DeVos Wants to Roll Back Protections for Students of Color in Special Education

Today, the Trump administration is proposing delaying a little-known regulation designed to address racial and ethnic inequities in special education. The rule requires states to identify school districts with “significant disproportionality”—in other words, schools that are inappropriately placing a large number of students of color in special education—and requires districts to address those disparities. It was scheduled to go into effect this year, but under the new rule it would be delayed until 2020 with the potential to be rescinded completely.

According to the U.S. Department of Education, children of color are significantly more likely to be referred to special education than white children. They are also more likely to be educated in segregated settings—away from nondisabled peers—and to be suspended from school. For example, in the 2013-14 school year, 6 percent of all public school children received at least one out-of-school suspension. This figure doubles to 12 percent for children with disabilities, and doubles again to approximately one quarter of black, Hispanic, multi-racial, and American Indian/Alaska Native boys with disabilities.

That much time in segregated classrooms—or being out of class entirely—drags down students’ academic performance. Only 3 percent of black 4th graders in special education were proficient in reading; Hispanic and American Indian/Alaska Native students are 5 and 6 percent proficient, respectively. Since the overwhelming majority of children in special education can complete grade-level work with appropriate interventions and supports, these numbers point to something beyond student ability: an unequal education. Students in segregated classrooms are less likely to engage with effective educators and less likely to participate in enrichment activities. Decades of research clearly show that children with disabilities perform better academically when they are held to high expectations and have access to the general curriculum.

That’s all in addition to the fact that the U.S. Supreme Court ruled 60 years ago that “separate but equal” is inherently unequal.

When Congress passed the Individuals with Disabilities Education Act (IDEA) in 2004 to revamp special education, it tried to address this inequality through specific provisions about significant disproportionality. But more than a decade later, black students are still 40 percent more likely to be identified as needing special education and are twice as likely to be labeled as having an intellectual disability or emotional disturbance. Hispanic students are 40 percent more likely to be labeled as having a learning disability, and American Indian/Alaska Native students are 60 percent more likely to labeled as having an intellectual disability. At the school district level, the data can be even worse: Almost 800 school districts identified black students with emotional disturbance 300 percent more often than white students.

Black students are twice as likely to be labeled as having an intellectual disability or emotional disturbance

That’s in part because the IDEA doesn’t define “significant disproportionality.” The Department of Education originally gave states full discretion on how to identify school districts, so states created definitions that were almost impossible to meet—and let themselves off the hook when it came to addressing any problems. According to the Government Accountability Office (GAO), out of a total of more 15,000 school districts in the United States, only 356 school districts (approximately 2 percent) were flagged as having overrepresented students of color in special education.

In 2016, the Department of Education issued regulations requiring states to use a standard approach to identify significant disproportionality. It also established more effective ways to address the issue. This is the specific part of the law that the Trump administration wants to delay: the one with the potential to make it effective. More than one hundred civil rights and disability organizations have already expressed opposition to this roll-back.

According to the Trump administration, the rule might not address the problem. But since states are just beginning the appropriate analyses and are not required to comply with the rule until July 2018, they simply don’t have enough data to say that the rule doesn’t work. The administration also argues that states are in the best position to evaluate the problem, despite the decade of evidence proving otherwise.

Unfortunately, this appears to be part of a pattern of rolling back hard-won protections for children and adults with disabilities from the current administration. We know that Secretary Betsy DeVos is considering rescinding critical guidance protecting children of color and children with disabilities from unfair and illegal discipline practices. The Department of Justice recently rescinded a number of pieces of significant guidance regarding the civil rights of individuals with disabilities under the Americans with Disabilities Act. And, during her confirmation hearing and subsequently, Secretary DeVos has displayed a lack of clarity and purpose regarding enforcing the rights of children with disabilities and recently rescinded 72 pieces of guidance related to special education without sufficient explanation.

Under federal law, the public has 75 days to provide comment on this proposed rule. Children of color have already waited through Jim Crow and segregation, Supreme Court cases and legislation, for an equal public education. How much longer must they wait?

For more about this, listen to Michael Yudin on the February 2 episode of Off-Kilter. 



Budget Cuts Are Putting More Kids in Foster Care

House Speaker Paul Ryan has spent the past month trying to convince his fellow congressional Republicans to add cuts to Medicaid, food stamps, and other programs to this year’s legislative agenda. It’s been his dream for decades, and a central part of a far-right policy agenda he unveiled in 2016.

