Boston’s Way Forward on Housing

by City Councilor Lydia M. Edwards

Viewpoint

Boston’s economy is thriving. Why then are so many residents of the City and Commonwealth struggling to find and afford housing, remain in the communities they love, become homeowners and build wealth? A shortage of housing that serves the needs of all economic classes and family structures is certainly part of the problem. But simply building across the region will not solve our state’s persistent housing affordability crisis. To house our diverse, growing population, we will need a multi-pronged approach that balances growth and prosperity with protection of all residents during both recession and economic booms and addresses the widening wealth gap that plagues our City and the Commonwealth. As Boston City Council Chair of the Housing and Community Development and Government Operations Committees, my view is that Boston can lead through housing policies that raise revenue for affordable housing, shape new inclusive neighborhoods through planning and zoning that affirmatively furthers fair housing, and stabilize communities through protections against involuntary displacement and equitable opportunities for home ownership.

Revenue for Affordable Housing

With the decades-long decline in  federal funding, localities must look to other sources to finance the preservation and production of housing that is affordable to low- and moderate-income residents. Boston recently passed a home rule petition to collect a transfer fee of up to 2% on high-value real estate transactions that exceed $2 million dollars, subject to exemptions (“Transfer Fee Home Rule”). Enacted, the Transfer Fee Home Rule could generate as much as $169 million per year for affordable housing in Boston, vastly outstripping current  resources at the City’s disposal. Municipalities as different as Somerville, Concord and Nantucket have also  proposed transfer fees to fund their affordable housing, and 38 states and localities already have excise taxes on property sales.

Boston also has a pending home rule bill to authorize the City to update its existing Development Impact Program (“Linkage”) and Inclusionary Development Policy (“IDP”) which are each intended to mitigate the increased demands for affordable housing and job training attributable to large-scale developments. HB 4115. Enacted, HB 4115 would permit the City to make its own decisions to adjust the linkage fees to enable Boston to align more efficiently with changing market conditions and local needs without waiting for approval of the full General Court as currently required by statute; extend the IDP requirements (e.g., to create 13% of development as income-restricted units or contribute equivalent funds) which currently apply only to market-rate housing developments with 10 or more units and are in need of zoning relief, to all large projects regardless of whether zoning relief is needed; and codify the IDP into Boston’s Zoning Code.

Inclusive Zoning and Planning

Several “large projects” subject to Boston’s Article 80 Development Review and Approval process–including the former Suffolk Downs race tracks in East Boston, the Bunker Hill public housing in Charlestown, and the Mary Ellen McCormack public housing in South Boston–provide the City with unprecedented opportunities to shape entire new neighborhoods that provide an inclusive range of housing options to accommodate the City’s diverse population, while disrupting historic concentrations of poverty and patterns of racial and cultural segregation and providing access to employment and training opportunities for affected residents.

For public housing redevelopments, this may mean ensuring that income-restricted units are integrated with the market-rate units, whereas in purely private developments like Suffolk Downs, it may mean planning to ensure sufficient “affordable units” of the right bedroom size to house families and a community benefit agreement to mitigate meaningfully against adverse development impacts and hardships. I have proposed a zoning change for Boston to systematically ensure that all developers undertake deliberate and “meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics.” This change would amend the text of Boston’s Zoning Code to expressly incorporate our preexisting federal Affirmatively Furthering Fair Housing obligations. Seattle and Portland, for example, already review their plans with a lens for racial equity and displacement risk along with opportunities for economic growth, to inform their choices.

The City also recently strengthened its comprehensive planning under the Climate Ready Boston Initiative by passing an Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston to ensure the equitable protection of all residents from the effects of climate change.

Community Stabilization

Boston has been taking aggressive steps to address the chronic housing crisis since October 2014 when the mayor’s Housing Advisory Task Force issued Housing a Changing City: Boston 2030, which was updated in 2018. The original Plan called for the production of 69,000 new housing units by 2030 with specific targets for different affordability levels in an effort to create a more equitable and inclusive City. Beyond production, the City also dedicates funds to support the acquisition and deed-restriction of properties as affordable housing, regulates and restricts short-term rentals, protects against condominium conversions, and supports a right to counsel in eviction proceedings––all measures intended to protect residents, especially long-time, low-income, elderly, and disabled tenants, against involuntary displacement. The City also created the Office of Housing Stability (“OHS”) in 2016, the first of its kind in the nation, to work across City departments and with external partners to promote policies, practices, and programs that are effective in achieving housing stability for tenants at risk of eviction, which is also critical to stabilizing communities like Boston where the majority of the population is renters.

Other high-cost cities also have passed right to counsel legislation, and some states such as Oregon, California and New York are moving towards rent stabilization policies which would allow rent increases but prohibit increases as high as those experienced by many Boston residents. These states, as well as Boston, have also looked to “just cause eviction” policies in efforts to protect tenants current with rent and who otherwise have not broken their lease agreements.

Additionally, to encourage home ownership, Boston has expanded the availability of low-interest loans to moderate-income families through the ONE+ Boston program and approved zoning to allow for accessory dwelling units. Other policies which support resident-controlled housing, such as cooperatives, cohousing and community land trusts; the co-ownership of such housing by residents; and a resident’s right of first refusal  to purchase, would each promote community stability, as well as individual opportunity to gain equity and build wealth.

Conclusion

Boston’s housing affordability crisis is not abating, and our response has not scaled up to protect all residents. With bolder action, we can create lasting stability in neighborhoods and reverse historic patterns of discrimination and dispossession in our real estate market, as well as in zoning and planning decisions. To achieve community stability we need a multifaceted approach to the housing shortage that is responsive to the diverse needs of all residents and to historic inequities and barriers to enabling them to remain in place and housed in their communities of choice.

