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Eight Things You Need to Know About the Navy’s Failed Multibillion-Dollar Littoral Combat Ship Program

1 year 7 months ago

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Here are eight takeaways from ProPublica’s report on the Navy’s littoral combat ship program, which has cost taxpayers billions but failed to deliver on its promise.

1. Navy officials vastly underestimated the costs to build the ship in estimates provided to Congress. The original price tag more than doubled.

Contractors were supposed to build the ships fast, in large numbers and at an original cost of $220 million each — cheap for a Navy vessel. The ships were based in part on designs for commercial car or passenger ferries. As the Navy began to apply tougher standards, costs soared.

2. The ships were supposed to be equipped with interchangeable weapons systems to allow them to fight, hunt submarines and detect mines. The Navy failed to make this happen.

Former officers said that the Navy’s haste to deliver the ships took precedence over the vessels’ combat abilities. After spending hundreds of millions, the Navy abandoned its plan to outfit the ships to find and destroy submarines; the system to hunt undersea mines is still under development. Without functioning weapons systems, one former officer said, the ship was only a “box floating in the ocean.” In response to questions, the Navy acknowledged the LCS was not suitable for fighting peer competitors such as China. The LCS “does not provide the lethality or survivability needed in a high-end fight.”

3. Scores of sailors and officers spent more time trying to fix the ships than sailing them.

Because the crews were so small, only the most elite officers and sailors were meant to sail the ships. But breakdowns meant that the ships often spent more time in port than at sea. Some sailors sought mental health assistance because of the challenges. The LCS program became known as a place where naval careers went to die. Over time, the Navy increased crew sizes on the LCS.

4. The Navy relied so heavily on contractors for maintenance and repair that sailors and officers were unable to fix their own ships.

Sailors and officers were not allowed to touch certain pieces of equipment because of complicated arrangements with Navy contractors. Cumbersome negotiations meant it could sometimes take weeks to get contractors on board. “An average week would consist of 90 to 100 hours in port doing, honestly, nothing,” one former officer said of his time. The Navy has recently increased the amount of maintenance performed by sailors.

5. A string of high-profile breakdowns at sea beginning in late 2015 laid bare the limits of the ships and their crews.

In late 2015, the USS Milwaukee broke down en route to its home port, the equivalent of a brand new car stalling on its way out of the dealership. In January 2016, the USS Fort Worth broke down when a crew of exhausted sailors failed to execute a routine procedure, costing the Navy millions in repairs. Months later, the USS Freedom saw its engine destroyed by a seawater leak. Then the USS Coronado had trouble with its water jets, followed by the USS Montgomery, which collided with a tugboat, then cracked its hull after striking a lock in the Panama Canal. Each incident added fresh embarrassment to a program meant to propel the Navy into a more technologically advanced future.

6. Top Navy commanders pressured subordinates to sail even when the crews and ships were not fully prepared to go to sea.

On the Freedom, sailors and officers understood that they had a “no fail mission” with “‘no appetite’ to remain in port.” Even though one engine was contaminated, the ship’s commander took it to sea. Afterward, the ship needed repairs that took two years to complete and cost millions. On the Fort Worth, one sailor complained that there was “no break, no reprieve, just increasing daily tasking.”

7. One Navy secretary and his allies in Congress fought to build more of the ships even as they broke down at sea and their weapons systems failed. The Navy wound up with more ships than it wanted, at an estimated lifetime cost of $100 billion.

Time and again, senior officers voiced their concerns about the ineffectiveness of the ships, yet members of Congress, the Pentagon and Navy leaders advocated for them anyway. In some cases, officers assigned to review the ships’ performance saw their careers derailed after sharing their unvarnished, critical findings.

Former Navy Secretary Ray Mabus said the Navy took the breakdowns seriously, “but it did not seem, from what we were looking at, that it was a systemic problem.”

8. Lawmakers with shipyards in their districts played a key role in expanding the program and protecting it from scrutiny.