Ryan’s 2016 agenda—which he says is still his template for benefit cuts—uses Temporary Assistance for Needy Families (TANF or “temporary assistance,” which replaced Aid to Families with Dependent Children in 1996) as a success story and model for future cuts. But evidence is mounting that a growing number of states are outright failures when it comes to meeting the first purpose of temporary assistance: providing assistance to families so that children “can be cared for in their own homes” instead of in foster care or institutions.

The number of children in foster care now exceeds the number of children being cared for at home with the support of temporary assistance in at least seven states: Arizona, Arkansas, Indiana, Kansas, North Dakota, and Wyoming.

As the map below shows, in 2016, the ratio of children in foster care to children receiving temporary assistance varied from .07 in California to 2.77 in Wyoming.* In 21 states, this ratio is greater than .5, meaning that for every two children receiving TANF while living at home, there is one or more children living in foster care. In seven states, the ratio is 1:1 or more, and in two states (Wyoming and Indiana) there are roughly two or more children in foster care for every one receiving TANF while living at home.

The ratio of children in foster care to parents and other relative caregivers receiving TANF varies even more: from .11 in Maine to 41.56 in Idaho. The ratio is greater than 1 in 34 states, meaning that for every one parent receiving temporary assistance while caring for children in these states, there is one or more children living in foster care.

Let’s take a closer look at one of these failed TANF states: Kansas. Starting in 2011 under Gov. Sam Brownback, Kansas began implementing a series of cuts that have made it much harder for working-class parents and children to receive temporary assistance, regardless of their financial situation.

As the cuts were imposed, the number of Kansas children and parents receiving temporary  assistance plummeted. At the same time, the number of children in the child welfare system, including the number being cared for in foster homes, increased. By 2016, nearly 11,000 Kansas children were spending time in foster care. That same year, only about 9,200 Kansas children were receiving temporary assistance while being cared for in their own homes. Moreover, a significant number of these children were being cared for in the homes of grandparents or other relatives rather than parents. Less than 3,000 actual parents were receiving temporary assistance themselves in 2016.

To put these numbers in context, nearly 3 million people live in Kansas. Nearly 1 in 3 Kansas workers are paid under $12 an hour, and 1 in 7 Kansans are food insecure. Some 100,000 Kansas children live in families with incomes below the poverty line, and roughly 20,000 Kansas children live apart from both their parents.

There are no provisions built into the program to make sure it's doing enough to meet families’ needs

Kansas officials claim the rise in children living in foster care is not due to the temporary assistance cuts. Research funded by the Centers for Disease Control and Prevention strongly suggests otherwise. In their preliminary research, economist Donna Ginther and social work professor Michelle Johnson-Motoyama, both at Kansas University, have found that the number of children in the child welfare system, including foster care, increased in Kansas and other states that implemented more restrictive TANF policies. In recent testimony before the Children and Seniors Committee of the Kansas House of Representatives, Johnson-Motoyama said that “restrictions on access to [temporary assistance] appear to have unintended consequences with regard to human costs and costs to Kansas taxpayers.”

Most children end up in the child welfare system not because of abuse, but because officials decide parents aren’t adequately meeting their children’s basic needs. Recent research suggests that when low-income parents receive even modest amounts of additional income each month, their children’s risk of involvement in the child welfare system goes down.

As a practical matter, it will be difficult to definitively prove that cuts in temporary assistance are pushing more children into the child welfare system. But debates about causality shouldn’t distract from the fundamental problem. If a state has more children in foster care than children receiving temporary assistance in their own homes, this should raise searching questions about whether the state is meeting the first purpose of temporary assistance.

Beyond this, temporary assistance in the vast majority of states needs to do more to support parents’ role as caregivers and homemakers. There are no provisions built into the program to make sure it is doing enough to meet families’ needs. The only real accountability provisions for states in TANF direct them to not provide assistance to families, typically because parents aren’t working enough each week. States and the federal government have paid little heed to parents’ more fundamental role—for their children—as caregivers and homemakers.

* The most recent state-level foster care data available from the Department of Health and Human Services are for 2016. Even fewer children are receiving TANF today, so this ratio will have grown in most states.