Lydia Edwards has spent her entire career as an advocate, activist, and as a voice on behalf of society’s most vulnerable. She served as the deputy director within the Mayor’s Office of Housing Stability, as a public interest attorney with Greater Boston Legal Services focusing on labor issues, and she currently represents District One on the Boston City Council. For the 2020-2021 council session, she serves as Chair of the Committees on Housing and Community Development and Government Operations.


Adorable as Affordable?: The Zoning Challenge of Tiny Houses

by Olympia Bowker

Viewpoint

With Massachusetts’ housing affordability crisis showing no signs of abating, it imperative to consider new, creative solutions. A 2018 Boston Magazine analysis of over 150 Massachusetts cities and towns revealed the lowest median home price in one municipality was $255,450; the highest was $1.9M. Contrast these figures with the roughly $60,000 retail cost of a Tiny House, and it is no wonder that these diminutive abodes appear tempting as affordable options. But can they play a meaningful role in ameliorating the affordable housing crisis in Massachusetts? And can the Community Preservation Act (“CPA”) help spur a Tiny House trend in Massachusetts?

Tiny Houses: What Are They, and Are They Prohibited?

A “Tiny House” is defined by the 2018 International Residential Code (“IRC”) as a dwelling that is 400 square feet or less in floor area excluding lofts used as a living or sleeping space. Generally, Tiny Houses look like miniature versions of traditional houses; they can feature tiny modernist rooflines, colonial shutters, or Victorian gingerbread trimming. They can be built either on trailers or fixed foundations—a key distinction for affordable housing purposes.

While attention is often on the high-end Tiny House market that focuses on minimalist lifestyles and carbon footprints, experiments nationwide highlight the value of “tiny house villages” to address homelessness. With the wait times for affordable housing in Boston lasting years, urgency must beget innovation here as well.

Notwithstanding the growth in Tiny Houses as a social and architectural movement, long-standing provisions of many municipal zoning bylaws and ordinances ignore, if not effectively prohibit, Tiny Houses. In Massachusetts, a wheeled Tiny House is legally treated as a recreational vehicle (“RV”), mobile home, or trailer that must be registered with the state and used as such (i.e., not parked year-round other than in a designated area), and is often barred by or heavily regulated under local zoning laws as undesirable.

If a Tiny House is built on a foundation, it must comply with zoning and building codes applicable to single family residential dwellings, including minimum square footage, lot and building size, and setback requirements. For example, Holliston Zoning Bylaw §V(D) has a 600 square foot minimum for floor area, effectively prohibiting Tiny Houses as defined under the IRC. But with the housing shortage at crisis levels, notwithstanding the still-developing zoning and construction standards, high land prices, and political tensions, these small-segment models of housing shouldn’t be overlooked.

Tiny Houses as Stock for the Subsidized Housing Inventory under G.L. c. 40B

To incentivize communities to adopt zoning changes to allow Tiny Houses, it is important to note that Tiny Houses constructed for low or moderate-income households may be countable toward a municipality’s Subsidized Housing Inventory (“SHI”) for purposes of the “Comprehensive Permit Law,” G.L. c. 40B. To qualify as SHI, the unit must be “affordable” to households earning at or below 80% of the Area’s Median Income (“AMI”)—the rent or mortgage payment and related housing expenses (e.g., utilities) cannot exceed 30% of the household members’ annual incomes.

Since enactment in 1969, G.L. c. 40B, §§ 20-23 (“40B”) has served as the main statutory scheme to address the affordable housing shortage statewide. 40B includes an ‘anti-snob’ provision that empowers the Zoning Board of Appeals to override zoning requirements to approve “comprehensive permits” for denser, larger, and higher developments than would otherwise be allowed under local regulations if the municipality has not met its “safe harbor” threshold for SHI: either at least 10% of a municipality’s total housing stock must be “affordable” or more than 1.5% of municipal land must be dedicated to SHI. See G.L. c. 40B, § 20; 760 C.M.R. § 56.03(1); DHCD Guidelines (rev. Dec. 2014). If a municipality meets neither SHI threshold, 40B dramatically relaxes local control over approval of comprehensive permits for housing developments that contain 20-25% affordable units.

Even after 50 years of 40B incentive, as of 2017, Massachusetts municipalities had an average of 9.7% SHI, and only 67 of Massachusetts’ 351 municipalities were at or above the 10% SHI threshold. Tiny Houses that qualify as SHI would be more attractive to municipalities because they would count towards the 10% safe harbor threshold for 40B purposes.

But in order to qualify for SHI, Tiny Houses have to be allowed in the first place.

Crafting Tiny Zoning

Municipalities can start by explicitly including Tiny Houses in their zoning: write Tiny Houses into tables of uses, and define whether they can be used as accessory dwellings, secondary or tertiary structures, or as stand-alone residences. Definitions should address whether they can have wheels, or whether they must be built upon a foundation.

Carefully crafted Tiny House zoning can provide housing stock that fits within the character of towns by allowing continued municipal control over massing, setbacks, aesthetics, and other elements which municipalities would otherwise relinquish under the traditional 40B system.

Further, creation of an overlay district for Tiny House villages could provide for maximum square footage, smaller setbacks, and smaller lot of sizes in certain areas. In such scenarios, preexisting non-conforming lots may become buildable. With creative zoning such as cluster developments, more homes could be built in smaller areas.

In 2016, Nantucket enacted a zoning bylaw amendment that explicitly allowed Tiny Houses that comply with the International Building Code. While industry standards did not align at the time to permit prefabricated Tiny Houses under that ordinance, future iterations of bylaw changes and changes in the industry specifications can address those types of mismatches going forward.

