individuals with Disabilities Education Act (IDEA), one of the nation’s most fundamental civil rights laws.

Enacted in 1975, IDEA provides nearly seven million children in the U.S. with special education services. Special education oversight is one of the most significant responsibilities of the education department that DeVos has been nominated to lead. “The fact that she doesn’t understand the basics about federal education law is just appalling,” says Denise Marshall, the executive director of the Council of Parent Attorneys and Advocates (COPAA), a national organization that defends the legal and civil rights of students with disabilities. “It was pretty clear to us that she is not, and never has been, an advocate for students with disabilities.”

“Even around vouchers, which she supposedly does have a lot of experience with, she just talked about them writ large, as if they could solve every family’s dilemma,” Marshall adds. “She gave no indication that she understands that students with disabilities very often have to give up their legal and civil rights to use vouchers.”

One of DeVos’s most stunning blunders came when she challenged the very notion of federal disability mandates, suggesting that it’s best for individual states to decide how to educate students with special needs. “That would turn back the clock by 40 years,” Marshall says. “IDEA was passed out of the recognition that students with disabilities are a group that requires greater protections. If states want to receive those federal funds, then they have to accept higher responsibilities, and provide those necessary supports.”

Thena Robinson Mock, director of the Opportunity to Learn Program at Advancement Project, a national civil rights group, says that an education secretary nominee who does not understand how IDEA benefits children of color is especially alarming. “If we know nothing else about the school-to-prison pipeline, we know that black and brown students with disabilities are the most vulnerable to punitive discipline policies that push them out of school and into the criminal-justice system,” she says. “These students still need the protections of IDEA because they are more likely to receive out-of-school suspensions, more likely to be referred to law enforcement and more likely to be arrested in school.”

Parents of students with disabilities also had strong reservations about DeVos’s performance, saying that her lack of rudimentary knowledge and experience should disqualify her from the position.

Dustin Park, who lives in Tennessee with his six-year-old diagnosed with Downs syndrome, told The American Prospect that DeVos’s testimony troubled him. “At best, she doesn’t know about the laws protecting students with disabilities, and at worst she doesn’t care,” he says. Park has been organizing and educating other parents about state and federal special education laws and noted that the Supreme Court heard a case just last week that will have massive implications for students with disabilities across the United States.

David Perry, a parent living in Chicago with a disabled child could not understand why a nominee did not have a good answer for such a softball question. “It’s either ignorance, or arrogance, or apathy,” he says. “Either way, I’m even more concerned about her nomination.”

Edward Fuller, a Penn State University education policy professor, told The American Prospect about his experience living in Texas, where his daughter, Jade, diagnosed with Asperger syndrome and ADHD, had been routinely denied special education services. In 2016, The Houston Chronicle reported that Texas had arbitrarily decided that only a certain percentage of students would get special education, while denying thousands of other children their lawful services. The newspaper’s investigation has since prompted federal intervention.

“The debacle in Texas is a perfect example of what could happen if states are allowed control over special education and are allowed to interpret the laws around IDEA from their own perspective,” says Fuller. “States can adopt policies that leave huge swaths of kids without access to a free and appropriate education [and] many southern states would adopt the same strategy as Texas in order to reduce education spending.”

Tom Wellborn, a south Jersey parent of two children with special needs, says he can’t imagine how miserably his kids would be doing without the techniques they’ve learned from specialists in their schools. “DeVos is obviously unqualified; painfully so,” he says. Citing the grizzly bear comment, Wellborn says he can’t even fathom “whether she’s serious or thinks we’re all idiots.”

Freshman Senator Maggie Hassan, a New Hampshire Democrat, and a parent of a son with cerebral palsy, challenged DeVos last night on the federal disability statute. In a statement provided to The American Prospect, Hassan said, “The fact that a nominee to lead the Department of Education seemed unfamiliar with the federal law to protect students with disabilities—a law that she would have a major responsibility in enforcing—is unacceptable. I will review Mrs. DeVos’s written responses but at this point she has done nothing to convince me that she’s a suitable choice to serve as secretary of education.”

Baltimore Is Finally Doing Something About Its Notorious Police Force

Originally published in VICE on January 12, 2016.
—-
The city of Baltimore and the federal government unveiled the terms of a sweeping 227 page consent decree Thursday morning, a legal document mandating reforms to the local police force. The deal emerged 21 months after 25-year-old Freddie Gray died while in police custody in April 2015, and five months after a scathing Department of Justice report alleged a litany of unconstitutional, racist, and just plain mean-spirited policing practices in Charm City.