‘Giving Up Food So Our Children Can Eat’: The Workers Using Hunger Strikes to Protest for a Living Wage

As spring came to Rhode Island in 2014, Dominican hotel housekeeper Santa Brito and fellow hotel workers Ylleny Ferraris, Mirjaam Parada, and Mariano Cruz were gathering signatures for a Providence $15 wage initiative. “We had to divide up,” says state representative Shelby Maldonado. “We asked: Who speaks the best Spanish? The best Creole?” Maldonado, a child of Guatemalan immigrants and a former UNITE HERE organizer, says that Rhode Island’s immigrant workforce viscerally understood the issues at stake.

They delivered their petitions. The city council put their living-wage initiative on the November ballot. When they convened a public hearing, a hundred hotel workers came to watch. Twenty-two registered to testify. They took time off, found babysitters, and wrote their testimonies.

Then, at the last minute, the hearing was canceled.

Brito was angry. She believed city officials had been pressured by the Procaccianti Group, a hotel management and construction company that donates heavily to Rhode Island political campaigns. “The Procacciantis,” she said, made her clean 18 rooms daily, made her work till the day she gave birth. Then “the hotel told me they couldn’t guarantee me a job. I was fired for speaking out. I know it.” She shakes her head, disgusted. “I used to be afraid, but I’ve lost my fear. What else can they do to me?”

“I have the power, the will, and the strength to fight and take a stand,” she says. “I have a right to create a union in my workplace and fight to correct grievances. It’s very important to be united at work, to be able to confront the injustices we face.”

It seemed for a while that the workers were winning, that the $15 wage would become law in Providence. Then state legislators introduced a pre-emption bill, banning local governments from enacting a wage higher than the Rhode Island minimum, which was only $8 an hour. Brito was outraged. “I have to borrow money from my brothers and cousins just to pay off my bills,” she said.

The Rhode Island legislature was majority Democratic, but hotel and restaurant owners lobbied hard. They paid $100,000 to lobbyists to push the bill. “House leadership is moving to jail us in poverty,” said Brito. Brito and Ferraris announced a life-or-death fight for Rhode Island’s working families. Seventy-three percent of jobs in the state paid too little to live on. The state’s workforce—Dominican, Guatemalan, South American, Haitian, and Cape Verdean immigrants—lived in poverty, says Maldonado, unable to feed their children decently. So Brito and Ferraris, hotel chef Mirjaam Parada, and Maldonado decided to stage a huelga de hambre—a hunger strike. Setting up camp on the steps of the state capitol, the women told reporters they were giving up food so that the state’s children might have enough to eat.

Shelby Maldonado, child of a Guatemalan domestic worker, former UNITE-HERE organizer, hunger striker for a living wage in June 2014, and now one of the youngest state representatives in Rhode Island. She successfully sponsored a pregnancy discrimination bill in honor of her mother and the women she went on hunger strike with.
Shelby Maldonado, child of a Guatemalan domestic worker, former UNITE-HERE organizer, hunger striker for a living wage in June 2014, and now one of the youngest state representatives in Rhode Island, poses for a portrait. She successfully sponsored a pregnancy discrimination bill in honor of her mother and the women she went on hunger strike with.

Photographs of the four women, and of Brito’s young son, circulated widely. It wasn’t enough. A majority voted for preemption.

By 2017, with Rhode Island’s minimum still only $9.60 an hour, service workers seeking raises began reaching out to sympathetic business owners. Jeremiah Tolbert, owner of Jerry’s Beauty Salon in Providence, became a spokesperson. He upped his workers’ wages to $15, then invited the press to explain why. When small businesses pay more, local workers have money in their pockets to spend. For Tolbert, raising wages has been “a win-win.” He has urged other local businesses to follow suit.

Nine months later and 3,000 miles away, another group of hunger strikers from Walmart battled for a living wage. Los Angeles mayor Eric Garcetti had long insisted that he would only support raising the city wage to $13.25, says Denise Barlage. In April 2015, she and seven other women workers sat down outside LA City Hall. They sat there for two weeks, consuming only tea and water. Though temperatures hovered in the 60s, Barlage felt cold by the sixth day without food. Her blood pressure was low. She donned a hat and gloves to keep it from falling further.