Leveraging CPA Funds

The CPA can serve as a catalyst for a Tiny House trend by subsidizing construction or land acquisition for Tiny Houses that count towards SHI thresholds. One way the CPA helps communities create affordable housing is by establishing a “community preservation fund,” which is fed by a local tax of up to 3% on real property.

The CPA defines affordable housing as “community housing” that serves households at or below 100% of AMI. CPA funds can support many types of activities in furtherance of affordable housing, including construction and property acquisition. Municipalities can neutralize land costs by acquiring buildable land, which not only can enhance feasible development possibilities, but also allow more control over design and location of development.

Tiny Houses created with or assisted by CPA funds can be included in a municipality’s SHI through compliance with the Department of Housing and Community Development (DHCD)’s Local Initiative Program, which requires the unit to be created as a result of the municipality’s action or approval. The unit will be sold or rented on a fair and open basis subject to an affirmative fair marketing and resident selection plan approved by DHCD; be affordable to households below 80% AMI; and have its permanent affordability secured by Department use restrictions. CPA funds used to purchase land for Tiny Houses also incentivize partnerships with developers, such as through subsidies or by allowing the developer to build on municipal land.

Conclusion

Tiny Houses are not the silver bullet, as the resident pool for such housing is admittedly small, but they offer one more means to create much-needed inexpensive housing for single or double occupancy – a segment not prioritized in the current 40B scheme. By considering the interests of citizens, cities and towns, and affordable housing proponents, they can perhaps expand housing options and increase supply – at least a tiny bit.

 

Olympia A. Bowker is an associate at McGregor & Legere, P.C. in Boston. She helps clients with a broad range of environmental, land use, zoning, and regulatory matters.


Understanding Expressions of Bias and Hate on Campuses Today

Garlick

by Melissa Garlick

Viewpoint

Since 2017, college and university students across the country, including in Massachusetts, have noticed their campuses papered with fliers declaring, “It’s OK to be white” – a phrase with a long history in the white supremacist movement.[1]

What may be surprising to some is that –although the seeming purpose of this coordinated effort by white supremacists is to propagandize, stoke fear, spread hate, and divide campus communities – these fliers are constitutionally protected speech.

While hate speech on campus is generally protected speech, that is not the end of the matter.  Administrators and the campus community must recognize and prepare to address the harm that can stem from such speech on campus. A clear and forceful response to constitutionally protected hate speech will prevent protected speech from escalating to bias-motivated crimes and will ensure an inclusive climate where all community members feel safe and welcome.

Free Speech vs. Hate Crimes

The flyer incidents illustrate the important –yet often overlooked – dividing lines between free speech and hate crimes. Even some of the most heinous speech is not criminal, but rather, is largely protected by federal and state constitutions. The ability to express controversial and even offensive ideas is a cornerstone of our nation’s democratic ideals; it is one of the principal ways our nation is distinguished from many countries around the globe where expression of unpopular viewpoints can be – and often is – punished.

In order for an incident to be considered a hate crime, there must be a criminal offense – designated by statute – specifically and intentionally targeting an individual or property in whole or in part because of the victim’s actual or perceived race, religion, national origin, gender, gender identity, sexual orientation, or disability. See e.g., M.G.L. c. 265, § 39; 18 U.S.C. § 249. Such criminal acts become hate crimes only where the perpetrator intentionally selects the victim because of the victim’s personal characteristics. Id.Even more common than hate crimes on colleges campuses, are bias incidents (also referred to as hate incidents), in which a person makes bigoted or biased comments to another individual, distributes hate literature (like the aforementioned flyers), or conducts other similar other non-verbal communication. Although they are not hate crimes and often do not violate criminal or civil law, bias incidents nonetheless can be deeply hurtful and offensive.

Hate Incidents on College/University Campuses

Every year, thousands of students are the victims of hate crimes and bias incidents on college campuses, including bias-motivated slurs, vandalism, threats, and physical assaults. According to Federal Bureau of Investigation (FBI) statistics, schools and colleges/universities remain the third most-frequent location for hate crimes.

Over the past year, the Anti-Defamation League (ADL) has tracked not only a spike in anti-Semitic and hateful incidents on campus, but has documented the changing nature of incidents and their profound impact on communities. Reports of hate rhetoric and bias incidents, including anti-Semitic and racist graffiti, extremist speakers, and racist fliers, have increased markedly. Although most of those incidents would not qualify as hate crimes or be even criminally punishable, they are deeply painful to individuals and campus communities.

For example, on Valentine’s Day in 2017, gift bags were distributed to students at a Central Michigan University student group meeting including a card that read, “my love 4 u burns like 6,000 jews” [sic] and featured a photograph of Adolf Hitler. Even though the creator/distributor of the valentine card turned out not to be a student, the impact of the incident resonated through the campus community.  University President George Ross issued a forceful statement and more than 100 faculty members issued an open letter to the University community. The letter stated: “First and foremost, we stand in unflinching solidarity with Jewish communities on our campus and beyond. We uphold you now and always. We will do everything in our power to protect you . . . .” This incident did not involve speech that crossed the First Amendment line into criminal behavior. However, the strong University response underscores the significant impact of such incidents on a person’s sense of value and belonging in a place of learning that they also call home. When hate speech appears on campus that is demeaning to a group of people and contradictory to the values of diversity and inclusion – though it may be protected by the First Amendment – trust is eroded and communities need to heal.

ADL also has tracked a dramatic uptick in incidents of white supremacists targeting college campuses via the distribution of literature, speaking engagements, or trolling/harassment efforts. Colleges and universities are traditionally seen as bastions of free speech; white supremacists capitalize on that by intentionally designing their efforts and words (e.g., the “It’s okay to be white” fliers) to fall under the umbrella of free speech. Since September 2016, ADL has tracked more than 500 incidents of white supremacist propaganda on college and university campuses, with almost 300 such incidents occurring during the 2017-18 school year. The vast majority of white supremacist campus actions involve hateful fliers (“Imagine a Muslim-Free America”) and stickers (“Make American White Again”), but white supremacists also have sent anti-Semitic faxes and delivered highly publicized on-campus speeches.

