First Person

The Bill That Would Legalize Discrimination Against My Daughter

My daughter was born 26 weeks into my pregnancy. When Charlie arrived she weighed one pound and 12 ounces, and she was just as long as my finger. During the first few weeks of her life, I watched her overcome what felt like insurmountable obstacles. She struggled to breathe, her stomach wasn’t mature enough to digest food, and her skin was so thin it was agony for her to be held. I worried that we were asking too much of her, but she fought to survive. Today, she is a joyous 5-year-old, though she has residual effects of her significantly premature birth. Charlie was incredibly susceptible to infections, and she has delays in speech and fine motor development. She will go through life with a disability: she needs help tying her shoes, using scissors, and opening her lunch.

Throughout 2017, my family and I have fought constantly for Charlie’s health care. I have marched, spoken at press conferences, and met with more representatives than I can count to try to explain what Congressional Republican attempts to repeal Obamacare and slash Medicaid funding would do to my family. I’ve spent days, hours, and weeks travelling back and forth between my home in Charlottesville, Virginia, and Washington, D.C., because I knew fighting for Charlie’s life meant fighting for affordable, accessible, and comprehensive health care.

When Charlie was an infant, I would often sit and watch her. Sometimes, she would forget to breathe and I would gently remind her with a nudge. When we defeated Graham-Cassidy, the last attempt to overturn the Affordable Care Act, it finally felt like we could both breathe more easily.

But now there is a new threat on the horizon: HR 620, the ADA Education and Reform Act, has already passed the House and is at risk of being taken up in the Senate. If it’s passed, the bill will change key provisions of the Americans with Disabilities Act (ADA), shifting the burden of accessibility from businesses to people with disabilities.

Sometimes, Charlie would forget to breathe and I would gently remind her with a nudge

For 28 years now, the ADA has given people like Charlie the unassailable right to be part of public life: They cannot be discriminated against at work or in school, and businesses have to be accessible by including things like curb cuts and accessible bathroom stalls. Over the years, people with disabilities have needed to pursue litigation under the ADA when businesses refuse to become accessible. And it’s worked. Our society is much more accessible today than it was nearly three decades ago when disabled activists had to climb up the steps of the Capitol to get attention. But HR 620 threatens to send us back to that time—a time when people with disabilities were excluded from public life.

Under HR 620, people with disabilities will have to notify businesses that they are violating the ADA, citing very specific details regarding the provisions of the statute that apply to their particular situation. Business owners would then have up to six months to make “substantial progress” toward fixing the issue, but they don’t have to be fully accessible. That is at least six months before the person filing the complaint can access a restaurant, or a movie theater, or a book store that’s effectively barred its doors to people with disabilities—even though accessibility has been the law for almost 30 years.

No other marginalized community needs to demonstrate why they deserve to access a public space, let alone cite specific legal provisions, in order to be able to access that space. Why should Charlie have to?

The ADA made the American Dream possible for a generation of people with disabilities. Now my child is being told the American Dream is no longer available to her. This isn’t the United States of America I know, and it isn’t the society I want to live in.


First Person

Trump Wants to Get Rid of the Heating Support that Kept Me Safe

For the second year in a row, President Trump’s budget plan eliminates the program that provides heating and cooling support for to 6 million households in the United States. To justify the cut to the Low Income Home Energy Assistance Program (LIHEAP), Trump claimed it is “low-performing,” “ineffective,” and has “difficulty demonstrating effective outcomes.”

I’m here to offer an effective outcome: Me.

I grew up in a rural Western Massachusetts town surrounded by forest, farms, and shuttered mills, where it was a 30 minute drive to the nearest grocery store. Winters were a wonderland filled with snow days, cross-country skiing, roaring fires, and sledding. However, when I was 12 years old, my dad left and took our financial stability with him. After 21 years of marriage, my suddenly single-income mum had to find a way to pay the mortgage, keep food in the fridge, put gas in the car, and—in a town where snowfall is measured in feet rather than inches— heat a drafty home through the New England winters.

The original 1970s heating system was intended for a single floor house. Despite its best efforts, the heat would be sucked into the large, dank cement basement, and never reach the second floor that my crafty grandpa added himself. When the temperatures dropped outside, regularly into the single digits, the painful damp cold seeped through the walls and into my bones. I would layer socks with slippers and pair flannel pajamas with sweaters and thick robes. I walked around the house wrapped in blankets, gripped with a constant panic because I could not get warm. Then, when I looked at the thermostat, I would find the already-inadequate heating system was only set to 55—nowhere near the temperature that could have forced the heat up from the basement and into the termite-riddled corners of our house.

But my mum was rationing the heat.

We staged silent, passive-aggressive battles over the temperature for years. I could not understand why we didn’t set the heat to 70 or 72 like my friends’ warm, comfortable houses. So, as the temperatures went down, I would tip-toe to the thermostat at the top of the basement stairs and crank the heat up twenty degrees. Then, when I was caught—and I always got caught—conflict would erupt.

