motherjones--2020-07-09--Black Activists Warn That Facebook Hasn’t Done Enough to Stop Racist Harassment

The short video shows more than a dozen California Highway Patrol officers surrounding a single protester , who is already on the ground .
They are shouting instructions .
While it ’ s hard to make out what they are saying , the person on the ground doesn ’ t appear to resisting .
Then , amidst the throng of cops , at least one officer appears to drop his knees on to the protestor ’ s body .
On June 7 , Khanstoshea Zingapan posted the video , sent to her by someone who witnessed the confrontation , on @ @ @ @ @ @ @ charity , Black Zebra Productions .
“ This is Sacramento , CA .
This is a CHP officer with a knee on a neck !
Why is this still happening ?
” she wrote .
Zingapan released the video at the height of protests over the death of George Floyd after a Minneapolis police officer knelt on his neck for nearly nine minutes .
Over the course of next day , Zingapan says the video continued to garner views and comments .
But when she woke up on June 9 , Black Zebra @ @ @ @ @ @ @ .
An email from the company indicated it had been removed for “ posting fraudulent or misleading content.
” Four years ago , Zingapan began releasing documentary footage of her community in Sacramento on Facebook and other social media channels under her artist name , Black Zebra , “ showing my world through the eyes of a black woman in America.
” In one series last year she documented local police ’ s evacuation of a long-standing homeless encampment .
When Floyd ’ s killing sparked protests , Black Zebra Productions became a @ @ @ @ @ @ @ , with Facebook serving as the platform and warehouse for its livestreams .
Zingapan worked out a freelance arrangement with the Sacramento Bee that she hoped would prevent police harassment as she and a crew of volunteers live-streamed protests , were hit by rubber bullets , and choked on tear gas .
Then , in a flash , all their work disappeared .
Despite Facebook ’ s recent proclamations and donations designed to indicate backing for America ’ s swelling anti-racist movement , the company and its CEO Mark Zuckerberg have been targeted @ @ @ @ @ @ @ platform ’ s appeasement of President Donald Trump , even as he posts misinformation about voting and exhortations to violence .
Meanwhile Facebook is also home to a chorus of Black people who use the site to fight racism but whose own posts and pages are often penalized for calling out bigotry , even as vitriol against them remains on the platform .
What happened to Zingapan , where a Black person ’ s Facebook page is taken down for mysterious reasons , is actually common .
In Zingapan ’ s case , @ @ @ @ @ @ @ moments of the page disappearing , reaching out to local politicians , the Northern California chapter of the ACLU , and Facebook itself .
That afternoon , the company restored the page and all its footage .
Zingapan later met with the heads of multiple Facebook departments , accompanied by a lawyer from the ACLU .
“ I did feel as though they did give me the time to hear my story , ” she said last week .
“ But at the same time , I don ’ t know where that @ @ @ @ @ @ @ the reassurance that this won ’ t happen again .
I don ’ t even know what happened.
” While Zingapan ’ s own interactions with the company left her in the dark for weeks about what triggered the takedown , Facebook told Mother Jones this week that the page had been incorrectly flagged for intellectual property violations .
“ We mistakenly unpublished the Black Zebra page for violating IP policies , ” a Facebook spokesperson said .
“ Once we realized there was no violation , the page was immediately restored .
@ @ @ @ @ @ @ with our teams to minimize the chance of it happening again.
” While Facebook uses artificial intelligence to detect intellectual property issues like a video including copyrighted music , users can also report intellectual property violations to Facebook .
To prevent Black Zebra ’ s page from any future unjustified sanctions , Facebook said some of its content will receive more review it if is flagged for IP violations in the future .
This explanation is unsatisfactory to Zingapan ’ s attorney , Abre ’ Conner of the ACLU of Northern California .
@ @ @ @ @ @ @ an outlet like Black Zebra , which live-streams newsworthy events and produces its own documentary footage .
Facebook ’ s own processes suggest that only content presenting potential intellectual property violations should be taken down , warning that broader removals of entire pages should be reserved for repeat offenders .
“ Although Facebook has recently given us that [ intellectual property ] response , it ’ s unclear whether we have all of the information , ” Conner said .
“ We asked basic questions to get a better sense of what that @ @ @ @ @ @ @ conversations , but for now , we are left with more questions than answers.
” After learning of Facebook ’ s explanation , Zingapan stressed that she still is not sure the company offers a “ safe place and platform ” for Black users like herself .
“ We ’ ve outlined the problem .
And now it ’ s time for Facebook to actually state some solutions.
” Zingapan isn ’ t the first activist or Facebook user granted a meeting with the company after feeling abused and underserved by the platform @ @ @ @ @ @ @ of the Jewish community and women ’ s groups complained to Facebook about harassment on the platform and the spread of hate , making the first of many journeys to Menlo Park to warn Facebook about the growing problem of hate speech on its platform .
And in February 2016 , company representatives met with five activists representing the Black Lives Matter movement and racial justice organizations .
While Facebook had become a valuable organizing and messaging tool for the movement , the organizers complained about constant hate on the platform—violent threats and @ @ @ @ @ @ @ , activists have warned that hate speech leads to doxxing , stalking , and other real life harms .
Making matters worse , Facebook sometimes blocked BLM activists ’ and groups ’ pages for no apparent reason or for minor infractions of the company ’ s then-opaque content policies .
( Facebook did not release its community standards enforcement policies until 2018 . )
“ It felt like an obligatory meeting where Facebook told us , in very nice words , that they really couldn ’ t do anything to help us , @ @ @ @ @ @ @ 2016 meeting as the then-communications director for the Black Lives Matter Global Network , told Mother Jones last year .
Despite the intervening years , what Zingapan shared with Facebook last month sounds familiar .
“ You ’ re blocking us but on our posts , ” she recalled explaining , “ whites supremacists…are coming after us , like physically coming after us , trying to find out where our locations are.
” Zingapan and supporters who follow her page constantly flag racist comments on Black Zebra ’ s videos and livestreams .
@ @ @ @ @ @ @ my work and how I do things because the platform that I ’ m on is not providing me the safety that I need , ” she says .
Racial justice groups have spent years and countless meetings with Facebook trying to get it to take Black Lives Matter and the rights of minority groups seriously .
They pushed for a civil rights audit that has led to some new policies , including on voter suppression , but that have so far proven insufficient in curbing disinformation and hate .
The final audit @ @ @ @ @ @ @ that while Facebook has made policy improvements around hate , its enforcement is uneven and over-reliant on predictive technology—even as the company has struggled to fully understand the biases in its own algorithms .
After 2017 ’ s deadly white supremacist rally in Charlottesville , Virginia , Facebook removed many hate groups and racist accounts , though others remain .
The white nationalist “ boogaloo ” movement that found a home on Facebook is only now , after two members allegedly murdered at least one law enforcement officer in an attempt to start @ @ @ @ @ @ @ the platform .
Historically , the best way to get Facebook to take action against discrimination has been to take the company to court .
Now , as the Black Lives Matter movement gains momentum , activists want more from Facebook than donations to racial justice groups and words of support .
While Facebook says its myriad meetings on hate speech have persuaded the company to do more on the issue , including piloting programs to improve hate speech moderation , the initiatives have come too slow for activists who , given the @ @ @ @ @ @ @ want to see faster and more dramatic action .
In June , several civil rights groups formed the Stop Hate for Profit Coalition , urging advertisers to cease spending money on Facebook for the month of July to pressure the platform to take further steps to address hate and misinformation .
More than 1,000 brands have signed on , including Verizon , Coca-Cola , Hershey ’ s , and Unilever .
While Zuckerberg announced modest changes to Facebook ’ s content policies on Friday shortly after the boycott began , the advocates were @ @ @ @ @ @ @ t settle for less than real steps to address white supremacy on their platform , ” tweeted Rashad Robinson , the president of Color of Change , a racial justice group involved in the effort , after Pepsi signed on .