Considerations for College/University Administrators

As early as the 1600’s, John Milton introduced the now familiar concept of the “marketplace of ideas” which, in essence, posits that “the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting).  Yet, this marketplace is not self-executing. It depends on people’s willingness to respond to words which are intended to demean, humiliate, and deride. Educational institutions must take into account that historically marginalized and other minority groups are under a greater burden and may be unable to adequately respond when speech targets their personal identities and sense of self. It is critical that colleges and universities speak and act, both against hate and toward a civil learning environment that values inclusion, equity, and open expression.

Reporting hate crimes on campuses, for example, is a crucial part of successful prevention of hate incidents. In 1998, Congress enacted an amendment to the Higher Education Act requiring all colleges and universities that receive federal aid to collect and report hate crime statistics to the Department of Education (ED). See Clery Act, 20 U.S.C. § 1092 (f)(1)(F). Currently, colleges and universities must report hate crime statistics for all campus crime categories.[2]

Unfortunately, however, the ED’s current hate crime statistics reflect substantial underreporting. Indeed, the majority of hate crime victimizations go unreported.[3] Colleges and universities have tended to either report the crime without indicating that it was bias-motivated or fail to report the crime at all.[4]  Such underreporting is underscored by the fact that the limited ED data conflict with campus hate crime information collected by the FBI under the Hate Crimes Statistics Act, 28 U.S.C. § 534, although the same reporting criteria apply.

Reporting hate crimes and training campus police should be a part of broader response protocols established by colleges and universities to quickly and effectively address hate crime incidents and build trust within campus communities. Campus police should take seriously all reports and allegations of hate crimes and incidents, bias, vandalism, graffiti, and flyering.

University administrators and campus stakeholders have a responsibility to use their own expressive rights to challenge and confront heinous ideas, rather than attempt to ignore them or stifle discussion. Faculty and students should be educated on the parameters of their First Amendment free speech rights and campus response policies and plans should be updated.[5]

Ultimately, the most effective responses and prevention measures by colleges and universities are those that clearly recognize the harmful impact bias incidents have on campus communities, regardless of legal distinctions between hate crimes and bias incidents. It is only through strong action and counter-messaging that trust can be maintained, communities can heal, and the rising tide of hate on campuses may be stemmed.

[1] The fliers are a byproduct of a larger trolling campaign that emerged out of 4chan, a popular internet discussion forum infamous for the studied offensiveness of many of its members and its association with the white supremacist alt-right movement. See “From 4Chan Another Trolling Campaign Emerges,” ADL, Nov. 6, 2017, available at https://www.adl.org/blog/from-4chan-another-trolling-campaign-emerges.

[2] See Clery Act Requirements, Crime Categories Covered, available at https://clerycenter.org/policy-resources/the-clery-act/.

[3] See “Majority of Hate Crime Victimizations Go Unreported to Police,” Office of Justice Programs, Bureau of Justice Statistics, June 29, 2017, available at https://www.bjs.gov/content/pub/press/hcv0415pr.cfm.

[4] See, e.g., Rocheleau, Matt, “UNH stats showing no hate crimes in recent years raises red flag, experts say,” The Boston Globe, June 8, 2017, available at https://www.bostonglobe.com/metro/2017/06/08/unh-stats-showing-zero-hate-crimes-recent-years-raises-red-flag-experts-say/oEnPB4mYd0keau6vFpA4CP/story.html.

[5] For additional guidance, see Hate/Uncycled: ADL Resource for Administrators and Law Enforcement Teams, available at https://www.adl.org/media/11138/download (2018); Hate Crimes On Campus: The Problem and Efforts to Confront It, U.S. Department of Justice Bureau of Justice Assistance, available at https://www.ncjrs.gov/pdffiles1/bja/187249.pdf (October 2001).

Melissa Garlick is the National Civil Rights Counsel at the Anti-Defamation League (ADL), a non-profit organization dedicated to combatting bigotry, prejudice, and anti-Semitism.  She is a member of the Civil Rights and Civil Liberties Steering Committee of the BBA.


Student Viewpoint: Fighting a Suspension

by JMC

Viewpoint

An alumnus of the Boston Public Schools, who has chosen to be referred to as “JMC,” shares an experience with school discipline that led to the student’s eventual suspension. 

During my senior year of high school, I was a part of my school’s “Senior Committee.” We planned events for our senior class. I was very passionate about these events; I cared about my school. I had a class period where the Senior Committee would plan our senior events. This was one of my favorite classes, and always kept me on my toes.

In November of my senior year, my class had been discussing methods to raise money for the senior class. We’d been discussing ways to raise money for a long time, and frankly, we felt like things weren’t exactly going the way it did for the senior class last year. We felt like we weren’t getting as much help from the administration as the administration gave to the class last year. We were a very outspoken class, and admittedly, things had gotten pretty tense in our classroom. We really disagreed with administration about how to plan our senior year.

Our teacher had a school administrator come to our class to help with this tension, but it did not help. Instead, we immediately got into a very heated discussion with a few of the students and the administrator. I felt myself getting angrier and angrier. I knew that I needed to take a break and calm down, so I decided to step out of the classroom.

I walked out of class and decided that I wanted to call my mom, because my mom can always help me calm down. When I called my mom, we made a plan for me to go see one of my teachers. This teacher had helped me when issues came up before, and I thought she would help me come up with a plan for Senior Committee. I began to walk towards my teacher’s classroom to see if she had time to talk with me, or if I could schedule a time to talk with her.

