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Opinion

A Faulty Notion to Restrict Political Party Qualifications in New York


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(photo: Philip Kamrass/Office of Governor Andrew M. Cuomo)


In April, the New York State budget was passed and signed into law. Buried within it was the creation of a commission tasked to write a new law on three aspects of the state’s election code: public campaign finance, “fusion” voting, and political party qualifications. Oddly, though it’s called the Public Campaign Finance Commission, most of the hearing testimony and press coverage has focused on fusion voting and party qualifications. This may be so because the commission’s informal leader, Democratic State Chair Jay Jacobs, has not disguised his desire to eliminate the minor or “third” parties in the state.

Jacobs has suggested raising the “threshold” number of votes required by a political party to achieve and maintain automatic ballot status. This is what “party qualifications” means. It answers an important question that all states must face: How does a group of citizens who form a political party get that party listed on the ballot?

Right now in New York, a party must receive 50,000 votes in each gubernatorial election under its own banner, or on its “ballot line,” as New Yorkers call it. Right now, based on the 2018 election, there are six qualified minor parties in the state: the two most prominent are the Conservative Party and the Working Families Party.

The 50,000 vote threshold is approximately 1% of the gubernatorial vote. Jacobs has proposed quintupling the vote requirement to 250,000, or roughly 5%, and extending to both gubernatorial and presidential races.

Because New York, unlike most states, does not permit minor parties to qualify in any other manner (such as a petition), this would effectively put the minor parties out of existence. It would instantly make New York among the most restrictive states in the nation in terms of ballot access for citizens who are neither Democrat nor Republican. And it is in stark contrast to the trend in other populous states. In the last 20 years, five of the most populous states — California, Texas, Florida, Ohio and Pennsylvania -- have moved in precisely the opposite direction, reducing barriers to minor party qualification, not raising them. 

More states use a 1% threshold than any other percentage test. The second most popular requirement is 2%. If New York adopted either of those, it would at least be within the realm of the defensible. But any standard greater than 2% not only smells bad, it will likely be ruled unconstitutional in the federal courts. There are dozens of cases holding that overly onerous party qualification rules are unconstitutional. Surely the lawyers on the commission understand that if “equal protection” means anything, it is that “party qualification” rules designed to punish or eliminate minor parties (and the voters who support them) will not stand.

The New York Commission, binding recommendations from which are due by December 1, should also consider the legal problem presented by a 250,000 vote threshold. It will likely be ruled unconstitutional in the federal courts. There are dozens of cases holding that overly onerous party qualification rules are unconstitutional. Surely the lawyers on the commission understand that if “equal protection” means anything, it is that “party qualification” rules designed to punish or eliminate minor parties (and the voters who support them) will not stand.

If the State Legislature wishes to ban fusion voting, it should do so in the proper way: pass a constitutional amendment, and refer it to the voters for approval. In the meantime, this unelected commission should leave the minor parties alone, and not touch the 50,000 vote threshold. The Legislature can consider it in the regular order of business.

The minor parties may annoy the major parties, but democracy is not about limiting ballot access only to those with whom you agree. The commission should resist joining the company of Alabama, Virginia, or the other states that have essentially made it impossible for “third parties” to qualify. Democracy belongs to everyone, not merely the two major parties.

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Richard Winger publishes the Ballot Access News newsletter and website. On Twitter @ballot_access.

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Local City Council Members Must Head Back to Drawing Board on East River Park Plan


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(photo: @ERPAction)


An Open Letter

Dear City Council Members Carlina Rivera, Margaret Chin, and Keith Powers:

You have indicated that on Thursday you will vote for the flood control plan that will demolish East River Park and rebuild it 8-10 feet higher over five years. This is a $1.45 billion, five-year project that will destroy more than a mile of coastline park that is vital to our neighborhood, the un-wealthy end of the Lower East Side and East Village. I urge you to change your vote to “no” on Nov. 14. Here’s why: 

Once this plan passes the City Council, you will lose all bargaining power. The city will not be obliged to reply to the many unanswered questions or do any of the things it has promised to look into, such as these points: 

Interim Flood Protection
The city promises to study temporary flood protection while constructing permanent solutions. If you vote to accept this East Side Coastal Resiliency plan, the city will not be obliged to offer a single sandbag through years of hurricane seasons (the city says three years—but we’ll talk about timelines later).  

Phased Construction
During phased construction (keeping sections of the park open during construction), the entire mile-plus promenade along the river will be closed for at least two years. That is so that the eight-foot flood wall can be built. If pile driving is going on the entire length of the park, the promised 42 percent of the areas still open will be unbearably noisy. In addition, there will be no access to the river at any point along the water for those years (and likely much longer—again, see timelines). As the barrier rises, we will be imprisoned behind a metal wall. Do you find that current phasing scenario acceptable? Your neighborhoods will be horrified when they figure it out. 

That is leaving aside whether it’s acceptable at all because phased construction will still destroy the whole park—just over a longer period of time than closing the whole park at once would have. We are proposing an environmentally and socially conscious alternative. 

Health Risks
The dust from digging up contaminated soil and adding layer after layer of landfill will clog our lungs. Our Lower East Side/East Village neighborhood already suffers high rates of asthma and 9/11-related respiratory troubles. The 1,000 trees that help us breathe will be gone. We need picnic areas, ball fields, greenery, and river access for our mental and physical health.

Alternate Park Spaces—Mitigation
Have you gotten the greenway you have been requesting to substitute for the loss of the biking/running/strolling path along the river? No, you’ve gotten a promise to study the possibility of a protected bike lane. Have you gotten the free ferries from Corlears Hook to Governors Island you’ve been requesting? No, that’s not even mentioned in the agreement you reached with the city as announced on Tuesday. Are you satisfied with a few playgrounds repainted or covered with artificial turf? Are you satisfied with the progress of greening of the streets and creating of play spaces and BBQ areas to substitute for the loss of mature trees and all the heavily used picnic, lounging, and natural areas we have now in East River Park? You should know that the thousands of saplings promised for our streets and the new park will not come close to the size of the 1,000 lost trees.