“Through this agreement, we are moving forward together to heal the tension in the relationship between BPD and the community it serves,” US Attorney General Loretta Lynch said at a press conference in the city. “The agreement is robust and comprehensive,” she added, emphasizing that it was negotiated to ensure effective policing, restore the community’s trust in law enforcement, and advance the public and police officers’ safety.

Like 14 similar deals currently being enforced on law enforcement jurisdictions across America, the Baltimore consent decree lays out a number of new rules and systemic changes. Among other things, it calls for a community oversight task force to recommend tweaks to the current civilian oversight systems, insists on respect for individuals’ First Amendment rights to protest and monitor the police, imposes guidelines on proper use of force and transport of people in custody, protocols on constitutional stops, searches, and arrests, requirements for annual “community policing” trainings for all officers, and new procedures for conducting sexual assault investigations. While the BPD has moved to implement some of these reforms already—which the decree acknowledges and commends—Baltimore now has a legal tool to help cure what critics believe is a broken culture of often-brutal policing.

The deal also represents one of the last chances for the Obama administration’s activist Justice Department to leave its fingerprint on the American criminal justice system—and to rein in rogue cops at the center of Black Lives Matter protests. The only question is how aggressively a new, “law and order” happy White House under Donald Trump will enforce it.

The Baltimore City Fraternal Order of the Police, the local police union, quickly issued a critical statement after news of the decree broke Thursday, bemoaning the fact that they were not included in the negotiations. “Despite continued assurance by representatives of the Department of Justice that our organization would be included in the Consent Decree negotiations, no request to participate was ever forthcoming and we were not involved in the process,” the statement said. “As we were not afforded an advance copy of the agreement, neither our rank and file members who will be the most affected, nor our attorneys, have had a chance to read the final product and, as such, we will not have a comment now. Be assured, however, that a response will be forthcoming at the appropriate time.”

Police unions in other cities have worked to block reform efforts through their collective bargaining agreements, and Baltimore activists say they are bracing for similar resistance from the local FOP. The Baltimore police union has opposed reforms to the Law Enforcement Bill of Rights, which governs how officers accused of misconduct are treated in Maryland. Some activists say the statewide law stands as the city’s biggest barrier for meaningful police accountability and transparency.

In October, for its part, the Baltimore FOP issued its own recommendations for inclusion in the consent decree, calling for things like increased whistleblower protections, more cops, and technology upgrades.

During his confirmation hearings for US Attorney General this week, Alabama US Senator Jeff Sessions expressed skepticism about using consent decrees to force change in police departments. “These lawsuits undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness,” he said. Sessions also once wrote that court-ordered consent decrees were “undemocratic” and “dangerous,” which taken with his more recent comments has served to send a chill down the spine of police reformers nationwide.

Still, Outgoing Attorney General Lynch assured the public at Thursday’s press conference that the consent decree “will live on past this administration.” After all, it is court-enforceable and there will be an independent monitor overseeing the agreement.

But Lawrence Brown, an assistant professor of public health at Morgan State University, told VICE he has “no faith in Trump’s folks, especially if it’s Beauregard Sessions” and that he expects the police union to oppose key elements of the agreement. “Other means will have to be utilized to ensure this is enforced,” he said, pointing to ongoing efforts to change or repeal the Law Enforcement Bill of Rights.

Meanwhile, DeRay McKesson, a Black Lives Matter national activist and administrator in the Baltimore City Public School system, praised the agreement on Twitter for its scope, and noted that it’s the first consent decree he’s ever seen to include school police.

 

Skepticism that the new administration will hold local cops’ feet to the fire abounds, however. One member of Baltimore Bloc, a grassroots group focused on police reform, told VICE that she and her fellow activists have no confidence in a Trump DOJ to enforce the consent decree, even if they had their doubts about enforcement under a Hillary Clinton DOJ, too. “I think Baltimore Police is going to resist it all the way, FOP’s statement is already obstructionist as hell, and it was the police gleefully violating people’s rights that got us here,” the activist said.

The city has been under pressure to finish the consent decree before Inauguration Day. That’s because once the agreement is finalized—it still needs court approval—a federal judge will be empowered to enforce it, no matter who is president or US attorney general. Still, legal experts generally agree that if the police department or city political leadership fail to follow through on the terms of the agreement, it will be up to Trump’s Department of Justice to take them to court to compel change

New Jersey Public School Employees Sue Over Alleged Political Retalitation

Originally published in The American Prospect on January 6, 2017.
—

It’s no secret that school board politics can create bitter enemies, but rarely do such battles end in actual employee firings.

But nine New Jersey public school employees are claiming that a school board feud cost them their jobs, and they’ve recently filed a provocative federal lawsuit, each seeking $100,000 in damages.