As I was walking to her classroom, a hall monitor started to follow me and asked me where I was going. I told her that I was going to see one of my mentors in the school, one of my teachers, to help me calm down. She told me I couldn’t do that and that she was going to call for back up.

That’s the last thing I remember before being completely surrounded by three staff members and two police officers. Things seemed to be escalating by the second. I didn’t know what to do, and I didn’t know what was going to happen to me. I remember constantly asking for them to back up and give me space because I felt beyond uncomfortable and anxious. I kept trying not to cry, but eventually I couldn’t help it anymore. I started crying and asking them to please leave me alone. I was so scared. I didn’t understand what had happened. I just wanted to see a teacher.

Then my teacher saw me. She ran down the hallway towards me, stepped between me and the police officers, and helped pull me past the police officers surrounding me.  A school administrator told me I had to leave school right then, and they would let me know when I could come back. Then, one of the staff members surrounding me got in contact with my mother after they made me leave school. They told my mom that she had to come to school with me the next morning.

That next day I returned to school with my mother without knowing what is going on or what will happen. We were told to wait in the lobby, and that someone would be with us soon. I had never been in trouble like this before, and I had no idea what would happen. After a few minutes, we were sent to the Dean’s Office. I kept trying to explain to the dean what was happening, but he said he didn’t believe me. I asked to bring in my teacher who helped me get away from the police officers, but the dean wouldn’t let me get her. He told me I was suspended for ten days.

None of it made any sense to me. I’ve never been suspended before throughout my high school career, and I was so worried about what it would do to my college applications.

I felt so disrespected and belittled. To this day I don’t understand how one moment could lead to such a suspension. It all made me feel like they tried to make a show out of me. I knew this suspension wasn’t right, so I decided to fight it. I appealed the suspension, but I lost that appeal. I still wouldn’t give up, so I brought it to the state and Massachusetts agreed with me that my suspension was illegal. It was taken off my records before I graduated.

It felt so empowering, I’m happy I did my research, found a lawyer, and was able to fight this and win. I feel like our school systems take advantage of so many kids who just don’t know what their rights are or how to stand up for themselves. I couldn’t be one of those kids. I hope kids see this and know that if they aren’t in the wrong, you can stand up for yourself. Never give up and know your rights.


Student Viewpoint: The World is not Peaches and Cream

by Schama

Viewpoint

Schama, who has chosen to be identified by only her first name, shares her experience appealing her expulsion from her Boston high school. 

The world is not peaches and cream: we need to be aware of the warfare being waged against us by the prison system and the education system. Learn to love one another and make better choices.

According to President Obama, the United States has just five percent of the world’s population, but 25 percent of the world’s prisoners. As Van Jones said in Ava DuVernay’s documentary 13th, “One out of four human beings with their hands on bars, shackled, in the world, are locked up here in the land of the free.” I recently learned about the school to prison pipeline. It works like this: A student may get into a fight at school that they didn’t start, but they still get suspended. And they go to a disciplinary school for a little while, and when they come back to their old school everything is different. Nobody believes that they didn’t start the fight. Now everyone thinks they’re a bad kid, so they start acting like a bad kid. They can no longer see the future they used to see, they get into another fight and this time they get arrested. This is how the pipeline works, I could have fallen into this pipeline.

Malcolm X wrote in his Autobiography, “Any person who claims to have deep feeling for other human beings should think a long, long time before he votes to have other men kept behind bars – caged. I am not saying there shouldn’t be prisons, but there shouldn’t be bars. Behind bars, a man never reforms. He will never forget. He never will get completely over the memory of the bars.” (Malcolm X, The Autobiography of Malcolm X, 155).

They want you to be weak, and that my friend we will never be.

On October 30th I was coming out of class; it was a regular Monday. I was talking to my friends and we were messing around as friends do. A lady walked up next to us and asked, “Where do you need to be?” It bothered me because I was where I needed to be, so I ignored her, waved her off and walked away. The next thing I know, my dean came in to my class at the end of the day. He quietly walked over, and he almost sounded depressed when he said, “Schama, can I please talk to you outside?” I was thinking he was going to tell me he found out who stole my wallet earlier that week. We went to a different classroom, and he asked me if I knew why he brought me there. “No,” I said. He told me that I had assaulted the assistant headmaster. “What!? What are you talking about!? Who?” I exclaimed. He told me her name, and I still didn’t know who it was. I told him to check the cameras. I knew I hadn’t done what he was saying, but he told me to go home.

I ended up having two hearings: a suspension hearing and then an expulsion hearing. But what I want to share is how I felt and my memories during those hearings. I remember walking to the conference room with my mom and the Dean. We walked past a white woman who looked kind of familiar. She was up against the wall as if I were a bully telling her to get out of my way. I couldn’t understand why she was so afraid and thought, “Wow, relax, I’m not an animal… I’m a human being.” During the hearing I asked who the assistant headmaster was because I still didn’t know. The Dean said I had just passed by her in the hall. And then everything started to become so clear. This woman didn’t know me; we had only a thirty second interaction. Why is she scared of me? Why am I here? I became an emotional wreck. They said that they might press charges. The School Officer came in and read a police report. I was crying; I couldn’t believe it, I started having a panic attack. The only other time I felt this way was when my grandmother had died.

When the assistant headmaster came in I should have handed her an Oscar she was so dramatic. She said that after this happened she wanted to talk to me but I ran away. But that didn’t happen, I walked away, and if she had wanted to talk to me I would have. And if she had told me I touched her, even though I didn’t think I had, I would have apologized. If she had talked to me I would have apologized, period! Later the Dean said it might have been an accident, but it still happened. I was so confused, in my head I was thinking, “she can’t press charges if I didn’t put my hands on her. If there’s no proof she can’t press charges. If this was an accident she can’t press charges. If she was upset I would have gladly apologized, why is this happening, I’m a good kid, I have good grades, I’m about to get honor roll!”