During one particularly tense argument, my mum snapped and told me that the only reason we could even afford to keep the heat in the 50s was the government assistance that helped pay for the oil that heated the house. She was still paying for heat, but the program helped shave a few dollars off each gallon. If I kept turning up the thermostat to more bearable temperatures, we would run out of oil for the month.

Our family only talked about finances during arguments like that: Once someone had been pushed too far, the truth would come rushing out. I pieced together my understanding of money, and adulthood, and class from my memories of those moments. But during the winters when I was still a teenager, I couldn’t get past the disbelief. How could turning the dial to 70 mean we would be without heat in the heart of a Massachusetts winter? How could regions with extreme cold allow residents to live without a basic need like heat?

It took years for me to realize my mum was hiding our financial problems because she was trying to protect me. She was working hard to help our family recover after we lost our only source of income. My mom had stayed home to raise me, so when my dad left, she didn’t have a career to fall back on. She paid the bills by begging friends and the family priest to let her clean their houses and edged her way up to juggling a variety of part-time jobs: temping in offices, restocking clothes at TJ Maxx, and working the night-shift as a receptionist in the emergency room. During this time, LIHEAP was a short-term resource that helped pull us out of a terrifying financial black hole.

When my mom finally secured a full-time receptionist position, she immediately donated to fuel assistance programs because she was so grateful that LIHEAP had given us a chance to stabilize financially. It didn’t keep my house luxuriously warm, but it kept us safe and alive in dangerously cold weather.

Today, only 20 percent of all the households in the US that qualify for LIHEAP actually receive assistance paying for heat or weatherizing their houses. That means for the 6 million families who receive help, there are another 24 million families who are eligible but go without. The program has a brutal, “first come, first serve” policy: When each state’s LIHEAP money runs out, agencies stop accepting applications for assistance—often before winter ends. The families lucky enough to receive LIHEAP can find themselves exhausting their funds before winter is over. The remaining families are left with impossible choices: whether to pay for the heat or the mortgage, whether to live with the cold or to put kerosene heaters in the house.

Trump’s budget would make that a reality for everyone.

Correction: An earlier version of this article misstated the reason the author’s mother’s career history. 



The Leaked Rule That Could Ban Immigrants Based on Income, Explained by Experts

Earlier this month, leaked documents revealed that the Trump administration is preparing new rules that would effectively end the United States’ family-based immigration system. If implemented, the regulation would prevent low-income and working-class immigrants from entering the country by denying legal status to immigrants considered “likely” to become a so-called “public charge.”

Currently, immigration officials can only consider the use of cash assistance, such as Temporary Assistance for Needy Families—a program that serves very few people—in determining whether someone is likely to become a “public charge.” But under Trump’s new rules, immigrants could be barred from legal status for turning to a whole range of public programs that millions of families rely on, including Head Start, the Supplemental Nutrition Assistance Program (SNAP), nutrition assistance for Women Infants and Children (WIC), housing assistance, home heating assistance—even the Children’s Health Insurance Program and subsidies under the Affordable Care Act.

To understand what this new policy will mean for immigrant families if it goes into effect, I spoke with Shawn Fremstad, a senior fellow at the Center for American Progress, and Hidetaka Hirota, professor of history at the City College of New York and author of Expelling the Poor, which examines the United States’ long history of keeping out immigrants who come from poverty.

Rebecca Vallas: What is the Trump administration considering in this moment, and what do we know about the rules they’re working on from the leaks?

Shawn Fremstad: So, as we all know, this is not a very pro-immigrant administration. Just this week they’ve taken out the “nation of immigrants” language from the actual motto of the United States Citizenship and Immigration Services (USCIS), what used to be known as the INS [Immigration and Naturalization Service]. But now we know the administration is doing a stealth campaign using this longstanding “public charge” provision in immigration law. It’s a way to undermine the family-based immigration system we have and target working-class immigrants from low-income countries, from Mexico, from countries that Trump called “shithole countries.”

RV: I was going to say it if you didn’t.

SF: At its core, it’s about keeping out poor immigrants. This is a rewriting of a longstanding rule. What it meant historically is that you’re a “public charge” if you’re basically going to become completely dependent on welfare-cash type benefits, or institutionalized for long-term care with Medicaid. So it’s really someone who is not working, not able to work, and doesn’t have anybody else supporting them and they’re primarily dependent on benefits. So it’s a very limited thing.

But what the administration is saying is that it’s no longer going to be about whether you’re primarily dependent and not working; it’s are you going to be low-income? Are you going to be below median income? What they say is they’ll weigh it heavily in your favor if you have 250 percent of the poverty line as an income, which is basically around median earnings for a white male worker in the United States.

They also have a long list of benefits that if you’re likely to access them after being admitted to the United States as a green card, as a lawful immigrant, those are the kind of things that will be held against you. This is quite radical. It includes things like the Premium Tax Credit that was part of the ACA, which goes up to 400 percent of poverty. For many families that’s a middle-class benefit. That would not be something that “makes you a public charge.” You could be working full time, making a good salary, and the only issue is you’re not getting health care from an employer, so you need to access this.

