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Opinion

Addressing NYC's School Overcrowding Crisis


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Protesting school overcrowding in Queens


All parents in New York City deserve the peace of mind that their children will be able to attend a school where they can thrive and grow. Unfortunately, following years of neglect from the Bloomberg administration, our city's school system is plagued by school overcrowding and excessive class sizes, where hundreds of thousands of our children simply don't have adequate space to learn.

With education a top priority for the city, it's critical that our leaders take strong action to address the chronic underfunding of our city's school infrastructure. Key to addressing this issue is investing sufficient capital resources in the city budget, as well as improving the current school planning process, which is broken.

Recently, we've had some good news. When the city Department of Education (DOE) released its school capital plan, it included a commitment from Mayor de Blasio to invest nearly $900 million in additional resources to build more school seats. In the same plan, the DOE raised its needs assessment to 83,000 additional seats, given enrollment projections and existing overcrowding. This is closer to the 100,000-seat figure that Class Size Matters estimated in its recent report, "Space Crunch." Together, these two adjustments are a welcome acknowledgement of the crisis in school overcrowding, and we applaud them.

But more should be done. The number of new seats in the capital plan is 49,000—only about 59 percent of the DOE's own admitted need—and New York City's population is growing faster than any other large city in the nation. The mayor is now urging the City Council to adopt rezoning plans to accelerate the construction of thousands of new affordable and market-rate housing units, which will increase pressure on our school system. At this critical moment, the city has a real opportunity to address housing and education together.

Right now, more than half a million students are crammed into over-utilized schools, according to DOE data. In many cases, this means excessive class sizes of 30 or more, a loss of art, music, or science rooms, and a lack of dedicated spaces for students to receive counseling or mandated special education services – no less the wraparound services inherent in the community school model.

According to the analysis in a recent report by Make the Road New York—"Where's My Seat?"—immigrant communities have especially egregious overcrowding problems and even greater unmet needs in the DOE capital plan. In many of the schools in these neighborhoods, children are forced to eat their lunch as early as 10 a.m. or are bused to schools far away from their homes. Many do not have adequate opportunity for physical education because there is not enough space in their gyms.

We need to build, lease, and expand more schools. At least the 83,000 seats that the DOE projects are necessary. In addition, the process of school planning and siting must be made more efficient. There are many communities, like Sunset Park, which have suffered from extreme overcrowding for a decade or more, even though funding to build more schools in the neighborhood has existed in the capital plan, because the School Construction Agency has not been able to site a single one.

According to the DOE, only 15 percent of the school seats needed by 2019 have sites identified and are in the process of being designed. In seven districts, that percentage is zero. The city will fall even further behind in creating seats if the mayor's rezoning proposals are adopted, unless much more is done to build and site schools. A recent Environmental Impact Statement for the East New York rezoning proposal found it would exacerbate school overcrowding, and, along with other changes, drive high school overcrowding in the borough to 109 percent of capacity. Yet the DOE capital plan does not include a single Brooklyn high school to be built.

That is why we are urging the City Council, along with the mayor, to create a commission or task force of experts and stakeholder groups, to propose reforms to the school planning process, so that schools must be built along with housing, instead of decades afterwards. Among the issues to be considered would be reforms to the zoning process, including whether the threshold to consider the need for a new school should be lowered – especially when the schools are already overcrowded; whether the formula used by City Planning to estimate the impact of new housing on schools needs to be updated; whether the city should require impact fees from developers and/or use eminent domain more frequently; and how the trends in lost seats, utilization rates, and enrollment could be made more transparent and more accurate through regular reporting by the DOE.

As Mayor de Blasio repeated in his recent State of the City speech, the goal across our city must be to ensure that neighborhoods thrive. There cannot be successful neighborhoods unless there are schools with enough space for the children in every community across the city to learn and prosper. It's time to invest all the necessary resources and improve the school planning process to ensure the bright future that all of our children deserve.

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Leonie Haimson is the Executive Director of Class Size Matters. Javier H. Valdés is the Co-Executive Director of Make the Road New York. On Twitter: @leoniehaimson @javierhvaldes.

As Teddy Roosevelt Did, 2016 Candidates Drag the Supreme Court Into Presidential Politics


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The Supreme Court (Carol Highsmith, via Library of Congress


The Supreme Court is being drawn against its will into the chaotic 2016 presidential campaign.

Republicans Donald Trump and Ted Cruz dislike the court's decisions affirming Obamacare and gay marriage. Democrats Hillary Clinton and Bernard Sanders object to its Citizens United campaign finance decision. Senate Republicans are threatening to block President Obama's nomination to replace recently deceased justice Antonin Scalia, alleging the appointment would be better left to the next president (a Republican, they hope). Donald Trump was (probably) kidding when he said his sister, Federal Court of Appeals Judge Marianne Trump Barry, would make a credible Supreme Court nominee.

In a recent speech, Chief Justice John Roberts lamented that partisan extremism is damaging the public's perception of the court as an unbiased interpreter of the law that is above politics. People too often accuse the court of taking sides in an issue but all it is doing is objectively judging constitutional merits, he said. "We have no policy views on the matter at all," Roberts insisted.

But dragging the court into presidential politics has a long history.

Theodore Roosevelt was the first presidential candidate to assail the court, during the 1912 contest. TR, president 1901-1909, was attempting to gain the Republican presidential nomination and oust the man who had succeeded him, William H. Taft.

On a speech-making tour in the West in the fall of 1910, he attacked big business. The nation was in the midst of a struggle "between the men who possess more than they have earned and the men who have earned more than they possess."

