State Bar Campaign -- A post-hoc evaluation

This year I ran for a spot on the State Bar of Texas' board of directors (the SBOT board is elected by lawyers, geographically). I didn't win.

I have mixed feeling about it. On one hand, it's a little disappointing because there are a lot of things the State Bar can and should be doing. It is an institution tasked with protecting the integrity of the legal system. It can and should be combating wrongful conviction, the school to prison pipeline, and many other issues. (I posted a few of my "campaign" emails below). I would have liked to prod it in that direction.

On the other hand, it's not a ton of fun being a minority voice on a board, trying to spur it in a direction it doesn't want to go (though maybe I should be accustomed to it as a civil rights lawyer). It can be frustrating and exhausting. So I it's kind of a mixed blessing that I was spared the chore.

But I do like a challenge. Maybe next year I'll run for State Bar President, instead. :)

Fix prison health care by saving money through sentencing reform.

Last week I spoke at a joint hearing of the Texas House Appropriations Committee and Criminal Jurisprudence Committee regarding Correctional Managed Health Care (CMHC) in TDCJ.

It was a great opportunity to orient the members to the very real threat a federal court, confronted with systemic inadequated in prison health care, would issue sweeping reform -- just like Judge Justice did from 1980-2001, and the kind the Supreme Court upheld in its 2011 Brown v. Plata decision.

The solution is simple -- sentencing reform. We put 70,000 people in prison a year, half (35,000) for 2-years or less, in no small part because of the Legislature's hunger for creating new felonies, without any real thought for the cost ($16,500 per year, per inmate, on average).

Realizing the solution would be simple, too. In January 2013, the Legislative Budget Board recommended the Legislature convene a new sentencing commission (the first since 1993) to make sure we're spending money wisely on criminal justice, i.e. whether it makes sense to blow tens of millions of dollars on imprisoning thousands of people low-level, non-violent crimes.

Tons of states have done so in recent years, and they're saving tons of money as a result, with no loss of public safety. If we saved money by reducing our prison population, we'd have more money left over to run our prisons in a constitutional manner.

All the Lege needs to do is pull the trigger and convene a new commission.

End Poverty -- Civil Rights Lawyering in the 21st Century

There are just 24 hours in a day, and only a handful of us in the civil rights community.  We can only hope to fight a tiny fraction of the wrongs in the world.  I am bedeviled by setting priorities, and maximizing the return on my investments of time.

One wonders: Where can we, as an advocate community, most productively devote scarce time and resources?

I humbly submit: we should eliminate poverty.

Poverty kills.  Further, it severely limits a person's access to both the political process and the legal system. And it is self-perpetuating, sucking in generation upon generation.

I want to slay the dragon.

Poverty Kills

Even beyond its effect on civil rights, poverty is a killer worthy of eliminating.

In Texas, every fifth adult lives in poverty.  1-in-3 children live in poverty.  In America as a whole, 1% of the population controls 40% of the nation's wealth; Texas is near the top of the worst culprits, with massive divides between the rich and everyone else.

And what does it mean to be poor?

Hunger: In Texas, 1-in-4 households (and 1-in-3 children) are "food insecure," meaning they make difficult decisions between paying for food or other necessities like rent, utilities or medicine.  This is not a Charles Dickens novel, it's Texas in 2013.

Illness: In 2010, 1-in-4 Texans was insured.  Have you ever been without health insurance?  It means living with a tooth ache; it means hoping your nagging cough will go away instead of becoming worse; it means having nowhere to go if you find a lump that could be cancer.

Hopelessness: If you're poor, you might not have any way to deal with rats in your home.  You might not be able to replace your child's tattered shoes.  You might not be able to afford heat in winter or AC in summer.  

Access to Justice: excluded from the courts

America still suffers from discrimination and hate; cheating and extortion; violence and tragedy.  But you can often fight back, if you have the financial means.

Whenever I volunteer at a free legal clinic, I meet people who have fallen victim to blatant wrongdoing -- blatant violations of the law.  The bad actor might be a bank, or a landlord, or a bureaucrat, but the common thread is someone blatantly violated the law.  And yet, no matter how blatant, the person in front of me often has little recourse because he or she is poor.

Poverty effectively denies a person basic legal rights because the rights you have on paper are meaningless if you have no way to enforce them.  If you can't hire an attorney, you're left up a creek if you fall victim to domestic violence, wrongful foreclosure, identity theft, or interference with custody of your children.... and the list goes on.

Democracy: ignored at the city dias and on the legislature's floor

The premise of democracy is that sovereignty flows from the people.  Each person has inherent value; each person is entitled to liberty; and government only exists because we, as participants, want it.  We are each supposed to have an equal say in how it operates.  One person, one vote.

But that isn't reality.  In the real world, wealthier people have more control over government.  And that control allows wealthy people to keep and increase their wealth at the expense of everyone else.

Government dictates how money is raised -- either regressively (sales tax) or progressively (income tax). Government chooses how to distribute public money -- to help the wealthy (corporate welfare) or help the community (education, infrastructure). And it passes laws that give people power over others: such as patents that make medicine more expensive to inflate a drug company's profits at the expense of the sick.  It can give sweetheart deals to Halliburton, while constraining or removing the legal rights of the average, injured person (tort reform).

The government has phenomenal power in our lives, and as long as we have wealth and poverty, the wealthy will have greater control of government.  This alone is enough reason to attack inequality.

BUT HOW?

What should we fight for?

