The Struggle We Face

The Struggle We Face

We devote this issue of Mass Dissent to an unhappy topic – our new president and his team. All of us can go back and forth between thinking, “he’s just another Republican”, and “my god, fascism is about to arrive”. Both have elements of truth. Trump is, in many ways, just another Republican, a bad version of Reagan, if you look at his cabinet choices and most of his initiatives so far. An Attorney General who supports more incarceration but not voting rights; an EPA chief who is captive to the oil and gas industry and has spent much of his career suing the EPA; head of HHS who has distinguished himself by the number of times he has attempted to “repeal” Obama Care; a secretary of education with no fidelity to (or understanding of) public education; a nominee for Labor who was a serial violator of labor laws; and the classic Republican initiatives of cutting taxes and regulations. But, if this isn’t bad enough, there is a much darker side — a president who will say anything, even things demonstrably false, so long as they feed his ego (i.e., the margin of his victory, the size of his adoring crowds) or demonize others (immigrants, the media, the courts). The vision (driven, it seems, by Steve Bannon, whose philosophy is a disturbing brew of nationalism and a religiosity that cannot tolerate Islam) is typical of “strong men” and antithetical to democracy – “believe me,” Trump says, “believe whatever I say,” and hate those who disagree (think Putin).

We at the Guild must do what we have always done, but even harder now. Fight, struggle, oppose, and educate. Demonstrations are important, they mobilize the opposition and show the larger public that many, many people are committed to opposing Trump. We will train legal observers, support and protect demonstrators and represent them in court—and we will march with them. We will work on and support progressive initiatives, and, as we always have, network with and support activists in their undertakings. And we must work as well on education, on showing that Trump’s supposedly populist vision, his supposed commitment to jobs and disdain of elites, is as thin as his skin, a pretense for a man whose only real interest is self-interest and power.

This issue of Mass Dissent explores some of what has happened with the new administration so far. Jennifer Berkshire writes about a telling exemplar of the new administration’s cabinet appointments, Betsy DeVos as Secretary of Education, informing us that behind the seemingly (and misleading) “ditzy” exterior is an anti-democratic, reactionary core ideology. Ragini Shah writes on the new administration’s immigration policy, with an important lesson for us – these reactionary policies build, in fact, on reactionary policies long in place that we have to fight. Last, some positive news: David Kelston’s article on what the courts have done so far, and Urszula Masny-Latos’s piece on how, using our own work as guidance, we can resist and fight.

David Kelston & Makis Antzoulatos

NLG Annual Meeting

NLG Annual Meeting

In March, the Chapter held its Annual Meeting. This meeting is the only time when NLG members in Massachusetts can get together, reconnect with old friends, meet and connect with new members, get updates on the political and legal work the Chapter’s various committees do, plan the future, and vote on the new Board of Directors and Officers.

Last year in January, we changed our by-laws and limited the number of people who could be elected to the Board to 16. (Executive Director is an additional, unelected member of the Board.) Because of that change, this year, as last year, we had contested elections. We would like to thank all who ran and showed their desire to serve the NLG. Our gratitude goes to Jonathan Messinger for his six years of uncompromised commitment to the NLG and the Board, for his unmatched devotion to and amazing work for the Dinner and Litigation Committees, and for his overall high spirits and energy. Thank you for being there when needed!

Please join us in welcoming the new members of the NLG Board: Ricardo Arroyo, Caroline Darman, Lee Goldstein, and Eden Williams. Caroline, Lee, and Eden have already shown their dedication to the NLG by working with the Court Watch Program and Litigation Committee respectively. We are excited to have you on the Board!

p.4 meeting 1

p.4 meeting 2

Annual Meeting participants (Photos by Julia Mason Wedgle) 

The Unbundling of Public Education

The Unbundling of Public Education

by Jennifer C. Berkshire

he confirmation hearing of Secretary of Education Betsy DeVos will forever be remembered for the candidate’s legendary ineptness. But while DeVos’ suggestion that schools in the west be armed in the event of a grizzly break in made her instant fodder for Internet memes and a Saturday Night Live skit, residents of her home state of Michigan barely recognized the portrayal of a ditzy lady., DeVos is much better known as the Republican-party patroness and political brawler who helped turn a blue state red, crushing unions, weakening democratic institutions and attempting to criminalize resistance along the way.