Among the coalition ’ s 10 demands for Facebook : “ Enable individuals facing severe hate and harassment to connect with a live Facebook employee .
In no other sector does a company not have a way for victims of their product to seek help.
” Despite this sustained pressure from racial @ @ @ @ @ @ @ still experience the platform as a battlefield .
As many Black people on Facebook are all too aware , the company ’ s algorithms are very good at taking down content that may discriminate against white people .
In one example , the sentence “ White men are so fragile ” was immediately taken down as hate speech , according to one woman who told her story to USA Today in 2019 .
In fact , saying “ white ” exposes posts or whole pages to the threat of a takedown , which @ @ @ @ @ @ @ to avoid detection .
The situation means that people of color struggle to discuss racism on a platform whose owner touts it as a haven for free speech and a marketplace of ideas .
Instead , the ideals of free speech mostly serve to protect hatred against people of color .
Tanya Faison , the founder of Black Lives Matter Sacramento , attended the 2016 meeting with Facebook .
“ It ’ s been years now and nothing has happened , ” she told Mother Jones in 2019 .
“ It seems that @ @ @ @ @ @ @ than black people and women…A lot of racist posts say whatever they want to us.
” “ Their algorithms are off , ” says Conner of the ACLU .
“ People are risking their lives in order to ensure that there is equality for Black people .
And Facebook can really be a part of ensuring that people see that .
But with the algorithms , the way that it is now with proactive tech…it has not been in favor of Black activists and organizers.
” “ People get blocked all the time @ @ @ @ @ @ @ , ' ” Faison recently reiterated .
“ It ’ s all still the same.
” Meanwhile , Facebook has allowed threats against Faison and other BLM activists to remain up .
In early June , one man whose page appears dedicated to harassing BLM activists posted a video of Faison with an all-caps message : “ I WOULD LOVE TO WAKE UP TO THE NEWS THAT SOMEONE OFFED THIS EVIL BITCH.
” As one commenter on the BLM Sacramento Facebook page wrote , “ Facebook is so ridiculous .
I reported his @ @ @ @ @ @ @ hes made and everything came back as meeting community standards .
HOW ?
What he said about Tanya is basically a death threat.
” It ’ s not clear if Facebook ultimately took any action , but at some point the harasser changed “ offed ” to “ offended.
” The post remains up , and in context , the threat remains clear .
Another post last month by the same harasser read that “ I ’ d like to give a shout out to all the good people that have been making @ @ @ @ @ @ @ ” The message , which was followed by an emoji of two beers clinking together , was set against a skull-theme backdrop .
It is still up .
Such threats , coupled with activists ’ own pages and posts coming down or being deleted , “ hinders the work ” of racial justice organizers , Faison says .
“ If they ’ re not able to go on social media , they can ’ t go live when something ’ s happening .
It impacts what we ’ re doing .
It impacts @ @ @ @ @ @ @ use social media platforms to inform people.
” The number of videos of police brutality that went viral during the first weeks of the protests make it clear that access to social media is , indeed , crucial to such activists .
“ As black folks are continuing to demand justice , and transparency and accountability , Facebook also has a responsibility to not perpetuate a system that has already been really harmful towards black activists , organizers , journalists and media , ” says Conner .
She is helping to lead “ @ @ @ @ @ @ @ , “ trying to get to more to the bottom of this and hopefully there will be some positive changes.
” But given the company ’ s track record it ’ s no mystery why some thought a boycott would be a good idea .
After the action ’ s leaders met with Zuckerberg on Tuesday , they came away sounding much like Zingapan .
“ # StopHateForProfit didn ’ t hear anything today to convince us that Zuckerberg and his colleagues are taking action , ” attendee Jessica J. González , co-CEO @ @ @ @ @ @ @ said in a statement .
“ Instead of committing to a timeline to root out hate and disinformation on Facebook , the company ’ s leaders delivered the same old talking points to try to placate us without meeting our demands.
” The boycott continues .
“ What would this moment look like right now for Black communities in which they ’ re not having to deal with white supremacists ” on social media , asks Steven Renderos , executive director at the group MediaJustice , which has spent years engaging with Facebook @ @ @ @ @ @ @ as Renderos spoke , the country was dealing with the aftermath of Zuckerberg ’ s decision to leave up a post from Trump glorifying violence against protesters .
“ We would be in a different place in terms of being able to protect and value Black lives in this moment if Facebook took those concerns seriously .
But I think we ’ re at this moment now where we ’ re yet again realizing that they don ’ t care .
”

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The short video shows more than a dozen California Highway Patrol officers surrounding a single protester, who is already on the ground. They are shouting instructions. While it’s hard to make out what they are saying, the person on the ground doesn’t appear to resisting. Then, amidst the throng of cops, at least one officer appears to drop his knees on to the protester’s body.
On June 7, Khanstoshea Zingapan posted the video, sent to her by someone who witnessed the confrontation, on the Facebook page of her documentary video charity, Black Zebra Productions. “This is Sacramento, CA. This is a CHP officer with a knee on a neck! Why is this still happening?” she wrote. Zingapan released the video at the height of protests over the death of George Floyd after a Minneapolis police officer knelt on his neck for nearly nine minutes. Over the course of next day, Zingapan says the video continued to garner views and comments. But when she woke up on June 9, Black Zebra Productions’ Facebook page been taken down. An email from the company indicated it had been removed for “posting fraudulent or misleading content.”
“They don’t care.”
Four years ago, Zingapan began releasing documentary footage of her community in Sacramento on Facebook and other social media channels under her artist name, Black Zebra, “showing my world through the eyes of a black woman in America.” In one series last year she documented local police’s evacuation of a long-standing homeless encampment. When Floyd’s killing sparked protests, Black Zebra Productions became a resource for the Sacramento activists and residents, with Facebook serving as the platform and warehouse for its livestreams. Zingapan worked out a freelance arrangement with the Sacramento Bee that she hoped would prevent police harassment as she and a crew of volunteers live-streamed protests, were hit by rubber bullets, and choked on tear gas. Then, in a flash, all their work disappeared.
Despite Facebook’s recent proclamations and donations designed to indicate backing for America’s swelling anti-racist movement, the company and its CEO Mark Zuckerberg have been targeted by such activists largely because of the platform’s appeasement of President Donald Trump, even as he posts misinformation about voting and exhortations to violence. Meanwhile Facebook is also home to a chorus of Black people who use the site to fight racism but whose own posts and pages are often penalized for calling out bigotry, even as vitriol against them remains on the platform.
What happened to Zingapan, where a Black person’s Facebook page is taken down for mysterious reasons, is actually common. In Zingapan’s case, her followers had sprung into action within moments of the page disappearing, reaching out to local politicians, the Northern California chapter of the ACLU, and Facebook itself. That afternoon, the company restored the page and all its footage. Zingapan later met with the heads of multiple Facebook departments, accompanied by a lawyer from the ACLU. “I did feel as though they did give me the time to hear my story,” she said last week. “But at the same time, I don’t know where that goes. I don’t have the reassurance that this won’t happen again. I don’t even know what happened.”
While Zingapan’s own interactions with the company left her in the dark for weeks about what triggered the takedown, Facebook told Mother Jones this week that the page had been incorrectly flagged for intellectual property violations. “We mistakenly unpublished the Black Zebra page for violating IP policies,” a Facebook spokesperson said. “Once we realized there was no violation, the page was immediately restored. We take these mistakes seriously and work with our teams to minimize the chance of it happening again.” While Facebook uses artificial intelligence to detect intellectual property issues like a video including copyrighted music, users can also report intellectual property violations to Facebook. To prevent Black Zebra’s page from any future unjustified sanctions, Facebook said some of its content will receive more review it if is flagged for IP violations in the future.