He lambasted the federal courts for lagging behind the times and criticized them for "a series of negative decisions to create a sphere in which neither nation nor state has effective control."

He cited the 1905 U.S. Supreme Court decision in Lochner vs. New York as a prime example. By a vote of 5 to 4, the court had overturned a New York law regulating the hours and working conditions of bakeshop employees on the basis that it violated the provision of the 14th amendment to the Constitution that no state shall "deprive any person of life, liberty, or property, without due process of law." That amendment, passed in 1868, had been intended to protect the civil rights of newly-liberated African-Americans. But the courts had stretched it so that that "liberty of contract" included the right of employers and employees to work for whatever wages and hours both parties agreed to.

The courts had used this broad interpretation of the amendment to strike down a number of state regulatory statutes. TR knew the Lochner case well. As governor of New York, 1899-1901, he had enforced the bakeshop regulations. As president, he had watched the case come up through the New York State court system. In 1904, the State Court of Appeals validated the law in a decision written by its Chief Judge, Alton B. Parker, who later that same year secured the Democratic presidential nomination and ran unsuccessfully against TR. He followed the case in the U.S. Supreme Court the next year and read the decision, which was written by still another New Yorker, Justice Rufus Peckham. But the president made no public comment on it.

Roosevelt, in 1910, however, declared that the Lochner decision had been particularly egregious because it had ignored the problems that the bakeshop law was intended to address and exercised "the negative power of not permitting the abuse to be remedied." The court had demonstrated that it was "against popular rights" by asserting that "men must not be deprived of their 'liberty' to work under unhealthy conditions....Such decisions, arbitrarily and irresponsibly limiting the power of the people are of course fundamentally hostile to every species of real popular government."

Newspaper editorials and political leaders in both parties expressed outrage at the attack on the court.

Roosevelt, undeterred, went on to suggest something even more extreme, allowing voters to recall judges. He advanced a campaign platform filled with liberal proposals, including federal regulation of corporations, a national health service, and insurance for the elderly (similar to Social Security two decades later). His attack on the judiciary seemed menacing and his other proposals were ahead of their time. TR "startled all thoughtful men and women and impressed them with the frightful danger which lies in his political ascendancy," said the New York Times. Roosevelt failed to get the Republican nomination and went on to found a new party, the Progressive Party, but was decisively beaten in the 1912 presidential contest.

The Lochner decision was influential and was often cited by the courts in striking down state and federal regulatory statutes until 1937, when it was in effect repudiated in the decision of West Coast Hotel vs. Parrish.

Supreme Court Justice Rufus Peckham, in his opinion in the 1905 Lochner case, insisted, a little defensively, that "this is not a question of substituting the judgment of the court for that of the legislature." But TR lambasted the court in 1910 for doing just that. John Roberts, at his confirmation hearing to be Chief Justice in 2005, pointedly disagreed with Peckham's assertion a century earlier. Roberts said that the majority in the Lochner decision was "not interpreting the law, they're making the law...substituting their judgment on a policy matter for what the legislature had said."

Roberts was probably right. Theodore Roosevelt would certainly agree.

But Roberts probably shouldn't be surprised, then, that 2016 presidential candidates are criticizing his court, following the precedent set by TR back in 1910.
They believe the court's objectivity has been tarnished.

And, also like TR, they think they see an easy opportunity to score political points.

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Dr. Bruce W. Dearstyne's latest book is The Spirit of New York: Defining Events in the Empire State's History, published in 2015 by SUNY Press.

Will the Democrats' Fresh Entitlements Lift Poor Families?


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De Blasio on a school visit (photo: Ed Reed, Mayoral Photography Office)


Circle time at preschool teaches much about civility and unity, how best to contribute to a pint-size society.

So when little Lela whispered from the corner, "I'm ready to come back," teacher Katie Wassel in Washington Heights figured lesson learned, the 4-year-old rejoined a tight crescent of fidgeting peers seated on a colorful rug. You can't elbow your neighbor at circle time.

Hillary Clinton draws a wide and inclusive circle all her own, pitching fresh entitlements to ease the financial angst of families – parental leave, universal pre-kindergarten, tuition-free community college – and nudged leftward by young voters, many women, Senator Bernie Sanders, and diehards who continue to 'Feel the Bern.'

Fiscal conservatives warn of ballooning costs for existing social guarantees. But a thornier question confronts Democrats: Might they inadvertently worsen inequality, rather than close disparities between poor and well-heeled families?

Take Mayor Bill de Blasio – poster boy for novel entitlements – and his well-meaning spread of free pre-K for all families, no matter how rich or poor.

His original yarn was a tale of two disparate cities. "The best and the brightest are born in every neighborhood," he declared after winning election, seeking to narrow early gaps in children's learning. A half-century of research findings does show that quality preschool can lift impoverished children.

But Mr. de Blasio pushed for a universal benefit, crawling out on a thin policy limb, ignoring three national studies, including my own with Stanford economist Susanna Loeb, that discern just minuscule and fading effects of pre-K for children from better-off families.

Why? Because most middle-class parents – two-thirds of whom nationwide already enjoy access to pre-K – offer important nurturance at home as well. And if the mayor's pre-K proves to elevate all kids, how would this narrow gaps in children's early growth?

The mayor's fuzzy logic reveals a deeper dilemma for Mrs. Clinton and Democratic candidates: How to rekindle opportunity for the middle class, while delivering on their perennial promise to lift the poor.