“We were ready to be arrested,” she recalls. “We were going to handcuff ourselves to the building.” Then they saw the mayor walking toward them. They held up their sign: “Women Fast for $15.” The mayor stopped. He looked at them, leaned down. “Then he told us he was on board with 15,” Barlage remembers. Weak from days of fasting, some of the women began to cry.

Before breaking their fast, the hunger strikers testified before the city council at a minimum wage hearing. The strikers were mothers and grandmothers who worked two or three jobs to survive, Barlage says, but still had to choose “whether to feed their children or themselves. That’s just wrong.” The women spoke of their fears of eviction and homelessness. They told of kids who didn’t have decent clothes for school or bus fare to get there.

“I am Mary Carmen Farfan, mother of four. I work at Burger King,” one woman began. “I decided to make a fast for my kids, for my family, for my coworkers. These are single mothers. We have struggled to pay rent, to feed our kids … I can’t … because I have only $9 for a minimum wage.” No one can afford to live in LA on less than $15 an hour, Mary said. She also told city officials how she shared a home with nineteen people from three families who earned between $9 and $13 an hour. By hearing’s end, LA’s City Council had voted for the $15 wage, says Barlage. “What that felt like, I can’t describe.”

Denise Barlage has gone on hunger strike for a living wage and respect in front of Los Angeles City Hall and the Park Avenue, Manhattan penthouse of Walmart heiress Alice Walton.
Denise Barlage has gone on hunger strike for a living wage and respect in front of Los Angeles City Hall and the Park Avenue, Manhattan penthouse of Walmart heiress Alice Walton.

Barlage is one among many living-wage activists for whom hunger strikes have become a way of life, a potent weapon because it crystallizes the moral bottom line of this struggle. “So many workers today are used to being hungry,” Barlage says. “Hunger doesn’t scare us. It only scares people who aren’t used to it.”

Seven months after their successful fast in LA, Walmart workers fasted for ten days on Manhattan’s most famously wealthy boulevard, Park Avenue. They chose the Thanksgiving holiday—a ritualized celebration of American overindulgence—to highlight hunger among Walmart workers. Barlage came. So did workers from Florida, Virginia, Minnesota, and Maryland, their neon-green OUR Walmart shirts glowing in the gray November chill as they sat outside Walmart heiress Alice Walton’s penthouse. Walton sits on a personal fortune north of $33 billion, and her apartment was rumored to have cost $25 million.

Sacramento activist Tyfani Faulkner says she came because “people don’t realize that many Walmart workers are starving.” She says it galls her that her colleagues are hungry. “You’re working at this huge grocery store and workers are living off ramen noodles and chips because they can’t afford to eat better. I thought fasting was a great way to show that and to be in solidarity with those who aren’t eating, not because they don’t want to but because they don’t earn enough to eat well.”

“We didn’t see Alice Walton the whole week,” she says. The doorman told Barlage that Walton had groceries delivered rather than walk past the hunger strikers. “He told us she was up there drinking Scotch and smoking cigarettes, rather than talk to us.” Meanwhile, the protesters lived on donated broth and tea. “I stayed and fasted for ten days,” Barlage says, “because I didn’t have a job to go back to. Walmart had closed our store. They said it was plumbing problems but it was because we were too loud and strong.”

Venanzi Luna speaks at a protest by Organization United For Respect at Walmart after the corporation shut down the Pico River, California store and four others without warning in Spring 2015, allegedly for plumbing problems. The protesters believed that it was in retaliation for worker organizing. Luna led the first strike against a Walmart on U.S. soil in 2012.
Venanzi Luna speaks at a protest by Organization United For Respect at Walmart after the corporation shut down the Pico River, California store and four others without warning in Spring 2015, allegedly for plumbing problems. The protesters believed that it was in retaliation for worker organizing. Luna led the first strike against a Walmart on U.S. soil in 2012.

The Park Avenue hunger strike was part of a nationwide “Fast for $15.” A thousand people across the United States forswore food for two weeks leading up to the shopping frenzy that is Black Friday. Some fasted in front of the Carmel, California, mansion of Walmart chairman Greg Penner. Bleu Rainer fasted in front of a Tampa Walmart. Fasting workers could be seen outside many Walmart stores. Finding a thousand people to fast might have been hard except that hunger is a condition that low-wage workers know too well. “I have had to rely on food stamps to get a good meal,” Rainer says. “And when those food stamps run out, it’s back to square one, which is nothing at all.”