Timelines
Do you trust the five-year timeline the city has provided? The city has no answers to how long it takes for the eight feet of fill to settle. They do not know how long digging up and wrapping ConEd lines will take or how to deal with the contaminated soil that will be dug up. This is acceptable to you? 

Even if the city could tell us how long the above complications will take, you know the city is not good with deadlines. Surely you see that in the tiny Luther Gulick Park on the Lower East Side a bathroom has been under construction for four years. You know it took 10 years to rebuild the promenade in East River Park. Do you think voters will mind not seeing the river for another 10 years? 

Construction
The city says the park will stay completely open until fall 2020. In the summer work will be done in the park, however. What work? Where? How noisy and dirty will it be? 

Community Advisory Board
What authority will the newly announced community advisory board have about any of the issues raised above? What authority will you as the local elected officials have? 

Your constituents have been working hard to convince you to vote “no” on the ESCR. At a Nov. 4 rally on the steps of City Hall, representatives of grassroots community groups delivered more than 8,000 petition signatures to the mayor. Two thousand of those signatures came from NYCHA residents, who eagerly signed. The team who gathered those names did so to show that NYCHA residents do not support the plan, despite what NYCHA Tenant Association leaders say. 

We announced a letter signed by 50 community and conservation groups from around the city. We’ve been testifying and demonstrating our hearts out for a year. You say you listen and respond to the community, but you have not heeded our thousands of voices.

We insist on a plan that will provide flood control with minimal destruction of existing parkland and biodiversity. 

We want interim flood protection. 

We don’t want to contribute to climate change in order to cope with climate change. 

We want our low- and middle-income neighborhood to be treated with the respect that wealthy neighborhoods receive. You know this kind of destructive, ugly plan would not be acceptable in a rich neighborhood. Witness how fast the city dropped the plans to put a six-lane highway where the Brooklyn Promenade is. 

We do not want East River Park destroyed. You can do better. Our neighborhood deserves better. Vote no! 

Sincerely,
Pat Arnow for East River Park ACTION. On Twitter @ERPAction.

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Surveillance and the City: Past Time for the POST Act


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(photo: William Alatriste & John McCarten/City Council)


What’s a majority of  51? It should be simple math, but in the world of City Council politics, the numbers don’t always add up. Take the Public Oversight of Surveillance (POST) Act, an NYPD reform bill that has been pending before the Council for over two-and-a-half years.

Twenty-nine of the 51 Council members and the Public Advocate support it. No, they don’t just support it, they’ve gone further and fully co-sponsored the long overdue NYPD spying reforms. But the bill still isn’t law.

That’s because none of those 29 members have voted for the POST Act -- they haven’t been given the chance. Despite the clear majority support and long delay, we’re still waiting on Speaker Corey Johnson and Public Safety Committee Chair Donovan Richards to hold a hearing on the bill. If we can’t get a hearing, we can’t get a vote. And if we can’t get a vote, it doesn’t matter how many New Yorkers and Council members are crying out for reform. 

The POST Act is modest, but vital. At a time when the NYPD is buying invasive and discriminatory tools to track and spy on communities of color, the POST Act simply demands transparency. Tell the public what you bought and what the privacy safeguards are, and undergo an annual audit. That’s it, that’s all this simple bill requires, and, mind-bogglingly, it’s still not law.

The truth is that out of a Council of 51 members, there are only two that matter in getting you to a vote: the committee chair and the speaker. There isn’t a mysterious force that magically chooses which bills move forward, though of course there is vocal opposition from the NYPD and police unions. There isn’t some anonymous assembly of bureaucrats that decides: it’s two people. Which is why after years of campaigning for passage of the POST Act we’re turning to Speaker Johnson and Chair Richards. We’re speaking to them directly and demanding a hearing and full Council vote before the end of the year.

Maybe the police unions will be upset. Maybe Fox News will push back. The maybes are endless. This is what we do know for sure: it is time to act. As New York City drags its feet on digital civil rights, cities across the country are stepping up to go further. Cities have passed versions of the POST Act that are far more aggressive than what we demand. Do they demand information? Yes. Do they have audits? Yes, but then they also require lawmakers to approve each and every spy tool their police forces buy. Some cities like San Francisco have gone farther still and started banning popular forms of surveillance like facial recognition.

San Francisco lawmakers acted because of the risk that this Orwellian technology might be used on their streets, but facial recognition has already been used to digitally profile tens of thousands of New Yorkers, and our own lawmakers have done almost nothing. How is it that our neighbors are being arrested and convicted on the basis of this racist and unproven technology, 998 just last year, and our response is to do nothing?

Recently, Speaker Johnson was asked if he would commit to passing the POST in 2019. Even though he co-sponsored the bill in 2017 and said he supports the “aims and the goals of POST Act,” he refused to give a timeframe. This is why a coalition of 70 civil rights and community-based organizations recently spoke up, sending a letter to Speaker Johnson. We made it clear that delay is not an option and that evasion will not be tolerated. No, we will keep fighting and we will keep pushing until we get our long-delayed hearing and vote.

Let’s be clear, the POST Act isn’t the end of the fight for surveillance reform, but it’s an indispensable first step. For years, the NYPD has thwarted the tools used to hold police accountable for discriminatory surveillance. They fight discovery, freedom of information law requests, and every other mechanism that could provide us insights on our communities are being surveilled. 

In a low point last year, the de Blasio administration fought in the state’s highest court to create a new legal doctrine. Taking a page out of the CIA’s Cold War playbook, the NYPD now will no longer confirm nor deny if they have records about certain types of surveillance. This means that even where these tools are used to racially and religiously profile New Yorkers, we simply can’t get the data to show it.

With every other form of governmental transparency cut off, we need the POST Act. We need it to understand what systems are on our streets, but also how the data is being used. We need to know what safeguards are in place for innocent bystanders, and how we prevent information from being shared with federal agencies like ICE. In short, we need rules of the road, and we need them now.