White Americans have seen their earnings slip by 3 percent since the late 1990s, falling to $60,300 in mean wages last year. But total income ticked upward, thanks to middle-class tax cuts and rising aid for health care, says the Congressional Budget Office. In stark contrast, nearly 24 million children under age six live below or near the poverty line. Affordable pre-K remains out of reach for half these families.

More than 103,000 four-year-olds populate New York City and are eligible for preschool. Mr. de Blasio has added more than 38,000 full-day pre-K seats citywide, totaling more than 68,500, many in depressed parts of the city. But over 30,000 potential preschoolers remain outside any public program, two-fifths being raised in the city's poorest neighborhoods.

Entitlement hawks also teach us that one size can't fit all, especially when serving the nation's kaleidoscopic variety of families. At first Mr. de Blasio aimed to mainly enlarge the count of preschool seats in city schools, pleasing the teachers union but stirring protests from the city's 1,900 private, mostly nonprofit pre-K's, which have resisted cookie-cutter programs for over a century.

Take parents who prefer half-day pre-K, allowing quality time at home for parent and child, but who now lose their subsidy, given the mayor's insistence on full days inside classrooms. Jewish educators seek more instructional time to advance religious teaching. Charter schools last month appealed Albany's siding with the mayor that he, not charter authorizers, can regulate independent pre-K programs.

New York's experiment also reveals the risk of obsessing on what's new and shiny when regimented entitlements arrive. The mayor largely ignored existing supply, incenting middle-class parents to migrate into tuition-free preschools. This emptied up to 14,900 children from older programs, rather than widening access - what economists dub a substitution effect. "We lost two full classrooms of 4-year-olds," said Don Williams, manager of a Midtown pre-K.

President Obama and Republican governors, like Michigan's Rick Snyder, dodge the risks of unbridled entitlements, opting to expand pre-K access for poor youngsters, while easing middle-class costs via tax credits. A rising count of companies, from Netflix to Goldman Sachs, help shoulder the burden of essential human supports: from paid leave for parents nurturing a newborn to insuring security in old age.

Instead, untethered entitlements go awry when benefits tilt toward better-heeled players, say how price supports for farmers became welfare for the well-off, or when taxpayers underwrite pre-K or high-priced universities for parents who can afford to pay.

The campaign season may prompt serious debate over the future of entitlements, along with how to bolster working families. But as Mrs. Clinton and leading Democrats embrace new social guarantees, pursuing middle-class voters, they should be honest about who they aim to buoy and who they would leave behind.

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Bruce Fuller, professor of education and public policy at Berkeley, is author of Organizing Locally (University of Chicago Press).

A Budget for Immigrant New York


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photo via Make The Road New York


Growing up in Puebla, Mexico, I was raised to believe that all families, and all communities, deserve their fair share.

Since immigrating to New York, however, I've seen clearly that immigrant communities here often get far from their fair share. Immigrant communities like Woodside, Queens, where I live, too often lack the basic infrastructure and opportunities that residents need—good schools, safe and affordable housing, access to good-paying jobs, and more. We just get the short end of the stick relative to better-off neighborhoods.

As I've followed recent political debates in our state, I've learned that a lot of that has to do with the state budget. The budget, more than anything else that happens in our state each year, has an enormous bearing on shaping the priorities of our state government and determining which programs and regions will get the funding that they need. The budget determines funding for everything from education to housing to health care. And, with more and more policy decisions getting inserted into the budget in recent years as a way of getting around Albany's dysfunction, the budget is actually now the biggest policy-making vehicle in our state.

That's why, this year, my fellow members of Make the Road New York and I are calling for immigrant communities across the state to get our fair share of the state budget. In a new report that we released this week, "A Budget for Immigrant New York," we call for greater equity across the budget, so that immigrant communities can thrive as they deserve.

The report highlights 25 items, but my own story shows why three are so important.

First, we call for the state to include in its budget an increase in the minimum wage to $15 per hour as soon as possible, with indexing to inflation. As a minimum wage earner, my dream has been to improve the lives of my four children, but the wages I earn are too low for me to do that. The truth is, on my wages it is impossible to get ahead in this expensive state. Raising the minimum wage to $15 per hour for me is an issue of survival. A $15 minimum wage would mean enough food in my house at night for my family, and peace of mind that I could begin to meet all of our other needs.

Second, we call for an increase of $2.9 billion in new school aid. As a parent of four, I worry every day about my children's education, and it pains me to see them attending schools that don't have all the resources they need. Under-resourced schools like theirs are not the exception—they are the rule. We need billions of dollars in additional school aid, and it must prioritize high-needs school districts.

Third, immigrant adults need the opportunity to fully integrate themselves in their communities through adult literacy programs. I'm currently enrolled in an English class that I know will help me engage better with my children's teachers and find a better job, but too many other immigrants can't access classes because there is not enough state funding. We need $17 million in adult literacy funding in this year's budget.

On these issues and so many more, this year's budget offers an opportunity to do more for immigrant communities in desperate need. We need leaders in Albany to step up to make sure that we get our fair share.

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Cristina Molina is a member of Make the Road New York, the largest grassroots community organization in New York offering services and organizing the immigrant community. On Twitter: @maketheroadny

Ten Days in the Life of a Police Reform Advocate


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PROP volunteers, including the author (photo: @PROPNYC)


In a recent ten-day period I had experiences that taught me new things about bad NYPD practices, reinforced my cynicism about the lame way that mainstream politicians, including officials who self-identify as progressives, posture on policing issues, and strengthened my determination to press aggressively for fundamental and meaningful changes in NYPD policies. My organization, PROP - the Police Reform Organizing Project - continues to monitor NYPD practices and advocate for real change.