Hunger is widespread in the United States. In 2016, more than 60 million Americans qualified for food aid. That’s nearly 20 percent of citizens in the richest country in the history of the world. Forty-five million Americans that year received assistance through SNAP (Supplemental Nutrition Assistance Program), the federal program that used to be called food stamps. (Most people who receive it still do call it that.)

But in some U.S. counties, as many as two-thirds of hungry citizens do not receive aid. Toward the end of George W. Bush’s presidency and at the beginning of Barack Obama’s, expansions in federal food aid cut the numbers of hungry Americans significantly. But then, Congress and state legislatures slashed budgets and tightened eligibility. And the number of hungry Americans rose again. Many of the hungriest are children.

Hunger is endemic in places you’d least expect, in affluent states like New York and California, and even more so in the nation’s most expensive cities and suburbs. Forty-two percent of students in the University of California system did not have enough to eat in 2016. Forty-five percent of UC employees said they were frequently hungry. Twenty-five percent ate substandard food because they could not afford better. Seventy percent skipped meals to save money.

And these are the winners: students and employees at one of the world’s great university systems. Fifty-eight percent of surveyed employees held bachelor’s degrees or higher. Ninety-six percent worked full-time and were the primary earners for their families. Clearly, they represent just the tip of the iceberg of hunger in America.

“The thing that so many Americans just don’t seem to get,” says Barlage, “is that Walmart workers and McDonald’s workers and so many other working people in this country are really, actually hungry all the time.” OUR Walmart activists ask workers who bring lunch to “pool what we have so everyone can get a little—chips, some sandwich. Otherwise a lot of people won’t have anything to eat. We take Walmart’s line about how we’re all family seriously—even if they don’t.” Pooling food has become part of what the movement does. “That’s why we do hunger strikes. Two weeks without food. I might feel a little cold. My blood pressure might drop a little. But I can do it. Hunger doesn’t scare me.”

Excerpted from “We Are All Fast-Food Workers Now”: The Global Uprising Against Poverty Wages by Annelise Orleck (Beacon Press, 2018). Reprinted with permission from Beacon Press.

Photography by Liz Cooke.



The Politically Charged History of the Term ‘Able-Bodied’

Congressional Republicans would have us believe that the so-called “able-bodied” are everywhere among government anti-poverty programs, taking away assistance from those who are more “deserving.” But far from describing a defined demographic group, there is no standard definition that makes a person “able-bodied.” Rather, the term has long been ingrained with political and moral implications.

As Emily Badger and Margot Sanger-Katz write in The New York Times’ Upshot, “Across centuries of use, [the term] has consistently implied another negative: The able-bodied could work, but are not working (or working hard enough). And, as such, they don’t deserve our aid.”

I spoke with Badger to unpack the 400-year history of the term able-bodied.

Rebecca Vallas: Emily, I have to admit I nerded out hard reading this piece—a 400-year history of the term that is centrally housed in every debate around the deserving versus the undeserving poor, something we’re very much living through in this political moment—just how very cool that you did this. Help tell that story, where does it go back to 400 years ago?

Emily Badger: The genesis for this piece is that my colleague Margot and I realized that we had this mutual suspicion of the term “able-bodied.” People constantly use it in conversation with us in Washington and in policy circles and the think tank world. But we both felt like we shouldn’t use this term ourselves as journalists, at least not without quotation marks around it, because it’s loaded, it carries a lot of connotations that people don’t explicitly express. And in Washington, it’s quite common that we fight about politics through rhetoric.

So Margot and I asked, what is the story behind the term? Where did it come from? How have we come to use it? What do people really mean when they use it?

We started reaching out to historians, and other people who are familiar with the backstory of the Medicaid program. Over and over again people told us that we need to learn about English poor law dating to 1601. It turns out that this set of laws—which are really the foundation of social policy in the United States—included the phrase “able-bodied.” They include from the very beginning this distinction between the impotent poor, meaning people who are powerless to help themselves, and the able-bodied poor. And the idea that we should provide resources and aid to the impotent poor but we shouldn’t freely give stuff away to the “able-bodied”—maybe what we should do is set them up at workhouses, try to connect them to work opportunities. But very early on there was this distinction between people who we thought should be working, and people who couldn’t work for a reason.