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Albert Fox Cahn is the executive director of The Surveillance Technology Oversight Project at the Urban Justice Center, a New York-based civil rights and privacy organization. He writes the monthly "Surveillance and the City" column for Gotham Gazette. On Twitter @FoxCahn

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MTA May Have Halted Subway Ridership Decline, But Gains Very Fragile


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(photo: Marc A. Hermann/MTA New York City Transit)


The New York City Transit and Bus Committee of the MTA Board reported at its October 2019 meeting that weekday ridership of the subway grew 1.4% in September of this year compared to last, and that there have been four straight months of subway ridership gains. The MTA put out a gushing October press release that subway weekday ridership this September was up 4.5% over September 2018, and bus weekday ridership was up 1.5% over September 2018.* Revenue was up over forecasts as well.

The MTA attributed the improvement to the Subway Action Plan and a restoration of on-time performance to 82.7% in September 2019, compared to 69% a year prior. The Subway Action Plan invested heavily in operations and maintenance improvements like eliminating track fires, deploying emergency personnel, fixing signals and track, more rapid repairs, as well as other measures like increasing speeds on subway lines where speed limits had been imposed starting in the 1990s.

This is obviously good news since subway ridership peaked in 2015, stayed flat in 2016, and declined in 2017 and 2018. State Comptroller Tom DiNapoli’s office has estimated that the ridership decline is costing the MTA $250 million a year. Any revenue gains are welcome, especially to the extent that they reflect improved public confidence in the mass transit system.

Despite the recent improvement, MTA documents still acknowledged that average weekday ridership for all of New York City Transit (subways and buses) was still down 0.6% from the prior year-over-year (September 2017-September 2018, verus. September 2018-September 2019), so a recovery is actually just beginning.

But the subway ridership gain is especially fragile because the MTA is projecting deficits of $1.9 billion by 2023 before fare and toll hikes and its budget reduction and “transformation” plans are implemented, after which there is still a projected deficit in 2023 of $433 million.

Unfortunately these plans to address deficits include staff reductions of 3,000-4,000 jobs, including reductions of 2,300 jobs in operations and maintenance personnel at New York City Transit from the 2019 staffing peak related to the Subway Action Plan.

Below is a table taken from the Comptroller’s report using the MTA’s projections.

mta staffing levels

It is uncertain how the MTA will preserve the on-time performance and ridership gains while cutting 2,300 operations and maintenance personnel. 

Projecting the revenue gains from the September ridership increases would yield another $100 million for the MTA in 2020, perhaps higher by 2023. This is just back-of-the-envelope math, but the potential of retaining, regaining, or gaining more riders is there and that’s why personnel cuts of such magnitude are problematic.

The MTA is also hiring 500 more police officers, at an estimated cost of $50 million a year, for various public safety and fare evasion deterrence purposes, without booking any more revenue from the fare evasion deterrence. The agency says fare evasion now costs it $260 million a year. The MTA has yet to provide any metrics or a clear plan for how the extra cops will be worth the cost, but I would still give the extra cops the benefit of the doubt at a minimum at deterring crime. The MTA owes the public a better explanation for what benefits the new officers will offer.

Even a revenue gain of $100-$200 million a year from improved ridership won’t be a miracle for the MTA when it faces deficits of $1.9 billion a year, with $433 million still left after implementing current plans by 2023.

When the Legislature provided funding for the Subway Action Plan and the new congestion pricing and various tax hikes for the 2020-2024 MTA Capital Plan, it left the MTA little extra room to address its deficits. The Action Plan funded staff-ups for service improvement, most of which need to be sustained (and the money spent). Congestion pricing and the other new revenue is prohibited from being used for operating deficits. Essentially Governor Cuomo and the Legislature left the MTA stranded and needing to find a way internally to cope with its deficits, which involve a mismatch between revenue, including its farebox and dedicated taxes, growing at 1% a year, and its costs, growing at 3% a year, mostly debt service costs and health insurance.

With the Legislature up for election next year, tax increases are unlikely. But there are still large sums of money unspent in the Dedicated Infrastructure Reserves set up from the Financial Settlements over the past years. Just giving the MTA $150 million from the reserves next year to preserve operations and maintenance services (and the ridership gains), to New York City Transit and commuter rail, would give the MTA more time to continue the gains of the past year and find efficiencies without harming service.

In 2021, the Legislature could look at some modest new sources of revenue, like the for-hire-vehicle surcharges, or substituting some sources of revenue for the MTA with others that more closely correlate with economic growth.

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Jim Brennan was a member of the New York State Assembly for 32 years, where he chaired four committees. On Twitter @JimBrennanNY.

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*The MTA notes its ridership numbers may be subject to future revision.

City Council Must Act Now to Protect the Lower East Side


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(rendering: City of New York)


It has been seven years since Superstorm Sandy made landfall on our city, causing billions of dollars in damage and ravaging some of our city’s most critical infrastructure, including our parks. It took years for the famous boardwalks in Coney Island and the Rockaways to re-open. Trees across our coastlines died and continue to be at risk from exposure to salt water. And many of our coastal parks are no less protected from the next big storm today than they were in 2012.

As a steward and advocate for our city’s parks, I know that we can’t pass up an opportunity to protect our coast and our parks in Lower Manhattan with the East Side Coastal Resiliency project (ESCR). This project, built the right way, can protect East River Park and the neighborhoods surrounding it for generations. 

When the city initially proposed a revised ESCR design, my organization, New Yorkers for Parks, voiced our frustration. East River Park is one of the few large, open green spaces with baseball and soccer fields in Lower Manhattan, and so many low- and middle-income New Yorkers rely on it as a home away from home. We made it clear that we would only support a plan that used phased construction, preventing the long-term displacement of park-users from the area.

Today, thanks to the advocacy of City Council Members Carlina Rivera, Keith Powers, and Margaret Chin, as well as Manhattan Borough President Gale Brewer, the city has committed to a construction plan that is phased, ensuring nearly 50 percent of the park remains open at all times. In addition, the city has provided a plan to ensure local youth sports teams can continue to play in the park and at surrounding sports fields and parks, many of which are receiving long-overdue repairs and upgrades.

And a new tree planting campaign has already been launched in the neighborhood, with over 1,000 trees expected to be planted in addition to the hundreds of new trees replacing the dead or aging trees in East River Park. 