When the Navy decided to issue contracts to build 20 littoral combat ships in two states in 2010, it encountered stiff resistance from the then-ranking member of the Senate Armed Services Committee, John McCain, a Republican. But Sen. Richard Shelby, a Republican representing Alabama, where some of the ships were being built, slipped in an amendment that would allow the Navy to do so in a last-minute budget bill. “He made sure it happened,” a Shelby spokesman said at the time. Democratic Sen. Carl Levin of Michigan, who was initially skeptical of the ships, supported the proposal. He said the plan to build 10 vessels at a shipyard in neighboring Wisconsin would provide “a major boost for the region’s economy.” Even after the Navy finally determined that it only needed 32 of the ships, Congress managed to fund three more.

Kristen Berg, Mollie Simon and Joshua Kaplan contributed research.

by Joaquin Sapien

The Inside Story of How the Navy Spent Billions on the “Little Crappy Ship”

1 year 7 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Get a behind-the-scenes look at the investigation in an Instagram Live conversation on September 12. Follow us at @propublica for updates.

Key Takeaways

  • One Navy secretary and his allies in Congress fought to build more littoral combat ships even as they broke down at sea and their weapons systems failed. The Navy wound up with more ships than it wanted, at an estimated lifetime cost that could reach $100 billion or more.

  • The Navy’s haste to deliver ships took precedence over combat ability. Without functioning weapons systems the vessels are like a “box floating in the ocean,” one former officer said.

  • Sailors and officers complained they spent more time fixing the ships than sailing them. The stress led many to seek mental health care.

  • Top Navy commanders placed pressure on subordinates to sail the ships even when the crews and vessels were not fully prepared to go to sea.

  • Several major breakdowns in 2016 exposed the limits of the ships and their crews, each adding fresh embarrassment to a program meant to propel the Navy into a more technologically advanced future.

In July 2016, warships from more than two dozen nations gathered off the coasts of Hawaii and Southern California to join the United States in the world’s largest naval exercise. The United Kingdom, Canada, Australia, Japan, South Korea and others sent hundreds of destroyers, aircraft carriers and warplanes. They streamed in long lines across the ocean, symbols of power and prestige.

The USS Freedom had its own special place within the armada. It was one of a new class of vessels known as littoral combat ships. The U.S. Navy had billed them as technical marvels — small, fast and light, able to combat enemies at sea, hunt mines and sink submarines.

In reality, the LCS was well on the way to becoming one of the worst boondoggles in the military’s long history of buying overpriced and underperforming weapons systems. Two of the $500 million ships had suffered embarrassing breakdowns in previous months. The Freedom’s performance during the exercise, showing off its ability to destroy underwater mines, was meant to rejuvenate the ships’ record on the world stage. The ship was historically important too; it was the first LCS built, the first in the water, commissioned just eight years prior.

But like the LCS program’s reputation, the Freedom was in bad shape. Dozens of pieces of equipment on board were undergoing repairs. Training crews for the new class of ships had proven more difficult than anticipated. The sailors aboard the Freedom had not passed an exam demonstrating their ability to operate some of the ship’s most important systems.

As the day to launch approached, the pressure mounted. Top officers visited the ship repeatedly. The Freedom’s sailors understood that theirs was a “no fail mission” with “‘no appetite’ to remain in port,” according to Navy documents obtained by ProPublica.

The Freedom’s Capt. Michael Wohnhaas consulted with his officers. Despite crippling problems that had left one of the ship’s engines inoperable, he and his superiors decided the vessel could rely on its three others for the exercise.

Michael Wohnhaas was captain of the USS Freedom. Crew members understood that theirs was a “no fail mission” with “‘no appetite’ to remain in port,” according to Navy documents obtained by ProPublica. (Zachary Bell/U.S. Navy)

The Freedom completed its mission, but the accomplishment proved hollow. Five days after the ship returned to port, a maintenance check revealed that the faltering engine had suffered “galloping corrosion” from saltwater during the exercise. A sailor described the engine room as “a horror show” with rust eating away at the machinery. One of the Navy’s newest ships would spend the next two years undergoing repairs at a cost of millions.

It took investigators months to unravel the mystery of the engine’s breakdown. But this much was clear at the outset: The Freedom’s collapse was another unmistakable sign that the Navy had spent billions of dollars and more than a decade on warships with rampant and crippling flaws.