In 2012, DeVos and her husband Dick, a one-time GOP gubernatorial candidate and heir to the $5 billion Amway fortune, pulled off the unthinkable, they made Michigan “right to work.” In the very state that gave us the industrial union movement, workers can no longer be compelled to join a union. The DeVoses pulled this off thanks to sneaky late-session dealings by a legislature that they have spent millions to shape and influences, but their animus towards unions dates back generations; it’s in their blood. Betsy grew up a “Prince,” the daughter of a self-made millionaire and rabid anti-New Dealer. (Betsy’s brother is Erik Prince, founder of the private army contractor Blackwater). The family she married into was equally rabid, and even wealthier.

But while unions have long been a target of the DeVoses and their allies, they’re not the ultimate prize. That would be the Democratic party, of which Michigan’s unions, and the teachers unions in particular, are the primary funders. Not long after Michigan joined more than two dozen mostly Southern states in the right-to-work column, the GOP legislature enacted another change that made it illegal for employers to process union dues. (The same measure made it easier for employers to withhold contributions to PACs from employee paychecks). The legal changes have proved to be devastatingly effective, greatly diminishing the ability of unions, not just to maintain political influence in the state but to provide basic representation to their members. In Michigan, unions have long provided the “foot soldiers” for the Democratic party: the people who help turn out voters and go door to door for causes. In 2016, Michigan went for Trump by 10,000 votes, while the GOP, which already controlled all three branches of government here, further extended its majorities.

Listen closely and you’ll notice that when Betsy DeVos talks about education she sounds a lot like Paul Ryan talking about health insurance. They’re “freedom to choose” people. Ryan describes a free market dream, whereby consumers, who are no longer compelled to purchase insurance, may now shop for the plan that best fits their needs. DeVos envisions an education utopia in which the “government school” is no longer the “monopoly provider.” “She’ll put the parents before the institutions,” is how former Presidential contender and DeVos superfan Jeb Bush put it. It might be more accurate to say that DeVos seeks to separate parents from their institutions. In Michigan, the DeVoses have sought to undermine the very institutions of public education: the elected school boards, the ability of communities to pay for their schools, the rights of residents, particularly African Americans, to have any say over their schools at all.

“They have succeeded in diminishing the public school establishment financially and weakening it,” former Michigan State Board of Education member John Austin told me when I interviewed him earlier this year. “This is about taking down the existing public school infrastructure and the Democratic party.” Yet another recent law passed at the DeVoses behest would have prohibited local officials from communicating with their constituents about ballot measures, like the tax overrides that are used to raise money to fund school projects. A judge tossed the measure on the grounds that it was unconstitutionally vague, but its intent was clear. What better way to convince parents to abandon their public schools than to allow them to crumble?

In Silicon Valley the term “unbundling” has become a buzzword to describe the taking apart of products and services from the companies and institutions that once provided them. Applied to schools this means that students can access the education learning options without the democracy-burdened institutions that Betsy DeVos and her ilk refer to derisively as the “blob”: the teachers and their unions, the school boards and the superintendents—anyone who has a stake in the schools. But in these Trumpian times education institutions have emerged as a key source of resistance of his agenda. Colleges and universities were quick to condemn the Trump Administration’s travel ban, while school districts, including Boston, Chicago and New York, have announced district-wide policies to protect undocumented students.

The DeVos agenda of “unbundling” parents and students from the democratic institutions that make up the education infrastructure is aimed squarely at this kind of resistance. Last year when Detroit teachers participated in “sick outs” to protest appalling conditions in the city’s schools, and the treatment of Detroit’s teachers and students, the response of DeVos’ allies in the legislature was to attempt to criminalize resistance. A law filed while the protests were still underway would have stripped teachers who engaged in illegal protests of their certification for two years. “They were trying to send us a message to just keep quiet. If you speak up and fight back, we’re going to come after you,” says Stephanie Griffin, a Detroit teacher who helped to organize the sick outs.