But in order to make this plan truly work for the most impacted communities, we must continue to call on city agencies for greater involvement and community coordination. Part of that effort must include new major maintenance investments in this park and others so that our parks do not fall into disrepair. It is not enough to simply rebuild a park: it is our duty to maintain it, especially when it is our first line of defense for climate change. 

It’s expected that ESCR will provide coastal protections within three years. But if the City Council fails to approve this land action now, the project would likely never return, and we will lose the $335 million in federal funds that must be spent by 2022. This funding is a one-time opportunity. Losing it would be yet another tragedy.

Lower Manhattan residents deserve a park that will not only protect their homes but will protect their future. The city has never embarked upon a resiliency plan of this scale - and while the project may not be perfect, we have to start somewhere. 

During Superstorm Sandy, water infiltrated all five boroughs; storm surges don’t discriminate. Other stretches of our waterfront will require similar investments in the not-too-distant future. 

The time to plan is now. The time to act is now. Let’s make this happen.

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Lynn Kelly is Executive Director of New Yorkers for Parks. On Twitter @lynnbod@NY4P.

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New York to DC: Pay Your Bill for Your Veterans


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(photo: Ed Reed/Mayoral Photo Office)


Each year around Veterans Day there’s a predictable pattern as politicos of all stripes march in parades and roll out proposals to thank and support our military veterans and their families. Little may come from all this activity, at least until Memorial Day, when, once again, there’s renewed focus on veterans and their survivors. It doesn’t have to be this way and it shouldn’t be this way, particularly in New York.

A report released earlier this year from the New York City Bar Association suggests New York’s veterans, when compared with their national counterparts, are not getting their fair share from Washington, D.C. Specifically, veterans in New York are not getting their fair share of veterans benefits from the U.S. Department of Veterans Affairs, commonly known as “the VA.”

The City Bar’s report points out how, nationally, approximately a quarter of all veterans receive benefits from the VA, ranging from a few hundred dollars a month to thousands of dollars a month. By contrast, less than 17 percent of New York’s veterans across the state receive these benefits. In New York City, fewer than 16 percent of veterans receive these benefits.

At first blush a difference of seven or eight percent below the national average might seem statistically insignificant, however nothing could be further from the truth as there’s real money at stake. Over 100,000 low-income and disabled veterans in New York receive over $2.5 billion every year in financial support from the VA. These veterans either are unable to work or have some type of health condition that impacts their ability to hold “substantially gainful employment” as that phrase is understood as a matter of law.

These are our veterans who are most in need. Yet the report from the New York City Bar Association suggests there are tens of thousands of additional New Yorkers who should be receiving these benefits. 

Practically, if New York’s leaders don’t insist Washington pay its fair share for the veterans it creates, the burden for the care of these veterans falls upon New York City and New York State taxpayers, who are already paying for VA benefits in their capacity as federal taxpayers. State and local tax revenue that should be going toward education, roads, and public goods are instead being appropriated to take care of low-income and disabled veterans who are, legally, the responsibility of the federal government.

New York leaders should be relentless in demanding every low-income disabled veteran who is entitled to benefits from the VA receives those benefits, even if obtaining them requires the assistance of an attorney. The New York City Bar Association’s report provides a roadmap and outlines steps to tackle the problem that should be revenue neutral, if not revenue positive, for New York and its taxpayers.

These steps include: providing funding for attorney representation on veterans benefits issues outside the scope of traditional general civil legal services; ensuring there are attorneys in adequate number to address the staggering demand; and making sure attorneys doing the work are evaluated on their cost-savings to New York taxpayers.

Each year around Veterans Day there is a great deal of talk about the importance and the value we place on the service of our veterans. New York leaders should back up that talk with real steps to assist not only our low-income, disabled veterans but also New York taxpayers by assigning the fiscal responsibility for low-income and disabled veterans to whom that responsibility rests: the U.S. Department of Veterans Affairs.

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Kent Eiler is an attorney, the project director of the City Bar Justice Center’s Veterans Assistance Project, and a Major in the United States Air Force Reserve. The views expressed in this article are solely those of the author in his personal capacity and do not reflect the official policy or position of any military service, the Department of Defense, or the U.S. Government. On Twitter @KentEiler.

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More Testing is Not the Answer for New York City Students, But Smaller Classes Could Be


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DOE Chancellor Carranza & Mayor de Blasio (photo: Ed Reed/Mayor's Office)


The Department of Education rolled out new standardized testing for thousands of students across New York City last month. For now, the new tests are supposedly targeted to low-performing (aka low-scoring) schools, but all signs point to the expansion of additional standardized testing citywide.

More standardized testing is the exact opposite of what New York City should be doing to help students and, if anything, these new tests could actually hurt our most vulnerable students. Piling on tests is not going to solve any of the problems our struggling students face -- problems like homelessness, learning disabilities, structural racism, and lack of resources. If anything, it will make school even more frustrating and unengaging for children than it already is.

Although it may come as a surprise to the Department of Education, children have social-emotional needs. They are not little robots whose brains we can endlessly reprogram. They need to have fun, they need to feel capable, and they need to feel like they belong. By forcing schools to administer even more tests and report scores multiple times a year, we risk making school even less welcoming for children, particularly for those who already struggle academically. A friend of mine who had to recently administer new tests to her fourth-graders told me that one of her students said “I feel like a dead fish” after completing his test.

No nine-year-old should use the word “dead” when describing their experience in school.

More standardized testing also runs counter to Chancellor Richard Carranza’s stated goal of bringing Culturally Responsive Education (CRE) into every classroom. First of all, standardized tests, by definition, are typically not culturally responsive; often test texts feature only typically white names or use touchpoints that most New York City children can’t relate to, like farms and forests.

There is also the issue of time: standardized testing and test prep eats up hours of the school day that could be used for culturally responsive activities like those in social studies, the arts, collaborative projects, or community building. With this new testing rollout, elementary school students will spend 12 days taking standardized tests over the school year. Middle and high school students will spend even more days on exams. Factor in weeks of test prep and that is well over a month of school lost to the least culturally responsive activity there is -- non-interactive, undifferentiated standardized testing.

