Search This Blog

Saturday, December 2, 2017

All the Seniors at Ballou High School, in Washington, D.C. Get Into College. That's the Problem

Morgan Williams, a former physical education and health teacher at Ballou, says she often had students on her roster whom she barely knew because they almost never attended class.


 When grades are changed so that a young person is socially promoted or graduates from school at any level without the necessary skills, who benefits?

There is, in my opinion, no one answer. But it looks like one party to this scheme, the school administration, always benefits. More graduates, more money and acclaim.

The entire picture saddens me.

Betsy Combier
President, Advocatz
Editor, Advocatz.com
betsy@advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Former Ballou teacher Monica Brokenborough holds a program from last year's graduation. Many students at Ballou roam the halls rather than go to class. "The tardy bell is just a sound effect in that building," says Brokenborough. "It means nothing."


What Really Happened At The School Where Every Graduate Got Into College
Brian Butcher, a history teacher at Ballou High School, sat in the bleachers of the school's brand-new football field last June watching 164 seniors receive diplomas. It was a clear, warm night and he was surrounded by screaming family and friends snapping photos and cheering.
It was a triumphant moment for the students: For the first time, every graduate had applied and been accepted to college. The school is located in one of Washington, D.C.'s poorest neighborhoods and has struggled academically for years with a low graduation rate. For months, the school received national media attention, including from NPR, celebrating the achievement.
But all the excitement and accomplishment couldn't shake one question from Butcher's mind:
How did all these students graduate from high school?
"You saw kids walking across the stage, who, they're nice young people, but they don't deserve to be walking across the stage," Butcher says.
An investigation by WAMU and NPR has found that Ballou High School's administration graduated dozens of students despite high rates of unexcused absences. We reviewed hundreds of pages of Ballou's attendance records, class rosters and emails after a district employee shared the private documents. Half of the graduates missed more than three months of school last year, unexcused. One in five students was absent more than present — missing more than 90 days of school.
According to district policy, if a student misses a class 30 times, he should fail that course. Research shows that missing 10 percent of school, about two days per month, can negatively affect test scores, reduce academic growth and increase the chances a student will drop out.
Teachers say when many of these students did attend school, they struggled academically, often needing intense remediation.
"I've never seen kids in the 12th grade that couldn't read and write," says Butcher about his two decades teaching in low-performing schools from New York City to Florida. But he saw this at Ballou, and it wasn't just one or two students.
An internal email obtained by WAMU and NPR from April shows two months before graduation, only 57 students were on track to graduate, with dozens of students missing graduation or community service requirements or failing classes needed to graduate. In June, 164 students received diplomas.
"It was smoke and mirrors. That is what it was," says Butcher.
Pressure to pass students
WAMU and NPR talked to nearly a dozen current and recent Ballou teachers — as well as four recent graduates — who tell the same story: Teachers felt pressure from administration to pass chronically absent students, and students knew the school administration would do as much as possible to get them to graduation.
"It's oppressive to the kids because you're giving them a false sense of success," says one current Ballou teacher, who spoke on the condition of anonymity to protect her job.