While DeVos’ first weeks as the nation’s top education official were rough by any measure, she is a natural fit for the modern Republican party; she shares its firm commitment to undermining the Left by limiting democratic participation. But her move to Washington has resulted in an unforeseen development. Back in Michigan, the grip of the state’s most politically powerful couple appears to have suddenly weakened. Community pressure in Detroit has forced the state to hold off on shuttering dozens more public schools there, while key DeVos education priorities have been shelved, and an effort to eliminate the state income tax a la Kansas, collapsed. Most significantly, the powerful education lobbying group that DeVos founded, the Great Lakes Education Project, essentially imploded this spring after its head made a joke about domestic violence. Since Trump first nominated DeVos, her record in Michigan has been subject to intense media glare. What that spotlight turned up is an ugly legacy that is fueling deep resistance in her home state—something that should encourage anyone who believes in public education.

Jennifer Berkshire writes the blog Have You Heard and is the co-host of a biweekly podcast about education in the time of Trump. Follow her at @BisforBerkshire.

The Courts Do Their Jobs

The Courts Do Their Jobs

by David Kelston

These times may be bleak, but the courts have been encouraging – indeed, the Ninth Circuit’s decision on original Executive Order 13769 (“Protecting the Nation From Foreign Terrorist Entry Into the United States”) is inspiring, a throwback to bold civil rights and criminal justice decisions from the Warren Court.

The first executive order suspended for 90 days entry into the U.S. of immigrants and non-immigrants from seven Muslim countries, Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, indefinitely suspended the admission of Syrian refugees and suspended for 120 days entry of any refugees into the country, and upon resumption of admission of refugees gave a priority to refugee claims based on minority religious status.

On January 29, 2017, U.S. District Judge Allison Burroughs and Magistrate Judge Judith Dein temporarily restrained, after an emergency hearing that extended past midnight on January 28, “Donald Trump” et al., from detaining or removing persons with approved refugee applications, holders of valid immigrant and other visas, and others who would be entitled to enter the country but for the executive order. It was exhilarating to see two of our own judges stand up to the President of the United States, siding instead with immigrants, protestors, and progressive lawyers, a number of them our members. But the victory lasted only until Judge Gorton’s decision less than a week later. His decision, while repeatedly referencing the “purported” security justifications for the executive order (i.e., he sounded skeptical), relied on White House counsel’s “clarification” that the executive order did not apply to lawful permanent residents, and this mooted the claims of five of the plaintiffs, who were lawful permanent residents. The judge then denied the claims of the remaining plaintiffs on the basis of standing (these plaintiffs were students in the U.S. with student visas who hadn’t yet suffered an injury), and he also found that the executive order withstood a rational basis review (what governmental action doesn’t?) and didn’t explicitly discriminate against Muslims. In short, the result in our local federal court was initially great, followed by the kind of let down we have come to expect, albeit in a fairly narrow decision. But things were different in Seattle.

After the District Court issued a temporary restraining order enjoining the executive order nationwide, the Ninth Circuit affirmed with a reasoned and powerful decision. The plaintiffs in the case were the states of Washington and Minnesota, which claimed harm from, inter alia, restrictions on the teaching and research missions of their universities as a result of the travel bans. In a wide-ranging decision, the Ninth Circuit first found the states had standing because the executive order prevented nationals from the seven countries from entering Washington and Minnesota where they could join universities. Then the court rejected the government’s position that the executive order was unreviewable because it suspended admission of certain persons on the basis of national security concerns, with the Court emphasizing a strong role for the judiciary in insisting upon adherence to the constitution in all situations. Next, the court found that the executive order likely violated due process (“The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel”, referring to all persons within the U.S., whether lawfully or not, and certain aliens attempting to reenter the U.S.). In the course of its analysis, the Ninth Circuit rejected as meaningful White House counsel’s “clarification” that the order to did not apply to permanent residents as lacking the force of law. Next, the court found that the executive order likely violated the establishment and equal protection clauses because it was intended to disfavor Muslims, relying on “numerous statements by the President about his intent to implement a ‘Muslim ban’”. Finally, the court emphasized the government’s failure to justify the executive order: “the Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the U.S.”. In short, the Ninth Circuit’s opinion powerfully rejected subservience to the executive branch in matters supposedly concerning national security, and showed a willingness to take on this president that was nothing short of inspiring, albeit in an opinion preliminary in nature.