Standardized tests are usually neither accessible nor helpful to immigrant students, who are required to take state English Language Arts exams after only one year in the United States. Some of these children may have not even been in school before immigrating to the United States, but after only one year living in New York City, they must endure hours of silently staring at multiple choice questions that will in no way help them learn a new language. Needless to say, this is culturally exclusive, not inclusive.

So what would actually help meet the academic and social-emotional needs of struggling students across the city and foster true culturally-responsive learning?

Smaller class sizes.

Unlike more standardized tests, reducing class sizes would actually make it easier for teachers to get to know their students, build community, and implement culturally-responsive practices in their classrooms. Smaller classes are also proven to help children grow academically. That’s why teachers across the country are striking for smaller classes and why if you were to ask any teacher whether the difference between 32 (the current cap for elementary school) and 25 or even 20 children impacts student achievement and classroom culture, you’d get a resounding “yes.”

Last year we had school on a snowy day right before a break. I had only 13 or 14 kids in a class. Everyone was happy. There were no fights; no other serious behavior problems. I had time to help every student one-on-one. The kids were calm and productive instead of overstimulated or understimulated. At one point, one of my third-grade students with learning disabilities said, “Ms. Olenick, this is the first time I’ve ever finished all of my work without needing extra time.” There is a reason why private school class sizes are almost universally kept to below 20 students, often with an assistant teacher: class size matters.

The DOE claims it doesn’t plan to spend additional money on this testing rollout. But there is no doubt that creating and evaluating tests taken by thousands -- if not ultimately hundreds of thousands -- of students will require staff time and resources. If the DOE has extra cash on hand and actually wants to help all children learn, it should use the resources not for more monotonous, culturally-unresponsive testing, but to shrink class sizes so that every child in New York City gets the support they need to grow academically, socially, and emotionally. 

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Liat Olenick is a public school science teacher at an elementary school in Brooklyn. She is also the co-President of activist organization Indivisible Nation BK. On Twitter @Liat_RO.

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Close Attica — and Build No New Prisons


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Attica (photo: Wikimedia Commons)


As the heated debate over the movement to close the Rikers Island jail complex rages on despite or because of the New York City Council’s vote to build four new jails and close Rikers by 2026, where is the corresponding clarion call to close Attica, Auburn, Clinton Dannemora, or any number of New York State’s brutal and archaic prisons?  

In 2017, when Mayor de Blasio and the Lippman Commission released reports laying out proposals to close Rikers, there were about 10,000 people in New York City jails.  The mayor said that reducing the jail population to under 5,000 was a precondition to shuttering Rikers. Today, there are about 7,000 people held in city jails. The proposal approved by the City Council projects a city jail population of 3,300 by 2026. As the number of people held in cages at Rikers continues to fall, where is the equivalent pressure and effort to reduce the New York State prison population from its present 46,000?

Several rationales were used to support the movement to close Rikers. Most of those same justifications apply with even greater force to New York’s patchwork of 52 state prisons that hold almost seven times the number of people at Rikers. 

Close Rikers advocates pointed out that the Rikers jails, which first opened in 1935, were decrepit and dangerous. Rikers is young in comparison to several of New York’s notorious state prisons like Auburn (1818) or Clinton Dannemora (1845). Even Attica (1931) predates Rikers.  These antiquated and dilapidated state institutions struggle to provide heat in the winter and to cool down in the summer. One can easily imagine the layers of asbestos and other environmental hazards that afflict everyone inside.

Stories of the prevalent brutality at Rikers are legion as it earned labels like Torture Island and Gladiator School, but there is also abundant evidence of violence and corruption in New York’s state prisons, including homicides at the hands of prison guards. The frequency of brutality compelled the United States Attorney’s office to charge five corrections officers with civil rights violations, with then-United States Attorney Preet Bharara declaring that “excessive use of force in prisons...has reached crisis proportions in New York State.” 

The racial disparities at Rikers Island are reflected as well in the state prisons as black and Latino people make up 73% of the prison population, nearly double their numbers in the general population. The undeniable link from slavery to incarceration is nowhere more evident than in prisons in northern and western New York, where an almost exclusively black and brown prison population is overseen by an enclave of almost exclusively white correction officers as the local prison is the primary source of employment. 

Visits to Rikers Island are notoriously exhausting and humiliating, but visits to state prisons add another layer of torment – many are hidden in remote corners of the state, some near Canada, even though most state prisoners are from New York City. Visits are necessarily infrequent, and families are decimated. 

Vast financial resources are poured into city and state corrections budgets. The fiscal 2020 preliminary budget for the New York City Department of Correction was $1.4 billion. The state prison budget is seemingly ever expanding. From 1999-2015, the budget grew to almost $3 billion even as the number of incarcerated people dropped. Estimated spending for the New York State Department of Corrections and Community Supervision for 2019-20 is $3,248,250. 

The average stay on Rikers is 61 days. People are harmed physically, emotionally, spiritually, and in other concrete ways such as lost jobs, housing, etc. The average minimum stay in New York state prison is more than 10 years. The devastation caused is incalculable. 

The initial call to close Rikers focused on the brutality of life at Rikers. That long overdue recognition led to revelations about who was held inside. The Close Rikers movement gathered steam when it became common knowledge that most people held at Rikers -- upwards of 70% -- are pretrial detainees, people not convicted and presumed innocent. That realization was coupled with the awareness that countless of those pretrial detainees were in jail simply because they couldn’t afford to post bail, often in amounts under $2,500.

In short order, the close Rikers refrain was coupled with statements from advocates and elected officials alike that freedom should not depend on the size of your bank account. Soon added to the mix was the awareness that many people were on Rikers for minor parole violations such as missing curfew or being late for appointments with a parole officer. Now the movement was less about closing an old, vicious jail, and more about getting people out of jail altogether. 

So why hasn’t the movement to close Rikers carried over to New York’s state prisons? Most likely, it has to do with perceptions of who is held in city jails versus state prisons. State prisoners are not incarcerated because they are too poor to post bail or because of technical parole violations. For the most part, they are serving sentences after having been convicted of violent crime. Yet an examination of who is being held inside state prisons should lead to the same result as with Rikers – the prison population can, should, and must be dramatically reduced.