This explanation is unsatisfactory to Zingapan’s attorney, Abre’ Conner of the ACLU of Northern California. Copyright violations are an unlikely problem for an outlet like Black Zebra, which live-streams newsworthy events and produces its own documentary footage. Facebook’s own processes suggest that only content presenting potential intellectual property violations should be taken down, warning that broader removals of entire pages should be reserved for repeat offenders.
“Although Facebook has recently given us that [intellectual property] response, it’s unclear whether we have all of the information,” Conner said. “We asked basic questions to get a better sense of what that meant. We are continuing to have conversations, but for now, we are left with more questions than answers.” After learning of Facebook’s explanation, Zingapan stressed that she still is not sure the company offers a “safe place and platform” for Black users like herself. “We’ve outlined the problem. And now it’s time for Facebook to actually state some solutions.”
Zingapan isn’t the first activist or Facebook user granted a meeting with the company after feeling abused and underserved by the platform. Nearly a decade ago, representatives of the Jewish community and women’s groups complained to Facebook about harassment on the platform and the spread of hate, making the first of many journeys to Menlo Park to warn Facebook about the growing problem of hate speech on its platform. And in February 2016, company representatives met with five activists representing the Black Lives Matter movement and racial justice organizations. While Facebook had become a valuable organizing and messaging tool for the movement, the organizers complained about constant hate on the platform—violent threats and images and racial epithets. For years, activists have warned that hate speech leads to doxxing, stalking, and other real life harms. Making matters worse, Facebook sometimes blocked BLM activists’ and groups’ pages for no apparent reason or for minor infractions of the company’s then-opaque content policies. (Facebook did not release its community standards enforcement policies until 2018.)
“Facebook also has a responsibility to not perpetuate a system that has already been really harmful towards Black activists.”
“It felt like an obligatory meeting where Facebook told us, in very nice words, that they really couldn’t do anything to help us,” Shanelle Matthews, who attended toe 2016 meeting as the then-communications director for the Black Lives Matter Global Network, told Mother Jones last year.
Despite the intervening years, what Zingapan shared with Facebook last month sounds familiar. “You’re blocking us but on our posts,” she recalled explaining, “whites supremacists…are coming after us, like physically coming after us, trying to find out where our locations are.” Zingapan and supporters who follow her page constantly flag racist comments on Black Zebra’s videos and livestreams. “I’m having to reimagine my work and how I do things because the platform that I’m on is not providing me the safety that I need,” she says.
Racial justice groups have spent years and countless meetings with Facebook trying to get it to take Black Lives Matter and the rights of minority groups seriously. They pushed for a civil rights audit that has led to some new policies, including on voter suppression, but that have so far proven insufficient in curbing disinformation and hate. The final audit report, released Wednesday, made clear that while Facebook has made policy improvements around hate, its enforcement is uneven and over-reliant on predictive technology—even as the company has struggled to fully understand the biases in its own algorithms.
After 2017’s deadly white supremacist rally in Charlottesville, Virginia, Facebook removed many hate groups and racist accounts, though others remain. The white nationalist “boogaloo” movement that found a home on Facebook is only now, after two members allegedly murdered at least one law enforcement officer in an attempt to start a race war, being scrutinized by the platform. Historically, the best way to get Facebook to take action against discrimination has been to take the company to court. Now, as the Black Lives Matter movement gains momentum, activists want more from Facebook than donations to racial justice groups and words of support. While Facebook says its myriad meetings on hate speech have persuaded the company to do more on the issue, including piloting programs to improve hate speech moderation, the initiatives have come too slow for activists who, given the amount of hate on the platform, want to see faster and more dramatic action.
In June, several civil rights groups formed the Stop Hate for Profit Coalition, urging advertisers to cease spending money on Facebook for the month of July to pressure the platform to take further steps to address hate and misinformation. More than 1,000 brands have signed on, including Verizon, Coca-Cola, Hershey’s, and Unilever. While Zuckerberg announced modest changes to Facebook’s content policies on Friday shortly after the boycott began, the advocates were not placated. “We won’t settle for less than real steps to address white supremacy on their platform,” tweeted Rashad Robinson, the president of Color of Change, a racial justice group involved in the effort, after Pepsi signed on. Among the coalition’s 10 demands for Facebook: “Enable individuals facing severe hate and harassment to connect with a live Facebook employee. In no other sector does a company not have a way for victims of their product to seek help.”
People of color struggle to discuss racism on a platform whose owner touts it as a haven for free speech.
Despite this sustained pressure from racial justice groups, activists on the ground still experience the platform as a battlefield. As many Black people on Facebook are all too aware, the company’s algorithms are very good at taking down content that may discriminate against white people. In one example, the sentence “White men are so fragile” was immediately taken down as hate speech, according to one woman who told her story to USA Today in 2019. In fact, saying “white” exposes posts or whole pages to the threat of a takedown, which has led to people misspelling the word to avoid detection. The situation means that people of color struggle to discuss racism on a platform whose owner touts it as a haven for free speech and a marketplace of ideas.
Instead, the ideals of free speech mostly serve to protect hatred against people of color. Tanya Faison, the founder of Black Lives Matter Sacramento, attended the 2016 meeting with Facebook. “It’s been years now and nothing has happened,” she told Mother Jones in 2019. “It seems that white folks and men are protected more than black people and women…A lot of racist posts say whatever they want to us.”
“Their algorithms are off,” says Conner of the ACLU. “People are risking their lives in order to ensure that there is equality for Black people. And Facebook can really be a part of ensuring that people see that. But with the algorithms, the way that it is now with proactive tech…it has not been in favor of Black activists and organizers.”
“People get blocked all the time for just saying the word ‘white,'” Faison recently reiterated. “It’s all still the same.” Meanwhile, Facebook has allowed threats against Faison and other BLM activists to remain up. In early June, one man whose page appears dedicated to harassing BLM activists posted a video of Faison with an all-caps message: “I WOULD LOVE TO WAKE UP TO THE NEWS THAT SOMEONE OFFED THIS EVIL BITCH.” As one commenter on the BLM Sacramento Facebook page wrote, “Facebook is so ridiculous. I reported his page and profile and the crazy posts hes made and everything came back as meeting community standards. HOW? What he said about Tanya is basically a death threat.” It’s not clear if Facebook ultimately took any action, but at some point the harasser changed “offed” to “offended.” The post remains up, and in context, the threat remains clear. Another post last month by the same harasser read that “I’d like to give a shout out to all the good people that have been making looters disappear and never be seen again.” The message, which was followed by an emoji of two beers clinking together, was set against a skull-theme backdrop. It is still up.
Such threats, coupled with activists’ own pages and posts coming down or being deleted, “hinders the work” of racial justice organizers, Faison says. “If they’re not able to go on social media, they can’t go live when something’s happening. It impacts what we’re doing. It impacts it in a huge way because we use social media platforms to inform people.” The number of videos of police brutality that went viral during the first weeks of the protests make it clear that access to social media is, indeed, crucial to such activists.
“The algorithms [have] not been in favor of black activists and organizers.”
“As black folks are continuing to demand justice, and transparency and accountability, Facebook also has a responsibility to not perpetuate a system that has already been really harmful towards black activists, organizers, journalists and media,” says Conner. She is helping to lead “conversations with Facebook,” she says, “trying to get to more to the bottom of this and hopefully there will be some positive changes.”
But given the company’s track record it’s no mystery why some thought a boycott would be a good idea. After the action’s leaders met with Zuckerberg on Tuesday, they came away sounding much like Zingapan. “#StopHateForProfit didn’t hear anything today to convince us that Zuckerberg and his colleagues are taking action,” attendee Jessica J. González, co-CEO of the advocacy group Free Press, said in a statement. “Instead of committing to a timeline to root out hate and disinformation on Facebook, the company’s leaders delivered the same old talking points to try to placate us without meeting our demands.” The boycott continues.