*On a monitoring visit to the Brooklyn criminal court -- PROP representatives and volunteers regularly observe proceedings in the arraignment parts of the city's criminal courts as a way of tracking NYPD 'broken windows' arrest practices -- I stood on a line of about 45 people waiting to pass through the metal detector. I was the only white person -- everyone else was African-American or Latino, the vast majority of whom dressed in clothes suggesting that they were members not of the well-to-do professional class, but of the low-income or working classes.

*On that morning, the Brooklyn misdemeanor arraignment part heard 34 cases, all men of color whom the police had arrested and locked up. Each of these men walked out of the courtroom, meaning essentially that no court official, including in most cases the prosecutors, considered the defendants dangerous or predatory. The charges included suspended license, theft of services (usually fare-beating), marijuana possession, disorderly conduct, and open alcohol container.

*At a meeting later that day, a fellow police reformer reported that he had recently attended a police/community meeting where neighborhood residents had a discussion with officials from the local precinct. The community members expressed concern about a recent armed robbery and asked what the police were doing about it. The officials responded by saying that they were "summonsing like crazy," meaning that police officers were issuing many criminal summonses to people in the neighborhood for representative 'broken windows' infractions/activities like being in the park after dark, littering, carrying an open alcohol container, or riding a bike on the sidewalk. Community members raised the pointed question: But what are you doing to actually investigate the crime and catch the perpetrators?

*At a meeting with a journalist and me, a police officer who is considering coming forward to publicize the ill effects of the NYPD's quota system on officers and New Yorkers alike, reported on the following matters: under the pressure to "make their numbers" each month, some officers working in a precinct with a cemetery within its borders will issue what are known as "cemetery summonses," meaning that they will enter the graveyard and write up tickets with the names of dead people that that they find on the tombstones. Some precincts - those that serve white well-to-do areas, for example - have no quotas. One of the first questions that an officer new to an inner-city precinct asks is: "What is the number?" And, again under the pressure of the quota system, some officers will for most of the month ignore a neighborhood "hot spot," a place where crime such as drug dealing or prostitution takes place in the open, and if they have not met their quotas, will round up the people at those sites at month's end.

*A PROP volunteer, a teacher who instructs students at night classes in the City College system, reported the following stories that he heard during a class discussion about discriminatory NYPD practices: two students of color, both women - one African-American and the other Latina - recounted unsettling encounters with officers on select buses in the Bronx. In one case the woman couldn't at first find the receipt when the officer approached her, so the officer began writing up the summons; she did eventually find it, but when she displayed it, the officer said that it was too late, that he had already filled out the ticket; she has refused to pay the fine and plans to fight the ticket. In the other case, the woman made a mistake in pressing the buttons of the ticket machine at the bus stop and ended up with 2 tickets for handicapped people which totaled the same amount, $2.50, as a regular ticket; the officer still issued a summons and, in this case, rather than take the time that she couldn't afford to oppose the summons, the woman paid the fine.

*PROP released an analysis of the NYPD's misdemeanor arrest practices for 2015, revealing that 87 percent of those arrests involved people of color compared to 85.8 percent in 2013 and 86.5 percent in 2014. To demonstrate the blatant racism associated with these practices, we focused on some specific kinds of arrests including theft of services, or fare-beating, which at 29,198 was the NYPD's most numerous arrest category for last year. Fully 92 percent involved people of color - in fact, in our year-and-a-half of court-monitoring work, we have observed only a handful of white defendants charged with theft of services. Spokespeople for City Hall and the Police Department made statements in response focused on safety on the subways, but that did not address the extraordinary racial imbalance reflected in the numbers that PROP had spotlighted.

Despite these numbers and accounts that demonstrate the undeniable racial bias and deep injustices involved in the NYPD's current application of quota-driven 'broken windows' policing, our city's leading politicians, including Mayor Bill de Blasio and City Council Speaker Melissa Mark-Viverito, announce and occasionally enact the softest kind of modifications that do nothing to fundamentally change or end the NYPD's abusive and discriminatory practices.

Out of political considerations - it would be too risky to promote the fundamental police reforms needed - they have effectively abandoned one of their main constituencies: low-income New Yorkers of color, leaving them to the harsh treatment and societal marginalization that result from the practices and policies of the NYPD and the city's criminal justice system.

It is up to us police reformers and other concerned New Yorkers to keep hammering away at these issues. Despite our frustration and disappointment of the moment, we know that silence will kill all hope of achieving our shared goal of a fair, safe, and inclusive city for all New Yorkers.

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Bob Gangi is Director of the Police Reform Organizing Project. On Twitter @PROPNYC.

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Peter Liang’s Conviction Shouldn't Be Dividing the Asian American Community


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(Diana Robinson/Mayoral Photography Office) 


Rookie New York Police Department Officer Peter Liang was on patrol in an East New York housing project in November 2014 when a bullet from his gun ricocheted off a wall and killed 28-year-old Akai Gurley, a black man. The uproar over Gurley’s death culminated in Liang’s conviction of second-degree manslaughter this month, provoking an unusually strong but misguided reaction from the Asian American community.

The anger boils down to the notion that Liang was the subject of selective prosecution. In other words, he did not go through the same judicial process as the white officers who have gotten away with killing young black men. Framing Liang’s conviction in this context is not only insincere but misleading. If we were to follow this trend of unaccountability, we would essentially call for Liang’s freedom—something that would run counter to the concept of justice and, more importantly, devalue Gurley’s life.