Public Education: Education is the best ticket to better paying jobs, and public education is the cornerstone of democracy, but Texas chronically underfunds its schools.  Even within individual school districts, where you might naively expect evenhanded treatment, you find funding inequities and policy decisions that hurt schools in minority and low-income communities

Fair Housing: People living in concentrations of poverty (poor neighborhoods) have to overcome greater obstacles to rising out of poverty, because they have less access to good-paying jobs and to high-quality education.  And in the mean time, they suffer from worse housing stock, lack of health care, and more expensive transportation.  We should be challenging counties and municipalities reluctant to remedy our history of segregation by furthering fair housing.

Workers' Rights: We will always have a tiered society until workers' rights are protected.  Even the sparse set of rights guaranteed to workers under Texas law are routinely violated in many industries, such as construction and the service sector.  No one can disagree a boss should pay an employee what he or she was promised for a day's labor, but wage theft is endemic, exceeding $750 million annually in Houston alone, sinking whole communities further into poverty.  We have to work as a community to hold unscrupulous employers accountable.

Voting Rights: Politicians in the 21st century are still working to disenfranchise voters, and roll back the progress of the last century.  The state of Texas is among the worst perpetrators, drawing political boundaries specifically to dilute minority voting power and a Voter ID law to bar voters from the ballot box -- all to protect the rich, white, conservative political establishment in a minority-majority state.  We must fight disenfranchisement of the poor because it will only perpetuate the massive wealth inequities that are the product of state-level decisions on taxing and spending.

What strategies can we use?

1. Impact Litigation: We, as attorneys, should be focusing our legal work in fields and for clients that attack the institutional structures that perpetuate poverty.  This means lawsuits challenging Voter ID laws, inadequate school funding, misguided public housing policies, or discriminatory hiring practices.

2. Public participation in democracy: Democracy requires transparent decisionmaking and an opportunity to make your voice heard.  We can further transparency by enforcing laws that govern open meetings, public information, and disclosures of campaign contributions and lobbying. We can help communities make their voices heard by helping with public complaint procedures; and by collecting, organizing, and disseminating the community's hardships to decisionmakers and the wider public.

3. Supporting community organizations: Perhaps most importantly, we should nurture and protect community organizations that teach low-income people how to bridge the limitations of poverty and understand the reality of their own political power.  Community organizations bring more people into the struggle; engage those most affected, who understand the evils they're facing in a way no one else can; and have a lifespan beyond that of a single, charismatic leader.  Attorneys should not be in the vanguard of genuine, community organizations, but we can and should protect their flanks and help them overcome legal obstacles.

Reforming Texas Prisons?

I appeared on a couple radio programs recently to speak about prison conditions and reentry in Texas. It's a compelling and important topic, and unlike many public policy issues, the solution is pretty simple.

Reentry: Hamstrung from the start

First, I was a guest on "Houston Matters," a daily program in Houston.  It was a pleasure to be on the show, especially because I was joined by two notable, knowledgeable guests.  But I was a bit disappointed with the direction of the conversation.  It included a digression about how prisons change a person for the worse, and how it plays a roll in introducing "prison culture" into the free world.  One of the other guests opined:

We're turning out animals, and not only that, their children are learning by watching their parents [and] becoming prison acculturated. There are neighborhoods... in every major city, where prison culture predominates around the 7-11's, where the right of passage is to go to [prison].

"Houston Matters," KUHF 88.7 FM, December 18, 2013

I have no doubt prison can change people -- but focusing primarily on that puts the cart before the horse. 

Many of the law-and-order problems we see in Texas' cities are the result of those cities being among the most economically segregated in the country, which concentrates poverty and distances residents from good jobs and other opportunities they need to pull themselves out of poverty.
Economic segregation up in U.S.; Texas cities top list, Dallas Morning News (Aug. 1, 2012)
The Geography of Opportunity in Austin and How It Is Changing, Kirwan Institute (Apr. 11, 2013) (impoverished neighborhoods cut off from opportunity)

It's also a result of Texas spending less on public education than 48 other states.  In fact, courts have repeatedly found the Legislatures inadequate funding of education violates the Texas Constitution (it's happened six times since 1984).
Texas now 49th in spending on public schools, Dallas Morning News (Feb. 22, 2013)
Judge Rules School Finance System Unconstitutional, Case Heads to Texas Supreme Court, Texas Observer (Feb. 4, 2013).

If schools are under-funded they cannot prepare children for the future; and often the most-underfunded schools are in poor neighborhoods, where residents are already isolated from jobs and other opportunities. Of course that causes problems -- revolutions have started for less.
The world's unemployed youth: revolution in the air? The Guardian (Apr. 4, 2011).

And people returning from prison are in an even worse situation.  First, Texas has laws that bar ex-prisoners from getting many jobs. Second, and more pervasive, is private discrimination against former-prisoners; it can be next to impossible to get a job or even a place to live because many employers and landlords won't accept ex-prisoners.
Texas ex-offenders are denied job licenses, Austin-American Statesman (Apr. 11, 2011)
HUD: Ex-inmates need help to stay off streets in Houston, Houston Chronicle (Jul. 19, 2011)

Although some states are fighting this problem with campaigns like "Ban the Box," our fearless feckless Attorney General is busy suing the EEOC to challenge new guidelines that prohibit employers from making blanket denials of all applicants with criminal histories.
States push to provide some ex-felons a second chance, MSNBC (Jul. 21, 2013)
Texas sues EEOC over federal guidance on employer use of arrest and conviction info, ABA Journal (Nov. 5, 2013)

Think of it this way: every year, over 70,000 people enter TDCJ and over 70,000 leave.  Only 22% of them people were convicted of a violent crime (which includes everything from murder, to sexual assault, to child molestation).  Most are going to prison for a property crime or drug crime.  Over half of them are sentenced to 2 years or less; another 25% are sentenced to just 3-5 years. Most never go back, and the older a person gets (no matter their age when originally convicted), the less likely he or she is to be arrested or incarcerated again.