The ongoing problems with the LCS have been well documented for years, in news articles, government reports and congressional hearings. Each ship ultimately cost more than twice the original estimate. Worse, they were hobbled by an array of mechanical failures and were never able to carry out the missions envisaged by their champions.

ProPublica set out to trace how ships with such obvious shortcomings received support from Navy leadership for nearly two decades. We reviewed thousands of pages of public records and tracked down naval and shipbuilding insiders involved at every stage of construction.

Our examination revealed new details on why the LCS never delivered on its promises. Top Navy leaders repeatedly dismissed or ignored warnings about the ships’ flaws. One Navy secretary and his allies in Congress fought to build more of the ships even as they broke down at sea and their weapons systems failed. Staunch advocates in the Navy circumvented checks meant to ensure that ships that cost billions can do what they are supposed to do.

Contractors who stood to profit spent millions lobbying Congress, whose members, in turn, fought to build more ships in their home districts than the Navy wanted. Scores of frustrated sailors recall spending more time fixing the ships than sailing them.

Our findings echo the conclusions of a half-century of internal and external critiques of America’s process for building new weapons systems. The saga of the LCS is a vivid illustration of how Congress, the Pentagon and defense contractors can work in concert — and often against the good of the taxpayers and America’s security — to spawn what President Dwight D. Eisenhower described in his farewell address as the “military industrial complex.”

“There is a lot of money flowing through this vast ecosystem, and somehow the only thing all these people can agree on is more, more, more,” said Lyle Goldstein, a former professor at the U.S. Naval War College who is now investigating the costs of war at Brown University. “Unfortunately, I just think it might be in the nature of our system.”

This year, the Defense Department asked Congress to approve a staggering $842 billion — nearly half of the federal government’s discretionary spending — to keep America safe in what the Pentagon says is an ever more perilous world. As House and Senate leaders negotiate the final number, it is unlikely they will spend much time discussing ways to prevent future debacles like the LCS.

Such a conversation would cover hundreds of billions of misspent taxpayer money on projects from nearly every branch of the military: The F-35 fighter jet, deployed by the Navy, Marines and Air Force, is more than a decade late and $183 billion over budget. The Navy’s newest aircraft carrier, the Gerald R. Ford, cost $13 billion and has yet to prove it can reliably launch planes. And the Army’s Future Combat System was largely abandoned in 2009 after the military had dedicated more than $200 billion on a battlefield intelligence network meant to link troops, tanks and robots.

The LCS program offers another clear lesson, one seen in almost every infamous procurement disaster. Once a massive project gains momentum and defense contractors begin hiring, it is politically easier to throw good money after bad.

Stopping a weapons program in its tracks means people losing work and admitting publicly that enormous sums of taxpayer money have been wasted. In the case of the LCS, it took an array of naval leaders and two consecutive defense secretaries to finally stop the program. Yet even after the Navy said it only needed 32 littoral combat ships, far fewer than the more than 50 originally planned, members of Congress forced the Pentagon to buy three more.

Former Lt. Renaldo Rodgers remembered laboring in San Diego from sunrise to sunset for months to ready the Freedom for a 2012 trial mission to San Francisco, only to have the ship break down during pretrial tests. Rodgers initially thought the futuristic ship looked like something out of “Star Trek.” But he soon learned it was no Starship Enterprise. It became the laughingstock of the waterfront, with other sailors deriding it as “Dry Dock One,” because it so rarely left port.

“It sucks,” he said. The LCS was “a missed opportunity.”

The Navy has tried to retire many of the littoral combat ships years before they reach their expected lifespan. Ships designed to last 25 years are being mothballed after seeing less than a decade of service.

In response to questions, the Navy acknowledged the LCS was not suitable for fighting peer competitors such as China. The LCS “does not provide the lethality or survivability needed in a high-end fight.”

“The Navy needs a more ready, capable, and lethal fleet more than a bigger fleet that’s less ready, less capable, and less lethal,” the statement read, saying the money would be better spent on higher-priority alternatives.

