Maryland’ GOP Governor Recently Opposed Trump on Immigration, But His Record Tells A Different Story

Originally published in The Intercept on July 12, 2018.
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Maryland’s Republican Gov. Larry Hogan made national headlines in June when he recalled his state’s National Guard unit of four soldiers from the southern U.S. border. The only GOP governor to call back troops in protest of President Donald Trump’s child separation policy, he has touted the move as a sign of his commitment to stand up to a remarkably unpopular president.

The governor, who is up for re-election this year, has reveled in his reputation as a moderate Republican, and currently boasts a 69 percent approval rating among Maryland residents who, just two years ago, overwhelmingly voted for Hillary Clinton. But in a year in which Democrats, leaning into opposition to Trump, are expected to have the upper hand come November, Hogan’s re-election is all but guaranteed. Maryland politics can be volatile: When Hogan was elected in 2014, his Democratic opponent was leading by 13 points at this stage of the race. And immigrant rights groups say his recent grandstanding with the National Guard is an exception to a long and hostile record on immigration, one that includes calling for greater cooperation with U.S. Immigration and Customs Enforcement and restricting the entry of Syrian refugees into the state.

“Unfortunately, Gov. Hogan has not been a good friend of the Latino and immigrant community,” said Gustavo Torres, the president of CASA in Action, a group that advocates on behalf of immigrants on the electoral level. “He’s been extremely quiet in moments when we needed real leadership, and other times he has attacked immigrants using the same talking points about criminals and danger the president relies on.”

The state has a sizable immigrant population. In 2015, nearly 1 million foreign-born individuals lived in Maryland, comprising about 15 percent of the state’s population. According to the American Immigration Council, nearly 42 percent of Maryland’s building maintenance workers and groundskeepers are immigrants, as are a quarter of all state health care workers.

Ben Jealous, the Democratic nominee in the gubernatorial race and former NAACP president, has been a vocal immigrant advocate in the state. In 2013, the Baltimore Sun named Jealous “Marylander of the Year,” in part for his work helping to pass the state’s DREAM Act, which grants in-state college tuition to undocumented students. On his campaign website, Jealous has pledged to work with the legislature to pass a sanctuary state bill, make Maryland welcoming for refugees, defend DREAMers, and champion a pathway to citizenship on the federal level. He was arrested at a White House immigration protest last year.

Democrats outnumber Republicans 2-1 in Maryland, and the party is hoping to mobilize anti-Trump voters, seizing on the national momentum for a “blue wave” election. With two-thirds of Americans opposed to Trump’s immigration policies, immigration may well be a motivating issue for Maryland voters come November. According to a poll released in mid-June, the No. 1 issue for nearly half of Maryland Democrats is removing Trump from office. Jealous’s political strategy is to try and link a popular governor to an unpopular president.

“Donald Trump’s policies are extreme and racist, and it’s even more important that we have governors with courage and experience to move us forward no matter what happens in Washington,” Jealous told The Intercept.

As Josh Kurtz, an editor at Maryland Matters, put it, Hogan may have more difficulty “inoculating himself from President Trump and the Republican Congress” on immigration, given that it’s an emotionally salient issue that’s easier for average voters to understand. “If this issue remains so raw in the months ahead — and it could — swing voters, unreliable Democratic voters and new voters could all be reminded of the things they don’t like about the GOP,” wrote Kurtz.

Most voters have not been paying attention to the details of Hogan’s immigration record, so whether or not immigration plays a major role in the election will depend on how much Jealous decides to focus on it, said Daniel Schlozman, a political science professor at Johns Hopkins University. “It’s not impossible for immigration to be a major issue,” he said. “It just requires taking a record in bits and pieces and figuring out how to tell the voters what it means.”

Hogan’s re-election campaign website does not make any mention of immigration or immigrant communities. Amelia Chasse, a Hogan spokesperson, told The Intercept that the governor has “consistently called on Congress and the federal administration to work in a bipartisan manner to enact comprehensive immigration reform, and has repeatedly stood up to the Trump administration on immigration related issues that could impact Maryland.” Chasse cited Hogan’s removal of the National Guard troops last month and his opposition to the president rescinding the Deferred Action for Childhood Arrivals program as examples, both of which put the governor in line with most centrist Republicans. Chasse also pointed to the governor’s marriage to Yumi Hogan, a first-generation American who emigrated from South Korea.

Jealous has not yet taken Hogan to task on immigration, but Jerusalem Demsas, Jealous’s campaign spokesperson, indicated that the issue might become central to the campaign. “From his time as President of the NAACP to when he co-chaired the successful effort to pass the Maryland DREAM Act, Ben has stood up for immigrant families,” Demsas wrote in an email. “He will be no different during this campaign and when he is governor.”

Hogan, who was first elected in 2014, has tried to strike a delicate balance on immigration issues. As a Republican governor in a strong blue state, he’s tried to both distance himself from Trump and skirt the heated battles many of his red-state counterparts have leaned into; Hogan often reminds his constituents that immigration is an issue largely under the federal government’s purview.

That hasn’t stopped him from weighing in on a number of issues at the intersection of immigration and state policy, however. On the 2014 campaign trail, for example, he came out in opposition to Maryland’s policy of allowing undocumented immigrants to obtain driver’s licenses. He acknowledged he’d be unlikely to repeal it as governor, given the veto-proof Democratic majority in the Maryland legislature.

Upon taking office in January 2015, Hogan instructed the state-run Baltimore City Detention Center to provide ICE agents with 48 hours’ notice before an undocumented immigrant targeted for deportation was set to be released, so that feds could assume custody and try to remove them from the country. Hogan defended this move, saying he was merely complying with the Obama administration’s policy. The Washington Post editorial board praised Hogan’s stance as “common sense” and “responsible.”

But Hogan’s predecessor, Martin O’Malley, a Democrat, had bucked the Obama administration on a similar, more extreme policy in 2014, instructing the Baltimore jail not to automatically cooperate with ICE’s request to hold immigrants beyond their scheduled release from custody — what is commonly known as a detainer request. Other cities and states, including New York City and Connecticut, took similar measures at the time.