Fiscal Year 2012 Statistical Report, Texas Department of Criminal Justice

Statewide Criminal Justice Recidivism and Revocation Rates, Legislative Budget Board

With 70,000 people leaving prison every year, what do you think the impact is on their communities when they cannot get a job or a place to live?  That's a hell of a lot of people being disenfranchised from our economy, and they're disproportionately African American and Latino.  It's like a permanent depression.

Does this make any sense from a public policy perspective?  No, it doesn't.  We should be doing everything we can to safely reintegrate ex-prisoners into the world instead of driving them to the edge of desperation.   Is it too blunt to point out they're our neighbors, and we live shoulder-to-shoulder with them just about every day?

Reform prisons by ending mass incarceration

About a week later I appeared on "The Prison Show," a well-respected program that's been around for about 30 years. 'The Prison Show' Helps Texas Inmates Find Escape, NPR (Jan. 16, 2012).

"The Prison Show,"" KPFT 90.1 FM Houston, December 27, 2013

The greatest evils I see in Texas prisons are the result of under-funding.  For the last decade, Texas has had one of the largest prison populations in the country, both in absolute and relative terms. But the Texas legislature is ideologically predisposed to small government and cutting spending.  As a result, the prison system is not given enough money to house its inmates in constitutional conditions.
If Texas justice reforms were so great, why does the state still have nation's largest prison population? Grits for Breakfast (Sept. 5, 2013)

The most expedient way to tackle the worst conditions in Texas prisons (outlined below) would be to reduce the prison population.  It costs $18,500 a year to keep a person in prison, and as I mentioned before, we add 70,000 the prison system every year -- about 7,000 of whom were convicted for mere drug possession.  Those 7,000 people cost $129,500,000 a year to incarcerate.

Take health care, for instance.  Judge William Justice, in the final opinion of the Ruiz v. Estelle litigation, issued in 2001, described extensive expert testimony he received on systemic deficiencies in prison medical care and psychiatric treatment. And things didn't get much better afterwords. TCRP released a report in early 2011, warning Texas prison health care was on the edge of unconstitutionality -- we were spending $9.88 a day on inmate health care compared to California's $28.55 (and California had just lost Brown v. Plata in the Supreme Court, in part because of health care).
Ruiz v. Estelle, 154 F.Supp.2d 975, 987 (S.D. Tex. 2001) 
"A Thin Line": The Texas Prison Healthcare Crisis and The Secret Death Penalty, TCRP Human Rights Report (2011).

Then the Legislature slashed $75 million from the health care budget in the "great budget crunch crisis" called the 2011 legislative session (which turned out to be a false emergency -- panic stemmed from a gross underestimate of the state's projected revenue). If an investigation were conducted of prison health care across all 109 state prisons, I think we would find it is deficient to the point of cruel and unusual punishment.
UTMB set to halt prison health care, Houston Chronicle (Oct. 14, 2011)
A Bad Budget Estimate Fit Nicely With Prevailing Politics, New York Times (Jan. 10, 2013)

Keep in mind, $75 million is roughly the cost of keeping 4,000 people in prison for one year.

Now, consider heat. About 90 of TDCJ's 109 prisons were built after 1980. Most fall into two types -- the "Michael prototype," a high security prison modeled on the Michael Unit; and the "bowling alley unit," named for its straight layout, used for state jails, transfer facilities, pre-parole facilities, etc. Both types generate internal temperatures in the summer that are life threatening for inmates (sometimes rising above 130 on the heat index).

At least as early at 1999, Judge Justice expressed concern about prison heat, when an audit revealed 16 inmates at 13 prisons had recently suffered heat illness, three of whom ultimately died. In 2012, prison heat came to the fore again through TCRP's litigation.  At this moment we are litigating wrongful death cases out of several prisons of both the Michael-prototype and bowling-alley varieties. This means roughly 90 out of 109 Texas prisons are lethally dangerous every summer for every inmate in them.
Ruiz v. Estelle, 37 F.Supp.2d 855, 905 (S.D. Tex. 1999)
Two Lawsuits Challenge the Lack of Air-Conditioning in Texas Prisons, New York Times (Jun. 26, 2012).

Texas isn't alone -- a judge in Baton Rouge, Louisiana recently issued a 102-page order concluding very similar conditions in the Angola prison were cruel and unusual punishment.  He ordered Lousiana to find a way to keep temperatures below 88 degrees in the summer.  You can expect to see something similar in Texas.
Judge rules heat levels on Angola death row subject inmates to 'cruel and unusual punishment', The Times Picayune (Dec. 19, 2013)

Further, last summer, the union for TDCJ officers spoke out in support of inmate heat litigation -- in part because 92 officers suffered heat illness the previous year.  And it didn't help TDCJ agreed to pay $750,000 to build an air conditioned pig barn. It's rare for inmates and officers to agree on systemic prison issues, which illustrates how horrendous the conditions are in the prisons.
Guards to join convict litigation over hot state prisons, Austin-American Statesman (Aug. 29, 2013)
Extreme Heat Tests Prisons, Wall Street Journal (Oct. 17, 2013)

TDCJ officials have tried to explain-away the lethal temperatures by saying many prisons were built before air conditioning was common.  But that's baloney -- the overwhelming majority were built in the 80's and 90's, and those units are also the worst.  Don't overlook the fact that every county jail in Texas is required to by state regulation to keep housing areas between 65 and 85 degrees, year round.

Officials also complain air conditioning prisons would cost $55 million -- which is roughly what it costs to incarcerate 3,000 people for a year.