The former employees of Elizabeth Public Schools—the fourth-largest school district in New Jersey—say they were fired for exercising their First Amendment rights of political speech and association after they campaigned for certain school board candidates who ultimately lost. In what could turn out to be a costly twist, the school board says it might file a countersuit, alleging nothing less than federal racketeering violations.

The whole drama is unfolding against the backdrop of a bitter political feud that’s divided two competing factions within the local Democratic party.

The case centers on the district’s November 2015 school board election, when three of nine seats were up for grabs. Two rival Democratic blocs endorsed different slates of candidates, though the elections are technically nonpartisan.

According to the federal complaint, one faction, known as “Continue The Progress” (CTP), has maintained a majority on the school board for about two decades. In 2015, three candidates (Tony Monteiro, Elcy Castillo-Ospina, and Michelle Velez-Jont) ran on the CTP ticket.

The other Democratic faction, backed by Elizabeth’s mayor of 25 years, J. Christian Bollwage, supported three CTP opponents (Charlene Bathelus, Stephanie Goncalves, and Daniel Nina). Prior to the 2015 election, the school board comprised five CTP members and four Bollwage-backed members. But all the CTP candidates lost, giving the mayoral faction a 6–3 majority.

The plaintiffs allege that upon taking power, the Bollwage faction “purged” the district of employees who openly supported or were perceived to support the CTP candidates. They claim their contracts were terminated not due to performance, “but rather due to retaliation” for political activity. Their 28-page complaint, drafted by an attorney with a Philadelphia-based law firm, alleges First Amendment violations, due process violations, and violations of the New Jersey Civil Rights Act.

The stakes for this kind of suit are high. In the September 2015 issue of The American Prospect, Alexander Hertel-Fernandez, an assistant professor of public affairs at Columbia, reported on the growing threat of “employer mobilization”—when employers recruit workers into political activity (or retaliate against them for their own political activity). Workers are already subjected to threats, harassment, and other forms of retaliation for union activity, and Hertel-Fernandez says that “it is not a stretch to imagine that in our deeply polarized era, employers might adopt more aggressive political tactics in the same way they have fought unionization.”

In a statement released to Union News Daily (named for the New Jersey county Elizabeth is located in, not the labor movement), Elizabeth district spokesperson Pat Politano said the allegations made against the district, the superintendent, and the school board are “false, frivolous, and will be defended vigorously.” All contract renewals made since January 2016, he said, were done in accordance with state and federal law and Department of Education regulations. According to NJ.Com, Politano’s former job involved consulting for the political campaigns of mayor-backed board members.

Politano said the school district is “considering all appropriate legal actions” in response to the complaint, including the possibility of filing the racketeering counterclaim, arguing that previous boards of education saw the district “as a source of personal benefit to themselves and their political allies.”

In this northern New Jersey city, it seems corruption charges can fly both ways—even within the same party.

Larry Hogan Can Be Beat

Originally published in The American Prospect on January 5, 2016.
—-

When Labor Secretary Tom Perez announced in mid-December that he was jumping into the race for Democratic National Committee chair, analysts immediately began to speculate what his motivations could be for challenging Minnesota Congressman Keith Ellison. Ellison had already been in the race for a month, and had received diverse endorsements from the AFL-CIO, Elizabeth Warren, Chuck Schumer, among many others. Was the White House putting Perez up to this, nervous about a key Sanders supporter leading the party? Was this about preserving support from billionaire donors like Haim Saban, who said electing Ellison would be a “disaster” for Democrats?

And, wait, wasn’t Perez—a former Maryland state official and a longtime resident of the D.C. suburbs—considering a 2018 run against Maryland’s Republican governor Larry Hogan? Wouldn’t this rising political star’s career be better served by making a blue state blue again?

Last month, when I started asking people around D.C. this question, I got two somewhat contradictory responses. First, I’d invariably be asked if I had seen Larry Hogan’s approval ratings. Yes, I knew that the Republican governor currently boasted a 71 percent approval—his popularity was something The Washington Postreminded readers of again and again. But when I’d ask them what they thought Hogan’s biggest accomplishments were, their responses would quickly become vague. “Look … he can’t be beat,” they’d insist. “He’s moderate and just too well-liked.”

While I’d never claim that unseating an incumbent governor with high polling would be easy, Hogan’s alleged inevitability needs a reality check. Maryland is a state where Hillary Clinton swept the floor by 26 points. It’s a state where Democrats outnumber Republicans more than two-to-one. Let’s be clear: Larry Hogan can be beat.