Later on in Hogan’s first year, over the objection of activists and faith leaders, he told the federal government that more Syrian refugees would not be welcome in Maryland. Hogan cited “safety and security” concerns. (He was joined by governors in 29 other states, most of them Republican, who demanded an end to Syrian refugee resettlement.) When then-Secretary of State John Kerry and Homeland Security Secretary Jeh Johnson sent Hogan a joint letter to reassure him that the vetting process was exhaustive and comprehensive, Hogan dismissed it, saying his position on Syrian refugees is “not going to change.”

Asked to comment on the issue, Chasse pointed out that the governor asked for more stringent vetting procedures, but that “the state has no authority over refugee resettlements.”

Immigrant rights activists say things deteriorated even further after Trump was elected.

First came Trump’s travel ban on refugees and citizens of Muslim-majority countries in January 2017. “Hogan was very quiet, very silent. He didn’t take any lead at all on responding to the attacks against Muslims,” said Torres of CASA in Action. While people all over the country poured into airports and the streets to protest the president’s executive order, Marylanders were upset by their Republican governor’s silence. Hundreds protested outside his home in Annapolis in February demanding he speak up and denounce the travel ban. Hogan dismissed the pressure, saying he’s “focused on solving Maryland problems” and that he doesn’t see protesting Trump’s policies as “his role.”

A month later, as activists in the state began to ramp up efforts to protect immigrant communities from the Trump administration, Hogan came out to say that efforts to limit cooperation with ICE were “absurd” and that he would do all in his power to kill the legislature’s attempt to pass a so-called sanctuary bill.

Hogan was referring to the Maryland Law Enforcement and Governmental Trust Act of 2017, which would have curtailed state law enforcement agencies from disclosing nonpublic records to ICE, and barred state officials from asking crime victims or suspects about their immigration status. The measure was broadly supported by the state’s Latino, Asian, and black caucuses, as well as a host of progressive advocacy groups. “Maryland is different from most states in that we allow undocumented residents to obtain driver’s licenses,” testified the bill’s sponsor, state Sen. Victor Ramirez, a Prince George’s County Democrat. “We must assure those residents that their information is safe and will not be used for immigration purposes.”

Hogan made his opposition to the bill clear, vowing to veto it immediately should it land on his desk. When the Maryland House of Delegates passed a version of the Trust Act, Hogan released a statement calling it an “outrageously irresponsible bill” that will “endanger” Maryland citizens.

To gin up opposition to the Trust Act, Hogan pointed to a recent scandal in the Maryland suburb of Rockville involving two undocumented immigrants. On March 17, 2017, two male students were arrested for allegedly raping a 14-year-old girl in the bathroom. Both students were undocumented, and one was already in deportation proceedings. Montgomery County, where Rockville is located, had implemented sanctuary policies for immigrants in 2014, and Hogan quickly cited the students facing rape charges as a reason for why the legislature should avoid bringing similar policies statewide. (The Montgomery County policy stated that officials would not honor ICE detainer requests without adequate probable cause.) U.S. Attorney General Jeff Sessions also cited the Rockville rape charges as reason to block any sort of sanctuary bill.

But the case fell through. The rape charges were dropped less than two months after the state’s attorney investigated the allegations. “The Hogan administration immediately accused the progressive immigrant policies in Montgomery County as being the cause for the crime, when in reality the teenagers were not guilty,” said Torres. The scandal was enough to help kill the Trust Act, which ended up floundering in the Senate.

Hogan sent out a fundraising letter shortly thereafter asking conservatives for help fighting “a far left agenda and the worst instincts of an increasingly liberal and out-of-touch state legislature.” As evidence of that, Hogan blasted Democrats for “focusing their efforts on trying to make our state a safe haven for criminals here illegally.” He went further, saying “we cannot allow Maryland to become a sanctuary state. Our local law enforcement should be doing more — not less — to make sure criminals here illegally are turned over to federal immigration officials. The rule of law must come first and we will do whatever we can to stop any so-called ‘sanctuary bills’ that would limit how jails and police could assist federal authorities.”

When it comes to limiting law enforcement and corrections entanglement with immigration enforcement, “Governor Hogan has had a largely obstructionist track record,” the American Civil Liberties Union of Maryland said in a statement. In addition to his stated desire to reject refugees from Syria, the civil liberties group pointed to Hogan’s vocal opposition to the Trust Act, which “would have implemented a range of reasonable safeguards for Maryland’s immigrant communities,” including ensuring that state and local policies do not run afoul of Fourth Amendment protections, and stopping Maryland from contributing to any Trump Muslim registry.

Immigrant advocates have also blasted Hogan for his silence on Trump’s decision to end temporary protected status, or TPS, a form of relief that allows citizens of countries undergoing turmoil or recovering from natural disasters to stay in the United States. Most TPS recipients hail from El Salvador, Honduras, and Haiti, and over 20,000 live in Maryland. The cancelation of TPS means citizens of those countries will lose their protected status by September 2019. The chair of Maryland’s Democratic Party, Kathleen Matthews, issued a statement at the start of 2018 calling on the governor to “use the bully pulpit” he has to fight for TPS immigrants in his state.

“Many of these people have lived here for more than 20 years,” said Torres. “The president is canceling this extraordinary program, and Gov. Hogan has been very quiet. This is going to have a huge impact on our economy.” Chasse, Hogan’s spokesperson, did not specifically address the concern about TPS.

“I think a lot of people assume that Larry Hogan is good on a host of issues, when he really has been missing in action,” said Jay Hutchins, the executive director of the Maryland Working Families Party. “Everything is moving so quickly and ramping up, and we’re losing a lot of ground. There’s just absence of real leadership.”

According to recent polls, Maryland voters are not necessarily swayed by Hogan’s law-and-order immigration rhetoric. A Washington Post-University of Maryland poll released in March found that 75 percent of Maryland residents said they thought having local police more actively identify undocumented immigrants for potential deportation would likely deter immigrants from informing police of crime. Seventy-one percent said immigration enforcement should be left mainly to the feds.

Some advocates, like Torres of CASA in Action, go so far as to argue that Hogan’s tendency to frame immigration issues largely in terms of crime and safety could come back to bite him in November, like it did for Republican gubernatorial candidate Ed Gillespie in Virginia last November.