RV: The first distinction between the deserving and the undeserving.

EB: Exactly, and the idea that some people are worthy and some people are not gets expressed now in a lot of different ways. We talk about people who are lazy versus people who are industrious, or people who are able-bodied versus people who are crippled or disabled. Whatever language we use, there’s always this idea that one group unquestionably should be given help without judgment and the other group is probably trying to freeload off of the public. As one historian pointed out to me, that’s part of the reason we have these really expensive government bureaucracies in the United States around anti-poverty programs—we construct these elaborate bureaucracies to try to separate these two groups of people.

We construct these elaborate bureaucracies to try to separate these two groups of people

When we require people to qualify or submit new paperwork multiple times a year, or when we’re talking about work requirements, or when we require people to show that they’re in a job training program or that they’re actively looking for work even if they don’t have work available … all of that is part of this expensive process of trying to identify who is deserving and who is not.

RV: And one of the points that your piece makes is that “able-bodied” isn’t just an inherently political term—it’s also a heavily moral term, and that’s a large part of why politicians and elected officials are using it.

EB: Yeah, one of the historians put it really perfectly—he said that the physical distinction always implies a moral distinction. And even though this dates back to Elizabethan England, this idea is very American, too: that work is moral, if you are a good person you are working hard. If you are not working hard, that’s a result of some kind of moral failing on your part. That’s a very old puritanical idea but obviously it’s one that carries through to debates that we’re having in 2018 about programs like Medicaid.

RV: Today we’re familiar with the vast and expensive government bureaucracies you were describing that create hurdles for getting assistance—how did it work back in the 17th century?

EB: So the 1601 poor law in England codified what a lot of communities were already doing. It basically said we’re going to collect taxes from people and then redistribute them to support and help the poor. It placed the onus on people in individual communities, like parish wardens and overseers of the poor, to be responsible for collecting and redistributing that money. So there were people living in the community who knew, for instance, that David over here has tuberculosis and he can’t support his family and he’s got 8 children and they’re all dependent on him and obviously the mother can’t work because she’s also trying to take care of the children. It’s quite clear to the parish warden that David and his family are worthy.

Translating this idea over the years, we’ve erected these larger and more centralized government programs. Someone who is sitting in a Medicaid office in Kentucky doesn’t personally know you and your story to be able to say if they think you are clearly worthy or not. So these same distinctions are made through these other very complex processes: Can you show us a doctor’s note that explains why you aren’t capable of meeting a work requirement that we’ve imposed on you? Or some other qualification criteria. Essentially these bureaucracies are trying to do what the parish warden was trying to do 400 years ago.

RV: I was fascinated to read in your piece that apparently at some point the English came to recognize not just the able-bodied versus those who were not able-bodied, but a third group of people: the able-bodied who were blocked from work for reasons that weren’t about their bodies.

EB: Yeah, I think once you start separating the poor into two groups of people and make these distinctions, it will become clear that there are people out there who appear to be physically capable of work but they’re not working, and it doesn’t seem like they’re lazy, so there must be other things that are preventing them from working. Maybe the economy is really bad, or there aren’t enough jobs in the local community. Maybe this person isn’t very mobile and so they can’t travel to where the jobs exist.

If you deploy any thoughtfulness you recognize that there are plenty of people who don’t work for reasons that don’t have to do with their body. There are barriers to employment that are in the community, in the structure of the economy, embedded in discrimination in the labor market. And this process of setting everyone who is poor into one of these two categories becomes murkier once you realize that the world is more complicated than that.

But what was so striking to us about this history is that the language they were using to debate this, 300, 400 years ago, is identical to how we talk about the poor today. Not only are we still talking about the able-bodied and the deserving, but we’re still having arguments today about why aren’t “able-bodied” people working? Is it their own fault or is it because there are structural obstacles? And just as was the case 300 years ago, I think today we often have a hard time distinguishing between personal failings and structural obstacles. People still wind up frequently conflating structural issues with some kind of moral deficiency on the part of people, which is fundamentally unfair.

RV: One of the bureaucratic hurdles that has been set up over the years to make it harder for struggling folks to access basic assistance is drug tests. I was fascinated to learn from your reporting that modern-day drug tests actually have origins in the 18th century.