Finally, look at under-staffing. Judge Justice observed in 1980 that TDCJ's force of correctional officers was plagued by under-staffing and high turnover, primarily because of low pay, and that it threatened inmates' safety. It's not much better today. TDCJ is unable to fill a couple thousand positions because of low pay and suffer high turnover in positions they manage to fill. As a result, it's no surprise Texas has 5 of the 10 worst prisons in the country for sexual assault of inmates.
Ruiz v. Estelle, 503 F.Supp. 1265, 1288 (S.D. Tex. 1980)
Guard shortstaffing extends to Huntsville-area prison units, Grits for Breakfast (Nov. 29, 2012)
Welcome to Texas, prison rape capital of the U.S., Dallas Voice (Mar. 22, 2012).

Meanwhile, just this summer, TDCJ's leadership gave themselves massive raises between 20-40%, as if they were trying to paint a caricature of bad government.  They told the public the raises were necessary to "retain talent," but I'm not sure if the men and women responsible for the problems outlined above warrant keeping.
Texas prison executives’ pay raises trigger new criticism, Austin-American Statesman (Nov. 18, 2013)

Solution: Increase the budget by ending mass incarceration

Sentencing reform would be the quickest and most surefire way to find money to fix the problems plaguing TDCJ.  And it is eminently possible.

Texas' record-setting rate of incarceration is not an accident -- which means it can be reversed.  Texas' prison population increased by 900% between 1970 and 2010, even though the state population only doubled.  It happened because the Legislature began creating new crimes as quickly as laws could be written.  Today we have over 2,500 felonies.  In the last decade alone, the Legislature has created about 40 new felonies each legislative session, which doesn't include increased penalties for existing crimes.
TCRP letter to Sunset Advisory Committee (Nov. 30, 2011)
Texas criminalized uprooting seagrass, legalized switchblades (but not daggers, dirks, stilettos, poniards, or Bowie knives), Grits for Breakfast (Jul. 22, 2013)

But this trend can easily go the other way.  In 2005, the Legislative Budget Board predicted Texas would need to build prisons to house 17,000 new beds at a cost of $2 billion by 2012.  In response, the Lege passed reforms that increase the use of probation and parole.  Those reforms halted the increasing prison population, and actually decreased it slightly.
Levin: Keep criminal-justice reform ball rolling, Grits for Breakfast (Feb. 3, 2013)

The Legislature should use the same strategy to free up resources to improve prison conditions.  If it doesn't, federal courts might force them to.

Community Organizer -- not just an epithet for Obama

This week I attended a 5 day training with the West / Southwest Chapter of the Industrial Areas Foundation (IAF).  It was a great seminar on the principles and tactics of community organizing, hosted on the grounds of a beautiful seminary in San Antonio.  It was a real pleasure to hear lectures from people like Ernesto Cortes, founder of COPS.

What is community organizing?  
It is, fundamentally, an exercise in teaching people their own power, and about creating organizations that will have longevity.

Good organizers are more like tutors than visible leaders (more Merlin than Arthur).  They bring people together, help them identify their common problems, and help them become leaders in their communities. The organizations they create are one of the few vehicles that can help people confront society's power brokers.  They help communities bridge inequities, and level the playing field in public struggle.

Why does it matter to an attorney?  
A person is finite.  No matter how skillful, well-intentioned, or committed you are -- you can only be in one place at a time, you only have so many hours in a day, and someday you will be gone.

A community organization has the potential to live forever.  

And no matter how special [you think] you are, you have to admit, numbers matter.  Organized people and organized money are the root of power in democracy.

And frankly, community members will often do a better job.  We're dealing with their lives, and you would be wise to expect many them understand their problems better than some savior from outside can.  

Our role in changing the world -- when we're not filing impact litigation -- should be to protect and foster community organizations as much as possible.  That could mean applying for 501c3 status; defending SLAPP lawsuits; or anything else to guard their flanks and give them succor while they march toward future victories.

If you're interested, the best couple books I've read on the subject are:

Building Powerful Community Organizations
A Personal Guide to Creating Groups that Can Solve Problems and Change the World

This is an excellent book on the nuts-and-bolts of community organizing.

Seeds of Change
The Story of ACORN, America's Most Controversial Antipoverty Community Organizing Group

This books offers a very compelling vision of the possibilities community organizing offers.  ACORN had some pretty remarkable victories.

The Battle for Austin's Soul: the fight against White Lodging

We all know Austin is going to grow significantly in our lifetimes. The real question is whether everyone's boat will rise together, or if the city will grow on the backs of the most vulnerable people among us. The best way to ensure a fair result for everyone will be policies supporting prevailing wage, affordable housing, public health, etc.

On August 8, 2013, we saw the culmination of an 8 month conflict with developer White Lodging. (Background: Hotel Hypocrite: Developer wants to cancel wage agreement but keep incentives, Austin Chronicle (Mar. 8, 2013)).  The fight over White Lodging was important because it helps build a precedent supporting a just city policy on development.

In 2011, the City of Austin promised developer White Lodging $3.8 mil in tax incentives on a project to build a giant hotel downtown in return for White Lodging's promise to pay its construction workers prevailing wage.  White Lodging took the money but decided to pay market rate wages instead. After it was caught, it asked the City Council to rewrite the ordinance to let it keep the tax incentive without paying prevailing wage.

Worker advocates won the day, 0-7. See Council decides to uphold White Lodging agreement, KVUE (Aug. 9, 2013).