New York State is notoriously punitive, as prosecutors have routinely asked for maximum sentences and judges have been happy to oblige. According to the Sentencing Project, New York is one of eight states where the proportion of prisoners serving life or “virtual life” (50 years or more) sentences is at least one in five. Almost 10,000 people in New York prisons are serving life sentences or its functional equivalent, a number topped only in Texas, Louisiana, Florida, and California. 

As a result, New York State prisons are filled with a rapidly aging population even as studies reveal that people “age out” of criminal activity. There are more than 10,000 people over the age of 50 inside state prison. Almost 3,000 are over 60. According to the Department of Corrections and Community Supervision, the average age of death of those who died from natural causes inside New York state prison was 57. The vast number of people who are largely condemned to die in prison is unjustifiable and barbaric.

Thousands of New York prisoners have served their time, often several decades, remarkably.  There are countless stories of transformation, redemption, and profound change. Yet these men and women languish in prison for no reason other than to satisfy a seemingly unquenchable thirst for interminable punishment. 

New York can in several ways decarcerate its state prisons, with no threat to public safety and with an enormous gain in talent and contributions to society. The notoriously unforgiving parole system must be overhauled. Parole Board members must be people steeped in clinical and therapeutic services who recognize and value the capacity for rehabilitation.

Passage of the Fair and Timely Parole Bill (S497A) can transform the process by dictating a forward-looking approach that examines evidence-based risk assessment scores and the individual’s institutional record, as opposed to looking backward and focusing exclusively on the crime of conviction, a factor the individual can never change. 

The discretionary power to grant clemency is enshrined in the New York State constitution that vests the Governor with the power “to grant reprieves, commutations and pardons after convictions, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he may think proper.” To date, Governor Cuomo has commuted the sentences of only 18 people. Thousands of meritorious clemency applications are pending. The governor, with the stroke of a pen, could send those men and women home.    

The punitive sentences of the past 40 years must be corrected. The American Law Institute (ALI) sought to address the decades of punitiveness that led to the current state of mass incarceration, made more shameful by the racial disparities in American jails and prisons. ALI now calls for state legislatures to enact “second look” mechanisms that reexamine a person’s sentence after fifteen years no matter the crime of conviction or how long the original sentence.

In similar fashion, the Elder Parole Bill (S2144) that gathered momentum in last year’s legislative session in Albany provides that anyone who is over 55 years old and has served at least 15 years would have the opportunity to appear before the Parole Board.  

Brooklyn District Attorney Eric Gonzalez is advocating for legislation that would permit resentencing where prosecutors deem it appropriate in the interests of justice after a person has served 20 years for the most serious crimes. There are similar calls for prosecutors to establish sentencing review units to reevaluate the cases of all people serving lengthy prison terms. 

The Supreme Court now recognizes the mitigating qualities of youth and, relying on growing scientific awareness of adolescent brain development, concluded that youth are less culpable than adults and have greater capacity for rehabilitation. As a result, judges must now consider youth and its attendant traits before sentencing young people to die in prison. There are nearly 1,200 people in New York State prison serving life sentences for acts committed when they were teenagers. Each of those cases now demands reconsideration.

Important questions remain since the City Council’s vote to close the Rikers jails, but there is one thing on which everyone should agree -- the movement to get people out of jail and close Rikers Island should be applied with equal force to New York’s state prisons.  

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Steven Zeidman is a professor of law at CUNY School of Law. On Twitter @SteveZeidman.

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An Excellence Escalator for State School Funding


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(photo: the governor's office)


Our broken system of school finance is currently the subject of roundtables led by the State Senate's new Democratic majority. The hearings are focused on reforming the Foundation Aid formula that determines the bulk of state aid to local districts.

Broken? According to the Alliance for Quality Education, the gap between the average per pupil spending in the 100 wealthiest and 100 poorest school districts has grown to a record $10,218 per pupil. These stark differences are reflected in teacher salaries and class sizes, counselors and librarians, facilities, and technology, among other social and academic supports. Flowing from these inequities are pervasive proficiency challenges among students of color in our poorest districts, robbing them of their inherent rights to educational and economic justice.

The school finance system has long been a source of political in-fighting. The Foundation Aid "pie" is largely dictated by the Governor through the executive’s power over the state budget. The Legislature then slices the pie among the state's 750 school districts based on a combination of need and political muscle. In Albany, that's not a fair fight.

The winners tend to be wealthier suburban swing districts where voters keep close tabs on their elected representatives to bring home maximum funding. Every dollar in state aid is a dollar less in local property taxes, the driver of the inequitable system of American school finance where school quality it directly related to the property wealth of its citizens. 

Individual legislators’ accountability to rural and urban school districts is less direct and party control of these seats more assured. As a result, school aid is not the make-or-break electoral issue it is in the suburbs. The profound effect of this political mismatch is that the needier districts are disproportionately dealt out of Foundation Aid, which was originally meant to close the gap.

So merely reforming Foundation Aid will not solve the problem of inequitable and inadequate state aid. The formula is broken because, at bottom, it is based on political rather than educational considerations. The solution is to rearrange the legal equation to reflect educational finance as a right, not subject to the exigencies of political might. We need to see the issue as one of promoting the civil rights of all students.

Solving such a big problem requires a big idea: a constitutionally required escalator that automatically raises the level of each district’s state funding to match per pupil spending by our wealthiest districts. This new funding structure based on a standard of educational excellence would permanently correct the otherwise intractable power imbalance favoring wealthy districts, bringing a new level of educational quality to all the states’ children and an ensuing level of prosperity for all New Yorkers.

The Excellence Escalator: How It Works
Today, our state constitution provides a lowest common denominator right to a “sound basic education” pegged at the level of a “meaningful high school education” by the New York State Court of Appeals in its 2003 opinion in Campaign for Fiscal Equity v. State of New York (“CFE II”). The Foundation Aid formula was developed in response to CFE II but has never realized its promise of meeting the fiscal equity demanded by the Court of Appeals decree. Stifled by the iron rule of political power, the CFE II and its predecessor and successor decisions have proven of little use in Albany’s hotbed of competing school district interests vying for self-limited state funds.