“What would this moment look like right now for Black communities in which they’re not having to deal with white supremacists” on social media, asks Steven Renderos, executive director at the group MediaJustice, which has spent years engaging with Facebook over protecting Black users. Instead, as Renderos spoke, the country was dealing with the aftermath of Zuckerberg’s decision to leave up a post from Trump glorifying violence against protesters. “We would be in a different place in terms of being able to protect and value Black lives in this moment if Facebook took those concerns seriously. But I think we’re at this moment now where we’re yet again realizing that they don’t care.”


motherjones--2020-07-09--Biden’s Campaign Teamed Up With Bernie to Write a Progressive Platform. Will Joe Actually Run on It?

Joe Biden wouldn ’ t back the Green New Deal .
Throughout the Democratic primary , he acknowledged the urgency of the climate crisis , but maintained any solution should be “ rational and affordable.
” Instead of committing to the vision Rep. Alexandria Ocasio-Cortez ( D-N.Y. ) had put forth , Biden proposed his own plan to create 10 million green new jobs .
Ocasio-Cortez wasn ’ t ready to give up .
Sen. Bernie Sanders ( I-Vt. ) had appointed the New York congresswoman to serve as a co-chair of the climate “ Biden-Sanders task force , ” @ @ @ @ @ @ @ the Democrats ’ more moderate presidential nominee and the primary ’ s leftist runner up tasked with collaborating policy recommendations amenable to both camps .
Ocasio-Cortez privately consulted her co-chair , former Secretary of State John Kerry , about the possibility of a “ climate corps , ” an apprenticeship program for young people to enter the conservation and clean energy workforces that both she and Varshini Prakash , a founder of the youth-led Sunrise Movement and fellow Sanders appointee , had strongly advocated for .
Kerry agreed with its merits , and @ @ @ @ @ @ @ the former vice president to agree to the idea too .
The idea is one of many progressive darlings memorialized in the recommendations from the Biden-Sanders task force , which the Biden campaign published on Wednesday afternoon .
The input from the six groups—dedicated to criminal justice reform , the economy , education , health care , and immigration—are intended to inform both the platforms of Biden and the Democratic National Committee .
The intention behind the groups was to give Sanders ’ allies a say in policy and personnel decisions while mollifying @ @ @ @ @ @ @ vocally rejected Biden throughout the party .
In addition to the “ climate corps , ” the task forces ’ recommendations include a 2050 deadline to achieve net-zero carbon emissions—more aggressive than what Biden has previously proposed—and post office banking for the millions of Americans without bank accounts .
To those in the Sanders camp , the recommendations are promising , albeit imperfect .
The asks left on the cutting room floor were among their most precious : Medicare-for-All and a federal jobs guarantee , in which the government promises to hire unemployed @ @ @ @ @ @ @ t get other jobs .
Still , Faiz Shakir , who managed Sanders ’ 2020 campaign and oversaw the task forces , told me he thought “ Biden is moving in a progressive direction , ” and walked away encouraged about the process .
“ There was understanding with both campaigns ’ part , we need to have trust-building among the various loyalties within our party ; this kind of a setting is a part of that.
” Biden didn ’ t do much with policy during the Democratic primary , defining his @ @ @ @ @ @ @ return to decency .
The policy-obsessed Sanders , meanwhile , premised his candidacy on bold plans to cancel student debt , establish a single-payer health care system , and provide free public college to everyone .
Since the pandemic took hold in March , progressives have argued that its ensuing health and economic crises made a case for Sanders ’ government-heavy approach , and this particularly bore out in the health care task force , where Sanders representatives , who supported Medicare-for-All , were at odds with the Biden flank , who supported @ @ @ @ @ @ @ recommendations include guaranteed access to free- or low-cost health care plans throughout the pandemic and automatic enrollment in public health insurance for low-income Americans already receiving other safety-net benefits .
“ We ’ d had a very clear debate during the primary about where we stood , ” says Abdul El-Sayed , a public health expert and former Michigan gubernatorial candidate who represented Sanders on the health care task force .
“ But there was a recognition that walking into the post-COVID world with a pre-COVID plan wasn ’ t going to cut @ @ @ @ @ @ @ showed the limitations of the Bernie wing ’ s sway .
This was particularly true on the economics task force , where the Sanders allies , skeptical of the need to offset major government programs with allocated funding , butted heads with the Biden camp , which argued for the need to limit the federal deficit .
“ The biggest constraint was , ‘ How are we going to pay for it ?
’ ” says Darrick Hamilton , an economist who advised Sanders ’ campaign and served on the task force .
@ @ @ @ @ @ @ you aren ’ t interested in a wealth tax , it becomes a nonstarter for big , bold initiatives.
” These differences came to a head over the battle for a federal jobs guarantee .
While the Biden camp conceded that such a measure could be enacted during a pandemic , they wouldn ’ t commit to something like that permanently , with Biden ’ s team raising concerns about the deficit .
In the end , the recommendations point to the need for “ jobs programs like those effectively used during the @ @ @ @ @ @ @ such a program for the long-term .
For several participants in the economic task force , that had been emblematic of the outcome : The tone and rhetoric of the recommendations were bolder than the actual policies .
But Hamilton says he views the at-times tense disagreements as a sign that the Biden campaign engaged in good faith and will actually adopt some of the policies the teams suggested .
“ We pushed Ben [ Harris ] , and he took us seriously , ” Hamilton says of his interactions with Biden ’ @ @ @ @ @ @ @ ’ t want this to be a failed endeavor . '
” Harris , who had never previously met Hamilton or the other Sanders economics appointees , economist Stephanie Kelton and labor leader Sarah Nelson , said he really enjoyed getting to know them .
“ Honestly , if you ’ re going to have these big ideological disagreements , it really helps to enjoy and respect the people you ’ re disagreeing with , ” Harris said .
Progressives had raised eyebrows about the value of the task forces when they had @ @ @ @ @ @ @ ’ campaign in April .
It had been the ask Sanders made of the Biden campaign as he conceded , and to many , it didn ’ t make sense .
Sanders , after all , had a say in the party platform after his loss to Hillary Clinton in 2016—without an intermediary group of negotiators whose recommendations aren ’ t even guaranteed to make their way to Biden ’ s campaign promises .
Shakir says that the Biden side engaged seriously enough with the policy questions that he ’ s hopeful the @ @ @ @ @ @ @ .
“ We asked , ‘ How do you write this policy in a way that you would adopt it ?
’ ” he says .
“ These are the things they feel comfortable with , and they ’ re written in a language that shows they ’ re serious.
” But that commitment may not wholly be there .
When I asked Harris if Biden himself had signed off on the economic policy recommendations Harris dodged and wouldn ’ t confirm anything , noting only that he and Jared Bernstein , another @ @ @ @ @ @ @ had discussed with Biden .
So the question remains : How important is this going to be ?
The 100 pages bear close similarity to a party platform document , something that ’ s composed thoughtfully , then summarily dismissed once a candidate enters the White House .
“ Obviously it ’ s a values document , ” says Hamilton , “ but it ’ s one he may just ignore.
” This story has been updated .

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Joe Biden wouldn’t back the Green New Deal. Throughout the Democratic primary, he acknowledged the urgency of the climate crisis, but maintained any solution should be “rational and affordable.” Instead of committing to the vision Rep. Alexandria Ocasio-Cortez (D-N.Y.) had put forth, Biden proposed his own plan to create 10 million green new jobs.