"To not prepare them is not ethical," says another current Ballou teacher who also spoke on the condition of anonymity.
"They're not prepared to succeed," says Morgan Williams, who taught health and physical education at Ballou last year. Williams says the lack of expectations set up students for future failure: "If I knew I could skip the whole semester and still pass, why would I try?"
Williams taught physical education and health at Ballou for two years. She says her students were often chronically absent, but the gym was always full. Students skipping other classes would congregate there, she says, and her requests for help from administrators and behavioral staff to manage these students were often ignored.
Williams, and other teachers we spoke to for this story, say they often had students on their rosters whom they barely knew because they almost never attended class.
Near the end of a term, Williams says, students would appear, asking for makeup work like worksheets or a project. She would refuse: There are policies, and if students did not meet the attendance policy, there was nothing she could do to help them. Then, she says, an administrator would also ask how she could help students pass.
At one point, while she was out on maternity leave, she says, she received a call from a school official asking her to change a grade for a student she had previously failed. "[They said] 'Just give him a D,' because they were trying to get him out of there and they knew he wouldn't do the makeup packet."
Williams says she tried to push back, but she often had 20 to 30 kids in one class. Repeatedly having the same conversation about dozens of students was exhausting. And the school required extensive improvement plans if teachers did fail students, which was an additional burden for a lot of already strained teachers.
Many teachers we spoke to say they were encouraged to also follow another policy: give absent or struggling students a 50 percent on assignments they missed or didn't complete, instead of a zero. The argument was, if the student tried to make up the missed work or failed, it would most likely be impossible to pass with a zero on the books. Teachers say that even if students earn less than a 50 percent on an assignment, 50 percent is still the lowest grade a student can receive.
During the last term of senior year, some seniors who weren't on track to graduate were placed in an accelerated version of the classes they were failing. Those classes, known as credit recovery, were held after school for a few weeks. School district policy says students should only take credit recovery once they receive a final failing grade for a course. At Ballou, though, students who were on track to fail were placed in these classes before they should have been allowed. On paper, these students were taking the same class twice. Sometimes, with two different teachers. Teachers say this was done to graduate kids.
Credit recovery is increasingly used to prevent students from dropping out, but critics argue credit recovery courses rarely have the same educational value as the original course and are often less rigorous. According to class rosters, 13 percent of Ballou graduates were enrolled in the same class twice during the last term before graduation. Often, teachers were not alerted their students were taking credit recovery. Many we spoke with say they didn't realize what was happening until they saw students whom they had flunked graduate. They say the credit recovery content was not intensive and that students rarely showed up for credit recovery.
If teachers pushed back against these practices, they say, administration retaliated against them by giving them poor teacher evaluations. Last year, the district put school administrators entirely in control of teacher evaluations, including classroom observations, instead of including a third party. Many teachers we spoke to say they believe this gives too much power to administrators. A low evaluation rating two years in a row is grounds for dismissal. Just one bad rating can make it tough to find another job. Teachers we spoke with say if they questioned administration, they were painted as "haters" who don't care about students.
"If they don't like you, they'll just let you go," says Monica Brokenborough, who taught music at Ballou last year. She also served as the teachers union building representative, responsible for handling teacher grievances and ensuring the school follows the district's teacher contract, among other duties. Last year, 26 grievances were filed by teachers at Ballou.
"Either you want your professional career on paper to look like you don't know what you're doing," says one teacher who asked for anonymity to protect her job. "Or you just skate by, play by the game."
Playing by the game can have financial benefits. If an evaluation score is high enough to reach the "highly effective" status, teachers and administrators can receive $15,000 to $30,000 in bonuses. D.C. Public Schools wouldn't tell us who gets a bonus, but teachers we spoke with did say the possibility of such a large bonus increases the pressure on teachers to improve student numbers.