We need to consider whether this incident actually illustrates discrimination against Asian Americans or reinforces the reality that white police officers are not being held responsible for the loss of black lives. If the goal of the recent rallies across the nation is to indeed raise awareness of the latter problem, then opponents of Liang’s conviction should have organized long before his trial. Demonstrating now, as New York Times Magazine contributor Jay Caspian Kang succinctly puts it, “deforms the stated intentions.” It also comes across as self-serving rather than a righteous stand against injustice.

I say this in light of the more evident challenges that Asian Americans face. We are unfairly pitted against our black and Latino peers as the “model minority” and perceived as perpetual foreigners. The list of such bigoted behavior against Asian Americans is well-documented. Sadly, however, it has also prompted an unnecessary victim mentality—one that now suggests that Liang is an example of how Asian Americans, like black people, suffer from a miscarriage of justice.

Our status as a minority does not automatically give us the right to share in the experience of others who are more heavily affected, as Asia Times contributor George Koo would have us believe. The truth is that Asian Americans, as a whole, are far less likely than blacks to be targeted by law enforcement or incarcerated. We cannot liken the severity of Liang’s conviction to the death of Eric Garner or Michael Brown, whose passings sparked serious conversations on our country’s execution of criminal justice. We cannot say that Liang and Gurley are both victims. Liang killed a black male; Gurley was a black male who was killed.

When I think of incidents in which our system has actually betrayed Asians and Asian Americans, I am immediately reminded of Vincent Chin, whose deadly beating in 1982 by white auto worker Ronald Ebens and his stepson resulted in just a penalty of three years of probation and a fine.

I think of Cau Bich Tran, whose shooting by Officer Chad Marshall in 2003 failed to lead to an indictment. I remember the death of Fong Lee, whose family burst into tears after Officer Jason Andersen was acquitted of using excessive force back in 2006. These are explicit instances in which I question whether Asian lives matter too.

To somehow portray Liang as the unfair target of what was ultimately a standard legal procedure is a disservice to Gurley, Garner, Brown, Chin, Tran, and Lee. We cannot choose to suddenly designate ourselves as a marginalized minority when the merit of the facts in Liang’s case clearly outweigh the connection we have to him as Asian Americans. Liang and I are of the same community, but his particular crusade is not mine.

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Justin Chan is an editorial production associate at The New Yorker. He most recently served as a columnist at Mic, where he explored the media's emasculation of Asian American men and the rise in spending among Asian American youth. You can follow him on Twitter @jchan1109.

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Protecting Freelancers: Policy Innovation at Work


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Freelancers Union rally 


In 2012 when I started bringing cases under the New York Labor Law and the Federal Fair Labor Standards Act the hot area was "independent contractor misclassification." Employers in the "on-demand" economy were (mis)classifying their employees as independent contractors to avoid paying overtime or, in some cases, the minimum wage. Employers did not have to buy unemployment insurance, workers compensation, or pay the employer portion of payroll tax (FICA). Over the next few years, almost every player in the on-demand economy would be sued for employee misclassification.

Eventually, companies began to figure out they were better off correctly classifying their workers as employees rather than risking large damage awards. We got our clients a fair deal because we had statutes that provided strong protections in the New York Labor Law (NYLL) and Federal Fair Labor Standards Act (FLSA).

During the years I was busy with employee misclassification cases, another type of client kept trying to retain me. They were photographers, consultants, writers, website developers and many other professionals, some operating as freelancers and some with small businesses. They were not covered by the NYLL or FLSA because they were independent contractors, not employees. Yet they were the victims of wage theft, too.

Their debts were sometimes small ($500) and sometimes quite large ($25,000) but the story was always the same: the freelancer or independent contractor worked, was paid about half their fee, and then the client, sometimes giving excuses, other times just disappearing, never paid the rest. The freelancers who sought me out were not an anomaly: The Freelancers Union estimates that about half of the 54 million freelancers in America in 2014 had trouble getting paid, and that 34% of those who had trouble getting paid were never paid a dime of what they were owed.

It became apparent to me that the lack of practical remedies to freelancer wage theft contributed to the problem. Unlike the landlord, utility company, or other vendors who could simply stop service if they were unpaid, freelancers had no real recourse. As a result, they were paid last, and if money ran out, they were the ones left unpaid. Legal action was impracticable because unlike cases brought under the NYLL and the FLSA, there were no additional damages available as a penalty for non-payment, no attorney's fees, and no liability on behalf of the owner of the employer.

Lawsuits for unpaid wages under $5,000 needed to be in the Small Claims Part of the New York City Civil Court as breach of contract matters. Breach of contract cases in the civil court (up to $25,000) and in the Supreme Court (above $25,000) were subject to expensive filing and service fees, not to mention myriad requirements meant to assure procedural fairness. The freelancer also needed to enforce the judgment themselves, a time consuming and potentially expensive process. The amount of the loss rarely justified the huge legal fees required.

One innovative solution was my new company Indepayment, a comprehensive platform for freelancer debt collection. Indepayment aggregates debts owed to freelancers and independent workers to create a steady stream of cases for commercial collection attorneys and debt collectors who work on volume and collect on contingency. Indepayment operates nationally, and has been growing exponentially since we started collecting debts in June 2015. We're also working with the Freelancers Union to educate freelancers about avoiding non-payment.