The government chose not to appeal, likely sensing that the divided, eight member Supreme Court would affirm. But the future will be different. Already there is a new executive order and a new fight. The Senate will almost surely confirm appointment of Judge Neil Gorsuch to the Supreme Court. Gorsuch, the New York Times wrote, “echoes Scalia in philosophy and style”, and while that may be an overstatement – at least as to style – he will clearly join the conservative bloc. Indeed, it is hard to imagine a full Court including Justice Gorsuch affirming the Ninth Circuit’s State of Washington opinion. And while Justices Ginsburg and Breyer could make it through four years of a Trump presidency (Kennedy probably less likely so), a second Trump term will set the Supreme Court for decades to come in a mold at best conservative, at worst reactionary.

This has to be a profound worry for us, and a profound motivation.

David Kelston is of counsel at Shapiro Weissberg & Garin in Boston.

NLG Resists the New Administration

NLG Resists the New Administration

by Urszula Masny Latos

Since the last presidential election, NLG has allied itself with those who build a resistance movement against the new administration. During the presidential campaign, Trump made his vision of the U.S. public and from the moment he took over the White House he started implementing the most controversial parts of his plan. Through his appointments – Attorney General, Secretary of Education, Secretary of HUD, EPA Administrator, Supreme Court – he is making sure that his agenda of destroying any social and economic gains we’ve made as a country will go forward.

We need to stop him before it’s too late! There is a lot to do. So far, our Chapter has been very active, but we need more NLG members to get involved. We’ve been active on several fronts:

– played a crucial role in organizing Women’s March in Boston in January;

– held a Strategy Meeting and created four Working Groups to work on (1) community outreach, (2) legal education, (3) crushing of political dissent & increased criminalization of activism, and (4) media & publicity;

– held a meeting with medical and legal providers and providers and immigrant organizations to establish a system of cooperation and collaboration between doctors, medical administrators, lawyers and immigrant communities to be able to learn what immigrant organizations and communities need and then provide it.  It’s called Greater Boston Health and Law Immigrant Solidarity Network.

– worked to establish a new NLG Rapid Response program to provide support for communities and individuals affected by the new policies;

Mass Defense Committee (1) has trained hundreds of activists and legal professionals to be Legal Observers, (2) provided Legal Observers to protests in the streets and in offices (see page 3 under “Street Law Clinic”), (3) conducted “Know Your Rights”, and “Direct Action” trainings, (4) has represented climate change, anti-fascist and anti-DAPL activists, (5) plans trainings for any attorney who wants to represent activists; and (6) has been working with anti-ICE raids activists in Boston and other parts of Massachusetts.

Litigation Committee continues fighting institutional oppression and litigates on behalf of the powerless.  This year we  (1) settled a case for Occupy Boston and other activists challenging police surveillance and dissemination of information gathered on the activists,  (2) filed with Prisoners’ Legal Services a lawsuit challenging confinement conditions, particularly of mentally ill prisoners,  (3) filed a lawsuit against the Boston Medical Center for hiring a negligent and arrogant private contractor who disclosed medical records of thousand of the Center’s patients, (4) continued fighting (with Prisoners’ Legal Services) for over 1,500 Massachusetts prisoners who are refused proper life-saving treatment for Hepatitis C, (5) filed a lawsuit in the Supreme Judicial Court against a new law in Massachusetts which would limit the ability of low-income homeowners – many minority – to challenge illegal foreclosures. We are working with the Mass. Alliance Against Predatory Lending to mount a broad-based constitutional challenge to the statute in its entirety;

organized two demonstrations in February for legal professionals – “Lawyers Fight Back” and “We Are The Majority! We Will Not Be Silent!” – to express our opinions on the current political climate.

Inequality, poverty, mass incarceration, and oppression don’t just happen. They result from the workings of the private market unchecked by – indeed aided by – governmental action that exacerbates rather than ameliorates.

We hope – and intend – that everything we do helps build a more progressive society. If you would like to participate in any NLG work, please call us at 617-227-7335.

p.9 NLG rally

NLG member Ben Evans speaks at a February rally “Lawyers Fight Back” organized by the Chapter. (Photo by Urszula Masny-Latos)

 

p.9 LO housing copy

 

 

Legal Observing in front of the City Hall in Boston for a sit-in at the Boston Mayor’s Office organized by housing activists from Keep It 100%.

p.10 Women's March

NLG members at the Boston Women’s March in January. (Photo by Julia Wedgle)

Urszula Masny-Latos is the Executive Director of the NLG Massachusetts Chapter.