“The same thing happened in Virginia. The Republican candidate used the same language and it backfired,” Torres said. “I think that will happen here in Maryland. People are going to vote against someone who is so weak for our community.”

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Maryland Showdown on Testing, Charters, and the Direction of Public Schools

Originally published in The American Prospect on March 29, 2017.
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Politicians and policy experts have long debated how and whether to hold schools accountable for what students learn. For 13 years under the controversial Bush-era No Child Left Behind Act (NCLB), the federal government required states to identify schools that were failing by the metric of standardized test scores, and dictated how schools should intervene. Critics said the law amounted to untenable and unacceptable levels of federal overreach, and ultimately did little to close academic achievement gaps. Defenders say the law, while imperfect, led to small yet significant gains in student achievement, particularly for black, Hispanic, and low-income children.

At the end of 2015, Congress passed NCLB’s successor, the Every Student Succeeds Act (ESSA), which limits the federal government’s role in shaping school accountability, and gives states considerably more discretion to craft their own plans. In order to receive federal funds, however, each state has to submit its plan for federal approval. These plans are due this coming fall, and the law is supposed to take full effect during the 2017-2018 school year.

A heated battle over the future of Maryland’s plan—specifically, how much weight standardized test scores should be given in determining a school’s rating, and how much power the state should have over low-performing schools—has become a flashpoint in the polarized education reform wars, not only within Maryland but across the country. At the crux of the debate are questions about who gets to speak on behalf of racial minorities and low-income children, and what school accountability should look like in the age of Donald Trump.

Last fall, the Maryland Board of Education—a 12-member body, ten of whom were appointed by the state’s Republican governor, Larry Hogan—released an initial draft accountability plan. The plan did not include details about what specific interventions should be taken if schools are deemed low-performing, but the board’s president, Andy Smarick, a former George W. Bush education official and a current resident fellow at the American Enterprise Institute, told The Baltimore Sunthat he favored “bolder” approaches than Maryland has taken in the past. In February, Governor Hogan sent Smarick and Maryland’s state superintendent of schools a letter encouraging them to include private school vouchers, charter schools, and a state-run “recovery” school district as specific interventions in Maryland’s ESSA plan. Under current Maryland law, the state education department submits the plan to the state education board, which has the final authority to approve, amend, or reject it before sending it on to the federal government.

In response, Maryland’s Democratic-controlled legislature has been working with teachers unions and education advocates on legislation that would shape the direction of the state’s accountability plan, effectively limiting how much Hogan’s appointees could decide on their own.

States have a lot more freedom under ESSA than they did before, but they don’t have total freedom. ESSA dictates that when crafting accountability plans, states must assign indicators of academic performance “much greater weight” than other measures like class size and school climate. But what this language means in practice isn’t so clear. Education reformers say it means that a significant majority of a school’s accountability rating should hinge on standardized test scores—at least 70 percent. Last week, for example, the D.C. State Board of Education approved a plan that would make 70 percent of D.C.’s school accountability rating based on student growth and proficiency scores. (D.C. reformers originally pushed for testing measures to comprise 80 percent of a school’s score, but that percentage dropped amidst criticism.)

In mid-March Maryland’s House passed a union-backed bill—“The Protect Our Schools Act”—that would cap standardized testing measures at 65 percent of a school’s accountability score. Thirty-five percent would be reserved for indicators like class size, absenteeism, and school climate. The bill also would prevent the state from using vouchers and charters as school turnaround interventions, bar the creation of a state-run school district, and require districts and the state to negotiate any school improvement plan with the local teachers union. It passed 91-46, with a veto-proof majority.

Last week, as the state senate prepared to vote on the bill, Governor Hogan called it “misguided and horrible” and vowed to veto it should it land on his desk. In a press conference, the governor claimed the bill “will make it nearly impossible for [Maryland] to save some of these persistently failing schools.”

Maryland’s state board of education also expressed strong opposition to the bill. Chester E. Finn, Jr., the vice president of Maryland’s school board and a Distinguished Senior Fellow at the Fordham Institute, a conservative education think tank, called the passage of the Protect Our Schools Act “painful.”

Market-driven education reform organizations also moved into high gear to defeat the bill. MarylandCAN, a reform advocacy group, released a statement saying the bill “hurts children.” The head of Maryland’s Alliance of Public Charter Schools said it would be “most damaging for students within Maryland’s minority and low-income populations who need every opportunity available to them to lower the achievement gap—not being held to lower sub-par standards.”

The bill’s supporters rallied to its defense. On Monday, the Maryland State Education Association (MSEA) put out a statement that said, “while the Protect Our Schools Act is supported by teachers, the Maryland PTA, civil rights groups—including the ACLU of Maryland and CASA de Maryland—and leading education scholars, it is only opposed by national school privatization advocates and Governor Hogan’s administration.”

Linda Darling-Hammond, a Stanford education professor and the president of the Learning Policy Institute, sent a letter to the Maryland state Senate last week to voice her support for the bill. “While academic outcome indicators are important, it is equally important to include indicators of student and school conditions that predict outcomes, so that educators have information to use for diagnostic purposes and improvement decisions,” she wrote. “By including school quality indicators [such as access to effective teachers and college-ready coursework] and using them in meaningful ways, parents, educators, and education stakeholders can have a richer understanding of what is going on in a school and what is fostering or delaying its success.”

Pedro Noguera, a professor at UCLA’s graduate school of education, also sent a letter to the senate expressing support for the bill, saying he felt it would provide Maryland with “the strong accountability system that it needs and enable it to be positioned to monitor school and student performance, and draw attention to inequities in learning opportunities that research has shown obstruct effort to close achievement gaps.”

Education reform groups opposed to the bill argue that it will have the opposite effect, actually obfuscating information about achievement gaps and inequities.

On Tuesday morning, the Maryland Senate passed the Protect Our Schools Act with a final vote of 32-15. The House concurred Tuesday night, also with a veto-proof margin, and it now heads to Larry Hogan.

Teacher unions and other education advocates who favor the bill have been stressing that the Protect Our Schools Act serves as a preemptive measure against school privatization, particularly since Trump and Education Secretary Betsy DeVos, both advocates of charters and vouchers, now guide federal policy. The MSEA also claims that Hogan has ignored their efforts to collaborate on school improvement.