Ocasio-Cortez wasn’t ready to give up. Sen. Bernie Sanders (I-Vt.) had appointed the New York congresswoman to serve as a co-chair of the climate “Biden-Sanders task force,” one of six panels of allies from the Democrats’ more moderate presidential nominee and the primary’s leftist runner up tasked with collaborating policy recommendations amenable to both camps. Ocasio-Cortez privately consulted her co-chair, former Secretary of State John Kerry, about the possibility of a “climate corps,” an apprenticeship program for young people to enter the conservation and clean energy workforces that both she and Varshini Prakash, a founder of the youth-led Sunrise Movement and fellow Sanders appointee, had strongly advocated for. Kerry agreed with its merits, and Ocasio-Cortez says he told her he got the former vice president to agree to the idea too.
The idea is one of many progressive darlings memorialized in the recommendations from the Biden-Sanders task force, which the Biden campaign published on Wednesday afternoon. The input from the six groups—dedicated to criminal justice reform, the economy, education, health care, and immigration—are intended to inform both the platforms of Biden and the Democratic National Committee. The intention behind the groups was to give Sanders’ allies a say in policy and personnel decisions while mollifying the Sanders supporters who had bitterly and vocally rejected Biden throughout the party. In addition to the “climate corps,” the task forces’ recommendations include a 2050 deadline to achieve net-zero carbon emissions—more aggressive than what Biden has previously proposed—and post office banking for the millions of Americans without bank accounts.
To those in the Sanders camp, the recommendations are promising, albeit imperfect. The asks left on the cutting room floor were among their most precious: Medicare-for-All and a federal jobs guarantee, in which the government promises to hire unemployed workers in the event they can’t get other jobs.
Still, Faiz Shakir, who managed Sanders’ 2020 campaign and oversaw the task forces, told me he thought “Biden is moving in a progressive direction,” and walked away encouraged about the process. “There was understanding with both campaigns’ part, we need to have trust-building among the various loyalties within our party; this kind of a setting is a part of that.”
Biden didn’t do much with policy during the Democratic primary, defining his quest for the White House on a return to decency. The policy-obsessed Sanders, meanwhile, premised his candidacy on bold plans to cancel student debt, establish a single-payer health care system, and provide free public college to everyone. Since the pandemic took hold in March, progressives have argued that its ensuing health and economic crises made a case for Sanders’ government-heavy approach, and this particularly bore out in the health care task force, where Sanders representatives, who supported Medicare-for-All, were at odds with the Biden flank, who supported a public option.
The health care recommendations include guaranteed access to free- or low-cost health care plans throughout the pandemic and automatic enrollment in public health insurance for low-income Americans already receiving other safety-net benefits. “We’d had a very clear debate during the primary about where we stood,” says Abdul El-Sayed, a public health expert and former Michigan gubernatorial candidate who represented Sanders on the health care task force. “But there was a recognition that walking into the post-COVID world with a pre-COVID plan wasn’t going to cut it.”
Other topics, however, showed the limitations of the Bernie wing’s sway. This was particularly true on the economics task force, where the Sanders allies, skeptical of the need to offset major government programs with allocated funding, butted heads with the Biden camp, which argued for the need to limit the federal deficit. “The biggest constraint was, ‘How are we going to pay for it?’” says Darrick Hamilton, an economist who advised Sanders’ campaign and served on the task force. “When you ask that and say you aren’t interested in a wealth tax, it becomes a nonstarter for big, bold initiatives.”
These differences came to a head over the battle for a federal jobs guarantee. While the Biden camp conceded that such a measure could be enacted during a pandemic, they wouldn’t commit to something like that permanently, with Biden’s team raising concerns about the deficit. In the end, the recommendations point to the need for “jobs programs like those effectively used during the New Deal,” but not to such a program for the long-term. For several participants in the economic task force, that had been emblematic of the outcome: The tone and rhetoric of the recommendations were bolder than the actual policies.
But Hamilton says he views the at-times tense disagreements as a sign that the Biden campaign engaged in good faith and will actually adopt some of the policies the teams suggested. “We pushed Ben [Harris], and he took us seriously,” Hamilton says of his interactions with Biden’s economics adviser. “They didn’t want this to be a failed endeavor.'” Harris, who had never previously met Hamilton or the other Sanders economics appointees, economist Stephanie Kelton and labor leader Sarah Nelson, said he really enjoyed getting to know them. “Honestly, if you’re going to have these big ideological disagreements, it really helps to enjoy and respect the people you’re disagreeing with,” Harris said.
Progressives had raised eyebrows about the value of the task forces when they had been announced alongside the suspension of Sanders’ campaign in April. It had been the ask Sanders made of the Biden campaign as he conceded, and to many, it didn’t make sense. Sanders, after all, had a say in the party platform after his loss to Hillary Clinton in 2016—without an intermediary group of negotiators whose recommendations aren’t even guaranteed to make their way to Biden’s campaign promises.
Shakir says that the Biden side engaged seriously enough with the policy questions that he’s hopeful the proposals will their way into the campaign. “We asked, ‘How do you write this policy in a way that you would adopt it?’” he says. “These are the things they feel comfortable with, and they’re written in a language that shows they’re serious.”
But that commitment may not wholly be there. When I asked Harris if Biden himself had signed off on the economic policy recommendations Harris dodged and wouldn’t confirm anything, noting only that he and Jared Bernstein, another economist advising Biden, offered ideas they had discussed with Biden.
So the question remains: How important is this going to be? The 100 pages bear close similarity to a party platform document, something that’s composed thoughtfully, then summarily dismissed once a candidate enters the White House. “Obviously it’s a values document,” says Hamilton, “but it’s one he may just ignore.”
This story has been updated.


motherjones--2020-07-08--Trump and DeVos Say They’ll Withhold Money From Schools for Not Reopening. Can They?

The Trump administration spent its Wednesday not so much using the bully pulpit as throwing it at the heads of America ’ s school officials , threatening to withhold federal funds from school districts if they refuse to reopen .
An education law professor tells Mother Jones that it ’ s a hollow threat without any legal basis , but that there are still gray areas in which the White House could maneuver .
On Twitter , Trump on Wednesday threatened to withhold federal funds from school districts if they refuse to reopen .
He added that he disagreed with @ @ @ @ @ @ @ schools , which includes dismissing school when COVID outbreaks occur , enforcing social distancing within classes , limiting sharing , and conducting daily health checks , among other recommendations .
He called the guidance “ very tough & expensive.
” On Fox News , DeVos told Tucker Carlson that the Education Department is “ seriously considering ” withholding federal funds , blaming “ adults who are fear-mongering and making excuses ” for not reopening .
She added that they need to “ turn their attention on what is right for students and for @ @ @ @ @ @ @ , and three other states sued the Education Department on Tuesday , alleging that it wrongfully interpreted the CARES Act to divert public dollars to private schools . )
And on Wednesday , as the CDC announced it would alter its guidance on reopening schools next week , Vice President Mike Pence said during a White House coronavirus task force briefing that additional relief funds should be conditioned on whether school buildings open .
Given the federal government ’ s hands-off approach to addressing the coronavirus as infections spike throughout the country , @ @ @ @ @ @ @ and state public health departments to navigate how to reopen schools for the safety of teachers , administrators , and kids .
“ This is not helpful .
The fact that yesterday they ratcheted up the pressure on them to reopen without committing a single dollar toward that reopening is totally unfair and dangerous , ” says Sasha Pudelski , advocacy director at AASA , The School Superintendents Association .
“ They have , aside from doctors , the most difficult job in America right now .
This is not an easy thing @ @ @ @ @ @ @ and to do it in a way that it is safe enough .
They ’ re trying to do the best they can to mitigate what they can.
” The federal government can ’ t simply withhold federal funds from districts , billions of which go toward poor and special education students , for not opening their schools on time .
Derek W. Black , an education law professor at the University of South Carolina and author of Schoolhouse Burning : Public Education and the Assault on American Democracy , says there is @ @ @ @ @ @ @ is proposing .