While I was suspended, I spent five days at the Barron Center – a counseling and intervention center where kids go when they are suspended for something serious – but the counselor there told me I didn’t need to be there. Later we had the expulsion hearing and they expelled me. After I was expelled I went to Community Academy. The first day, I started having a panic attack and was sent home. I went back and was okay, but the school hadn’t sent any of my work and I was frustrated. I was a junior. My work mattered, and I couldn’t do it.

I got a lawyer and appealed my expulsion. When I went to the hearing, I saw that the headmaster and the hearing officer knew each other, and I already knew my voice wasn’t going to be heard. I almost gave up. I didn’t think I could win this. Who is going to believe a child over a headmaster? No one is going to listen to me. Who is listening? My lawyer wanted to record the hearing, but the hearing officer refused. At the hearing I told my side of story. I became emotional. I said that I was a good kid, I worked hard, I am a Black queen and didn’t understand why this was happening. If I hurt anyone I’m sorry, I just want to go back to school and finish. After I presented my case, the headmaster said that he expelled me because I had become an emotional wreck and was aggressive and flailed my arms dangerously. I couldn’t believe he had said that, this didn’t make sense. What was I really being expelled for? Was he saying because I’m black and I have an “attitude” I should be expelled? I’m very blunt and everyone at school knew that. But not anymore, my school was a turnaround school, which meant 60 percent of the staff and teachers had been replaced, and everyone who knew me had left. I lost the appeal.

My lawyer and I appealed to the state. The Department of Education overturned my expulsion, ordered BPS to fix my grades and give me extra help. I’m really glad I beat my case, but this experience still really affected me.  During my suspension and my expulsion, I took the time and reflected on my life and how to go about things. I knew where I wanted to go, I wanted to finish school, but I couldn’t see how I could get there. When I got to my new school I walked into my ELA class, Mr. Driscoll’s class. I noticed that his room was covered in black history and Malcolm X. At first, I thought he was just another white guy trying to be black, but then I talked to him. I wanted to figure out how to be me and he helped me. He had read my file and told me that he knew I wasn’t a bad kid, that if I needed space he would give it to me, but if I wanted to talk to someone he was there. I didn’t have to say anything to him for him to understand me and where I was coming from. And we read Malcolm X.

Malcolm’s autobiography helped me see that it wasn’t white people, it was how white people see black kids, it was about the system. “The white man is not inherently evil, but America’s racist society influences him to act evilly. The society has produced and nourished a psychology which brings out the lowest, most base part of human beings.”(Malcolm X, The Autobiography of Malcolm X, 378) This is why black kids are being sent out of school and sent to prison. The system makes white people bold.

I don’t like to share my story and I don’t want sympathy, but I need to share so it doesn’t happen to others. I am sharing my story because I’m tired and I won’t keep sitting around while my sisters and brothers are getting physically and verbally abused by the system. With the help of my family and some of my new teachers, I overcame my obstacles and I am going to be a senior with almost the grades that I wanted, and I’m going to apply to college in the fall. But not everybody is like me and can bounce back the way I did. So for anybody out there that has gone through what I’ve gone through, or is going through what I went through. I just want you to know that you aren’t the only one. Forgive those who have done you wrong, keep building your future and show them how wrong they were about who you are and what you can be.


Transition H.O.P.E.: Boston Public Schools’ Efforts to Assist System-Involved Youth

DAconley

by Janelle Ridley

Viewpoint

Janelle Ridley works for the Boston Public Schools (BPS) as the Coordinator for System-Involved Youth. She is an expert in identifying and implementing services to aid youth in transitioning from detention back to BPS, and seeks to intentionally foster educational equity and actively work to dismantle the school-to-prison pipeline.

No one can contest that Black and Brown boys are overrepresented in the juvenile and criminal justice systems. Boston is not an anomaly; this has been a national crisis since the 1980s when zero-tolerance policies were introduced by former President Ronald Reagan’s administration at the onset of the “War on Drugs.” Once Congress passed the Drug-Free Schools and Campuses Act of 1989, school districts across the nation implemented zero-tolerance policies that have since criminalized seemingly innocuous behavior that is often due to trauma, poverty, and a plethora of reasons that make it impossible for students to function in a traditional school setting. Thus, agencies and individuals alike must be intentional about our approach in working with our youth to address the root causes and not merely criminalize the symptoms. In light of the aforementioned, this article will explore the efforts of Boston Public Schools (BPS) and others are making to ensure EVERY student has access to equitable educational opportunities. First, I will outline my work in this area.  Next, I will describe Transition H.O.P.E., a pilot program launched in Summer 2018 to assist youth who have been detained at DYS facilities.  Finally, I will describe efforts BPS is making to develop an intentional approach to assist youth more generally.

Background

As the District Coordinator for System-Involved Youth at BPS, I have been pioneering new ground for academic and social integration for youth who have been exposed to systems including, but not limited to, the Department of Youth Services (DYS) and the Department of Children and Families. Through strategic transdisciplinary partnerships, I am ensuring that BPS is holding the fidelity of its mission to provide access to equitable educational opportunities to EVERY student. Concomitantly, I am working tirelessly to dismantle the cradle-to-prison pipeline while creating a path from prison-to-school. Ultimately, my objective is to disrupt the generational cycle of America’s mass incarceration crisis on Boston’s youth, and the debilitating effects of trauma on underrepresented communities. Prior to my work at the District, I devised Street Trauma, a transformative curriculum that empowered my former students at East Boston High to speak as experts of their lived experiences and enjoined educators to be more intentional about how they interacted with Black and Brown youth. Though I am no longer in the classroom, I have expanded my curriculum to colleges/universities where I serve as an adjunct professor to reach individuals seeking to work in urban settings.