“Since the day after his election, we’ve reached out to the governor repeatedly to try and put partisanship aside and work with him on reducing over-testing and other education issues,” says MSEA’s communication director, Adam Mendelson. “We’re still waiting on him to return our calls and include public educators’ voices in his policy development.”

How far Hogan will go in fighting the Democratic-controlled legislature over school reform remains an open question. Despite his statewide popularity, the Republican governor is expected to face a tough reelection battle in 2018, and Maryland voters express strong support for public education.

The Washington Post recently found that 41 percent of registered voters said they’d support Hogan for a second term, down from 46 percent in September. Maryland went for Hillary Clinton in the 2016 presidential election by 26 points.

Larry Hogan Can Be Beat

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

The Growing Movement to Restore Voting Rights to Former Felons

Originally published in The American Prospect on August 7th 2015.
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Rachel M. cohen

SEIU 1199 

Rachel M. Cohen

       

On August 6, the 50th anniversary of the Voting Rights Act, dozens of Baltimore ex-felons rallied and marched alongside community members to protest their disenfranchisement. In May, Maryland Governor Larry Hogan vetoed a bill which would have granted ex-felons the right to vote when they return home from prison, rather than making them wait until after their probation and parole sentences have been completed (some sentences can last for decades). Holding up signs that read, “We Want Taxation with Representation!” and “End the New Jim Crow!” protestors made clear that they understand the racial implications of the status quo. Had Hogan signed the bill into law, 40,000 more Maryland residents—a majority of them black Baltimoreans—would have been able to cast a ballot in the next election. “Override! Override! The veto! The veto!” protestors shouted together as they marched down the street.

The crowd, well over 100 people, eventually gathered around a statue of Thurgood Marshall, not far from Baltimore’s Inner Harbor. “We picked that spot because he’s one of the greatest symbols of justice and fairness,” explained Perry Hopkins, an ex-felon who now works as an organizer with Communities United, the social justice group that planned Thursday’s rally. Fifty-four-year-old Hopkins has never voted.

While Baltimore has made national headlines this year for its police brutality scandals and its spiking murder count, the gathered crowd recognized that these issues cannot be separated from the societal exclusion African-Americans experience every day.

One woman who came to the rally was Robinette Barmer, who has had two children and one grandchild locked up in jail. Barmer has been fighting for ex-felon voting rights all year, and traveled to Annapolis last spring to push for the bill’s passage. “I try to tell ex-cons that their voices do still matter,” she said.

Greg Carpenter, a 62-year-old black man who served 20 years in prison for an armed robbery, also has a 20-year parole sentence. Although Carpenter has been out of jail for 12 years now, he worries he won’t ever get to vote again in his lifetime.

Governor Hogan said that requiring ex-felons to finish their parole and probation sentences before voting “achieves the proper balance” between repaying one’s obligations to society and restoring citizens’ rights. Ex-felons point out that they are both working and paying taxes within their communities, and thus should also have the right to vote.

Social science research suggests that removing voting restrictions would provide positive benefits to both ex-offenders and society at large. The American Probation and Parole Association also says there is no credible evidence to suggest that disenfranchising people who have returned home from prison serves any legitimate law enforcement purpose.

According to the Sentencing Project, a criminal justice advocacy group, there are roughly 5.85 million disenfranchised American citizens with felony convictions, and 2.2 million of them are black. That’s one out of every 13 African-Americans.

The Voting Rights Act was passed in 1965 to end discriminatory voting barriers but the courts have disagreed on whether the VRA should apply to felon disenfranchisement laws. Maryland activists aren’t waiting around for the courts, though. At Thursday’s rally, organizers prepped the crowd for next year’s legislative season where they hope to push for an override. “We need you to show up and come out with us to Annapolis,” said Nicole Hanson, an ex-offender who works with Out4Justice, a group that politically mobilizes ex-offenders. “There’s only 90 days of [the legislative] session, so we’ll need you to make some sacrifices.”

Eighteen states considered loosening ex-felon voting restrictions this year, up from 13 states in 2014. But passing legislation, as Maryland activists witnessed first hand, is difficult. Only one state—Wyoming—ended up successfully loosening its restrictions.

Still, there has been demonstrable progress. The Sentencing Project estimates that nearly 800,000 citizens have regained the right to vote through voting reforms enacted between 1997 and 2010. Last month, President Obama even said that, “If folks have served their time, and they’ve reentered society, they should be able to vote.”

“This is a very peaceful rally, but this issue is personal,” Hopkins said in an interview. “We’re going to flip power, and we’re going to empower. We’re going to show the governor who’s the boss. We’re the boss! We’re the people.”

Rachel M. Cohen

Perry Hopkins at the podium                   

A New Course: Larry Hogan wants to change Maryland’s unique charter school laws and bring in more charters, but will kids suffer?

Originally published in Baltimore City Paper on August 5th, 2015.
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Baltimore City Paper cover

Baltimore City Paper cover story

At the end of 2014, just weeks after Larry Hogan won a surprise victory in the gubernatorial race, the governor-elect announced that he would push to expand Maryland charter schools once in office.

“We shouldn’t be last in the nation in charter schools,” Hogan declared—referring to Maryland’s spot in the state ranking system designed by the National Alliance for Public Charter Schools (NAPCS), an advocacy organization that promotes charter schools around the country. According to NAPCS, Maryland has the nation’s “worst” charter law. The Baltimore Sun editorial board, echoing NAPCS, has said Maryland boasts one of the “weakest” charter laws in the United States.

In late February and early March, legislators in Annapolis listened to testimony related to charter reform bills that Gov. Hogan introduced in the House and Senate. Supported by the Hogan administration, a coalition of charter school operators, and national education-reform advocates, the bills met fervent opposition from teachers, principals, and community members.

“I don’t care what the National Alliance for Public Charter Schools, a lobbying group out of Washington, D.C., has to say about the charter school law in Maryland or where they rank Maryland relative to their own biased standards. Neither should you,” testified Megan Miskowski, a speech language pathologist at Patterson Park Public Charter School. It’s Maryland’s strong law, she argued, that explains why Maryland charters have never wrought the level of fraud and abuse so prevalent in places such as Minnesota and Louisiana—states that receive high marks from NAPCS. “Who are they to define what is best for Maryland children?” Miskowski asked. “We do not answer to them.”