Butcher, Brokenborough and Williams no longer work at Ballou. They received low teacher evaluations after the 2016-17 school year ended and were let go for various reasons. They believe they were unfairly targeted and have filed complaints through the local teachers union. Butcher and Williams found new teaching jobs outside D.C.; Brokenborough is waiting to resolve her grievance.
Who is responsible?
Ballou Principal Yetunde Reeves refused to speak to us for this story. But members of the school district office did.
"It is expected that our students will be here every day," said Jane Spence, chief of secondary schools at D.C. Public Schools. "But we also know that students learn material in lots of different ways. So we've started to recognize that students can have mastered material even if they're not sitting in a physical space."
This comes at the same time the district is publicly pushing the importance of daily attendance with a citywide initiative called "Every Day Counts!" City leaders have also made improving attendance a priority, strengthening reporting policies to improve accuracy. To be considered in school, students have to be there 80 percent of the day. If they are absent, parents have five days to submit proof they have an excused absence. Proof like a doctor's note.
Chancellor Antwan Wilson, the head of public schools in the District, says schools also can't ignore what's going on in the lives of students. Many students are managing effects of trauma, family responsibilities, a job — and, sometimes, all of the above. That can make it extra hard to show up to school every day. Federal data released in October found that 47 percent of D.C. students have experienced some kind of traumatic event.
And yet, how did all these kids miss all these days of school, apply to college and still graduate? As we repeatedly asked this, Wilson and Spence abruptly ended our interview.
After we reached out to the D.C. mayor's office for comment, the chancellor and Spence made themselves available for another interview. Ultimately, they stand behind the school's decision to graduate these students despite missing so much school.
When it comes to the district's grading policy, district leaders are quick to differentiate between a student who is absent from a particular class and a student who misses the full day.
"It is possible for a student to have 30 days when they are absent from school, but that doesn't constitute 30 days of absences from the course," Spence says. Still, she says high absenteeism is unacceptable and there's room for growth.
"Our students need to get here every day and we continue to ask our community and our families to partner with us to get students to school every day," Spence says.
She reinforces that many students are managing real issues that prevent them from getting to class and that schools need to find other ways to help absent kids succeed. She and Wilson say these policies, such as the makeup work and after-school credit recovery classes, can be part of the solution, if they're implemented with rigor. Wilson admits that is not happening at all schools.
"I think the issue we have is to fix at several of our schools, just to make sure that kids don't feel they can miss ... however many weeks and come in at the end and say, 'I'd love to get my makeup work,' " Wilson says.
Teacher responses
When we asked Ballou teachers about the issues students are dealing with that make it difficult to attend school, they acknowledged the reality. But some say the school district uses these students' situations as a crutch to ignore larger unaddressed issues in the building, like in-seat attendance and student behavior. In-seat attendance is the percentage of time a student is actually in class. When it comes to attendance, teachers say many students are in the building, but they just don't go to class.
"Kids roam the halls with impunity," says another current Ballou teacher.
"The tardy bell is just a sound effect in that building," says Brokenborough, the former music teacher. "It means nothing."
Teachers say they are willing to help students who struggle to balance school and outside responsibilities like a job or child care, but Brokenborough says some students just simply do not want to attend class and come to expect makeup work. This puts teachers in a tough situation, she says, "because if you don't [give makeup work] and another teacher does, it makes you look like the bad guy."
Many students have figured out they don't have to show up every day.
"These students are smart enough to see enough of what goes on," Brokenborough says. "They go, 'Oh, I ain't gotta do no work in your class; I can just go over here, do a little PowerPoint, pass and graduate.' Again, this isn't about the teachers. What is that doing to that child? That's setting that kid up for failure just so you can showboat you got this graduation rate."
School district leaders, including Wilson, defend the use of makeup work, arguing they want to give students "multiple opportunities" to show they understand material. The teachers we spoke with say they feel the system ultimately reduces academic rigor, serving no one in the end. When these students leave Ballou and go off to college or the workplace, teachers feel they are not prepared to work hard.