BPS Office of Social Emotional Learning and Transition H.O.P.E

Transitioning back to BPS from the DYS is a nonlinear reorientation process that requires youth to sever ties with their former ways of life, both good and bad aspects, to embrace the new. Change is inevitable and a part of life, but the transition process for system-involved youth is complex and strenuous. Furthermore, the majority of the youth detained at DYS by the courts have experienced some amount of school failure and are often already behind in their educational attainment. Therefore, even short periods of detention may result in further isolation from their school communities and exacerbate opportunity gaps.

Determined to disrupt the odds stacked against the youth, I launched Transition H.O.P.E. in Summer 2018, a pilot program through BPS Office of Social Emotional Learning & Wellness with a holistic framework designed to ensure all system-involved youth have access to educational equity by: holding High Expectations for each and every young person; providing Opportunities that are realistic and within their perspective; helping the youth envision Pathways to Success by taking ownership of decisions for desired long-term outcomes; and providing Encouragement to help youth acknowledge that success is theirs to claim and define irrespective of the past. The pilot was launched at the DYS Metro Pre-Trial Detention unit with a total of 16 youth. After a successful summer, we plan on expanding Transition H.O.P.E. in the Fall of 2018 to additional DYS units and facilities serving youth assigned to BPS.

Transition H.O.P.E., powered by strategic partnerships with Lesley University, engages youth in college-level academic discourse and exposes them to pathways beyond high school.  Lesley tutors worked diligently with youth to build higher order thinking skills and foster the ability to see beyond the limitations placed upon them. As a result, two of our youth enrolled at Benjamin Franklin Institute of Technology (BFIT) upon release and are exploring career options that they would otherwise not have imagined they could attain. Moreover, going on our mantra, “When you engage a youth, you reach the family,” one of the youth’s brother also enrolled at BFIT this summer and they are now attending classes together while serving as a strong support system for each other.

BPS is intentional about cultivating a culture of accountability to the success of these youth and pursuing transformational leadership to unearth the passion, purpose, and potential buried within all youth. It is also essential that the transitional process consists of positive affirmations and the presence of consistent adults in their lives. With the support and guidance of mentors (including former professional basketball players, Becoming a Man, Mass Mentors), youth are devising roadmaps to success in the academy and beyond.  The H.O.P.E. team stresses accountability through periodic check-ins with both the youth and their mentors.  As Frederick Douglass asserted, “It is easier to build strong children than to repair broken men.” Thus, BPS is intentional about integrating the following frameworks in its approach:

  1. Holistic Development: Employ a whole-child framework to cultivate cognitive, cultural, emotional, physical, social, and spiritual development.
  2. Open-minded Attitude: Employ a growth-mindset framework to teach our youth that their attitude, not aptitude, determines their altitude.
  3. Purpose Cultivation: Employ a visualization framework to activate the subconscious mind to create new neural pathways for the manifestation of desired aspirations.
  4. Engaged Citizenship: Employ a civic engagement and transformational leadership framework to build capacity for individual and collective responsibility.

The incorporation of youth voice is essential to each of these integrated components. BPS district leaders made several visits to DYS over the past year to listen to the needs of the youth and wrestle with tough questions like “How can teachers be better equipped to engage with youth who are subject to complex trauma?” It is impossible to narrow the opportunity gap and dismantle the prison pipeline without giving youth platforms to be heard.

The partners who are working with our inner-city youth are recognizing the harm caused by the school-to-prison pipeline, including collateral consequences in employment, education, housing, and beyond upon involvement in the justice system.  Research has shown that concepts such as “trauma-informed learning” and “social emotional learning” have gained significant traction over the past few years as alternatives to exclusionary discipline practices.  These constructs posit that the microsystems youth inhabit, like their communities, homes, and schools are critical to addressing their needs. At the recent Coalition for Juvenile Justice Youth Summit, youth from across eighteen states described their school experiences as “inhumane” and their communities as “unsafe” due to the high concentration of poverty and crime that stems from systemic inequality and policies from the “War on Drugs.”

Recognizing that isolation is the enemy of transformative progress, BPS is extending an invitation through Transition H.O.P.E., to partner with us and alongside Mass Mentors, William James College, Benjamin Franklin Institute of Technology, Timothy Smith Network, the Juvenile Detention Alternative Initiative, Northeastern Center for the Study of Sport and Society, Harvard University Transformative Justice Series (located in the Charles Hamilton Houston Institute for Race and Justice), Brandeis University, Suffolk County Sheriff Department Family Matters Program, Boston Police Department, STAR and most certainly Lesley University. If you have any interest in aligning work, please feel free to email me at jridley@bostonpublicschools.org.


Caplan v. Acton: Three Pence is Too Much (Sometimes)

fraywitzerby Kate R. Cook

Viewpoint

The recent Supreme Judicial Court (SJC) decision Caplan v. Acton, 479 Mass. 69 (2018), addresses whether taxpayer dollars can be used to fund an active church. It’s an important question, and one that attracts strong opinions, especially in a case like Caplan, where the facts center on a popular state grant program that provides funding for historic preservation—something Massachusetts needs a lot of. And for those of us that agree with James Madison, that even three pence in aid is too much when it comes to taxpayer dollars funding religious institutions, anything short of an outright prohibition is cause for concern. So it is easy to see why some might be disappointed that the SJC’s answer is: Maybe. But the Court’s decision is not surprising. Grounded in a textual analysis of the Massachusetts anti-aid amendment and SJC precedent, the decision appropriately leans into the principles animating the amendment, holding public aid to an active church “warrants careful scrutiny.” Id. at 71. Though not unexpected, the decision is significant for two reasons. First, the decision confirms the force of the Massachusetts anti-aid amendment in the wake of the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), which held that a church could not be excluded from a government public grant program “solely because it is a church” as that would penalize the free exercise of religion. Second, as already mentioned, the decision reinforces why church-state separation is important to our democracy, delving deep into three major concerns that led to passage of the anti-aid amendment: infringement on taxpayers’ liberty of conscience; government entanglement with religion; and civic disharmony.