Hogan won the governorship in 2014 under uniquely favorable circumstances. His six-point victory was facilitated in part by Democrats taking the race for granted: They waged a pitifully weak campaign effort for an uninspiring and often invisible candidate. The result was a precipitous decrease in statewide voter turnout, particularly in counties that are critical for Democratic wins. Baltimore City turned out 36 percent of voters in 2014, 9 percent fewer than in 2010. Likewise, in Prince George’s County, turnout dropped by 7 percent, and in Montgomery County, by 12 percent.

There’s good reason to suspect the 2018 campaign season will not much resemble the generally muted 2014 contest. For starters, there’s a man named Donald Trump who’s set to take over the White House later this month. He’ll be starting his presidency with a stunningly low approval rating, and the 2018 midterms will be the first opportunity Americans generally, and Democrats particularly, will have to express their displeasure at the ballot box. What’s more, with the federal government under GOP control, Democrats will be focusing more on winning state governments than they have in the recent past. Thirty-six gubernatorial seats up are for grabs in 2018, and as political writer Greg Sargent pointed out, many states in which Republicans are defending governorships are ones that Barack Obama and Hillary Clinton recently won.

Larry Hogan might be a moderate Republican, but he’s still a Republican. That means progressives have an opportunity to link his Maryland agenda to Trump’s national program—and whatever chaos it’s likely to cause. Hogan himself has described Chris Christie and Vice President-elect Mike Pence as his “closest friends” among governors. Yes, Hogan said he would not vote for Trump—a shrewd political calculation that resonated with his liberal state (Massachusetts’s GOP Governor Charlie Baker did the same thing)—but Hogan has hardly been denouncing Trump, either. On the contrary, Hogan congratulated him on his win, and made clear the president-elect would be welcome in Maryland. A few weeks after the election Hogan even said, “Everyone ought to just take a deep breath and give the new administration a chance.”

If anything, Hogan is more vulnerable to an anti-Trump backlash than the far-right, Trumpist wing of his party. The hard core of GOP elected officials usually represent safe red districts. However popular he may be, Hogan is trying to keep his balance in a state that tilts far to the left.

Hogan recognizes his political vulnerability. Clinton and newly elected Democratic Senator Chris Van Hollen both performed well in Maryland this past November, including in suburban counties that Hogan won in 2014. And as Maryland progressives move on from their post Trump-election shock, they’re going to be mounting a more concerted effort to define what Hogan really stands for.

And that gets to another important, overlooked reason Hogan can be beat: His record is deeply hostile to liberal values.

Let’s start with the environment. While just this week Hogan’s team released a statement positioning the governor as a champion of green energy and sustainability, his substantive policy positions paint a very different picture. During Hogan’s first week in office he blocked a series of environmental regulations, including a rule setting standards for air pollution at the state’s coal-fired power plants, and another restricting phosphorus pollution from farms near the Chesapeake Bay. This past summer the executive director of the Chesapeake Climate Action Network and the executive director of the Maryland League of Conservation Voters co-published a Baltimore Sun op-ed detailing how Hogan has fought against major environmental reforms, including his veto of the Clean Energy Jobs Act, a bill that passed the state legislature and was supported by 71 percent of Maryland voters.

“Most harmful, though, has been the way Mr. Hogan has confused the public about his overall battle plans,” the environmental activists wrote. “In April, with a grand ceremony in Annapolis, the governor signed the Greenhouse Gas Reduction Act, mandating a 40 percent reduction in statewide carbon pollution by 2030. But Mr. Hogan is careful to point out that the bill has no specific mandates as to how to achieve the goal. So the governor has taken enormous and undeserved environmental credit for signing a bold target on paper while actively obliterating every major policy realm in the state dedicated to actual climate pollution reductions.”

On transportation, Hogan has similarly faked left while moving right.

“He cancelled the Red Line [a $2.9 billion light rail project in Baltimore that had been in the works since 2002], crippled the Purple Line [a light rail project running through the D.C. suburbs], he sidelined reform for the Maryland Transit Administration and the Bus Network Improvement Program,” says Martha McKenna, a Democratic political strategist. “He hasn’t done anything to help people get to work. He’s really failed and now he’s trying to get the media to cover him like he’s been a transit champion.”

“Like Donald Trump, Governor Hogan is a master of political theater that communicates only the message he wants to convey,” adds Brooke Lierman, a Maryland state delegate who champions transit reform. “He can zing off one-liners like ‘road kill bill’ that mask the actual facts of the policy he is discussing. Democrats—myself included—struggle sometimes to effectively convey our policies in ways that resonate with voters.”

If Democrats can learn how to combat Hogan’s PR smokescreen in the coming years, they can expose a governor with an agenda deeply at odds with the state’s electorate.