One current teacher says, from the perspective of a black teacher teaching predominantly black students, graduating these students is an injustice. "This is [the] biggest way to keep a community down. To graduate students who aren't qualified, send them off to college unprepared, so they return to the community to continue the cycle."
"I came to school when I wanted to"
We interviewed four recent Ballou graduates. We aren't using their names to protect their privacy. Three are in college now, including one student who was absent about half the school year.
"I came to school when I wanted to," she says. "I didn't have to be there; I didn't want to be there."
Senior year wasn't easy for her. She says she wasn't living at home anymore and was working at a fast-food restaurant to pay rent. That need for an income made school even less appealing, "I felt at a point around getting toward winter, I ain't have to be there no more," she remembers. "I felt like I graduated at that point."
While she says she got calls and letters from the school about her absences, she wouldn't show up until they threatened to send her to court for truancy. "That's when I was like, 'Oh, let me go to school.' "
In D.C., students who miss 15 or more days of school without an excuse are supposed to be referred to court services. Last year, Ballou sent just 25 seniors to court services for truancy, but according to documents we obtained, all but 11 graduates should have had court services alerted about their absenteeism.
"Even then, you learn to work the system," the student says. When the school would threaten truancy court, she says, she would show up for a few hours, do her classwork and leave early. She believes it shouldn't matter if she showed up to class as long as she completed her work. Plus, she says, she knew no matter how much school she missed, she wouldn't fail.
"The thing was, they couldn't do that to me and they knew that I knew that."
According to a Washington Post article in May of this year, 21 teachers — more than a quarter of Ballou's teaching staff — left during the 2016-2017 school year, the most teacher resignations of any high school in the District last year. When those teachers left midyear, a substitute often took over, giving students even less motivation to show up to class. "What am I going to keep showing up to this for a substitute for? He ain't gonna teach nothing," the student says.
Another Ballou graduate also says teacher turnover was the biggest problem at the school. Often, teachers would leave without a backup teacher or substitute in place. He says many substitutes didn't know how to teach the content and students lost interest in learning.
"I'm not going to say I always went to class or I always was a good student because I wasn't," he says over the phone from his dorm room. He currently attends a four-year university outside D.C. But this student took honors courses and says he wanted to be at school. He knew college would be hard — he even enrolled in a summer program at his college designed to help low-income, underrepresented students prepare for their first semester. But he says when the fall semester started, "I had reality slapped in the face."
Both students say they are struggling in their college math classes.
With so many teacher vacancies last year, teachers we spoke with say they don't understand how some students passed classes they needed to graduate. Plus, many of the students who were in those classrooms were struggling academically. Last year, 9 percent of students there passed the English standardized test. No one passed the math test. The average SAT score last year among Ballou test takers was 782 out of 1600.
"The elephant in the room is how these kids are getting through middle school and getting through high school," says a current Ballou teacher, speaking anonymously. "That's passing the buck and totally unacceptable, especially from a leadership standpoint."
The school district won't know how many Ballou graduates enrolled in college overall until May, a spokesperson says. We know of 183 students accepted to the University of the District of Columbia, the local community college. But only 16 enrolled this fall.
As the first semester of freshman year winds down, both graduates quoted in this story, who attend four-year universities, say they're trying to stick with it.
"Everybody say you're supposed to go to college for yourself, but I went to college for my family," says the Ballou graduate who stayed in the District for college. "I didn't go 'cause I wanted to. I don't want to. I could care less. But I am going to go ahead and do what I have to do because nothing feels better than going home to your family who look up to you. I got parents who look up to me."
She says she doesn't feel she was prepared for college, though she places some of that blame on herself.
Teachers at Ballou say pushing kids to see a future for themselves and to work toward that future is valuable. But encouraging them to pursue a future they're not prepared for and sending them off without skills is irresponsible. Instead, they say the school and school system need to better prepare students for the hurdles they'll face when they get to college, and they need to hold students accountable when they don't meet the requirements.
Seven months from now, Ballou High School will celebrate another graduating class. The current senior class is also working toward a 100 percent college acceptance rate this year.