I spoke with Black , who has litigated school desegregation and education funding lawsuits while at the Lawyers ’ Committee for Civil Rights Under Law , about what the Trump administration legally can and can ’ t do , and whether what ’ s legal actually matters .
The conversation has been lightly edited for length and clarity .
When I reached out to you about whether the federal government could withhold money from districts that refuse to reopen , you wrote me : “ There is no obvious lever @ @ @ @ @ @ @ there are maybe some gray areas they could leverage.
” What did you mean ?
The general principle overarching everything in education and elsewhere is that if they ’ re going to withhold money or say that there ’ s a condition of receiving money , they have to be crystal clear about those [ conditions ] in advance .
The state or district has to know that we will lose money if we do X , right ?
Any time that they ’ ve tried to withhold funds without that , courts @ @ @ @ @ @ @ ’ t make up stuff after the fact .
This comes into play with No Child Left Behind—like , were you violating a specific provision ?
Did you know that you ’ d lose money if you violated etc , etc .
So when I looked at the current situation , yeah , the federal government has the ability to withhold funds , but there have to pre-articulate reasons why .
It seems like an obvious requirement .
There are no stated requirements that say , “ Hey , you must open school @ @ @ @ @ @ @ “ Hey , your school must be live.
” So if what we ’ re talking about is live instruction versus online , there ’ s nothing that strikes me as being spelled out in any federal statute that says to receive federal funds , your instruction has to be live rather than online .
This can ’ t be true as a practical matter , because we know that there are some online charters and whatnot .
But if what the federal government means is you have to open , as in @ @ @ @ @ @ @ instruction , well , then maybe there ’ s some gray area there .
The way that money goes out to schools is based on headcount , and so I suppose the federal government could take this position that the state doesn ’ t have a headcount because there are no students ’ heads to be counted .
I don ’ t want to put ideas in their head .
I don ’ t know if that ’ s what they ’ re already thinking .
That would be a creative basis .
@ @ @ @ @ @ @ sure that federal funds are tagged to specific start dates , either .
As long as you are running your education system at some point over the calendar year and you have these kids in school , then you should be eligible for the federal funds .
In fact , some of the federal funds go out based upon census data as opposed to precise headcount .
I ’ m struggling to see how they could do that .
I don ’ t see any statutory basis to distinguish online and in-person .
@ @ @ @ @ @ @ federal government doesn ’ t have the power to dictate when it starts or ends .
It feels like the president is saying , “ If you don ’ t open schools for in-person instruction , we will withhold money.
” I don ’ t think there ’ s any statutory basis to say if you ’ re not physically open , we can ’ t fund you .
There is a variety of what you might call qualitative standards under which they can hold funds .
The qualitative standards would be , @ @ @ @ @ @ @ complying with IEPs for special education students .
You ’ re not delivering services to them .
Or we gave you federal funds to provide supplemental services of low-income students , and you ’ re not providing them.
” But that ’ s a much harder case to make .
First of all , we know that public schools are running around and feeding kids right now , so to suggest that they ’ re not doing that is wrong .
But for the president to take that position , it seems to @ @ @ @ @ @ @ a school district-by-district basis and actually affirmatively establish that there are several services that we ’ re paying you to provide that you ’ re not providing .
But online versus in-person doesn ’ t answer the question all by itself of whether states are providing those services .
And I ’ m not defending the schools .
I think that they need to be doing as much as possible for kids .
I ’ m just saying , in terms of federal authority , they ’ ve got to establish a violation @ @ @ @ @ @ @ of the statute would be , oh , you ’ re having online versus in-person .
The violation would be , you ’ re not providing special education services , you ’ re not providing language services , you ’ re not providing lunch , you ’ re not providing supplemental reading instruction to low-income kids .
Those would be the basis to withhold federal funds .
So they have to point to some civil rights violation .
If they are not providing X , Y , Z services for poor students or @ @ @ @ @ @ @ when there are grounds for pulling money .
Or didn ’ t administer , you know , standardized tests for the 2020-2021 school year , because that is a condition of the federal funding .
You must spend money to administer these accountability systems .
So that would be a basis for withholding funds .
Sorry for being pejorative , they don ’ t deal in nuance in this administration .
But if you follow the giving of coronavirus aid to private schools , they clearly don ’ t care what statute says @ @ @ @ @ @ @ doesn ’ t surprise me that they are saying they might actually refuse to cut checks .
To move to the next level , could they do this ?
Yeah , they could because it takes the US Treasury and Department of Education to send a check .
If the president or DeVos says , “ Don ’ t send the check , ” then the check won ’ t flow .
And at that point , now we ’ ve got litigation because my position would be that the federal government is @ @ @ @ @ @ @ passed by Congress dictate that they receive .
What precedent is there for the federal government to withhold money from schools ?
I think that paints a crystal-clear picture of what an enormous , egregious step this would be .
The federal government has withheld federal funding only in a couple of instances from states .
During school desegregation , one of the conditions of receiving federal funds is to comply with nondiscrimination statutes .
And you had Southern school districts , of course , refusing to desegregate .
And the department threatened @ @ @ @ @ @ @ got the overwhelming majority of them moving in the right direction .
That ’ s not to say that they did everything right .
They ’ re moving in the right direction .
But in terms of ones that actually just refused , until the very end , there were only a couple of school districts that absolutely refused to do anything .
So the federal government said , “ Look , we ’ re not going to give you your federal funds.
” So that happened .
You may recall a similar @ @ @ @ @ @ @ ago , towards the end of the Obama administration , we had a school district outside of Chicago that was refusing to comply with the department ’ s interpretation of sexual orientation and transgender equality .
They said , “ Look , this discrimination based on sexual orientation violates sex discrimination , ” and the district said , “ We disagree and we ’ re going to keep pushing it right up to the edge of the department holding funds , ” and then the district folded .
There are extreme examples of @ @ @ @ @ @ @ to comply with anti-discrimination—really the only instances that we ’ ve seen federal funds withheld .
We ’ ve seen the federal government go back and try to get money back from states after the fact .
So the federal government already gave them money , and then they found out that they had spent it fraudulently or incorrectly .
There ’ s been some of that , but nothing wide-scale or consistent .
It ’ s very rare .
What kind of money can get withheld ?
You might divide up money @ @ @ @ @ @ @ what you might call program-specific requirements .
So the No Child Left Behind Act , what is now the Elementary and Secondary Education Act , has a number of requirements around administering tests .
Even the Elementary and Secondary Education Act is broken up into multiple parts .
So Title I , for instance , would be poor kids , and there ’ s a certain chunk of money— $ 14.5 billion generally a year—for that .
So if you ’ re not testing and following all that , you could lose your @ @ @ @ @ @ @ funds in there—Title II , which is about teacher training .
You wouldn ’ t lose your teacher training money just because you missed a Title I requirement .
You sort of break down money into pockets and the requirements for each one .
And then you have the overarching anti-discrimination principles .
So , like , Title VI of the Civil Rights Act of 1964 prohibits race discrimination ; Title IX of the Education Amendments of ’ 74 prohibit sex discrimination ; then you ’ ve got a disability , etc , @ @ @ @ @ @ @ just withhold all your money because those say no federal-fund recipients can engage in race discrimination .
That is the other curious ambiguity in the administration ’ s position .
The only clear provisions that allow an across-the-board withholding of funds are really these anti-discrimination principles .
The rest of it is program-specific , which I said earlier would require them to go in and actually establish that , hey , you ’ re not complying with the specific requirements of this particular program , and you just lose it on a program-by-program @ @ @ @ @ @ @ ’ re not going to reopen in August .
What grounds , then , would the federal government have ?
Can they make a clear case that by not reopening , you ’ re violating these statutes ?
The question is , how do we define reopening ?
Do we define it as physically reopening or online reopening ?