On the issue of public education, Hogan hasn’t bothered to conceal his true aims. In addition to cutting funding for public schools and lengthening summer vacation—a move that will disproportionately hurt low-income students—Hogan wants to increase funding for private school vouchers and significantly expand charter schools throughout the state. And though under Maryland state law all charter teachers are unionized, Hogan backed an effort in 2015 to change that.

Another reason Hogan’s record has flown under the radar is because the state has been preoccupied with the governor’s battle with cancer. Hogan spent a year-and-a-half of his tenure undergoing chemotherapy, garnering understandable bipartisan sympathy and softening criticisms. He’s also assembled a sophisticated communications team, and benefited from a massively thinned out press corps. All of which have helped divert attention from the big tax breaks he crafted for Northrop Grumman and Marriott International, and the cancellation of another billion-dollar economic revitalization project in Baltimore.

Given the paucity of Maryland media coverage, it will up to Democrats and activists to get the word out about what Hogan is really up to. But holding Hogan accountable to his record is only part of the solution. Another challenge will be prodding suburban liberals to vote in accord with their progressive values. Lily Geismer, a Claremont McKenna historian who writes extensively about suburban voters and shifts within the Democratic Party, has examined the phenomenon of blue states with Republican governors. She says voters in Democratic strongholds like Illinois, New Jersey, Massachusetts, and Maryland tend to think if they elect moderate conservatives from business-oriented backgrounds, they’ll somehow be opting for efficient, fiscally responsible state management, while still holding true to their liberal commitments. The lure of a federal-state split ticket may be even stronger for suburbanites who spend all day working in the nation’s capital.

“Being so close to D.C. is a blessing and curse,” says Lierman. “Maryland is home to a plethora of brilliant and engaged policy wonks, cabinet secretaries, and federal workers. But by and large they are concerned with federal policy and national politics—not state and local government.” To regain power, Democrats need to remember the importance of local governance; opposition to right-wing policies in Washington matters less if those same policies are simply recreated in statehouses.

Larry Hogan can be beaten in 2018. Exposed as a right-winger, stripped of a favorable national political environment, and facing a reinvigorated Democratic opposition, Hogan’s veneer of inevitability wouldn’t last long.

Which is just one reason why a sharp Democratic leader looking to move on to the national stage might want to take a hard look at the Old Line State and its supposedly invulnerable governor.

Public Education under Trump

Originally published in The American Prospect winter 2017 issue.
—–

On November 8, 2016, the man who vowed to be “the nation’s biggest cheerleader for school choice” won the presidential contest. About two weeks later he announced that Betsy DeVos, a billionaire Republican donor who has aggressively lobbied for private-school vouchers, online education, and for-profit charter schools, would serve as his education secretary. In early December, Jeb Bush told an audience of more than 1,000 education reformers in Washington, D.C., that he hoped “there’s an earthquake” in the next few years with respect to education funding and policy. “Be big, be bold, or go home,” he urged the crowd.

To say education conservatives are ecstatic about their new political opportunities would be an understatement. With Republicans controlling the House and Senate, a politically savvy conservative ideologue leading the federal education department, a vice president who earned notoriety in his home state for expanding vouchers, charters, and battling teacher unions, not to mention a president-elect who initially asked creationist Jerry Falwell Jr. to head up his Department of Education, the stars have aligned for market-driven education advocates.

Donald Trump neither prioritized education on the campaign trail, nor unveiled detailed policy proposals, but the ideas he did put forth, in addition to his selection of Betsy DeVos, make clear where public education may be headed on his watch. And with a GOP Congress freed from a Democratic presidential veto, conservative lawmakers have already begun eyeing new legislation that just a few months ago seemed like political pipedreams.

Many aspects of education policy are handled at the state and local level, of course, but Republicans will govern in 33 states, and Trump will have substantial latitude to influence their agenda. The next few years may well bring about radical change to education.

School Choice

“President-elect Trump is going to be the best thing that ever happened for school choice and the charter school movement,” former New York Mayor Rudy Giuliani has proclaimed. “Donald is going to create incentives that promote and open more charter schools. It’s a priority.”

Giuliani’s comments reflect the enthusiasm that Trump expressed about choice and charters while campaigning for president. During a March primary debate, Trump said charters were “terrific” and affirmed they “work and they work very well.” A few months later he traveled to a low-performing for-profit charter school in Cleveland to say he’d invest $20 billion in federal money to expand charters and private-school vouchers as president. His campaign has not outlined where the money would come from, but suggests it will be accomplished by “reprioritizing existing federal dollars.”

Trump’s ambitions will likely be aided by his vice president-elect, Mike Pence, who worked vigorously to expand charter schools and vouchers while serving as Indiana’s governor. Pence loosened the eligibility requirements for students to obtain vouchers, and eliminated the cap on voucher recipients. Today, more than 30,000 Indiana students—including middle-class students—attend private and parochial schools with public funds, making it the largest single voucher program in the country. Pence also helped double the number of charter schools in his state; he increased their funding and gave charter operators access to low-interest state loans for facilities.