They also include things like Head Start, Pell grants—it’s an extraordinary list.

RV: Even the Children’s Health Insurance Program.

SF: Yes. It’s a long list of programs that legal immigrants are often eligible for in the United States.

RV: Help us understand how this is actually going to look in practice.

SF: This public charge test comes up in two broad scenarios. One is you’re a family member here in the United States, you want to bring over a family member and get a family-based visa for them. They are subject to this public charge test so they have to meet that before they can get the visa. So if that person looks like somebody who might get any of these benefits, then the public charge test could be used to exclude them.

The other situation is there are a lot of people in the United States—some undocumented, some under different lawful statuses—who have children in the household who are U.S. citizens, and the child is getting Medicaid because they’re eligible as U.S. citizens. The child is getting SNAP or WIC. Now the test can be applied to the parents simply because they got food stamps or Medicaid or other benefits for that child. So there’s a potential to keep people out who haven’t come to the United States and to penalize people who are here now. It’ll make people much less likely to turn to programs that could help their child’s healthy development, education, et. cetera.

RV: Professor Hirota, effectively barring entry to immigrants who come from poor or low- income backgrounds is something that you’ve called “poverty-based immigration control.” Tell us about the history of this public charge provision that Shawn’s been describing and how it fits into the country’s broader history of keeping out immigrants for economic reasons.

Hidetaka Hirota: The public charge clause has a really long history in the United States, with origins in the colonial period. British settlers essentially brought their mother country’s poor law, which banished the “transient beggar”—that is, the poor people who did not belong to the community beyond the boundary of the community. This kind of poor law was eventually inherited by states after the American Revolution, and when a large number of impoverished Irish immigrants arrived in the US over the first half of the 19th century, these laws eventually developed into immigration laws. So America’s first immigration law really originated from poor law, and the primary purpose of the law was the deportation back to Europe of the destitute Irish immigrants already in the US.

In the late 19th century these poor laws developed into the nation’s first national immigration law—the Immigration Act of 1882. This law, along with the Chinese exclusion law of 1882, laid the foundation for subsequent national immigration law. And the anti-poverty clause, or likely to become “public charge” laws, remained in national immigration laws. So anti-poverty sentiment was really deeply integrated into the American system of selecting immigrants and this has a longer history than we think.

In the 1930s refugees from Nazi Germany became targeted

SF: In different nativist periods this has been interpreted in different ways to target different communities. So in the 1930s refugees from Nazi Germany became targeted. In some periods it’s been so-called “degenerates,” denying people based on sexual orientation. Nobody says public charge in real language today. It’s an archaic, ancient term and it gets filled with whatever the animus is today.

HH: I would add that a central feature of this “likely to become public charge” law is massive discretionary power of the inspecting officer. They have tremendous power to determine who could be enter and who should be expelled thanks to this vague clause.

In the mid 19th century, when there were Anglo-American officers, Irish people suffered disproportionately because of this clause compared to other immigrant groups like Germans. And in the early 20th century, Asian immigrants like Japanese and South Asians were targeted for this clause. There were middle class Japanese immigrants with some cash, and they did not appear likely to become a “public charge” from an economic point of view. But the officers excluded them as potential paupers on the grounds that in America, racism was too strong, so these immigrants wouldn’t gain employment. Despite the possession of potential cash and middle-class appearance, they were deemed likely to become public charge.

The whole clause can operate with very strong racist dimensions, and this also applies to the Trump administration’s proposed new rule. The new rule would not apply to immigrants equally. The officers could have very strong discretionary power in deciding whose visas can be renewable by simply manipulating this “likely to become public charge” rule.

RV: Shawn, how do we expect this to move forward in the weeks ahead and how should folks get involved if they want to try to stop this from becoming the policy of the land?

SF: Right now it’s still in a draft form but we think it will get published in what’s called the Federal Register as a proposed rule probably in the next 30 to 60 days. And this will be an opportunity to formerly comment and an important point to really lift this up and focus. I think it’s been very under the radar so far because it isn’t out there officially and there’s so much else going on right now.

RV: And we’re seeing chilling effects playing out in communities across this country with immigrant families, actually going into social services office and saying stop my food stamps, stop my kid’s Headstart, because I’m afraid this is exposing my family to danger and perhaps the risk of being split up.

SF: I think at this point people should not panic, one important thing to know is that the draft version of the rule says it will be prospective so it’s looking forward; if you had received these benefits in the past we’re not going to count that. So making sure you’re in touch with immigrant advocacy organizations who can tell you more about this is important.

RV: As the National Immigration Law Center has put it, and I think these are probably the right words to end on with a heavy and truly demoralizing topic: if this policy goes into effect, “no longer would we be the country that serves as a beacon for the world’s dreamers and strivers. Instead America’s doors would be open only the highest bidder.”

This interview was conducted for Off-Kilter and aired as part of a complete episode on February 23. It was edited for length and clarity.



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.