EB: Yeah, this is one of the particular moments in reporting this where everything came together for me and I realized how much we are having the same conversation today that we were having 400 years ago. One of the historians, Susannah Ottaway, told me that back in Elizabethan England, they started to set up these rules to try to distinguish who is worthy, and who is not. Things like, if anyone in the community has seen you getting drunk in the local alehouse we know that you are not worthy.

RV: Here was the rule, quote: “Nobody who tipples in the alehouse will get poor relief.” That was the 18th century drug test, right?

EB: Exactly. So if you can’t figure how to distinguish who is worthy from who is not then you set up rules that effectively force the poor to reveal themselves. This rule was about people who are drunk. Today we would set up a rule about drug-testing which is basically a hoop that we make the poor go through in order to reveal themselves as being someone who we ought give assistance to. And this is so similar to what you often hear in Washington today, when we talk about creating more onerous eligibility criteria. If you really need aid, you’re going to be willing to come in to the local bureaucratic office and fill out new paperwork every month, or you’re going to be more than happy to take this job training program as a condition of receiving aid, because if you really need it you will do anything to get it. And that’s the exact same idea that you could reveal yourself to be someone who desperately wants this by your willingness to overcome all the obstacles we’re putting between you and the aid.

And of course it ignores the fact that people may have a difficult time meeting all of those requirements for reasons that have absolutely nothing to do with their willingness or their desire. Maybe you don’t have a car and it’s not practical for you to get to this meeting every month, maybe your housing situation is really unstable and you don’t receive bureaucratic mailings that are sent to you twice a year reminding you to sign up for things.

We’re now moving backwards. We’re rolling back that long-term story of expanding to more and more people

RV: Now the Medicaid program itself is actually in many ways a historical tracker of the evolution of this kind of thinking. Medicaid began in 1965, with, as you put it, “Elizabethan notions in tact,” but over time has evolved to something that looks very different. Tell us a little bit of that story of the evolution of Medicaid.

EB: The Medicaid program originally recognized these very familiar classes of the “deserving” poor. If you are a pregnant woman, if you are blind, if you are physically disabled, these are classic categories that everyone has agreed to going back a long time, these are people who are worthy of help. And over time the Medicaid program has extended help to people beyond those core groups that would be familiar even in Elizabethan times. It’s extended to women who had certain kinds of cervical or breast cancer, it was extended to more parents, it basically became more expansive and more generous over time. And that kind of culminates in the Affordable Care Act when we’re finally saying it doesn’t matter if you’re a parent, if you have dependents, if you have some kind of physical condition that prevents you from working, whatever you are, if you make below a certain income, you qualify. We’re going to get rid of all of these other distinctions about who qualifies and who doesn’t and set an income cut-off.

That’s what the Affordable Care Act tried to do with the Medicaid expansion, which ultimately a lot of states declined to participate in. But that story, that evolution, marks a kind of progress from this history that we’ve been talking about. But what’s so notable about these new work requirements that are coming through Medicaid waivers from the Trump administration is that we’re now moving backwards. We’re rolling back that long-term story of expanding to more and more people. I think the term able-bodied has particularly come into fashion in the last five years or so because it has been used specifically to refer to the Medicaid expansion population.

But conservatives in particular who are concerned about all of the “able-bodied” are saying wait a minute let’s scale it back, let’s go back to trying to make some distinctions between who is able-bodied and who is not. But of course as we were talking about before, once you start saying that you want to make these distinctions between the deserving and the undeserving, then you realize wait, we have to carve out an exception for these people and for these people and for these people, and that exercise of carving out all these exceptions reveals the underlying folly of trying to make these distinctions in the first place.

RV: So given this history lesson, what’s your takeaway in terms of what we are seeing today?

EB: The main thing that Margot and I really wanted to get across in writing about this is that this is not a neutral term. It doesn’t have a technical definition. It’s being used in a slippery way to imply lots of unspoken things. And so just stop and take pause when you hear it. I think Margot and I are sort of secretly hoping that other journalists will realize that they should not just repeat this language when it comes out of politicians’ mouths. I would stick it in quotes if I had to use it in a story. We’re always going to fight about our politics through rhetoric in Washington. That’s not going to change. But at the very least let’s all be honest about what’s happening with this term.