The discussion on Agenda Item 11 dealt with White Lodging.  The full video can be found here: http://austintx.swagit.com/play/08082013-523/#35

 I excerpted my quick words to the Council and uploaded them here:

The Workers Defense Project and Austin Interfaith organized rally and march outside of City Hall earlier in the evening.  It was pretty inspiring.  I posted some photos on Facebook.  I should have taken a video to really capture it.

Fighting to Protect the Community's Voice within AISD

From October 2012 through June 2013, a group of community activists and I fought like heck to protect the role of community in Austin's education system.  It started with a simple complaint, which worked itself all the way up to the Board of Trustees.  This is the story.

Background: Breaking from Segregation

Education is undoubtedly the most valuable asset we can give a child.  Our communities' future hinges on our success or failure.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society.  It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.  In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. Brown v. Board of Education, 347 US 483, 493 (1954)

The Austin Independent School District (AISD) was racially segregated until 1972. That year, a federal court concluded: "AISD has operated and continues to operate a school system which fails to provide equal educational opportunity for Mexican-American and black students" and ordered relief beginning in the 1972-73 school year. U.S. v. Texas Ed. Agency, 467 F.2d 848 (5th Cir. 1972). (Yes, if you're counting, that was 18 years after the decision in Brown v. Board of Education)

I got involved almost 40 years later.  Today, two out of three (63%) children attending AISD schools are economically disadvantaged, one out of three (35%) has a first language other than English, and one out of ten (10%) has a disability to accommodate. (About Austin ISD)

These students face extra obstacles for learning, so their campuses are entitled to special federal money to help teach them.  And yet, AISD diverts that money elsewhere, leaving campuses inequitably funded, and leaving disadvantaged students to suffer.  "Report Highlights Inequities in AISD Funding," Austin Chronicle (Sept. 21, 2012).

The question facing us should not be, "Who do we blame?" but rather, "How do we move forward?" To find the right direction forward, everyone in the community must have an equal voice in the conversation. That is why it was so important to me and the folks I worked with to attack AISD's habit of dictating orders from the top down, instead of working with the community to find answers.

Community Input Ignored

Community involvement is mandated by law.  The Texas Education Code envisions independent school districts in which each school campus’ local community plays an important role in running that campus. The community is supposed help assess academic achievement, set objectives, create a timeline, and measure progress toward meeting those objectives. Tex. Ed. Code 11.253 et seq.  It is supposed to be highly democratic.

Moreover, as a practical matter, the community is essential for a school's success. Schools and communities must engage with each other before schools can understand their students. A child is the product of her community. The time she spends in school is just part of a continuum of factors influencing her education.

School administrators cannot address the whole continuum of factors alone. To succeed, they must harness their community’s time, talent, and creativity to overcome the challenges students face. Schools must reach into that community and understand and engage it before the school and the community can hope to effectively allocate resources to meet their students’ needs. Austin Can - Will Take Care of Its Own Students (2012).

But AISD routinely ignores the will of the community.  A stark example from recent memory was the District's sudden announcement in early 2011 that it planned to close nine schools.  "Some Austin schools may face closure," Austin-American Statesman (Jan. 10, 2011).  The schools were given no forewarning, let alone the opportunity to correct any deficiency AISD perceived as justifying closure. (See Lorie Barzano, video statement at 3:50. AISDComplaint.com).

The announcement caused immediate blow-back, including local parents' creating a coalition ("'Save our school' fight gets creative," KXAN (Jan. 24, 2011)) that played a pivotal role in beating back the proposed closures.  "What the Task Force Wrought: AISD's facilities review became a panic drill of cuts, closings, and contradictions," Austin Chronicle (May 27, 2011).

Parents say AISD not listening, KXAN (Dec. 19, 2011)

The controversy over IDEA came later that year. In spring 2011, AISD crafted a plan to give Eastside Memorial High School and Allen Elementary School to the IDEA charter school group. The plan was essentially fait accompli the day it was publicly announced the following October. (See Vincent Tovar, video statement.  AISDComplaint.com) On December 19, 2011, the AISD Board of Trustees voted to approve the plan.  The decision ignored community opinion and sparked mass opposition.   "AISD Approves Its Big IDEA, 6-3: Board ignores overwhelming opposition to charter proposal," Austin Chronicle (Dec. 23, 2011).

"“Despite efforts to keep discussions civil, the crowd hissed in disapproval several times throughout the meeting and a man was removed by AISD security. The night ended with many in the crowd chanting ‘down with Carstarphen,’ ‘we’ll vote you out’ and ‘boycott IDEA' "  "Despite protests, AISD trustees approve in-district charter school program," Community Impact News (December 20, 2011).

The cold December evening IDEA’s contract was approved, a crowd of community members stood in the rain outside the Board of Trustees’ chambers, chanting in opposition, but the Trustees were deaf to their pleas.

"East Austin kids get put down for lack of parental involvement, and that the students don’t care, but here we had 500 people standing in the rain to express themselves to their Board of Trustees, and they were totally negated and totally disrespected... The Board was completely unmoved." Toni Rayner, video statement at 20:19. AISDComplaint.com

But the following October, the community rose again and this time made its voice heard. Four of the nine Trustees were swept from office. The new Board thereafter reexamined the contract with IDEA and voted to cancel it. East Austin won a rare victory.

But the underlying question -- whether or not communities would be involved in fundamental decisions about their schools -- had not been resolved.

“A Failure to Communicate,” Austin Chronicle (Feb. 8, 2013)

We Filed a Public Complaint

I got involved in September 2012 when I met Steve Swanson, a retired engineer and co-owner of a construction management business, and long-time volunteer in the Austin education community.  He and Robert Martinez had been involved with Eastside Memorial High School for some time as CAC members, mentors and volunteers.  They quickly brought me up to speed.  I decided to get involved as part of the Austin Lawyers Guild.