In the House and Senate, Republicans are eager to expand Washington, D.C.’s private-school voucher program, which has paid for about 6,500 students to attend mostly religious schools since the program launched in 2004. “I think [the Republican Congress and new administration] could eventually turn D.C. into an all-choice district like we see in New Orleans,” says Lindsey Burke, an education policy analyst at the right-leaning Heritage Foundation.

Congress also allocates $333 million per year to the federal charter school program, and groups like the National Alliance for Public Charter Schools are calling for that number to rise to $1 billion annually. Martin West, an education policy professor at Harvard’s Graduate School of Education, noted that to the extent the federal charter school program is well funded, states will continue to feel pressure to position themselves competitively for those dollars.

Conservative leaders at the state level are also looking to expand private-school vouchers and so-called education savings accounts, which are voucher-esque subsidies that can go toward expenses like tutoring and homeschooling, in addition to private-school tuition. At the Washington conference where Jeb Bush keynoted, panelists spoke enthusiastically about setting up vouchers or education savings accounts in all 50 states. On the campaign trail, Trump called for expanding private-school vouchers for low-income students, but his vice president-elect and his nominee for education secretary both support giving vouchers to middle-class families, too.

Congressional Republicans may also try to establish federal tax-savings accounts for K–12, which are similar to the 529 plans that already exist for higher education, and which mainly benefit well-off families. They also may push for federal tax credit scholarships, which would provide tax relief to individuals and businesses that help low-income children pay for private school.

In a sense, the George W. Bush and Barack Obama administrations softened the ground for a federally incentivized expansion of vouchers and other forms of privatization. In the bipartisan deal that led to the enactment of No Child Left Behind in 2002, Bush and Democrats led by Senator Edward Kennedy traded federal standards for more federal funding. The subtext was the Republican narrative that public schools were failing. This in turn led to the era of standardized testing and punitive measures against “failing” schools. Later, by appointing former Chicago Public Schools Superintendent Arne Duncan to lead the Education Department, and passing over such progressive reformers as Linda Darling-Hammond, Obama sided with those who sought measures like the nationalization of academic standards. The new backlash from conservatives against testing and the Common Core should not be interpreted as a rejection of a federal role. The right loves it when Washington intervenes—if it serves the right’s purposes.

The Department of Education

Trump has boasted that he would reduce the size of the federal government, and his DeVos-led Department of Education is one likely place he’ll start. Though threatening to dismantle that federal agency is a long-standing Republican tradition, surrogates say it is more likely that Trump will try and “starve” the department, and downsize its responsibilities, rather than kill it outright.

In October, Carl P. Paladino, a New York real-estate developer who was briefly considered for education secretary, took to the stage on Trump’s behalf at a national urban education conference and said the department’s Office for Civil Rights—which oversees initiatives like tackling college sexual assault and reforming school discipline—was spewing “absolute nonsense.”

Obama’s Education Department has given unprecedented attention to reducing racial disparities in school discipline, issuing the first set of national guidelines in 2014 and making clear that it would hold districts accountable for discriminatory practices. Policy experts think these efforts will fall quickly by the wayside in the coming years.

In a press conference following Trump’s victory, David Cleary, the chief of staff for Republican Senator Lamar Alexander, who chairs the Senate Committee on Health, Education, Labor and Pensions, said his boss believes the Office for Civil Rights should be reined in. “There will be aggressive oversight from Congress to make sure it shrinks back to its statutory authority and responsibilities,” Cleary said.

Another major threat to the Education Department is a significant loss of institutional knowledge. Politico reported that the agency is already experiencing a loss of morale since the election, and bracing for a serious brain drain: Many veteran employees who have served for decades, in addition to younger staff who entered government under Obama, are considering leaving because they don’t want to work for a President Trump.

Common Core

One crowd-pleasing element of candidate Trump’s stump speech was his promise to “kill” Common Core—the standards launched in 2009 that lay out what all K–12 students are expected to learn in English and math. The standards, which were created by a coalition of state governors, and incentivized by the Obama administration through the federal Race to the Top program, have been a flashpoint for conservatives, who see them as a threat to “local control.” Trump vowed to eliminate Common Core through the so-called School Choice and Education Opportunity Act—part of the legislative agenda he says he’ll focus on during his first 100 days. DeVos now stresses that she does not support Common Core, although an organization she founded—the Great Lakes Education Project, which she also funded and served as a board member for—strongly backed the standards in 2013.