Friday, December 1, 2017

Jonathan Gould Sues The St Louis-Kansas City Carpenter's Council For Corruption and Embezzlement


Corruption, Defamation Claims Fly in Lawsuit Against St. Louis-Kansas City Carpenter's Council

re-posted from Parentadvocates.org, Current Events | Posted 12/1/2017 at 12:48 PM
ST. LOUIS • A floorlayer from Edwardsville is waging a contentious legal battle against one of the region’s largest labor alliances, accusing union officials of embezzling money from members to inflate their own pensions and cash in on travel perks for spouses.
Jonathan Gould, a former compliance officer for the St. Louis-Kansas City Carpenters’ Regional Council, is suing his former union coalition in state court here to expose what he claims is a long-standing practice of stealing and squandering union dues.
“Union dues are being appropriated, stolen, embezzled and converted from the union coffers to inflate the pensions of Carpenters’ officials without the consent of the union members,” Gould said.
Gould claims the council has misspent thousands of dollars on “illegal” shop policies and millions in legal fees to preserve them. He says he also has sought whistleblower protection from the Illinois attorney general to end wasteful perks for council bosses.
The council, headquartered at 1401 Hampton Avenue in St. Louis, has denied Gould’s allegations.
The legal fight is playing out in St. Louis Circuit Court while labor unions fight for survival in Missouri and to stop the new right-to-work law from taking effect. A coalition of unions gathered enough signatures in August to delay the law’s implementation in hopes of persuading voters to repeal it next year. The law approved in February says workers cannot be compelled to join or pay dues.
The lawsuit, set for trial in February, names as defendants seven union leaders and the entire Carpenters’ council, which represents 34 locals with about 22,000 members in Kansas, Missouri and Illinois.
Lawyers for Gould, the council and its leaders declined to comment for this story.
The lawsuit stems from Gould’s termination in August 2014 after he accepted a nomination to oppose longtime incumbent Terrence Nelson to run the council, court records say. Moments after Gould accepted the nomination, Nelson allegedly told Gould, “You just lost your (expletive) job.”
Gould, who describes himself in court filings as “a strong union man,” claims he was fired for exposing alleged fraud and theft in the run up to the council’s board election in 2014. His lawsuit claims the council has inflated paychecks and pensions for years for 51 executives through an “illegal vehicle policy” and of misspending dues money on airfare for spouses and on alcohol purchases at labor conventions. Gould also accused several individual union leaders of defamation for allegedly saying he was “a liar,” had “gone crazy,” and suffered mental breakdowns. Gould claimed leaders launched a whisper campaign against him by saying he took “kickbacks” through a secret rebate program for contractors.
The council responded in pleadings that Gould was legally forced out because he had been serving an appointed position and lost the 2014 board election to Nelson. It also said its alleged defamatory statements were opinions, not facts, and if they did say them, they didn’t know they were false at the time. Council lawyers also pointed to the National Labor Relations Board’s dismissal of Gould’s claim of unfair labor practices for lack of evidence.
Meanwhile, Nelson fired back against Gould with a countersuit accusing Gould of defaming him when he emailed a flooring company principal alleging illegal spending by Nelson and other council representatives.
Nelson retired as executive secretary-treasurer of the union in 2015; he was succeeded by Albert Bond Jr.
Victor Devinatz
Victor Devinatz, a professor at Illinois State University and an expert on labor practices and history, said charges of union corruption are nothing new but might seem more hurtful to workers amid declining union membership across the country. According to the Bureau of Labor Statistics, Missouri saw a slight gain in union membership last year to just under 10 percent of the workforce, but that still falls below the national average. Illinois’ union membership fell but remains above the national average of 10.7 percent.
“As union density goes down and resources become tighter, I think incidents of union corruption in some sense, hurt more,” Devinatz said. “I think that corruption in unions is worse because it’s the money of the members — the dues.”
Legal squabbles over alleged union corruption, he said, could also hurt public perception of union membership as Missouri gears up for a political showdown next year over proposed changes in labor law.
“It certainly won’t help,” he said.
The council made headlines in 2010 over a dispute that fractured the relationship between the carpenters and organizations representing other building and construction trades. The dispute erupted after Nelson ordered the formation of a new local to represent electrical workers to compete with the International Brotherhood of Electrical Workers Local 1.

Unions are in a fight. (Editor Betsy Combier):

Unions move to block 'right to work' law in MissouriBy Kurt Erickson St. Louis Post-Dispatch Aug 18, 2017
LINK

JEFFERSON CITY • Missouri labor unions moved to block the state’s new right to work law from going into effect, submitting on Friday more than 300,000 signatures calling for voters to weigh in on the measure.

In a blow to Gov. Eric Greitens and the Republican-controlled Legislature, the effort — pending a review of the petitions by Secretary of State Jay Ashcroft — leaves the pro-business initiative in limbo until the November 2018 election.

Prior to submitting the 310,567 signatures — more than triple what is required — a coalition of unions held a boisterous rally in the Capitol rotunda to celebrate their success in circulation the petitions.

“I think the people have spoken and they are not all union people. This is democracy in action,” said Rep. Doug Beck, D-Affton, who is a union pipefitter.

Dennis Palmer, a union electrical contractor from Columbia, told the crowd that the object of the law is to lower wages.

“In Missouri, middle class jobs are disappearing. Right to work would further diminish these middle class jobs,” Palmer said.

Under the law approved in February, workers cannot be compelled, as a condition of employment, to join or to pay dues to a labor union. It was scheduled to go into effect Aug. 28.

The unions were able to stop the law from being implemented by using a special referendum provision in state law. It hasn’t been used since 1982, but when it has been, voters have repealed laws 24 of the 26 times they’ve been placed on the ballot since 1914.

Greitens, a political newcomer, has claimed the change as a signature achievement in his brief political career.

At a press briefing Thursday, before the petitions were submitted, Greitens said the right-to-work law has businesses taking notice that Missouri is “open for business again.”

The Missouri Republican Party claimed that thousands of people are trying to withdraw their signatures after being mislead about the petition they were signing.