The irony is that Austin is a liberal community.  Unlike some places in Texas, our local government typically can't take a heavy hand in dismissing community concerns.  Instead, officials distract with glad hands.  They politely ignore dissent, trusting it will blow over.

I recommended using the administrative complaint process to force AISD to acknowledge the community's wishes and go on record with a response.  The tactic fell squarely into our democratic traditions:

"Article I, sec. 27 of the Texas Constitution [of 1876] provides: The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance. […] The early colonists considered the right of remonstrance to be a valuable one. In his famous speech to the Virginia delegates to the Continental Congress on March 23, 1775, Patrick Henry said 'give me liberty or give me death!' only after he had told those assembled: We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne! Having succeeded in their struggle for freedom from a tyrannical government, the framers of the early state constitutions sought to protect the citizens from a reoccurring loss of valuable rights and freedom." Professional Ass'n of College Educators v. El Paso County Community Dist 678 S.W.2d 94 (Tex.App. – El Paso 1984)

On October 11, 2012, I helped file a public complaint with AISD. It complained the District was ignoring its legal duty to include campus communities in school planning.  AISD's system for public complaints is handled in three hearings: a low level hearing, a hearing before the superintendent (or designee), and then a hearing before the Board of Trustees.

Level I Hearing

Concerned parents file formal complaint with AISD
Your News Now (YNN) (November 14, 2012)

Our first hearing was in November.  "AISD Parents Lobby for More Input," KUT (November 15, 2012)

Our message was simple: Steve and Robert saw a problem, tried to work with the District, and were ignored.  That was our complaint.  Moreover, we brought witnesses to testify this was a longstanding, ongoing practice by the District.

The hearing was what we expected: district personnel (and their attorney) sat down with us and listened very politely.  A few weeks later they issued a written decision, acknowledging there might be room for improvement, and making noncommittal statements about ways to improve.

We were not satisfied.  Granted, the suggested changes would have been improvements, but they were vague and there was no time frame for implementing them.  There have been too many instances in the past when the District made promises that were forgotten, and drafted plans left to gather dust on a shelf.  We were afraid the promises to us would be forgotten the moment we walked away if the District didn't make a more definite commitment.  Therefore, we appealed.

Level II Hearing

Our next hearing was in January.  "Parents, volunteers file complaint against AISD," Austin American Statesman (Jan. 24, 2013). The "hearing officer" was Mel Waxler, the District's Chief of Staff.  At first glance, it might strike you as odd that we filed a complaint against the District and the neutral hearing officer was its Chief of Staff.

But in a way, it makes sense.  We were discussing events beyond his day-to-day experience and policies he doesn't directly administer.  And in any event, it was probably inevitable that a complaint filed with the District about the District would be handled this way.

Group files complaint against AISD, KXAN (Jan. 25, 2013)

We were warned before the hearing that our time would be limited.  Therefore, we took the proactive step of gathering video testimony at www.AISDComplaint.com. In many ways, the hearing was more than I hoped for. We met twice and Mel listened to several hours of testimony from the people we brought.  He also brought high-level administrators into the meeting for their input, which was helpful.

(You can read the Level II legal brief here).

Mel's response was issued much later, at the end of April.  District policy requires a hearing officer to issue a written opinion 10 business days after a hearing, but we agreed to several extensions because Mel assured us he was conferring with high-level administrators to make sure he wrote an opinion that could be implemented effectively.

Mel didn't disappoint -- at least not with his "Informal Letter" (we will circle back to his formal opinion in a moment).  His informal letter included several, reasonably concrete promises to address many (though certainly not all) of the concerns we presented him.  Although I would have liked to see him recommend more, I thought his recommendations definitely moved the ball forward -- and in public policy, like football, I believe you win more games by picking up first downs than by throwing Hail Marys.

But again, his recommendations did not tell us when they would be implemented, nor offer sufficient detail to give us a way to tell whether or not they were being implemented.  Nor were we given much confidence by the fact the recommendations were all an informal response to the complaint.  Mel's Formal Opinion was that Steve and Robert's complaint was untimely (filed more than 15 business days after the complained-of conduct).  We disagreed -- we believed the complaint was timely -- but more fundamentally, I think we can all agree that "timeliness," in this case, was just a technicality.

We decided to appeal, and in the spirit of picking up first downs, we decided to make the issue easy: we asked the Board to implement Mel's "informal recommendations" into District policy as a School Community Bill of Rights.

Level III

Our argument at Level III was very simple: "The District administration already said it could do this list of things (from the informal letter) but didn't exactly promise to do them.  Take those recommendations and put them in policy."  We called it the School Community Bill of Rights.

(You can read the Level III legal brief here.)

The proposed bill of rights included a number of procedural mechanisms that would have given Campus Advisory Councils more information; guaranteed them time to do their work; and insulated them from undue influence by a principal and other administrators.  It would have helped them work effectively.

We also noted that institutionalizing the School Community Bill of Rights would address several of the problems identified in an AISD Diagnostic Audit from May 2012 that is colloquially called the “Broad Report." The report recommended a series of steps to build trust and improve campus programming, which we felt could be accomplished with the protections in the bill of rights (this is all explained in the legal brief linked above).

We had our hearing on June 10, 2013.  Since our core recommendation was simple, our arguments focused on the threshold issue -- timeliness.

Complaint Level III Hearing (June 10, 2013)

The Board ruled against us on the technicality -- it decided the complaint was not timely.  

Then something inspiring happened. At about 1:16:22 in the video, after the arguments had ended and the Board started talking, they acknowledged that community engagement had historically fallen short, and they began discussing the steps the Board could take to improve in the future. 