While there are limits to what Trump and DeVos could do to end the Common Core standards (they are state standards, after all), Trump’s executive bully pulpit could certainly help embolden Common Core opponents on the local level.

Still, Catherine Brown, vice president of education policy at the Center for American Progress, is not so worried about the future of the national education standards. “I don’t even think Donald Trump knows what the Common Core is,” she says. And despite candidate Trump’s demagoguery, Brown points out that states haven’t really abandoned them, even in more conservative parts of the country. “To the extent that states have changed their standards, they basically renamed them and kept the basic content,” she says.

Teachers Unions

This past year, public-sector unions faced an existential threat from Friedrichs v. California Teachers Association, a Supreme Court case seeking to overturn a 40-year-old ruling that required public employees represented by a union to pay fees to cover the union’s bargaining and representation costs, even if they do not pay full membership dues. Five of the nine justices were clearly primed to rule against the so-called “agency fees” and upend decades of legal precedent, but Justice Antonin Scalia unexpectedly died in February, before the Court could rule. The case ended up in a 4–4 tie, leaving the law, and collective bargaining, in place.

Now that the Republican Senate has refused to hold a vote on Obama’s appointment of Judge Merrick Garland, Trump will nominate a conservative Scalia successor to the Court. With a number of Friedrichs look-alike cases headed to the Supreme Court, it’s a near certainty that a reconstituted majority of five conservative justices will strike down agency fees, which could considerably reduce the resources available to the American Federation of Teachers and the National Education Association—two of the nation’s largest unions. Were that not trouble enough, the massive support that the AFT and NEA gave to Hillary Clinton’s campaign is not likely to endear them to a president with a well-known penchant for revenge.

Every Student Succeeds Act

At the end of 2015, Congress passed the Every Student Succeeds Act (ESSA), the successor to the controversial Bush-era No Child Left Behind Act, which tied federal funding to school performance. The new law is set to take full effect during the 2017–2018 school year. While there was broad recognition that ESSA marked a positive step forward from the test-and-punish regime that had reigned for 13 years under No Child Left Behind, a diverse coalition of civil-rights groups has worried that its replacement, which substantially reduced the federal government’s role in public education, will not do enough to hold states accountable for the success of racial minorities, students with disabilities, and English language–learners. “The hard-learned lesson of the civil rights community over decades has shown that a strong federal role is crucial to protecting the interests of educationally underserved students,” wrote the Leadership Conference on Civil and Human Rights in a letter to Capitol Hill during the ESSA negotiations.

For the past year, the Obama administration worked to draft regulations that would help maintain some level of federal accountability for student learning and funding equity, particularly for disadvantaged students. These executive-level regulations, which have been controversial among congressional Republicans, are likely to be abandoned, or weakened, under President Trump.

One policy that congressional Republicans might push for under a President Trump is known as “Title I portability,” which would allow states to use federal dollars earmarked for low-income students to follow students to the public or private school of their choice. While still a candidate, Trump brought in Rob Goad, a senior adviser to Representative Luke Messer, an Indiana Republican, to help him flesh out some school-choice ideas. Messer co-sponsored a bill during the ESSA negotiations that would have launched Title I portability, but Obama threatened to veto any version of the law that contained it. A White House report issued in 2015 said that Title I portability would direct significant amounts of federal aid away from high-poverty districts toward low-poverty ones, impacting such districts as Chicago, Detroit, Los Angeles, and Philadelphia particularly hard. Conservatives may see a more politically viable route to push this policy under Trump.

Brown of the Center for American Progress doesn’t think Congress will likely pursue Title I portability, however, in part because it has a lot of other legislative priorities to attend to. “The ink is barely dry on ESSA; states haven’t yet submitted their plans. I think [portability] is probably dead on arrival, but maybe six years from now,” she says. Even then, Brown thinks the policy will never be all that popular, since huge swaths of the country lack many school options, making them poor candidates for private-school vouchers.

But other education experts say that the lack of brick-and-mortar schools in rural communities just means that the door could open more widely for for-profit virtual schools, which DeVos has strongly supported. In 2006, Richard DeVos, her husband, disclosed that he was an investor in K12 Inc., a national for-profit virtual charter school company that has since gone public. As of mid-December, Betsy DeVos had not clarified whether her family still holds a financial stake in the for-profit education sector.

Higher Education

Trump, who founded the now defunct for-profit college Trump University, recently agreed to pay $25 million to settle a series of lawsuits alleging fraud. Sara Goldrick-Rab, a sociologist at Temple University who studies college affordability, predicts America will be “open for business” under President Trump when it comes to promoting for-profit colleges. “This means cutting regulation and oversight, and defunding public higher education so that students view for-profits as a good deal,” she wrote on her blog following the election. The Higher Education Act, which governs the administration of federal student aid programs, is also up for reauthorization in 2017.