The Maryland Charter School Act passed in 2003 and the first state charter schools opened their doors in 2005. A decade later roughly 18,000 students attend 47 Maryland charters—34 of them concentrated in Baltimore City. A version of the Public Charter School Improvement Act eventually passed, but it was substantially watered down from Hogan’s original proposal, and many believe he’ll push a stronger law again next year. The heart of the debate centers on competing visions for the future of public education, and whether one believes Maryland has the best charter law in the country or the worst.

The publicly funded but independently managed schools known as charters have grown significantly since the first one opened in Minnesota 23 years ago. Today more than 6,700 charters exist in 42 states and Washington, D.C. and their numbers are climbing. Albert Shanker, then-president of the American Federation of Teachers (AFT), first proposed the charter school idea in 1988; the influential union leader imagined a new kind of school that could serve as a laboratory for innovative and experimental education practices. The hope was not only to serve kids within charters who might benefit from alternative educational models, but also to carry newly discovered best practices back into traditional schools for all students to enjoy. In Shanker’s vision, charter teachers would still be unionized district employees, but certain labor regulations would be relaxed to promote greater innovation.

Maryland’s charter culture sets it apart from most other states in several ways. First, under the law all Maryland charter teachers are considered public school employees and represented under their district-wide collective bargaining unit. While this actually most closely resembles what Shanker had imagined, few states today adopt this particular model. According to the Center for Education Reform (CER), just 7 percent of all charter school teachers nationwide are unionized.

Another distinctive characteristic of Maryland charters has been a general commitment to innovate within the district, as opposed to outside of it. In other states, the law may allow for multiple charter authorizers, such as churches, universities, or nonprofits. In Maryland, however, only the local school board can authorize charter schools. “I’d say the strong desire [of Maryland charters] to work within the school district is fairly unique,” says Joceyln Kehl of the Maryland Alliance of Public Charter Schools, a newly formed coalition of charter operators around the state. “Maryland is hugely pro-union and Democratic, so that’s just our context,” she adds.

Additionally, Maryland charters must comply with a greater number of state and local regulations than charter schools in other states. While detractors of Maryland’s law argue that this creates an inflexible environment for the independent schools to operate in, supporters point out that Maryland has not had any of the kinds of problems related to fraud, abuse, and mismanagement that charter schools in states with decreased regulation have had. “It is true that Maryland charter school law provides more oversight than many other states,” testified Deborah Apple, a charter school teacher at the Baltimore-based Wolfe Street Academy. “It is also true, however, that our charter school system is more effective than most.”

A stronger level of oversight, a close relationship with the school district, and unionized charter teachers illustrate the uniqueness of Old Line State charters. The vast majority of schools are considered “mom and pop” charters, meaning parents or former local educators founded them, as opposed to some of the larger national charter management organizations (CMOs) that have developed presences in other cities. According to an Abell Foundation report released this year, many high-performing CMOs have expressed reticence or disinterest in coming to Maryland given the conditions in which they’d have to operate. While the Maryland charter law has facilitated the growth of strong schools with little to no fiscal and academic issues, the question is whether such growth is sufficient, and whether the state’s law should change in order to entice more CMOs to expand into Maryland.

Baltimore’s 34 charter schools educate 13,000 of the district’s 84,000 students. Bobbi Macdonald, co- founder of the City Neighbors Charter School, is one of Charm City’s veteran operators. City Neighbors was one of the first charters to open up in 2005, and since then Macdonald has opened two more schools. Reflecting on the evolving dynamics between Baltimore charter operators and the district, Macdonald describes years of intentional relationship building. “I don’t believe that school systems are made out of steel, they’re made out of people,” she says.

In 2004, after the charter law passed and before the first schools opened, Baltimore’s new charter operators formed a coalition to organize and advocate for their collective interests. This coalition grew increasingly formalized as the years went on. “The work of the coalition became really focused on defending our autonomy and the rights of children in charter schools,” says Macdonald, who served as the coalition’s co-chair for the first six years.

Many charter operators spoke favorably, even nostalgically, of Dr. Andrés Alonso’s six-year tenure as city superintendent, which ended at the end of 2012-2013 academic year. “Dr. Alonso had a clear vision of wanting to provide a portfolio of school options for families, and to create opportunities for innovation and then replicate those practices,” says Allison Shecter, the founder of the Baltimore Montessori Public Charter School, one of the city’s most popular charters. “I think when Dr. Alonso was here we had a really strong relationship and participated in a lot of ways on many different levels,” says Macdonald.

Since Alonso’s departure, the relationship between charter operators and the district has grown more strained. “I’d say it’s a challenging relationship. It’s not a partnership unfortunately,” Shecter says. “We’d like it to be a partnership but in order for it to be a partnership there needs to be consistent and ongoing communication back and forth around policies that may impact charters.” Many operators say they feel the district is neither accountable nor transparent, which fuels growing levels of distrust.

One issue charter operators repeatedly raise is that they believe the district short-changes them when it comes to per-pupil funding. Under state law, the district must provide “commensurate” funding between traditional schools and charters. Currently, the district allocates $7,300 per traditional school student, and $9,400 per charter student—which is supposed to take into account that Maryland charters have to pay for the cost of their facilities, programming, salaries, and other school-level costs, which the district pays for in traditional schools. However, the formula that the district uses to come up with these amounts is unclear, and operators are convinced that what they’re getting is too low. Charter operators believe that they should be getting closer to $14,000 per pupil. Debates around these dollar amounts grow very charged.

Not everyone at charters agrees the district is shirking its funding responsibilities. “Charters still receive more per pupil, even after those extra costs are covered,” says Matthew Hornbeck, the principal at Hampstead Hill Academy, a charter located just south of Patterson Park. “Everyone, with the exception of some of the charter operators, knows that.” Hornbeck, who has served as his school’s principal for 12 years, has been outspoken about what he sees as a district funding formula that unfairly favors charters.