The New York City Council has put forward another innovative solution, in the form of a bill, Intro. 1017. Sponsored by Council Member Brad Lander and now supported by 28 Council members, it creates a statutory remedy for freelancer wage theft that provides for double damages, attorneys' fees, and civil penalties which mirror the remedies available under FLSA and the NYLL. The bill requires that freelancers have a contract, and makes it a violation not to pay or to pay after 30 days unless otherwise agreed. If passed into law, these would be significant new protections for those in the growing freelance economy.

Causes of action under the new law could be brought in addition to breach of contract matters in Court. In addition, freelancer wage theft matters are treated as violations of the city Administrative Code adjudicated by the Department of Consumer Affairs (DCA). Establishing a DCA administrative process alleviates some of the procedural complexity, delays, and costs associated with bringing cases in Supreme Court and Civil Court.

In addition, because the collectability of court judgments is sometimes difficult, the city's enforcement of violations is an important feature. The administrative process and the provisions of the bill that require reporting to the city of civil actions will allow the city to keep detailed records of wage theft recidivists and understand the scope of the wage theft problem in New York City.

Although the bill could go further – for example the NYLL and FLSA have provisions that make the owners of the employers liable for wage theft – it's a great start. Intro. 1017 deserves our support because our innovative and evolving freelance workforce deserves innovative solutions to guard against wage theft and protect its livelihoods.

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Jesse Strauss is an attorney based in New York City and Founder and CEO of Indepayment.

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Shut Down the Criminal Court


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City Council Speaker Melissa Mark-Viverito should be commended for using her State of the City address, titled "More Justice," to call for criminal justice reform. She rightly observes that "we need more justice in the justice system" and ticked off some specific goals, including reducing the population at Rikers Island, creating civil procedures for minor violations, and improving the warrant process. However, the speaker must aim higher if she truly wants "more justice." More specifically, just as she referred to the "dream" of shutting down Rikers Island, so too should she call for abolishing the present Criminal Court.

While the tactics of the NYPD have been subject to vigorous debate, and the horrific conditions at Rikers Island have been increasingly exposed, the Criminal Court, the entity that reviews arrests and metes out sentences, has been free from any serious scrutiny.

Last year, about 350,000 people were arraigned in the city's Criminal Courts. More than 90% of the defendants were black or Latino. Only 14% of the cases were felonies and owing to Police Commissioner Bill Bratton's devotion to "broken windows" policing, misdemeanors and violations accounted for a whopping 81%. Almost 60% of those cases ended at arraignment, the accused's first appearance before a judge - a moment in time when the prosecutor, defense attorney, and judge don't know much of anything about the charges, the accused, the arresting officer, or any actual victim. This is not anyone's conception of a "court."

The speaker's call for "more" justice assumes there is already some amount present. It is hard to imagine the word "justice" occurring to anyone observing the court in action. Instead, it is as it has always been – an assembly line concerned primarily, if not exclusively, with rushing through cases. It is no secret that court administrators regularly evaluate judges on the speed with which they move their calendars and the number of guilty pleas they obtain in the process.

Most people assume that the Criminal Court adjudicates guilt or innocence with witnesses testifying under oath, an attentive jury, and a judge at the helm. In fact, there are virtually no jury trials in the Criminal Court as defendants are pressured in myriad ways to plead guilty or resolve their cases in any way other than a trial.

Consider this – the average time citywide from arraignment until the start of jury trial is 570 days. In the Bronx it is 826 days. Who can languish in jail or repeatedly come back to court for that long a period of time without experiencing emotional strain, missed work, missed school, etc.?

More deliberately pernicious is the time-honored "trial tax" – defendants are aware that they will get severely sentenced if convicted for having the temerity to exercise their constitutional right to a trial by jury. The result? In 2014, there were only 175 jury trials in the entire New York City Criminal Court (about 1/20 of 1% of the cases that entered the court the same year). On the other hand, there were about 175,000 guilty pleas.

Most people assume that the Criminal Court adjudicates the constitutionality of the arrest, as even non-lawyers are familiar with the prohibition against illegal search and seizure. However, pretrial suppression hearings, where officers testify under oath and judges determine whether they acted legally, are as rare as jury trials. It took a trial in federal court for a judge to find that the NYPD was engaging in hundreds of thousands of violations of the Fourth Amendment and the Equal Protection Clause. If the Criminal Court focused on its role as protector of constitutional rights and less on its self-imposed mandate to speed through cases, the stop-and-frisk debacle might have been stopped in its tracks years earlier.

What, then, does the Criminal Court actually do? Twenty-five years ago, a colleague examined Criminal Court data and argued that the court didn't do anything of substance. He found that the court failed to assure that persons accused of crime are accorded their rights under law, failed to seriously assess guilt or innocence, failed to mete out any kind of meaningful sentence to those ultimately convicted, and cost the taxpayer a huge sum of money. He pointed to the lack of adversarial litigation and concluded that the Court's essential function was taking guilty pleas to minor charges. As a result, he suggested it should be abolished.

I disagreed then, and still do now, with his finding that the Criminal Court didn't do much of anything significant. The Criminal Court does many things. Daily, it processes a multitude of young men of color, saddles them with arrest or criminal records, and renders them less employable, less likely to get into college, less able to get loans, less able to get licenses, etc. That reality breeds frustration, pain, anger, and alienation.

The Criminal Court brings in revenue. Ferguson, Missouri is not the only city that grows its coffers through its criminal justice system. In 2014, fines, surcharges, bail and related fees netted $31,884,569 - that's just under $32 million.