“Union bosses and Big Labor groups are being dishonest with Missourians about Right to Work, and as a result, we are seeing thousands of people rescind their signature from these anti-right to work petitions,” party chairman Todd Graves said.

Both sides are expected to spend big dollars to convince voters to repeal the law or support it assuming that it is placed on the ballot in November 2018. A nonprofit formed to support Greitens has already contributed $100,000 to a political action committee that supports right to work.

Unions, too, are contributing five- and six-figure checks to the We Are Missouri coalition to support the repeal.

“Working families have to remain vigilant in the fight to protect workers’ right to bargain collectively. Gov. Greitens should consider himself on notice when it comes to unions and protecting the middle class. The fight has only just begun,” said Philip Gruber, general vice president of the Machinists’ Midwest territory.

The union represents 12,000 Missourians at factories including Boeing, Harley-Davidson and Honeywell.

From
Troubled Waters 

“Union dues are being appropriated, stolen, embezzled and converted from the union coffers to inflate the pensions of Carpenters’ officials without the consent of the union members.” So says Jonathan Gould, floorlayer and former compliance officer for the St. Louis-Kansas City Carpenters’ Regional Council.  A legal fight is playing out in St. Louis Circuit Court, as Gould’s lawsuit names as defendants seven union leaders and the entire Carpenters’ council, which represents 34 locals with about 22,000 members in Kansas, Missouri and Illinois. Terrence Nelson, the incumbent council leader that Gould dared to challenge in a 2014 election, filed a countersuit claiming defamation. Gould was fired, and claims it was because he dared to expose the council’s corruption. 

A similar situation is brewing in California, when Vons employee Chris Lopez sent an email to about 40 United Food and Commercial Workers officials, including international president Anthony “Marc” Perrone, calling for an internal union investigation and audit of San Diego labor leader Mickey Kasparian. Hours after sending the email, Lopez received a letter from a law firm accusing him of defamation, and of misusing “proprietary” contact information. Lopez’s concern stems from 3 other pending lawsuits aimed at Kasparian. Said Lopez about the recent action, “I think it’s a reasonable request for a union member who pays union dues — not only to Local 135 but to the international union — that there be … some sort of investigation. And that’s the only thing I ask for, and I got that threatening letter.” 

The American Federation of Government Employees (AFGE) ran afoul of the courts when it attempted to oust a contender to the incumbent AFGE president. Eugene Hudson Jr., the Secretary Treasurer and 2nd highest official in the union, upset the apple cart when he challenged president J. David Cox Sr., and the union attempted to remove him for spurious reasons when he became a political threat to Cox. U.S. District Court Judge James E. Boasberg ordered Hudson reinstated, and in his opinion provided a sharp rebuke to the union leadership. Hudson’s drama is just one of many simmering at AFGE, involving Cox either protecting errant leaders, or ousting others who have threatened him politically. 

In addition to SEIU’s recent sexual harassment travails, AFL-CIO’s chief budget officer and assistant to Trumka, Terry Stapleton, has resigned amidst similar charges. Additional revelations have come to light about abusive behavior during the 2016 election in Pennsylvania. Current and former AFL-CIO employees say leaders shouldn’t be shocked by the recent allegations. According to them, in 2015 an external consulting group prepared a report for the organization that related staff accounts of “rampant” sexual harassment and discrimination. The report was never distributed and only a handful of people were allowed to see it. 
 

Sunday, November 19, 2017

Non-Lawyers Add Value To Case Management in Texas



Team Advocatz agrees that non-lawyers can add multiple benefits to a project, including time management and cost-effectiveness.