“I was a charter operator and I absolutely knew we were getting more than traditional public schools,” adds Helen Atkinson, the executive director of Teachers’ Democracy Project, a local organization that helps teachers engage in public policy and develop more social justice curricula.

Jon McGill, the director of academic affairs for the Baltimore Curriculum Project, the city’s largest charter operator, describes the relationship between charters and the school district headquarters on North Avenue as “overall harmonious” but says he does wish the district would be more transparent about how about how exactly it spends its slice of per-pupil funding. He thinks charters “lose the PR game” because the public sees them as always asking for more money. One reason the funding issues get so heated, McGill suggests, is because some operators have taken huge personal risks to open charter schools, and feel they need more reassurance that the district truly supports their efforts. “Some people have 30-year mortgages to worry about,” he says.

While for the past decade the story of Baltimore charters has mostly been an intra-district struggle, Gov. Hogan’s rise to power signified a turning point for the Maryland school-choice movement.

The legislation Hogan introduced would have dramatically changed the charter law passed in 2003. His proposals included provisions to exempt charter school employees from the district bargaining unit, as well as from many state and local requirements such as teacher certification. Hogan’s bill would have enabled charter schools to compete against traditional schools for state public construction money, and the bill would have required districts to explicitly define “commensurate funding” to mean that charters should get 98 percent of the per-pupil amount that traditional public school students receive, leaving 2 percent left over for district administrative expenditures.

“It did take us by surprise,” says Kehl. “As a charter sector, we were not expecting legislation this year, and we’re grateful that Governor Hogan finally wanted to cast an eye on the charter sector.” While charter operators around the state met with legislators and held school meetings to discuss why they supported Hogan’s bill, Kehl acknowledges that their advocacy “wasn’t as robust an effort had we been really prepared for it.”

Once news of Hogan’s charter bill went public, Maryland charter teachers began to organize together in new ways. In Baltimore, teachers convened and decided to form the Baltimore Charter School Teacher Coalition. Educators broke up into committees to strategize and implement an organized political response to the bill.

Corey Gaber, a sixth-grade literacy teacher at Southwest Baltimore Charter School who was active in the coalition, says part of the reason they formed their group was because they were dissatisfied with the pace and quality of the Baltimore Teachers Union’s (BTU) response. “We felt like we needed to reach out and inform teachers about what was going on and we didn’t feel like the union was doing it effectively,” he says. Gaber acknowledges that among Baltimore charter teachers there exists a “constant contradiction of feelings”—in some ways they are dissatisfied with the current union leadership, but on the other hand, teachers are proud to be being unionized district employees and deeply value their protections. With fellow charter teacher Kristine Sieloff, Gaber wrote an Op-Alt for City Paper (“The injustice of a two-tiered education system in Baltimore City,” March 31) and Gaber created and helped to circulate a petition that garnered hundreds of signatures from both charter and traditional public school teachers.

“The interests of traditional teachers in charters and public are exactly the same right now,” says McGill, who thinks the proposed bill would have created deep divisions between Baltimore educators.

The BTU helped circulate another petition for charter teachers and charter educational support personnel, roughly 740 people in total, and more than 90 percent of eligible petitioners signed. “I spoke with every teacher I know, teachers were universally against [the legislation],” Gaber says.

In addition to local educators who worried about losing their collective bargaining rights and allowing non-certified teachers to work with kids, other leaders pushed back against what they saw as a deeply inequitable funding structure embedded into Hogan’s legislation.

“Charter advocates rely on the premise that as money flows from a regular school to a charter school, the costs of the regular school go down proportionately. Sounds good; it’s just not true,” wrote David W. Hornbeck in a Baltimore Sun op-ed published in February. Hornbeck “recommended the approval of more than 30 charter schools” while serving as Philadelphia’s superintendent of schools from 1994 to 2000, and he now believes he made a grave mistake. Hornbeck, who also served as superintendent of Maryland schools from 1976 to 1988 (and is the father of Hampstead Hill principal Matt Hornbeck), pointed out that Pennsylvania’s charter law is ranked much higher than Maryland’s and “yet its charter growth is contributing significantly to a funding crisis that includes draconian cuts to teachers, nurses, arts, music and counselors in Philadelphia.”

Bebe Verdery, the director of the Maryland ACLU Education Reform Project, also submitted testimony against the bill, arguing that the proposed funding formula would result in severe cuts to traditional schools. “Simply put, students without any special needs would get funding the state formula intended for others,” she said. Verdery also objected to a provision that would have allowed public capital repair funds to go toward private buildings that housed charter schools, saying, “this would further strain an already insufficient pool of state resources for addressing the state’s $15 billion school repair and construction backlog.”

Hogan’s legislation said “commensurate funding” should mean that charters get 98 percent of what traditional public schools receive because a 2005 State Board of Education ruling determined that districts needed only 2 percent of per-pupil funding to cover central administrative costs. But when the Department of Legislative Services (DLS) surveyed local school systems later on, it found that administrative expenditures make up closer to 10-14 percent of per-pupil spending. Critics argued that if 98 percent were legally guaranteed for charters, but necessary administrative work still had to be done, then money would be taken from traditional public school students, potentially leading to increased class sizes, special educators with enormous case loads, or cuts to after- school programming, gym, and art.

Local charter operators insisted that their goal was not to bankrupt the district, but simply to fight for parity. “We believe strongly that we can achieve this without harming funding for other schools,” testified Ed Rutkowski, the executive director of Patterson Park Public Charter School.

The watered-­down bill that Hogan ultimately signed was a grassroots victory for some, and a major disappointment for others. The Center for Education Reform, which hired several lobbyists to push for the bill’s passage, was so dismayed with the final result that it actually urged the governor to veto it, insisting that this would be a step back for Maryland school choice, not one forward.

The final bill ended up removing mostly all provisions that had generated controversy. It grants greater autonomy to charters that have demonstrated five years of success, and it provides for increased flexibility with student enrollment. The bill also authorizes the Maryland State Department of Education (MSDE) and the DLS to complete a study by the end of October 2016 to determine what a more appropriate figure should be for districts when it comes to commensurate funding.

“The law that passed was more subtle and more evolutionary rather than revolutionary,” said Hampstead Hill’s Hornbeck. “It did not trash a good law, like the governor’s proposal tried to do.”