Moving beyond the false promise of judicial rescue through Foundation Aid will require a constitutional amendment to replace the Court of Appeals’ “sound basic education” adequacy standard with a standard of “educational excellence” tied to funding levels our wealthiest residents deem appropriate for their own children.

The excellence escalator will assure that state aid meets or exceeds the per pupil spending in our wealthiest districts. While expensive, the sticker shock of the state providing highest-level funding can be mitigated by adjustment of aid for individual district measures of student need and local capacity, formulaic data already available and largely immune to political manipulation.

In practice, our wealthiest districts would receive zero state dollars but no ceiling on local spending. Districts of similar wealth that chose not to tax at that level would also receive zero by failing to meet local capacity. But districts that taxed to the max would be rewarded by state assistance to meet the highest levels of per pupil district spending.

As a result, the excellence escalator is less radical that it seems. It does not discourage local spending and maintains local school taxes as the bulwark of our system of school finance. But, as a constitutional guarantee, the provision assures that the state will match funding to levels of real world spending that currently benefits only our most well-off students.

Besides providing a greater degree of educational equity, the escalator would dramatically encourage desegregation by removing a major obstacle to families’ movement between districts: the quality of schools. By diminishing the gap in per pupil spending between districts, a major reason for our entrenched enclavism, a growing hole in our social fabric could be mended.

The path forward for the excellence escalator is not free of the same politics that currently traps us in the broken system of Foundation Aid. But it is a one-time fix, requiring approval by two successive legislative sessions and a voter referendum. Today’s problem is a constant battle, fought every year against impossible odds. A constitutionally mandated school funding excellence escalator would turn the tide toward educational equity and quality, a big idea whose time has come.

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David C. Bloomfield is Professor of Educational Leadership, Law and Policy at Brooklyn College and The CUNY Graduate Center. This essay is adapted from testimony presented to the New York Advisory Committee to the U.S. Commission on Civil Rights. On Twitter @BloomfieldDavid.

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Facts Don't Support Expanding the Size of the MTA Police Force


mtapd grad

(photo: Metropolitan Transportation Authority/Patrick Cashin)


MTA Chair and CEO Pat Foye says the transit authority’s operating budget is in “dire” condition and independent budget watchdogs are alarmed its deficit is growing to unmanageable levels. Citizens Budget Commission estimates the MTA will be $740 million in the red in 2023 -- and this does not include new debt payments for the new, massive $51.5+ billion 2020-2024 capital plan. Separately, NYPD data shows subway crime is down 3% from last year, and Police Commissioner James O’Neill says the subway, which carries 6 million passengers a day, averages only six major crimes a day. 

Given the gaping budget hole -- which recently led to cuts in bus service on the B46 -- and the low crime rate, we wonder how the MTA justifies a costly increase in the size of its police force by 581 more officers and supervisors as first uncovered by Gothamist to address “quality of life issues.” This larger MTA force will cost the authority an additional $260 million more in operating costs over the next four years, as calculated by Citizens Budget Commission, and will force cuts elsewhere in the operating budget -- including, logically, in transit service.  

The MTA should make a decision of this magnitude based on a transparent, data-driven analysis that shows why expanding the MTA police force is more worthwhile than expanding transit service -- or even preserving existing service. The MTA should explain to the transit riding public what an expanded MTA police force can do that the current 2,500 NYPD officers and approximately 300 redeployed MTA police officers patrolling the subways and buses are not doing.

Disappointingly, the decision to increase the MTA police -- which is widely believed to be at Governor Cuomo’s behest -- has been made in a fact-free zone. The reasoning used has also shifted from fare evasion to homelessness to worker and rider safety, or a combination of all of the above. The public discussions by some MTA Board members has consisted of anecdotes and unfounded assumptions on these issues, and MTA staff have not provided analyses that examine alternatives or even dig deeply into existing MTA data.

(Note to MTA Board: MTA police officers guarding a turnstile only pay for themselves if fare revenue at that station goes up by at least the cost of the officers stationed there. Can we see some actual data that supports the argument that spending $260 million over the next four years on more MTA police will increase fare revenue by that much? What about the four years after that, etc.?)

If one of the governor’s stated goals is to reduce the number of homeless people in the subways, let’s see some evidence that an expensive increase in the size of the MTA police force will or even can do that, or that spending large sums on more police is even the best way to do that. Again, where is the data showing a relationship between the number of police officers and homelessness in the subways?

What we are seeing with the MTA policing issue is the latest example of a once-respected public authority that has been politicized and compelled to spend huge amounts on political grandstanding rather than objective priorities. Just last month, the MTA’s $51.5+ billion capital plan was approved by its Board before it published a needs assessment that establishes detailed baseline costs for getting the system to a state of good repair. 

Governor Cuomo has publicly called on the MTA to be more professional and efficient. We agree, but competent, professional management is fact- and data-driven, and does not make decisions based on the politics of the moment. The data here does not support almost doubling the size of the MTA police force from 783 to 1,364 -- especially given the “dire” budget. 

Professional, fact-based thinking by the MTA Board and management would mean rejecting this unnecessary expenditure and recognizing there is a direct trade-off between more police and more transit service. 

How Much Money Are We Talking Here?
According to Citizens Budget Commission, increasing the size of the MTA police force with 500 new officers and 81 supervisors for the new hires will cost $56.1 million in year one and $119.9 million in year ten. Over the 2020-2023 financial plan, the new officers will cost $260 million and push the MTA’s projected operating budget deficit of $740 million to $1 billion.

 

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Reinvent Albany and other watchdog groups including Citizens Budget Commission, NYPIRG Straphangers Campaign, TransitCenter, and the Tri-State Transportation Campaign sent a letter to the MTA Board calling on the MTA to identify exactly how it will fund nearly doubling the size of the MTA police force without increasing its growing operating deficit. The groups specifically expressed the concern that an expanded MTA police force will reduce the MTA’s ability to maintain a high level of transit service -- its core responsibility.