I don ’ t see any basis for saying the failure to physically reopen is automatically a basis for withholding federal funds .
The day at which you open is a matter of local @ @ @ @ @ @ @ talking about is , I don ’ t open it all , I still wonder what the basis would be , because I don ’ t think schools are going to remain permanently closed .
The fact that they delay opening is not a condition .
The specific date at which you start your school is not a condition of federal funding mean , no .
I mean , look at it now .
We know for a matter of fact that Northern schools tend to start after Labor Day .
Southern schools @ @ @ @ @ @ @ never put Northern schools in jeopardy .
So if Southern schools want to delay until after Labor Day or delay two weeks , there are no provisions in federal law that dictate the date at which schools open .
To me , it ’ s still not obvious .
I think the federal government had to establish that they didn ’ t offer a school for the entire school year or for a substantial school year before they could terminate funding .
I don ’ t think that changes in start date would @ @ @ @ @ @ @ I saw a tweet from Andrew Ujifusa out at Education Week , where he talked about how a lot of the money that can be used for the next school year started going out on July 1 .
What grounds does the federal government have to essentially take away money that ’ s already being distributed ?
The federal government pays for an overall product , you might say , and that product is the delivery of a year ’ s worth of education .
The federal government does not specify the how @ @ @ @ @ @ @ .
Ultimately , that ’ s up to the state .
So there ’ s no reason the federal government on July 1 wouldn ’ t cut checks because they know that the school basically got a year to do its job .
And so they just give them that money in advance so they can do that job .
The federal government ’ s got to establish that states aren ’ t going to do their job or haven ’ t done their job .
And a specific date upon which they @ @ @ @ @ @ @ actually do or don ’ t do their job .
To me , it is federal overreach and abuse of power to suggest that the federal government can dictate the minutiae of education policy .
Maybe they should , in some distant future , pass a statute that gives the federal government that power .
But as of today , that power still rests with state education officers .
What does it tell you about the president ’ s approach to the reopening process that he is taking this stance ?
It ’ @ @ @ @ @ @ @ s taken on reopening the economy .
For the most part , the president has shown no interest at all in public schools for the last four years and even during his campaign .
His only real interest has been in private school vouchers .
So the only time that he shows an interest in public schools is when he sees them somehow connected to his economic agenda .
But the fact that he sees a connection between the two doesn ’ t give him or the secretary of education the power to @ @ @ @ @ @ @ of like they want what they want , and it really ties back to equitable services under the CARES Act .
Betsy DeVos has been told no on vouchers for four years , and the CARES Act says nothing about vouchers .
But she wants what she wants , and so she tries to exercise power , which she doesn ’ t have , under the CARES Act to force states to give money to private schools .
They want what they want and don ’ t really care whether the law stands @ @ @ @ @ @ @ confront people in life and government who just want what they want , regardless of what the law requires , you intimidate those people into giving up power or conceding to power that doesn ’ t actually exist .
And so , with the equitable services stuff the past few months , you saw state educational commissioners afraid to publicly say that Betsy DeVos was wrong , and they weren ’ t gon na follow her ruling because they were afraid she would withhold their money illegally or not , and they just @ @ @ @ @ @ @ a legal fight .
What we have now is potentially another situation , which is , if you think that the president and secretary of education are willing to trample on your rights , then maybe you just do what they want to prevent them from trampling on your rights .
There is this danger that people won ’ t stand up for their own rights .
By not standing up for their own rights , they lose them to bullies .

The Trump administration spent its Wednesday not so much using the bully pulpit as throwing it at the heads of America’s school officials, threatening to withhold federal funds from school districts if they refuse to reopen. An education law professor tells Mother Jones that it’s a hollow threat without any legal basis, but that there are still gray areas in which the White House could maneuver.
On Twitter, Trump on Wednesday threatened to withhold federal funds from school districts if they refuse to reopen. He added that he disagreed with the CDC’s guidance for reopening schools, which includes dismissing school when COVID outbreaks occur, enforcing social distancing within classes, limiting sharing, and conducting daily health checks, among other recommendations. He called the guidance “very tough & expensive.”
On Fox News, DeVos told Tucker Carlson that the Education Department is “seriously considering” withholding federal funds, blaming “adults who are fear-mongering and making excuses” for not reopening. She added that they need to “turn their attention on what is right for students and for their families.” (California, Michigan, and three other states sued the Education Department on Tuesday, alleging that it wrongfully interpreted the CARES Act to divert public dollars to private schools.) And on Wednesday, as the CDC announced it would alter its guidance on reopening schools next week, Vice President Mike Pence said during a White House coronavirus task force briefing that additional relief funds should be conditioned on whether school buildings open.
Given the federal government’s hands-off approach to addressing the coronavirus as infections spike throughout the country, superintendents have focused on consulting with governors and state public health departments to navigate how to reopen schools for the safety of teachers, administrators, and kids. “This is not helpful. The fact that yesterday they ratcheted up the pressure on them to reopen without committing a single dollar toward that reopening is totally unfair and dangerous,” says Sasha Pudelski, advocacy director at AASA, The School Superintendents Association. “They have, aside from doctors, the most difficult job in America right now. This is not an easy thing to figure out how to reopen schools and to do it in a way that it is safe enough. They’re trying to do the best they can to mitigate what they can.”
The federal government can’t simply withhold federal funds from districts, billions of which go toward poor and special education students, for not opening their schools on time. Derek W. Black, an education law professor at the University of South Carolina and author of Schoolhouse Burning: Public Education and the Assault on American Democracy, says there is no precedent for what the Trump administration is proposing.
I spoke with Black, who has litigated school desegregation and education funding lawsuits while at the Lawyers’ Committee for Civil Rights Under Law, about what the Trump administration legally can and can’t do, and whether what’s legal actually matters. The conversation has been lightly edited for length and clarity.
When I reached out to you about whether the federal government could withhold money from districts that refuse to reopen, you wrote me: “There is no obvious lever for them to do so, though there are maybe some gray areas they could leverage.” What did you mean?
The general principle overarching everything in education and elsewhere is that if they’re going to withhold money or say that there’s a condition of receiving money, they have to be crystal clear about those [conditions] in advance. The state or district has to know that we will lose money if we do X, right? Any time that they’ve tried to withhold funds without that, courts have struck it down. You can’t make up stuff after the fact. This comes into play with No Child Left Behind—like, were you violating a specific provision? Did you know that you’d lose money if you violated etc, etc.
So when I looked at the current situation, yeah, the federal government has the ability to withhold funds, but there have to pre-articulate reasons why. It seems like an obvious requirement. There are no stated requirements that say, “Hey, you must open school on day X,” or, “Hey, your school must be live.” So if what we’re talking about is live instruction versus online, there’s nothing that strikes me as being spelled out in any federal statute that says to receive federal funds, your instruction has to be live rather than online. This can’t be true as a practical matter, because we know that there are some online charters and whatnot.
But if what the federal government means is you have to open, as in you have to have online or live instruction, well, then maybe there’s some gray area there. The way that money goes out to schools is based on headcount, and so I suppose the federal government could take this position that the state doesn’t have a headcount because there are no students’ heads to be counted. I don’t want to put ideas in their head. I don’t know if that’s what they’re already thinking. That would be a creative basis. But again, I’m not sure that federal funds are tagged to specific start dates, either. As long as you are running your education system at some point over the calendar year and you have these kids in school, then you should be eligible for the federal funds. In fact, some of the federal funds go out based upon census data as opposed to precise headcount. I’m struggling to see how they could do that. I don’t see any statutory basis to distinguish online and in-person. If the kids are enrolled, the federal government doesn’t have the power to dictate when it starts or ends.
It feels like the president is saying, “If you don’t open schools for in-person instruction, we will withhold money.”