Ultimately, the Criminal Court is a highly efficient instrument of social control that maintains the status quo (or, as our Mayor might say, it perpetuates a tale of two cities).

Yet, while I reject my colleague's conclusion, I agree wholeheartedly with his ultimate recommendation -- the Criminal Court should be abolished. This goal is not so far-fetched. Consider that while advocates for prison abolition were initially seen as wild-eyed dreamers, we now hear that Speaker Mark-Viverito's "dream" of shutting down Rikers Island even has the support of New York Governor Andrew Cuomo.

Mayor Bill de Blasio conceded that the Criminal Court needed to be re-examined several months ago when he announced his "Justice Reboot" initiative. However, meaningful change requires more than shutting down and restarting or tinkering with the same basic program. The usual slate of reforms offered to improve the Criminal Court – generally centered around the supposed need for swifter dispositions – will accomplish little. A reduced backlog won't change the color of the defendants nor the continued meting out of unnecessary and undeserved criminal records.

Speaker Mark-Viverito recognizes the dysfunction that characterizes the Criminal Court. She is creating a commission, headed by New York's former Chief Judge Jonathan Lippman, charged with re-imagining "our entire criminal justice system."

To his credit, Judge Lippman has already promised to "pull no punches." That is exactly the right approach. The Criminal Court hasn't been fundamentally changed since its inception in 1962 and has repeatedly been referred to as a system in crisis. It is well past time for a new approach that focuses on assessing the nature and quality of justice delivered instead of the quantity and alacrity of cases disposed. Isn't that the true measure of a "court?"

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Steven Zeidman is a professor of law at CUNY School of Law.

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No Surprise Uber Drivers Are Protesting


taxi TLC

photo via the NYC TLC


Uber’s New York City drivers continued to rally against the company last week at City Hall — and it was no coincidence that recent reports show most Uber drivers don’t like their jobs.

In a new survey of Uber drivers published this month, less than half said they enjoy driving for Uber. Almost 40 percent of the drivers said they “strongly disagreed” or “disagreed” with the survey’s question about whether they were satisfied with Uber.

That survey included drivers from big cities across the country, but we know the major reason why New York Uber drivers are angry — 15 percent fare cuts that have made it impossible for them to make ends meet. Angry drivers here in the city have also called on Uber to stop taking a huge 20 to 25 percent cut of all their fares and add a tipping option to the app.

One might assume that a company that cares about its working-class drivers would take all these concerns seriously and address them immediately.

But Uber has shown its true colors by responding with a PR campaign aimed at convincing drivers that fare cuts are great and they should be happy with what they get.

That kind of callousness should offend all New Yorkers. We have all seen what it’s like to work for a rich company that cares more about the bottom line than the welfare of its workers. Uber’s disregard for its workers should also serve as an important reminder of why numerous driver protections — including strong wage protections — already exist in New York City’s taxi industry.

The fact is that industry regulations — developed over many years by government officials and medallion owners — ensure that taxi drivers never have to face the problems that are forcing Uber’s New York City drivers to protest and even go on strike.

No one can reduce a taxi driver’s fare because that is illegal. The government cannot take up to 25 percent of a taxi driver’s fares because that is illegal.

Additionally, the taxi industry encourages riders to tip generously by offering suggested tip amounts through the payment system mandated within each cab.

Taxi regulations are simple and straightforward. No one can blame Uber drivers for wanting the same protections in the workplace. But who should be blamed for the fact that those protections don’t exist?

The blame should really be shared between Uber and the city’s Taxi and Limousine Commission - the latter has failed to address this and many other double standards that exist between Uber and the taxi industry.

Since Uber has shown it is unwilling to respect its working-class drivers, even as they continue to protest, the TLC has a moral and legislative duty to act by imposing real regulations that create parity between Uber and the taxi industry.

The TLC was created not only to protect the general public but all of its stakeholders, and over the past several years the TLC has vastly increased driver protections throughout the industry — except when Uber is involved. Uber continues to receive a pass from the TLC in avoiding all of its regulations, including fares, accessibility, driver protections, vehicle choice, branding of cars for public protection, paying a state tax to support the MTA, surge pricing, and more.

Until the TLC creates an even playing field for drivers, the public, and the rest of the for-hire industry, Uber drivers will continue to be dissatisfied and struggle to earn the money they need to support themselves. That’s no longer a claim — it’s a fact.

And as long as Uber ignores drivers and the TLC fails to solve the problem, there is always another option for angry Uber drivers. We would be happy to have them join the taxi industry and gain the same wage protections that yellow cab drivers have enjoyed for so many years.

It looks like the door to Uber’s front office is closed to workers. Ours is open.

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David Beier is the President of the Committee for Taxi Safety. On Twitter @CommTaxiSafety.

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Special Election Shows Need for Democratization


silver seat KALC

Charles Youn, executive director of KALCA, speaks at a press conference


Any good democracy should reflect a society’s diversity in its leadership. The undemocratic way in which the 65th Assembly District special election is unfolding should galvanize all communities, particularly underrepresented ones, to push for reforms and encourage underrepresented New Yorkers to be more civically engaged.

America does not always have accurate and inclusive representation in government. This is especially true in state legislatures. A few weeks ago, a study released by the New American Leaders Project found several distressing trends. Although 38% of the U.S. population identifies themselves as people of color, only 6% of state legislators come from such a background.  Furthermore, the New American Leaders Project’s survey of non-white legislators found that during some of their campaigns, they were actively discouraged from running by their own political party.