The cost of the program has gnawed at John Pendleton, who for years was a top military analyst at the Government Accountability Office and has studied the rise and fall of the LCS as closely as anyone in Washington.

Now retired, but unable to shake what he views as one of the most wasteful projects he’d encountered in his nearly 35-year career, Pendleton reviewed budgetary documents and GAO reports for ProPublica going back decades. His conclusion: The lifetime cost of the LCS class may reach $100 billion or more.

“In the end,” he said, “the taxpayers get fewer than 30 limited-survivability, single-mission ships.”

Pendleton is hardly alone in his assessment. Many regard the tortured path of the LCS as evidence of a damaging strain of hubris that runs rampant in the world of military innovation.

“It’s this zombie program phenomenon where everybody knows deep down we are going in the wrong direction,” said Dan Grazier, a former Marine Corps captain, who now works on Pentagon reform for the nonprofit Project on Government Oversight. “But because so much money is involved and so much political capital is invested, you can’t stop the train until the problems are so overwhelming that no one can feign support for it.”

The two narratives of the ship — unstoppable in Congress, imperiled at sea — intertwined alarmingly during one 10-month stretch beginning in December 2015. During that period, five of the vessels broke down across the globe, each illuminating a new set of problems and effectively proving the critics right.

The Freedom was the third ship to fail. Captured in a Navy investigation more than 600 pages long, the incident stands out as a particularly devastating and detailed example of the Navy’s plight.

The Problems With the Littoral Combat Ship ((Photo illustration of a Freedom-class littoral combat ship by Justin Metz for ProPublica)) Minehunting Failures

Littoral combat ships were supposed to help find and destroy underwater mines, but the remote minehunting system often returned false alarms during testing, was unreliable, frequently broke down and was difficult for sailors to control. The Navy turned to a new form of minehunting technology, which is still under development.

Survivability

Because of the emphasis on speed, the ships were originally built in part on designs used for commercial ferries. The designs did not contain protections that could prevent the flooding of critical systems when under attack. The Pentagon weapons testing department found that the design requirements “accept the risk that the crew would have to abandon ship” in circumstances where service members on other vessels would not.

Combining Gear

The Navy traced many high-profile breakdowns of the Freedom-class littoral combat ships to a design flaw in what’s known as the combining gear, a complex mechanism that connects gas turbines and diesel engines to the propulsion shafts in order to help the vessels reach top speed.

The Anti-Submarine Warfare Package

Littoral combat ships were supposed to be equipped to hunt and destroy submarines with an interlinked package of sonar devices, helicopters and torpedoes. But the systems didn’t effectively communicate with one another, the towed sonar couldn’t function properly in the vessels’ wake and the Freedom class is considered too loud to hunt submarines. The Navy canceled that function in 2022.

Limited Endurance

The Freedom is considered a “gas hog” among Navy officers, meaning it can’t go very fast for very long without running out of fuel. This creates a logistical problem for the Navy because the ship can’t stray too far from its gas supply.

1. INSIDE THE PENTAGON: An Admiral’s Vision

In 2002, Adm. Vernon Clark stared down from the deck of a Danish warship at a pier in Denmark and watched a demonstration that would shape the future of the U.S. Navy.

A large deck gun sat below. On the orders of a Danish navy official, a crane hoisted it off the pier and installed it on the ship. Within 40 minutes, sailors were rotating the weapon to prepare it for operation.

No American ship could swap weapons on and off deck like that. But the Danes made reconfiguring a vessel to carry out different missions look easy. Clark, the head of the U.S. Navy at the time, marveled at the technology.

“This is it. Of course, this is it,” Clark remembered telling himself. “I didn’t know that they could do that.”

For Clark, the Danish demonstration crystalized his idea for a new ship that would be different from anything the Navy had done before. It would be small, relatively lightly armed and operated by about 40 sailors — far less than the average warship crew size. The weapons systems would not be permanently installed.

Instead, he envisioned a sort of Swiss army knife for the Navy. Armed with one set of weaponry, it could hunt and destroy submarines. But if the threat shifted, it could be quickly outfitted to detect and clear underwater mines or to fight other warships.