I don’t think there’s any statutory basis to say if you’re not physically open, we can’t fund you. There is a variety of what you might call qualitative standards under which they can hold funds. The qualitative standards would be, “Well, you’re not complying with IEPs for special education students. You’re not delivering services to them. Or we gave you federal funds to provide supplemental services of low-income students, and you’re not providing them.” But that’s a much harder case to make. First of all, we know that public schools are running around and feeding kids right now, so to suggest that they’re not doing that is wrong. But for the president to take that position, it seems to me they would have to go on a school district-by-district basis and actually affirmatively establish that there are several services that we’re paying you to provide that you’re not providing. But online versus in-person doesn’t answer the question all by itself of whether states are providing those services.
And I’m not defending the schools. I think that they need to be doing as much as possible for kids. I’m just saying, in terms of federal authority, they’ve got to establish a violation of the statute. So the violation of the statute would be, oh, you’re having online versus in-person. The violation would be, you’re not providing special education services, you’re not providing language services, you’re not providing lunch, you’re not providing supplemental reading instruction to low-income kids. Those would be the basis to withhold federal funds.
So they have to point to some civil rights violation. If they are not providing X, Y, Z services for poor students or special education students, that’s when there are grounds for pulling money.
Or didn’t administer, you know, standardized tests for the 2020-2021 school year, because that is a condition of the federal funding. You must spend money to administer these accountability systems. So that would be a basis for withholding funds. Sorry for being pejorative, they don’t deal in nuance in this administration. But if you follow the giving of coronavirus aid to private schools, they clearly don’t care what statute says or doesn’t say. It doesn’t surprise me that they are saying they might actually refuse to cut checks. To move to the next level, could they do this? Yeah, they could because it takes the US Treasury and Department of Education to send a check. If the president or DeVos says, “Don’t send the check,” then the check won’t flow. And at that point, now we’ve got litigation because my position would be that the federal government is illegally withholding money from states that laws passed by Congress dictate that they receive.
What precedent is there for the federal government to withhold money from schools?
I think that paints a crystal-clear picture of what an enormous, egregious step this would be. The federal government has withheld federal funding only in a couple of instances from states. During school desegregation, one of the conditions of receiving federal funds is to comply with nondiscrimination statutes. And you had Southern school districts, of course, refusing to desegregate. And the department threatened them with withholding funds, and that got the overwhelming majority of them moving in the right direction. That’s not to say that they did everything right. They’re moving in the right direction. But in terms of ones that actually just refused, until the very end, there were only a couple of school districts that absolutely refused to do anything. So the federal government said, “Look, we’re not going to give you your federal funds.” So that happened.
You may recall a similar instance, about four or five years ago, towards the end of the Obama administration, we had a school district outside of Chicago that was refusing to comply with the department’s interpretation of sexual orientation and transgender equality. They said, “Look, this discrimination based on sexual orientation violates sex discrimination,” and the district said, “We disagree and we’re going to keep pushing it right up to the edge of the department holding funds,” and then the district folded. There are extreme examples of districts digging in their feet and refusing to comply with anti-discrimination—really the only instances that we’ve seen federal funds withheld. We’ve seen the federal government go back and try to get money back from states after the fact. So the federal government already gave them money, and then they found out that they had spent it fraudulently or incorrectly. There’s been some of that, but nothing wide-scale or consistent. It’s very rare.
What kind of money can get withheld?
You might divide up money withholding into two categories: One is what you might call program-specific requirements. So the No Child Left Behind Act, what is now the Elementary and Secondary Education Act, has a number of requirements around administering tests. Even the Elementary and Secondary Education Act is broken up into multiple parts. So Title I, for instance, would be poor kids, and there’s a certain chunk of money—$14.5 billion generally a year—for that. So if you’re not testing and following all that, you could lose your Title I funds. There are other funds in there—Title II, which is about teacher training. You wouldn’t lose your teacher training money just because you missed a Title I requirement. You sort of break down money into pockets and the requirements for each one.
And then you have the overarching anti-discrimination principles. So, like, Title VI of the Civil Rights Act of 1964 prohibits race discrimination; Title IX of the Education Amendments of ’74 prohibit sex discrimination; then you’ve got a disability, etc, etc. As to those they could just withhold all your money because those say no federal-fund recipients can engage in race discrimination. That is the other curious ambiguity in the administration’s position. The only clear provisions that allow an across-the-board withholding of funds are really these anti-discrimination principles. The rest of it is program-specific, which I said earlier would require them to go in and actually establish that, hey, you’re not complying with the specific requirements of this particular program, and you just lose it on a program-by-program basis.
There are districts saying we’re not going to reopen in August. What grounds, then, would the federal government have? Can they make a clear case that by not reopening, you’re violating these statutes?
The question is, how do we define reopening? Do we define it as physically reopening or online reopening? I don’t see any basis for saying the failure to physically reopen is automatically a basis for withholding federal funds. The day at which you open is a matter of local discretion. If what we’re talking about is, I don’t open it all, I still wonder what the basis would be, because I don’t think schools are going to remain permanently closed. The fact that they delay opening is not a condition. The specific date at which you start your school is not a condition of federal funding mean, no. I mean, look at it now. We know for a matter of fact that Northern schools tend to start after Labor Day. Southern schools start in mid-August nowadays. That has never put Northern schools in jeopardy.
So if Southern schools want to delay until after Labor Day or delay two weeks, there are no provisions in federal law that dictate the date at which schools open. To me, it’s still not obvious. I think the federal government had to establish that they didn’t offer a school for the entire school year or for a substantial school year before they could terminate funding. I don’t think that changes in start date would be the basis for terminating funding.
I saw a tweet from Andrew Ujifusa out at Education Week, where he talked about how a lot of the money that can be used for the next school year started going out on July 1. What grounds does the federal government have to essentially take away money that’s already being distributed?
The federal government pays for an overall product, you might say, and that product is the delivery of a year’s worth of education. The federal government does not specify the how, when, and where of that. Ultimately, that’s up to the state. So there’s no reason the federal government on July 1 wouldn’t cut checks because they know that the school basically got a year to do its job. And so they just give them that money in advance so they can do that job.
The federal government’s got to establish that states aren’t going to do their job or haven’t done their job. And a specific date upon which they start has no bearing upon whether they actually do or don’t do their job. To me, it is federal overreach and abuse of power to suggest that the federal government can dictate the minutiae of education policy. Maybe they should, in some distant future, pass a statute that gives the federal government that power. But as of today, that power still rests with state education officers.
What does it tell you about the president’s approach to the reopening process that he is taking this stance? It’s a similar stance that he’s taken on reopening the economy.
For the most part, the president has shown no interest at all in public schools for the last four years and even during his campaign. His only real interest has been in private school vouchers. So the only time that he shows an interest in public schools is when he sees them somehow connected to his economic agenda. But the fact that he sees a connection between the two doesn’t give him or the secretary of education the power to do anything. It’s sort of like they want what they want, and it really ties back to equitable services under the CARES Act. Betsy DeVos has been told no on vouchers for four years, and the CARES Act says nothing about vouchers. But she wants what she wants, and so she tries to exercise power, which she doesn’t have, under the CARES Act to force states to give money to private schools. They want what they want and don’t really care whether the law stands in their way.
But when you confront people in life and government who just want what they want, regardless of what the law requires, you intimidate those people into giving up power or conceding to power that doesn’t actually exist. And so, with the equitable services stuff the past few months, you saw state educational commissioners afraid to publicly say that Betsy DeVos was wrong, and they weren’t gonna follow her ruling because they were afraid she would withhold their money illegally or not, and they just didn’t want to get into a legal fight. What we have now is potentially another situation, which is, if you think that the president and secretary of education are willing to trample on your rights, then maybe you just do what they want to prevent them from trampling on your rights. There is this danger that people won’t stand up for their own rights. By not standing up for their own rights, they lose them to bullies.