Betsy Combier
President, Advocatz
betsy@advocatz.com

Non-Lawyers in Texas Law Firms Increase Their Roles


 
Non-lawyers are gaining more power at Texas law firms, according to The Houston ChronicleThe publication said that these firms are turning to non-lawyer professionals for key strategic decision making, and this is leading to a “seismic” and “long overdue shift.”
The desire to change stems from the 2008 recession when law firms across the country saw shifts in the demand for legal services. According to BTI Consulting, legal spending dropped by $60.3 billion from 2012 to 2016, and a national survey from Altman Weil showed that only 38% of law firm leaders believe the demand for legal services has returned to levels before the recession.
“Driven by technology and cost-conscious clients, firms have had to change their approaches to hiring and developing lawyers and serving and billing clients, as well as finding or retaining a more demanding clientele,” The Houston Chronicle stated. “Over the past five years or so, nearly every major law firm operating in Texas – including Houston-based firms Baker Botts, Bracewell, Norton Rose Fulbright and Vinson & Elkins – has hired non-lawyer professionals to handle key marketing and staff development operations, according to interviews with law firm leaders by The Texas Lawbook.”
Before the recession, law firm partners were the ones who made human resource decisions, which practice areas to expand or eliminate, how much to charge, and who to represent. But according to The Houston Chronicle, law firms are giving that power to non-lawyers. For instance, Baker Bots hired Gillian Ward to be their chief marketing officer and in three years, she has built a robust research function. The firm also hired a pricing strategist, John Strange.
Legal experts told The Houston Chronicle that these types of hires are moves for law firms to operate more like businesses.
William Cobb, a Houston-based law firm consultant, said the reasons firms have changed is that partners have felt pressure to increase revenues. He said that lawyers have figured out that they weren’t businessmen and knew they had to hire people with those skill sets.
Additionally, this trend is not limited to just Texas. For instance, four out of five law firms have hired pricing specialists. John Strange of Baker Botts said that when he was first brought into the firm as a director of pricing and project management some weren’t as receptive to him but people began to ask for his help with time. Eventually Strange and his team were able to help the law firm increase revenue and profits by 10%.
“But as people had exposure to what my team can contribute, they began to lean on us,” Strange said. “They want to know how their matter is performing, how their practice is performing, how they should practice a matter and who should they hire.”
Source: The Houston Chronicle 