This interview was conducted for Off-Kilter and aired as part of a complete episode on February 9. It was edited for length and clarity.



Congress Is Voting on a Bill That Could Make Debt Traps Legal Again

Today, the House of Representatives votes on an end run around state consumer protection laws. If it passes, the bill would overturn state efforts to stop payday lenders from charging triple-digit annual interest rates and creating consumer debt traps that can turn a $1,000 loan into a $40,000 debt.

The bill—misleadingly titled “Protecting Consumers’ Access to Credit Act of 2017”—claims to be a response to a recent federal court decision in a case called Madden v. Midland. Ms. Madden opened a credit card; when she fell behind on payments, it was sold to Midland Funding, a debt collector. Midland tried to charge her an interest rate of 27 percent, higher than New York’s legal limit of 25 percent, and the judge ruled that while banks are not subject to state interest rate caps—consistent with rulings going back several decades that led to the rapid growth of credit cards—nonbanks, such as a debt collector, are. The decision was reached by the Second Circuit, and only applies to New York, Connecticut, and Vermont.

In the bill, both houses of Congress have proposed a so-called “Madden fix” that would declare that any valid loan made by a bank stays valid if that loan is later sold or transferred to a nonbank. On its face, that sounds fair—until it’s clear that this is exactly the business model, sometimes called rent-a-bank, that payday lenders have historically used to get around state consumer protection laws. Under rent-a-bank, in a state that caps annual interest rates at 36 percent or less—a level considered the maximum for responsible lending for about a century—a loan shark shut out of the market can just partner with a national bank that’s subject to no limits on interest rates at all, and charge consumers more than 300 percent annual interest or more. This practice goes back two decades, and federal banking regulators have been grappling with it just as long.

Under rent-a-bank, a loan shark can just partner with a national bank and charge consumers more than 300 percent annual interest

Getting around state laws also means skirting the will of Americans that have elected to keep predatory lenders out of their states. Fifteen states and the District of Columbia—representing more than 90 million Americans—have set interest rate caps to keep payday lenders at bay. South Dakota joined this club in 2016 with a ballot initiative receiving more than 76 percent of the vote, despite confusing, contradictory language on the ballots. Seventy-two percent of Montanans voted for a cap in 2010. And faith leaders across the country have decried the practice—some even using their own community assistance funds to bail out borrowers trapped in debt.

Even in states where payday lending is not restricted with a rate cap, forty-two states have interest rate caps in place for some other types of loans, such as installment loans, which are generally paid back over a longer period of time. It’s no surprise that the Consumer Financial Protection Bureau’s (CFPB) 2017 payday lending rule specifically called out rate caps as providing better protections than what it could do itself to deal with debt trap lending. (The Dodd-Frank Act, which created the CFPB, specifically bans the agency from capping rates itself.)

Taking away states’ ability to pass and enforce laws that protect their residents from loansharking might not be so devastating if a tough federal standard existed in their place. But this January, CFPB Acting Director Mick Mulvaney delayed the final payday rule, which only dealt with certain aspects of predatory lending, with an eye toward weakening or scrapping it altogether. New Trump-appointed leadership at the banking regulators are not likely to scrutinize rent-a-bank partnerships the way past regulators have, and the Office of the Comptroller of the Currency, one of these regulators, reversed its restrictions on banks themselves making payday loans last year. The closest Congress has come to taking decisive action to help vulnerable borrowers in recent years was passing the bipartisan Military Lending Act in 2007, which put in place a 36 percent rate cap on servicemembers and their families—and still only survived an effort to weaken it in 2015 by one House committee vote.

To be sure, some nonbank lenders who do not make payday loans have argued that the Madden decision makes it harder for even responsible startups to lend nationwide because investors will not support them if loans may be invalidated under state law. But they have other options, including seeking a federal nonbank charter or simply ensuring that they comply with state law. Supporting a nationwide market should not mean forcing open the doors to financial exploitation by allowing lending without limits.

Should the House bill pass this week, it then goes to the Senate, where a bipartisan group of senators has teamed up to co-sponsor the same bill. In an era of massive tax cuts for the rich and devastating benefit cuts for everyone else, this is merely the latest attempt from Congress to tilt the financial playing field further in favor of corporations and the wealthy, making it even harder for working families to get by.