The MTA still hasn’t said how it will pay for these officers, and what the true cost will be in terms of reductions in staff and service. Its next budget presentation is due at its November 14 Board meeting, and this is likely to be the first time this new expense shows up in its budget. The MTA Board will then approve a final budget at its December meeting, so it is not too late to reverse course.

The MTA’s Many Justifications for Increasing its Police Force
There are many opinions about having more police in the subways and buses. Some oppose over-policing and some are concerned about service cuts, while others believe more police will increase customer and operator safety.

For Reinvent Albany, what cuts across all of these issues is the consistent failure of the MTA -- or Governor Cuomo -- to make credible, fact-based decisions regarding major spending. The governor and the MTA have access to professional analysts, detailed data about operations and crime, and outside experts who could guide their decisions. Instead, this decision has been made without meaningfully using any of them. 

We at Reinvent Albany are not criminologists or experts in homelessness or fare evasion. But we do believe in and know the value of data and rational decision-making. Given that the MTA hasn’t been allowed to do its homework, we are providing just some of the data and options that need to be examined before any decisions are made.

Crime
Crime on the subways is a clear area where perception and reality aren’t matching up. Governor Cuomo was recently blasted by the NYPD’s own leader for saying that crime in the subways is on the rise, with Commissioner O’Neill noting that the opposite is true. O’Neill instead said there has been a decrease in crime and “I absolutely disagree with Governor Cuomo’s characterization.” According to the latest stats from New York City Transit, total major felonies are down this year versus last (January-September) -- with 1,774 major felonies in 2019 and 1,799 in 2018.

Major crimes have dropped significantly since 1997, when there were 6,218 major felonies in the subways and buses. For the last four years, major felonies have numbered about 2,500 per year. It is worth noting the decrease happened during a period of increasing ridership: since 1997, annual ridership increased from 1.1 billion to nearly 1.7 billion

nyc transit 2

Perception often colors riders’ feelings about crime rather than actual data, as noted in a New York Times piece from earlier this year on subway crime. Social media, for example, is one big driver of perceptions. In speaking with the Times, NYPD Transit Chief Edward Delatorre said that the number of crimes in the subway is so small that “one or two recidivist offenders can enter the system and throw the crime numbers out of whack.” (For scale, there were 95,883 major felonies committed in New York City as a whole in 2018, down from 184,652 in 2000.)

Where particular types of crime have increased yet overall major crimes are flat or decreasing, refocusing existing officers is a more reasonable approach than hiring hundreds of new ones. Two areas that have received considerable attention are hate crimes, which increased from 37 to 65 from 2018 to 2019 (January-September), and assaults against subway workers, which according to the transit workers union (TWU) increased from 61 to 85 when comparing the first eight months of 2018 to 2019. 

Homelessness
The MTA recently released a 9-page “report” of recommendations from its Homelessness Task Force. To be clear, this is not a “report,” as there is no credible analysis: it is essentially a directive from the governor to the MTA. The "report," which came after repeated complaints by the Governor about homelessness on the subways, found a 20% increase in homelessness in the subways from 2018 to 2019. The total increase found from a January 2019 survey was from 1,771 to 2,178, an increase of 407 people. This single data point was then used as the sole justification for a directive by the task force to increase the MTA police force by 50%. 

 Despite the report saying that the task force was “charged with delivering a set of recommendations to the MTA Board of Directors for actions to address the growing number of homeless individuals,” the report says that the MTA will increase its police force.  

 The MTA Board has not yet approved a budget for these new officers. At the direction of the governor, MTA staff is moving forward with these hires, undermining the fiduciary responsibility of the Board, who must consider how the MTA can best serve riders with its scarce resources. 

Fare Evasion
Fare evasion has become a fixation for the governor and some of his appointees to the MTA Board, with more and more demands being placed on MTA staff to address the issue. According to the MTA’s June 2019 data, it lost $240 million to fare evasion over 12 months. But while the MTA has said fare evasion is growing, its Inspector General, who is appointed by the governor, in an audit said the MTA’s fare evasion stats are not credible

 At the same time, the MTA has ramped up enforcement efforts with redeployed police, new signage, and more cameras. If you believe the data, this may not be working. The MTA IG’s audit said that the “impact of these initiatives would be difficult to assess without reliable data on evasion levels and trends.” 

 The MTA can’t make rational decisions on fare evasion unless it better understands the problem first, and can trust its own data. And before jumping to any solutions, it would be worth assessing any number of other options to get more riders to pay the fare.

 Rather than punitive approaches, options include providing better service so riders feel like they are getting what they pay for. The MTA and New York City could enroll more people in the Fair Fares program, which provides low-income riders a 50% fare discount. A Wall Street Journal report found an approach from behavioral psychology of praising paying customers decreased evasion in other systems.

 The MTA could also examine further expanding station infrastructure like cameras and more signage to deter the use of emergency gates. (This was the original stated purpose of $40 million in funds coming from the Manhattan District Attorney, which the MTA has erroneously claimed will largely cover the cost of new officers.)

 Yet another option is deployment of more cost-effective civilian staff. The MTA has said that more orange-vested staff could provide a deterrent to fare evasion, while providing more customer service. Additionally, the MTA’s Select Bus Service enforces fare payment with its Eagle Teams, who are not police officers. Unlike on other buses and the subway, Select Bus riders do not have to dip their Metrocards on the bus to pay the fare, but instead pay in advance and must show proof of payment upon request of the Eagle Teams. Ironically, the MTA’s Eagle Teams saw 22 staff members cut in the MTA’s 2018 budget reduction program, which in retrospect seems highly questionable as the MTA has said they do indeed pay for themselves.

The MTA Board Must Reject this Proposal
Before spending scarce transit operating dollars that almost doubles the size of the MTA police force, the MTA should work with its own officers and those from the NYPD to establish clear goals and expectations and improve the effectiveness of existing policing. The MTA Board needs to hear fact-based arguments with cost/benefit analyses of the various options to address safety, homelessness, and fare evasion. The MTA Board should reject hiring more police officers until its members and the public have real information about the opportunity costs of this proposal.

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Rachael Fauss is senior research analyst for Reinvent Albany. On Twitter @RachaelFauss & @ReinventAlbany.

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