As Clark envisaged it, the new ships could be deployed in coastal, or littoral, waters, where the Navy needed to expand its presence around the world: in the Persian Gulf to participate in the war in Iraq, in the Caribbean to track down gunrunners and in Southeast Asia to help smaller allied navies. They would be one of the fastest warships in the world — able to fight near shore, outrun larger vessels or hunt down the small ones increasingly popular with foes like Iran. The ships would be built quickly, in large numbers and at low cost.

Adm. Vernon Clark gained confidence that the LCS could work after seeing a demonstration of a Danish warship swapping weapons. (Johnny Bivera/U.S. Navy)

The first red flags emerged here, at the conception of the LCS. As Clark began sharing his vision, concerns began to brew among Navy shipbuilding experts, who feared it was overly ambitious and technologically infeasible. Clark was unbowed.

He was an unlikely candidate to begin a revolution in shipbuilding. With an undergraduate degree from Evangel College, a small Christian school in Missouri, and an MBA from the University of Arkansas, he hardly fit the mold of a prototypical chief of naval operations who was groomed for leadership from his earliest days at the Naval Academy in Annapolis, Maryland.

A self-professed “radical,” at times irreverent and impassioned, he wanted to run the Navy like a business, streamlining training, rooting out misspent dollars, retaining sailors who shined and getting rid of those who did not.

He believed the Navy needed a more cost-effective and technologically advanced fleet. Many of the Navy’s ships had been built during the Cold War. Massive carriers, destroyers, battleships and cruisers were facing retirement, in part because updating them with modern technology was prohibitively expensive, Clark said.

In keeping with his business background, Clark wanted as few people on the new ships as possible. “What I really want is an unmanned ship that’s got R2-D2 in it,” he said, recalling his thinking at the time.

Doubt dogged Clark’s dream from the start. Congress agreed to begin developing the ship in 2003 — despite a House Appropriations Committee report that warned that there was “no ‘road map’ of how the Navy will achieve the system required.”

One former admiral who worked on plans for the ship said Clark’s insistence on speed — up to 45 knots, or about 50 miles per hour — created immediate problems. A ship cannot go that fast for very long without running out of gas, which meant it could never stray far from its fuel supply. Its small size — many in the Navy joked that LCS stood for Little Crappy Ship — limited the weapons it could carry.

The former admiral said he raised concerns with his superiors but wished he had been more vocal. “As a subordinate naval officer, when your boss tells you, ‘Here’s a shovel, go dig the hole,’ you go dig the hole.”

The Navy pushed ahead. In May 2004, it awarded contracts to two teams of defense contractors to build up to two prototypes, each of their own design.

Both teams had lobbied heavily to win the contracts. Lockheed Martin, which partnered with the Marinette Marine shipyard in Wisconsin, plastered the Washington, D.C., Metro system with advertisements extolling the ability of its proposed ship.

The other team, a joint venture between General Dynamics and Australian shipbuilder Austal, planned to build its version at a shipyard in Alabama.

In response to the Navy’s goals, the contractors both based their original ship designs partly on high-speed ferries for cars or passengers, an unusual choice for a vessel meant for war not transportation.

With an emphasis on speed and dexterity, the ships were not designed to withstand much damage. Clark saw them fighting under the protection of larger, more lethal ships. To him, investing too much in protecting the ship with extensive armor would make it too heavy to operate near shore.

“Show me a ship that can take a direct hit with today’s modern weaponry and survive,” he said. “Why spend all this money pretending?”

This argument disquieted lawmakers. Toward the end of Clark’s tenure, members of Congress began to ask whether this meant the Navy had deemed LCS sailors expendable.

After Clark left the Navy in July 2005, the Navy responded to the concerns, redrawing the blueprints for the ships as they were being built to better protect sailors.

Costs began to rise dramatically. The ships were originally supposed to cost no more than $220 million dollars each, which had helped sell them to Congress in the first place. But the final price tag rose to about $500 million each.

Robert Work, a former deputy defense secretary who became a key proponent of the ship, said many in the Navy thought the initial estimate was unrealistic. “The Navy never believed it, at least the people who had to build the ship,” he said.