In other words, victory.  It was not a total victory, of course.  But Steve and Robert raised their voices very effectively before the Board; it gave them substantive and respectful consideration; and although the result wasn't exactly what we wanted, the Board committed itself to moving forward in a better direction than the path it had taken in the past.

Epilogue

Following that cold, raining night in December 2011, when the AISD Board of Trustees voted to give the schools to IDEA, the community rose up and replace several Trustees with a slate of reform candidates.  "Direction for New AISD Board?" Austin Chronicle (Nov. 16, 2012).  

That victory belonged to the community.  It was the fruit of a great deal work by community members organizing, canvasing, and getting out the vote.  And it changed the make-up of the Board for the better.

“The future of Eastside Memorial High School is so bright,
we've gotta wear shades,” [said board trustee Jayme] Mathias
Rally at EMHS supports school's new partner
Community Impact (May 7, 2013)

The community, including groups like PRIDE of the Eastside, stayed in the game. They worked with the Board, and through constant pressure, guidance, and support (each in its appropriate measure) accomplished another, somewhat ironic victory.  

The school that had been the symbol of a divided community became a focus of unity.  IDEA had been approved with a heated 6-3 vote, and it was removed a year later in an even more divided vote of 5-4.

But community members and the new trustees began cultivating a new spirit.  They were so successful that six months later, the Board had evolved beyond a balance of power dynamic to consensus -- it was able to reach a new solution for Eastside Memorial that had unanimous support among its members and overwhelming support from the East Austin community.  "AISD Board Picks Johns Hopkins as Eastside Partner: Unanimous vote has community support," Austin Chronicle (May 10, 2013).

That's all to say our complaint was a tiny piece in a much larger puzzle.  But I hope it helped by forcing the issue onto the official agenda; keeping it closer to the forefront of decision-makers' minds than it would have been otherwise; and hopefully changing a few minds, too.

Austin Lawyers Guild program fighting the "School-to-Prison Pipeline" honored by State Bar of Texas

A group of us created the Austin Lawyers Guild's "School-to-Prison Pipeline (STPP) Pro Bono Referral Program" just over a year ago.  The program connects students sent to court for school-discipline issues with attorneys who volunteer to represent them.

The underlying issue is the criminalization of school discipline.  For over a decade, schools have been sending more and more students to court for discipline issues that once would have meant a trip to the principal's office.  Last year in Texas, school police wrote students more than 300,000 non-traffic tickets. Convictions from these tickets cannot be expunged, and they saddle students with permanent criminal records¸ sabotaging their futures.

From Left: Lisa Tatum, State Bar President. Justice Nathan Hecht, Texas Supreme Court. Brian McGiverin.

On July 27, 2013 at the annual Bar Leaders Conference, the State Bar of Texas gave the Austin Lawyers Guild an award for the program.  I was flattered to accept on ALG's behalf, but it really belongs to the attorneys who have volunteered with the program.

You can get involved!  The Austin Lawyers Guild and the Austin Young Lawyers Association are co-hosting a free lunchtime CLE on August 12, 2013,  to teach people about STPP student ticketing cases.

Occupy Austin CTNs: Breaking a Movement Slowly

My mind was drawn to Occupy Austin recently when I read a fascinating story about COINTELPRO activity at the UT campus in the 60's and 70's: The Facts Were Immaterial, Austin Chronicle (June 7, 2013).  NSA and Edward Snowden grab the headlines, but people seem to lose sight of the role of local law enforcement agencies.  They can do a lot of damage to peaceful groups who are doing nothing more than exercising their First Amendment rights.

Occupy Austin was victim of infiltration and disruption by APD.  It only came to light by chance, through the diligent work of a criminal defense attorney in Houston. See APD Infiltrates Occupy: How Many Officers Does it Take to 'Protect' Free Speech?  Austin Chronicle (Feb 23, 2013).  The full of extent of APD's infiltration has not, and might never, come to light.  Nor are we likely to learn more about the similar hints of spying by the Department of Public Safety and private firm Stratfor. Strange Bedfellows Stratfor, the Texas DPS ... and Occupy Austin, Austin Chronicle (Feb 3, 2012).

But I think what ultimately led to the enervation (and perhaps demise) of Occupy Austin was not hidden at all.  It was City's very public use of Criminal Trespass Notices (CTNs) against demonstrators at City Hall.  When it began, TCRP brought a lawsuit against the City, and a federal court ultimately declared the practice was unconstitutional.  Federal judge rules bans from City Hall unconstitutional, Austin-American Statesman (Sept. 27, 2012).

But, unfortunately, the ruling came too late and the harm had been done.  As one article puts it:

Joshua Adair, another protester who had been involved with Occupy Austin since its inception, was also arrested that night and banned temporarily. He said the city’s actions kept away many of the core members and “people who were trying to keep the good vibe of Occupy going.” 

“It massively halted a lot of our momentum,” Adair said. “Once we got banned, it went downhill pretty quickly. It didn’t help anything.”

Id.

Background

Occupy Austin unfolded differently than other branches of Occupy, which often suffered official violence, like in New York (NYPD clash with Occupy Wall Street protesters, make arrests,NBC News (Oct. 14, 2011)), Oakland (Experts: "Occupy" video shows excessive force, CBS News (Nov. 9, 2011)), or even Berkeley (UC campus police move in on student protesters, San Francisco Chronicle (Nov 9, 2011)).

Maybe that's not surprising.  Austin prides itself on being a bit weird.  Folks here embraced the movement in the beginning.  More importantly, law enforcement knew it would be politically disastrous to intervene against the demonstrators with a heavy hand.