Monday, November 6, 2017

Michael C. Dorf: Constitutional Law and a Need For Clarity on Complicity Claims



The Troublingly Widening Gyre of Complicity Claims


Michael C. Dorf, November 1, 2017
Michael C. Dorf
Thomas Jefferson was the chief author of the Virginia Statute for Religious Freedom, which James Madison guided through the state legislature. It served as a model for the First Amendment of the US Constitution and contains the following declaration: “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” That principle has played an important role in the interpretation of the Establishment Clause and similar state provisions restricting government aid to religion.
Lately, however, Jefferson’s principle has run amok, as individuals and entities make increasingly demanding claims on the ground that they do not wish to support, or be seen to support, or even to feel as though they are supporting, activities of which they disapprove. The trend reached its apotheosis—or, understood in proper perspective, its nadir—last week, when lawyers for the Department of Justice argued that they should be permitted to hold a seventeen-year-old undocumented immigrant in custody rather than temporarily release her to obtain an abortion at private expense, because releasing her, they claimed, would render the federal government “complicit” in her abortion.
As I shall explain, the government’s argument was wrong, and thus the US Court of Appeals for the DC Circuit, sitting en banc, rightly rejected it. But it was only a small stretch beyond already-over-extended complicity arguments that the Supreme Court has accepted in cases involving union dues and contraception insurance and which the high Court may be ready to extend even further in a pending case involving a baker.
Jane Doe’s Abortion
A seventeen-year-old undocumented immigrant in federal custody discovered she was pregnant and sought an abortion. She managed to comply with Texas state law to obtain a court order entitling her to one. But the federal government—which under Attorney General Sessions and President Trump implacably opposes abortion—balked. Although the federal government was willing to take the girl to a so-called crisis pregnancy center for anti-abortion counseling, it was not willing to permit other people to transport her to have an abortion. Even that minimal level of non-involvement was too much involvement in the girl’s abortion, the oh-so-scrupulous government asserted.
To be sure, a long line of cases makes clear that the federal government need not subsidize abortion, but that is not because the government has rights of conscience in the same way that individuals do. It’s because, with very few exceptions, the Constitution protects negative rights—that is, rights against government interference—rather than positive rights—that is, rights to affirmative government assistance. And given the private funding, there was no serious contention that the government was being asked to fund an abortion.
But let us assume that the government does have rights of conscience. Perhaps the government is the repository for the rights of conscience of the majority (or in the case of President Trump, the minority) of voters who chose the government. Even so, that would at most entail a governmental right not to facilitate abortion or other practices to which the government objects. One would still need to limit this principle, because a too-broad definition of “facilitation” would convert every objectionable private exercise of rights into government participation. And that, in turn, would be the end of rights. In the name of not facilitating objectionable conduct, the government would be effectively forbidding that conduct.
Which is more or less the position the government took in the immigration abortion case. If merely not restraining someone of her liberty amounts to government facilitation of whatever someone chooses to do with that liberty, then there is no liberty.
The Contraception Mandate Litigation
Where did the government lawyers get the idea that their complicity argument was even plausible? Unfortunately, they seem to have gotten it from the Supreme Court.
In order to accommodate religious objections, the Obama administration exempted churches and other religious organizations from the obligation under the Affordable Care Act and its implementing regulations to provide employees with health insurance that covers contraception. That was not good enough for some plaintiffs, however, and in the Hobby Lobby case, the Supreme Court ruled that the Religious Freedom Restoration Act entitled for-profit corporations whose owners object to particular contraceptive methods to opt out of the contraception insurance mandate.
Although the Hobby Lobby ruling was controversial, at least it involved a relatively tractable view of complicity. The members of the Green family who own the Hobby Lobby chain of stores felt that they would be implicated in the employer-based health insurance that their employees obtained.
Yet in the wake of Hobby Lobby, the courts were flooded by a new kind of complaint: Religious entities that were already entitled to an exemptionfrom the contraception mandate complaining that they should not have to fill out the form asking for the exemption, because the act of doing so would itself implicate them in the contraception insurance that women would then receive from other sources.
That claim is preposterous—and I say that even though I am willing, for the sake of argument, to fully credit the view that participating in the provision of contraception insurance is a great evil.
Suppose that I, as an ethical vegan, do not wish to facilitate the consumption of animal products by others (as I most assuredly do not). It would be understandable for me to ask my boss to excuse me from, say, cooking and serving cheeseburgers at a company picnic. It would be absurd for me to complain that my boss should not make me ask to be exempt from such a duty, because when I ask, that will result in somebody else serving the cheeseburgers, which will implicate me. Even if that is actually how I feel, and even if I regard the raising, exploitation, and slaughter of cows and steers to make cheeseburgers as immoral (which I do), a definition of complicity that goes this far is unworkable.
And yet, while not ultimately reaching the merits of an objection to the opt-out mechanism under the contraception mandate closely analogous to the scenario I have just described, in 2016 the Supreme Court took it seriously enough to supervise what was effectively a settlement agreement among the parties. Seeing how far the Obama administration was required to go in response to an extravagant culpability claim may have emboldened the Trump administration to make its own extravagant culpability claim in the immigration abortion case.
Bakers, Florists, and Other “Artists”
Against this backdrop, the claim of Masterpiece Cakeshop in the free speech case currently before the Supreme Court seems almost rock-solid. The owner of a Colorado bakery refused to bake a cake to celebrate a same-sex union on the ground that doing so would engage his “artistry” for a message—that same-sex marriage warrants celebration—of which he disapproves. Whatever else one might say about Masterpiece’s claim, at least the baker was being asked by Colorado to do something that he found objectionable. Unlike the religious plaintiffs who challenged the contraception mandate opt-out procedure and the government in the immigration abortion case, the baker had a remotely plausible reason for feeling complicit in what he regards as immorality.
Yet even if one accordingly feels some sympathy for the likes of Masterpiece Cakeshop, the claim should still lose. The Constitution does not protect people from feeling complicit in what they regard as evil. True, it protects freedom of speech, but as Professors Steven Shiffrin, Seana Shiffrin, and I argue in an amicus brief in Masterpiece, baking a cake—absent a whole lot more—is not speech.
Nor would the denial of the baker’s claim in Masterpiece be a regrettable but inevitable side-effect of honestly construing the Constitution. On the contrary, it would be a triumph of democratic pluralism.
We should not want to live under a constitutional regime in which each of us continually searches for objectionable behavior from which to disassociate ourselves. In a democracy characterized by competing, often wildly different, conceptions of the good, we need a modus vivendi to accomplish much of anything. Acknowledging broad complicity claims would make social cooperation across our differences all but impossible.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.