Trump didn’t devote much time while campaigning to talking about colleges and universities, but he did say in an October speech that he’d look to address college affordability by supporting income-based repayment plans, going against many Republicans who say such initiatives are fiscally reckless and create incentives to acquire too much higher education. Conservatives have also proposed rolling back Obama administration reforms that federalized all new student loans and applied stricter regulations, particularly to for-profit institutions. If President Trump does ultimately re-privatize student loans, consumer protections would likely disappear, and the cost of borrowing would rise.

University leaders are also worrying about what a Trump administration could mean for research funding. The government is likely to cut back on investments on budgetary grounds, but also on ideological grounds, since universities tend to be seen as liberal enclaves. Experts say that non-ideological scientific research is particularly vulnerable. House Republicans, led by Representative Lamar Smith, who chairs the House Science, Space and Technology Committee, have tried before to cut federal funding for social sciences and climate and energy research, and having a president who refers to global warming as a hoax “created by and for the Chinese” doesn’t augur well for federal research investments.

Moreover, as the president-elect frequently rails about political correctness, higher education leaders worry that a Trump administration will not look kindly on student free speech and protest. Ben Carson, who was briefly considered for Trump’s education secretary, said that if he were in control he would repurpose the department to monitor colleges and universities for “extreme bias” and deny federal funding to those judged to have it. Decrying alleged campus bias is a staple of “alt-right” (read: white nationalist) media outlets like Breitbart, whose chief, Steve Bannon, will be Trump’s strategic adviser and senior counselor.

The Path Forward for Progressives

For a week following the election, it wasn’t clear how exactly the liberal groups that backed Obama’s education reform agenda—Common Core standards, test-based accountability, and charter schools—would respond to their new choice-friendly president. The fact that the school reform agenda has long had bipartisan backing has always been one of its strongest political assets.

As pundits tried to guess whom Trump would pick for various cabinet-level positions, rumors started to float that Trump might be eyeing Michelle Rhee, the controversial former D.C. Public Schools chancellor, or Eva Moskowitz, the founder and CEO of Success Academy Charter Schools in New York City, for education secretary. Both women back the Common Core standards, and are broadly revered among Democratic school reformers.

But on November 17, just over a week after the election, the president of Democrats for Education Reform, Shavar Jeffries, issued a strongly worded statement urging Democrats to refuse to accept an appointment to be Trump’s secretary of education. “In so doing, that individual would become an agent for an agenda that both contradicts progressive values and threatens grave harm to our nation’s most vulnerable kids,” Jeffries said. He condemned Trump for his plans to eliminate accountability standards, to cut Title I funding, to reduce support for social services, and for giving “tacit and express endorsement” to racial, ethnic, religious, and gender stereotypes, and he called on the president-elect to disavow his past statements.

Shortly thereafter, Moskowitz announced that she would “not be entertaining any prospective opportunities” in the administration, but defended the president-elect, saying there are “many positive signs” that President Trump will be different than candidate Trump. His daughter, Ivanka Trump, took a tour of a Success Academy charter in Harlem later that week. Rhee, following a meeting with Trump a few days later, issued a statement saying she would not pursue a job in Trump’s administration but that “[w]ishing for his failure” would amount to “wanting the failure of our millions of American children who desperately need a better education.”

The equivocating didn’t end there. Democrats for Education Reform soon walked back their original declaration of opposition to Trump. In a statement sent to the group’s supporters, Jeffries wrote that DFER was not saying Democrats should not work with Trump on education, but just that no Democrat should work for him as secretary of education. “[W]e draw a distinction between working with and working for Trump,” Jeffries wrote. “Where appropriate, we will work with the Administration to pursue policies that expand opportunity for kids, and we will vocally oppose rhetoric or policies that undermine those opportunities.”

In a political climate where teachers-union strength may dramatically diminish, opposition to Trump’s agenda from liberals who supported Obama’s education reforms could be an important deterrent to Trump’s rightward march on education. But with DFER already signaling that it’s open to working with Trump, with high-profile reformers like Moskowitz and Rhee also giving him a public nod of approval, and since some of the same billionaires who fund the charter school movement also back the president-elect, the chances aren’t great that Democratic education reformers will staunchly oppose Trump’s school reform agenda.

Randi Weingarten, the president of the American Federation of Teachers, is under no illusions about the enormous challenges that loom for the future of public education. Yet she notes that over the past half-decade, educators and their unions have worked with their communities like never before. “If Donald Trump opts for privatization, destabilization, and austerity over supporting public education and the will of the people,” she says, “well, there will be a huge fight.”