Given that the governor still had support from MarylandCAN, a pro-charter advocacy organization that helped to craft the original legislation, Hogan went ahead and signed the bill into law. It’s an imperfect bill, but it creates “the pathway” to expand charters and it grants more flexibility to existing ones, said Keiffer J. Mitchell Jr., Hogan’s special adviser on charter schools.

“As the state with the most restrictive charter law in the country, these small steps forward, while welcomed, are not enough,” said Jason Botel, the executive director of MarylandCAN, in a statement. “They must be the start, not the end, of our work to dramatically reform charter school policy in our state.”

Kara Kerwin, the president of CER, believes MarylandCAN is mistaken to think that they can just go back and improve on the new law later. She points out that the new law clarifies that only the local district board—not the Maryland State Board of Education—can authorize new charters, and that online charter schools are now explicitly prohibited from operating within Maryland.

In an interview, Kerwin describes online charters as “one of the biggest innovations right now that’s helping so many students who aren’t brick and mortar types.” However, several studies have found that online charter schools tend to provide a lower-quality education than traditional schools, and a 2011 New York Times investigation found that K12 Inc., one of the nation’s largest online charter school operators, “tries to squeeze profits from public school dollars by raising enrollment, increasing teacher workload and lowering standards.”

Most people interviewed for this story do not believe the new law will lead to an expansion of Maryland charter schools, one of Hogan’s top policy priorities. “The final bill that passed was very limited in scope, it doesn’t have a whole lot of changes,” Macdonald says. “But it’s a step in the right direction.”

So what does this all mean for the future of Maryland charters?

“I have no doubt that this was round one and [the operators] are going to try again as long as Hogan’s governor,” Gaber says. “We’re going to keep fighting. We started this teacher coalition knowing that this is a long-term fight and we need to be organized and ready before the next time comes.”

Kehl thinks that the Maryland Alliance of Public Charter Schools, which just officially emerged as a statewide group in July, will focus on building a more unified policy voice and cultivating a stronger presence in Annapolis. “Our charter sector has matured,” she says. “If you believe that schools shouldn’t be one size all, then you have to create a system that supports that. I don’t see how you can make change if you keep everything the same.”

Whether new legislation will be introduced next year is an open question. Kerwin of CER thinks such an effort would be futile, even if they tried. Todd Reynolds, the political coordinator for Maryland’s American Federation of Teachers, says some legislators might decide it makes sense to wait until after the new MSDE/DLS study is completed.

While the emerging landscape appears fraught with tensions between the district and the charter sector, there still remains a possibility that Maryland charters will chart a different sort of future than that of other states.

Even though Macdonald of the City Neighbors Charter School supported Hogan’s legislation, she acknowledges that some parts made her feel ambivalent. While she feels strongly that Maryland charters need more autonomy and bureaucratic relief, she also wants to preserve collective bargaining rights for charter teachers. “I feel like Maryland is so unique in our stance,” she says. “I haven’t yet seen the bill I would really fight for.”

In a few months, on Oct. 22, the Teachers’ Democracy Project will be hosting a big meeting between teachers, charter operators, politicians, union officials, and school board members to try and figure out a way forward that doesn’t require another heated legislative fight. Atkinson believes the current law is good, but that Baltimore teachers—charter and non-charter alike—should be organizing for more money for all schools. “We’re going to try to hold an open conversation about what people’s concerns are,” said Atkinson. “The operators are reasonable, they’re not right-wing, they’re not trying to get charters to take over the world. Their main frustrations are with the union contract and some of the ways the district controls things.”

McGill thinks that a more collaborative push for charter reform from the district, teachers, and charter operators “would be the ideal” solution but worries things are growing too polarized for that to materialize. Gaber, however, says that the Baltimore Charter School Teacher Coalition has also discussed how they want to stand for something, and not just against reform. “I think it would be a good idea for us to be more proactive,” adds Reynolds of the AFT. “We should get back to what charters were intended to in terms of offering innovation that can then be brought into traditional schools.”

The question of whether some of the larger CMOs would be interested in setting up schools in Maryland remains uncertain. Kehl says it’s important to help facilitate more attractive operating conditions because “there’s a certain point where you tap out your local leadership” and if you “can’t attract national talent” into Maryland, then you’ve just closed the door on quality options for kids.

Others see luring CMOs as a less urgent priority, especially given how the state increasingly underfunds public education. In his latest budget, Hogan increased state education funding by 0.4 percent, but cut Baltimore City’s funding by 3.3 percent. Attracting those CMOs—which would likely be into Baltimore—might mean redirecting funds toward charter facility expenses or pushing harder to restrict collective bargaining. Maryland might also experience some of the financial strain that rapid charter growth in other states has placed on traditional schools.

Testifying last spring, CEO of Baltimore City Public Schools Dr. Gregory E. Thorton said Hogan’s bill would work “to the benefit of large out-of-state charter organizations—to the detriment of Maryland’s most vulnerable student populations.”

While the Baltimore City School District might need to work harder to collaborate with its local charter sector, and the teacher unions may need to re-examine some provisions within their contracts, it’s not yet clear that Maryland’s unique charter culture is headed out the door.

State law currently allows charters to negotiate waivers and exemptions from certain aspects of the district-wide collective bargaining unit. That’s how Baltimore’s KIPP charter school was able to extend its school week; KIPP had to agree to pay its staff more money for the increased number of working hours. Theoretically charter operators could sit down with union leaders to discuss some of their most pressing concerns around staffing, innovation, and autonomy. “It’s not meant to be a one-size-fits-all situation,” says Reynolds. “You can sit down with the union and negotiate a Memorandum of Understanding. We have done that, and I think that’ll continue.”

“I think it would be amazing to sit down with the union and really roll up our sleeves,” says Macdonald. “I do think it’s really important for teachers to be unionized, to collectively bargain, and to get paid well, but I also think if we want to innovate and serve the children of Baltimore, we really have to allow [for] some more flexibility.”

Baltimore’s Criminal Justice System Is Seriously Overloaded Thanks to the Arrest of Protesters

Originally published in VICE on May 1, 2015.
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Four days after Maryland Governor Larry Hogan declared a state of emergency, and three nights into the citywide 10 PM to 5 AM curfew, Baltimore lawyers and activists are beginning to grapple with exactly how the official response to unrest over the death of Freddie Gray has impacted protesters’ constitutionally protected legal rights.