This problem is painfully apparent in New York. For the past 40 years, Sheldon Silver ruled over the 65th Assembly District, commonly referred to as a majority-minority district. This district includes Chinatown, a neighborhood that has steadfastly served as the epicenter of growth and opportunity for many Asian immigrants since the 1900s.

Silver is said to have had a vice-like grip on his seat, and only released his hold when the courts forced him to leave upon a federal corruption conviction. His departure and the subsequent special election should have given New Yorkers the opportunity to vote for new candidates who actually reflect their community. However, residents of the district were robbed of that opportunity.

Since the announcement of the special election, the deck was stacked against any possible candidate outside the local political machine, one which Silver still controls. On January 30, despite the protests of the media and good government groups such as Common Cause New York, a special election date of April 19 was announced, which was five months earlier than the strongly suggested September 13 New York State primary date. Just a few hours later, local blogs and newspapers revealed that the Democratic County Committee, a subset of the state Democratic Party, would determine the Democratic nominee for the special election in one week, effectively ending an election just seven days after its start.

The candidate the local county committee selected on February 6 was Alice Cancel, the wife of the Democratic County Committeeman and political club boss of the Lower East Democrats, John Quinn. Cancel has had no qualms praising Silver.

The quick and fixed process prompted one candidate, Yuh-Line Niou, to refuse to be considered for the Democratic line, stating that “this process is not one anyone would have chosen to reflect the diversity of our district, and to be fully democratic.”

The election in April will be a farce, with only one name on the Democratic ballot line in a district where Democrats outnumber Republicans 8 to 1. Come fall, the Democratic pick will have an incumbent advantage, and Chinatown may once again be represented by someone who has not democratically earned the right to do so.

This is a mockery of American democratic values, and we must all act to ensure it does not happen again.

There are two ways we as concerned citizens can do so. First, push to adopt the policy recommendations from Citizens Union’s 2013 report on political clubs to curb excess influence over institutions like the Democratic County Committee. The report found that the financial and personal ties within and among political clubs, machines, and individual politicians were suspect and strong. For example, during the 2011 federal trial of former City Council member Larry Seabrook, it was discovered that he had used the Northeast Bronx Democratic Club as his personal ATM. To fix this, Citizens Union recommended that a political club’s financial activities be transparent and regulated.

Citizens Union recommends, among other things, defining precisely what constitutes illegal coordination between political clubs and candidates’ campaigns.

Secondly, underrepresented communities must become more civically engaged. During the midterm elections in 2014, Asian-American voter turnout was abysmal—only 4% of the eligible population voted. We can and must do better.

Civic engagement does not start or stop at the polls. Being engaged means joining a community board, voting in primaries, participating in candidate forums, reading political news, and joining organizations that advocate for people’s rights.

What has happened in Chinatown proves that now is the time for our underrepresented communities to get involved and make a difference.

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Serin Choi is the Advocacy Chair for the Korean American League for Civic Action, a non-partisan non-profit organization that advocates for increased Asian leadership in the public sector.

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Safe and Healthy Housing for All New Yorkers


housing march parade

(photo: Ed Reed/Mayoral Photography Office)


I just can't take the mice and the mold anymore.

For years, I have lived in a Staten Island apartment in desperate need of repair. I live there with my daughter, and we've constantly struggled to get our landlord to fix the problems that make our home an unhealthy place to live.

Over the past six years, we've frequently gone without heat and hot water, faced endless mold growing in our cabinets, and suffered rodent infestations that simply won't go away.

We've asked the landlord time and time again to make the repairs to the apartment that we need, but, when he finally does something, he only applies quick fixes. For instance, after we pushed hard for him to replace our moldy cabinets, he finally gave in—but the leak that caused the mold is still there, and it will soon grow again.

Ours is the story of thousands of New York families who suffer dangerous and unhealthy living conditions because of landlords who put profit above people. In my case, the conditions caused by the landlord's failure to make the necessary repairs have made my asthma worse; last week, I had to go to the hospital because of a respiratory infection. And, like any mother, I worry constantly about how our unhealthy apartment is affecting my daughter.

This type of problem afflicts tenants across the city. That's why it's so important that the New York City Council pass an important bill this year, Intro. 543, that addresses the underlying conditions that bad landlords like mine so often fail to address.

Here's what Intro. 543, introduced by lead sponsor Council Member Ritchie Torres, does: in the case that a landlord refuses to address the underlying condition causing a housing violation (for instance, a leak that produces mold), the bill would empower tenants like me to take our claims to housing court.

This is important because, all too often, when landlords finally act to address housing violations, they fail to deal with the physical defect or failure in the building system that causes the violation. An example with which many New Yorkers will be familiar: the landlord who patches the dripping ceiling or paints over mold, but fails to fix the leaky pipe that's producing the problem.

Currently, the city's housing agency (HPD) is only able to investigate up to 50 cases per year related to underlying conditions. The department does not currently have the capacity to fully take on all the cases that exist, which is why tenants like me need the legal recourses provided by this bill.

It's time for landlords to accept responsibility for ensuring that tenants like my family are living in apartments that are safe and healthy.

But landlords who profit enormously off of unhealthy apartments won't act alone. We have to make them, and that takes a change in the law. We need the City Council to pass Intro. 543 as soon as possible. If they don't, too many New Yorkers like me won't have the tools to ensure that our landlords make the repairs we need to make the mice and the mold go away.

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Dulce María Rivera is a member of Make the Road New York, the largest grassroots community organization in New York offering services and organizing the immigrant community. On Twitter: @maketheroadny.

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