In Caplan, taxpayers in the town of Acton challenged the town’s decision to provide two Community Preservation Act grants to an active church under the anti-aid amendment. One grant was intended to fund the restoration of stained glass windows in the main church, including a window depicting Jesus and a kneeling woman and a window featuring a cross and the hymnal phrase, “Rock of Ages Cleft for Me.” The other grant was intended to fund a master plan for historic preservation for three different buildings on the church grounds.

The plaintiff taxpayers argued that the Massachusetts constitution requires a categorical ban on providing any public funds to active churches. The town, on the other hand, argued that the purpose of the Community Preservation Act is constitutional and that, after the Supreme Court decision in Trinity Lutheran, denial of the grant to the church would violate the free exercise of religion under the First Amendment to the United States Constitution.

The SJC declined to adopt wholly either party’s argument, but instead reached a pragmatic conclusion rooted in the constitution’s text and prior court decisions interpreting the anti-aid amendment.  The SJC held that whether a grant of public funds to active churches is permissible must be considered under the three-factor test first set forth in Commonwealth v. School Comm. of Springfield, 382 Mass. 665, 675 (1981), which considered whether public funding of special education placements of public school students in private schools was permissible. That test is: “whether a motivating purpose of each grant is to aid the church, whether the grant will have the effect of substantially aiding the church, and whether the grant avoids the risks of the political and economic abuses that prompted the passage of the anti-aid amendment.”  Caplan, 479 Mass. at 71.

Applying this test, the Caplan majority found that the stained glass windows grant was most certainly unconstitutional, and remanded for further discovery the question of whether the “purpose” of the master plan grant was to aid the church in violation of the anti-aid amendment.

To be sure, the SJC’s evidentiary focus on the purpose of a Community Preservation Act grant to an active church will be more difficult for municipalities to implement than either a categorical ban on aid or an approach that ignores the anti-aid amendment altogether. But Caplan is neither impossible for towns to implement nor a death knell for historic preservation. First, churches still may apply for Community Preservation Act grants, and towns cannot deny their application “solely because [the applicant] is a church.” Quite the contrary, “[t]he fact that an applicant is an active church is a relevant but by no means disqualifying consideration.” Id. at 85 n.18.  The Court offered examples of permissible grants: grants to a church where historical events of great significance occurred in the church (id. at 94, 101 n.3 (describing the Old North Church)); grants to preserve church property with a primarily secular purpose (id. at 94); and of course, grants to a church preschool to provide a safer surface for its playground (id. at 85).  Second, for historic churches seeking to make repairs that fail to meet the three part test, there are other constitutional ways to obtain funding.  For instance, the National Fund for Sacred Places is a grantmaking nonprofit providing congregations with resources to support restoration of their historic facilities. Finally, the SJC’s suggestion that the town be subject to limited discovery regarding the purpose of the master plan grant—something the plaintiffs had requested and been denied in the lower court—is not overly cumbersome. Municipalities routinely respond to discovery requests, including Rule 30(b)(6) depositions, in a variety of matters, and they are more than capable of doing so in this context as well.

Moreover, expediency is not a reason to abandon the sound reasons the framers sought to prohibit the expenditure of taxpayer dollars for the “purpose of founding, maintaining or aiding [a] church.”  Art. 18, § 2. The Caplan decision wisely places front and center three concerns that led to the anti-aid amendment, which are as real today as they were a century ago when the current Massachusetts anti-aid amendment was adopted and bear repeating. First, the grant of public funds to religious institutions risks infringing on taxpayers’ liberty of conscience.  Indeed, compelling individuals to financially support religion directly harms the fundamental right of freedom of conscience. Whether to follow a particular faith, or none at all, is a choice that every individual has the right to make, free of coercion.

Second, providing public funds directly to an active house of worship runs the risk of government becoming enmeshed with religion. This entanglement creates incentives that may not align with religious beliefs and may encourage religious institutions to curry favor with the government in hopes of receiving government grants.  See David Saperstein, Public Accountability and Faith-Based Organizations: A Problem Best Avoided, 116 HARVARD LAW REV. 1367-68 (2003). “With government money come government rules, regulations, audits, monitoring, interference, and control—all of which inherently threaten religious autonomy.”  Id., at 1365.

Third, providing taxpayer dollars to religious institutions risks damaging civic harmony. “Town meeting members were being asked to vote on a grant to maintain religious aspects of the church of their neighbors and now they are suing each other.” Caplan. at 103 (Kafker, J. concurring). For the State to subsidize religious institutions risks pitting faith against faith by creating competition for funds and conflict among religions as they vie for an ever-larger share of public funds. See Everson v. Board of Ed. of Ewing Tp., 330 U.S. 1, 53-54 (1947) (Rutledge, J., dissenting).

In conclusion, Caplan’s amplification of the concerns that led to the anti-aid amendment will strengthen both the church and the State. Liberty of conscience, avoiding church state entanglement, and nurturing civic harmony—these concerns remain ever present today. To paraphrase former President Obama, here in Massachusetts, “[o]ur brand of democracy is hard.”  Our freedoms, including freedom of conscience and religious freedom, are well worth the effort.

Kate R. Cook is a partner at Sugarman Rogers and a co-chair of the BBA’s Civil Rights and  Civil Liberties Section.  She filed an amicus brief on behalf of the American Civil Liberties Union in support of the plaintiffs in Caplan v.  Acton.