Perhaps the most controversial decision of the past few days came on Tuesday, when Hogan suspended a state rule that requires an individual to be brought before a judicial officer or released from jail within 24 hours following their arrest. The decree paved the way for arrestees to languish in jail for up to 47 hours without charges. The Maryland Public Defender’s Office issued a statement Wednesday challenging Hogan’s legal authority to tell the judiciary what to do.

That night, 101 of the 201 arrested protesters were released from jail without charges. At a press conference earlier Wednesday, Baltimore Police Captain Eric Kowalczyk said his department had struggled to file formal charges against the protesters because officers were so busy responding to emergencies elsewhere; he insisted that charges would still be filed at a later date.

“On a normal day, if I’m a patrol officer and I was filing a charge, it could take upwards of two hours,” Sarah Connolly, a Baltimore Police spokeswoman, told VICE. “But when you’re having multitudes of arrests, and when you are working to ensure the preservation of life and property, which was paramount, it just wasn’t possible [to file all the charges.]”

Natalie Finegar, the Baltimore Deputy District Public Defender, told VICE that Hogan’s order is a clear instance of the executive branch overstepping its legal bounds. She notes that there is already a judicial provision within the Court of Appeals to change the 24-hour detention rule in the case of an emergency. Hogan’s executive order, Finegar contends, demonstrates disregard for the checks and balances of the legal system.

Other experts point out that holding uncharged people in jail is simply bad policy regardless of the legality, especially in this fraught political moment. “If the citizens of Baltimore are reacting [on the streets] to longstanding systemic issues, then dealing with arrestees in a systematically unfair manner, like leaving people in jail without charges, doesn’t really seem to be an effective response,” said Cherise Fanno Burdeen, the executive director of the Pretrial Justice Institute, a nonprofit committed to pretrial justice reform.

Another reason few charges were filed this week is because Baltimore’s district courts closed after Monday’s riots. In Baltimore City, courts close fairly frequently for all sorts of reasons, including snow days; the judiciary decides when to close the courts. On Tuesday, none were open, and on Wednesday just one out of four was operational—creating a serious backlog for cases that would have normally been divvied up. (By Thursday, all four district courts had reopened.)

“Courts are not supposed to shut down, especially when you’re arresting hundreds of people in a moment of crisis,” said Alexandra Natapoff, a professor at the Loyola Law School in Los Angeles. If people are being arrested, courts should be open to handle the cases. The wheels of justice should continue to spin equally for everyone at all times.”

In light of Hogan suspending the 24-hour rule, Finegar told VICE that her office filed 82 habeas corpus petitions on behalf of detained arrestees. (The Guardian had previously reported that Hogan had effectively suspended the state’s habeas corpus law, but this is misleading, as state and federal habeas corpus laws—which gives detainees the ability to seek relief from unlawful imprisonment—are unchanged.) However, before those habeas corpus petitions could be ruled upon, the city released the remaining uncharged protesters in a nod to the fact that they no longer had the authority to detain them. Finegar believes that many who were released on Wednesday were illegally held in the first place.

Another issue is that many arrested protesters were given extraordinarily high bail amounts. Some were apparently even asked to pay their bail all at once, in cash—which is notable given that detainees usually have the option to pay deposits or to take out loans from bondsmen.

“For my clients, a $50,000 cash-only bail is tantamount to no bail,” said Finegar. “I’m a nice middle-class public servant and even I couldn’t post something like that.”

“What is unconstitutional is using money to detain and deprive an individual of due process,” Burdeen added. “And yet that is essentially what is happening here.” TheGuardian reported on one case where a 19-year-old had bail set at half a million dollars. The defendant, who failed to produce the money, was then sent to jail. Generally speaking, if a detainee cannot make bail and cannot take out a loan, then they will essentially serve a jail sentence before even being found guilty of a crime. According to Finegar, that could mean sitting in jail for anywhere from 30 days to a year.

On Thursday afternoon, ACLU-Maryland’s legal director Deborah A. Jeon sent a letterto Baltimore Mayor Stephanie Rawlings-Blake calling for an end to the citywide curfew. “We have a right to demand policy changes of our government…. and we have a constitutionally protected right to do so on the streets and sidewalks of Baltimore.” Jeon added that at this point the curfew’s “unnecessary restrictions” seemed to do more to stoke community resentment than to ensure public safety.

The curfew is a First Amendment issue more so than a criminal one. And First Amendment decisions are often seen as balancing acts between the need for public safety and to protect one’s right to protest, move, and assemble. “It has to be a reasonable balance, and whether this curfew is a reasonable one is subject to debate,” said Eve Brensike Primus, a University of Michigan law professor.

In a Thursday evening press conference, Baltimore Police Commissioner Anthony Batts said that despite the city’s relative calm, they would not be lifting the curfew this weekend because there are large protests planned. “We have a lot more protests that are popping up by the minute, and even if we didn’t, we have other cities that have large protests and their activities impact our city too,” said Batts.

The argument that Baltimoreans should be kept under curfew because protests are happening in other cities certainly raises some serious constitutional questions.

Activist groups are responding to these issues; the Ferguson Legal Defense Committee is operating a jail support hotline. On Wednesday night, the Public Justice Center (PJC), a Baltimore-based legal advocacy organization, held an event to train lawyers, law students, and legal experts in jail support and legal observing for demonstrations. Nearly 50 people showed up, which, according to PJC attorney Zafar Shah, was beyond the group’s expectations. “There wasn’t enough seating,” he said. In addition, Maryland Public Defender Paul B. DeWolfe issued a call for private lawyers to help represent the 201 protesters arrested on Monday night. DeWolfe told the Daily Record that many private attorneys have offered their services.

Of course, it’s safe to say a few well-intentioned lawyers are unlikely to change the game here.

“Yes there will be lawsuits, and appropriately so, but we can’t rely on them to fix the underlying problem,” said Natapoff. “We have to look beyond the law if we want to really reform the criminal justice system. That’s why these protests all over the country are so important.”