Free Speech Plaza - Austin City Hall

The newspapers described an early meeting as "a far cry from Occupy Wall Street.... In Austin, the event took on a much more festival-like atmosphere."  There was a massive gathering in "Free Speech Plaza" in front of City Hall.

"[M]ore than 1,300 people... came together to air grievances about corporate greed, a scarcity of jobs and the growing income gap."

Occupy Austin protesters air grievances without drawing police ire, Austin-American Statesman (Oct. 6, 2011)

Nothing was perfect about the way it unfolded, but democracy has never been advertised as efficient.  It seemed to develop into a pattern in which people intermittently flocked away from their daily lives to join a core group of active, day-to-day participants at City Hall.

"During the day at City Hall — where protesters have set up a 24/7 occupation — signs generally outnumber people. But a closer look at the movement shows more. About 100 people regularly show up for general assemblies. More than 1,000 people participated Saturday in a march to Chase Bank."  Occupy Austin, whirling into action and chaos at a public space near you, Austin-American Statesman (Oct. 19, 2011).

Chief Art Acevedo

 Further, during the month of October, the political establishment's relationship with Occupy Austin seems benign, if not cordial.  Chief Art Acevedo spoke at assemblies more than once -- here on the October 15 march to Chase Bank, and other times, such as in this October 27 YouTube video.

Kathie Tovo

You can also find images such as this: City Council member Kathie Tovo calmly sipping coffee and observing the crowd. Occupy Austin, 2011 A movement in evolution, Austin Chronicle (Dec. 31, 2011).

But by mid October, mayors and police chiefs dealing with Occupy branches around the country were getting fed up.  Several began teleconferencing about strategies to deal with the demonstrators. Mayors and Cops Traded Strategies for Dealing With Occupy Protesters, Mother Jones (Nov. 16, 2011).  

Supposedly (I've heard through word of mouth but have not confirmed with a news story), Chief Acevedo was part of one call, and bragged he had a better way to clean out Occupy Austin.  Whether or not that's true, the City certainly adopted a very savvy, subtle and sinister approach to take apart the demonstration gradually, in a way that would not rile local voters.

Trespass Notices: "Stay away from City Hall"

Late Saturday, October 29 and into early Sunday morning, there was a mass arrest.  37 Occupy Austin protesters arrested, KVUE (Oct. 30, 2011).

Initial reports were confused.  Eventually the City began to claim a building security officer had used a bullhorn to order the Occupiers to leave City Hall plaza for reasons related to cleaning.  When they didn't do it quickly enough, police arrested them for criminal trespass.  City leaders, Occupy Austin protestors meet in private, KVUE (Oct. 31, 2011).

Even though the Plaza was called "Free Speech Plaza," even though it was always meant to be a free speech venue, and even though it was open to everyone 365 days a year for that purpose -- City officials told each arrested demonstrators: "You can't come back for one year."  Sanchez v. Austin, Findings of Fact and Conclusions of Law, Case 1:11-cv-00993-LY (W.D. Tex. Sept. 27, 2012) (Doc. 67, p. 3-4).  A federal court found  the CTNs "effectively serv[ed] as a ban..." from City Hall.  Id. at 4.  

On November 1, 2011, shortly after the October arrests and CTNs, the City issued a written policy that ratified the practice of banning demonstrators from Free Speech Plaza.  Id. at 4.  If any demonstrator returned to city hall, for any reason, he or she would be arrested.  Sanchez v. Austin, Plaintiff's Brief (Doc 48, p. 17).  The number of banned demonstrators quickly jumped from the original 38 arrestees to over 100.

The CTNs didn't prevent demonstrators from joining actions away from City Hall (mostly marches), but they barred them from the center activity. Id at 29.  It's illustrative that they began to call themselves "exiles," limited to gathering nearby at a tiny park that came to be known as "Exile Island."  Occupy Austin’s Free Speech Rights, Radical Militant Librarian (Nov. 11, 2011).

Exile Island, i.e. Margret Hofmann Oaks Park

Added up, this significantly blunted any sort of effective organization. As one commentator put it:

The bans have diluted the activist base at Occupy Austin.... Rules about the food table, as well as other newly-promulgated regulations represent a death by a thousand administrative cuts strategy to end Occupy Austin altogether despite official protestations to the contrary.

Id.  TCRP (along with firm Yetter Coleman) filed suit November 21, 2011, asking for an immediate restraining order against further enforcement of the CTN policy.  The Court demurred, instead setting a full trial on the merits one month later.

TCRP's plaintiffs -- Rudy Sanchez in the center,
and Kris Sleeman on the right.
They were rock stars.

The trial was held over two days, December 21-22.  We urged the Court to enter a preliminary injunction pending its ruling -- but to no avail.

We were ultimately successful... 9 months later.  Federal judge rules bans from City Hall unconstitutional, Austin-American Statesman (Sept. 27, 2012).  Which was much too late to help the demonstrators.

Later events

Occupy Austin was eventually forced away from City Hall. Police evict protesters at Occupy Austin encampment, Austin-American Statesman (Feb 4, 2012).  It happened without reports of violence, and several months later than other branches of Occupy Austin were evicted.

By the time of the eviction, the aura surrounding the group seemed to have changed.  Whatever it had become, it wasn't what it had been at the beginning.



Pictures to the left and below from the October 2011 march to Chase Bank

The CTNs had taken their toll by removing many of the most active and engaged members of the group.  The City accomplished its goal before the federal courts took away their tools.

It reminds me of this scene from the Dark Knight: Who cares if a Court rules against you, if you get what you want in the mean time?

Mayor: "That ain't legal."  Harvey Dent: "So?"