Despite the rising costs, the LCS soon gained a new champion so devoted to its construction that he led a yearslong campaign to resist efforts by two secretaries of defense to scale back the program.

2. OUT AT SEA: A “Foreseeable” Disaster

On the morning of Nov. 23, 2015, the USS Milwaukee set out across the frigid waters of the Great Lakes for its maiden voyage. The cost overruns had made headlines, but with the fifth ship in the water, Navy officials were hoping the vessel’s performance would lessen the growing doubts about the project.

The Navy planned to sail the Milwaukee from the shipyard on the shores of Lake Michigan in Marinette, Wisconsin, to its new home port of San Diego. From there, it would eventually join its sister ship, the USS Fort Worth, in helping to counter the Chinese navy’s expanding presence in the Western Pacific.

In a press tour days before the launch, Cmdr. Kendall Bridgewater evinced confidence, proclaiming that the enemy “would be hard pressed to find a vessel that could come up against us.”

But the ship wouldn’t need a fight to suffer its first defeat. Its worst enemy would be its own engine.

On Dec. 11, about three weeks into the two-month journey, a software failure severely damaged the Milwaukee’s combining gear — a complex mechanism that connects the ship’s diesel engines and its gas turbines to the propulsion shafts, producing the power necessary for it to reach top speeds.

A Navy salvage ship had to tow it some 40 miles for repairs at a base near Norfolk, Virginia. The ship hadn’t made it halfway down the East Coast — let alone to the South China Sea — before breaking down. If the Milwaukee were a brand new car, this would be the equivalent of stalling on its way out of the dealership.

Some former officers look back on the breakdown and those that followed as a clear violation of a cardinal principle in Navy shipbuilding: to “buy a few and test a lot.” But with the LCS, the Navy was doing the opposite. Commanders were learning about the flaws of the ships as they were being deployed.

“This is a totally foreseeable outcome,” said Jay Bynum, a former rear admiral who served as an assistant to the vice chief of naval operations as the ships were entering the fleet. “Just think about it, Toyota checks out all of this before the car hits the showroom floor. What if the engineering guys there said, ‘Well, we think this is how the engine will work, but let’s just start selling them.’”

3. INSIDE THE PENTAGON: “Do We Want This Ship to Survive?”

On a breezy Friday in March 2011, Secretary of the Navy Ray Mabus addressed a crowd of sharp-dressed politicians and begrimed workers gathered at a shipyard in Mobile, Alabama.

Mabus, tall and dapper, announced the names for two of the Navy’s newest littoral combat ships. One would be called the USS Jackson — a reference to the capital of his home state, Mississippi.

As he looked out at the waters of Mobile Bay, Mabus lauded the new class of ships that had emerged from Clark’s vision a decade before.

“It’s a drug runner’s worst nightmare, it’s a submarine’s worst nightmare,” he declared, speaking in his soft Southern drawl. “It’s anybody who wants to do harm to the United States of America or the United States Navy, it’s their worst nightmare.”

In fact, the LCS was on its way to becoming one of the Navy’s worst nightmares — and Mabus was its biggest cheerleader.

Better known for his political acumen than his military experience, Mabus served three years in the Navy in the early ’70s, including time at sea as a lieutenant junior grade on board the USS Little Rock.

Afterward, he rose through Democratic ranks to become governor of Mississippi, an ambassador to Saudi Arabia and eventually the longest-serving Navy secretary since World War I.

During his tenure as the Navy’s civilian leader, he put his stamp on the service by pursuing a range of progressive policies including gender integration and the use of renewable fuels. He also took advantage of a unique perk: tossing out the ceremonial first pitch at major league stadiums across the country.

His most transformative view on U.S. military strategy was his belief in the need for more ships.

The fleet had shrunk to less than half the 600 it wielded toward the end of the Cold War. China was rapidly expanding its navy and Russia was investing heavily in new submarines.

Mabus, who became secretary in 2009, pursued a plan that would make him one of the Navy’s most prodigious shipbuilders.

In an interview with ProPublica, he reiterated the “sheer importance of numbers” for the fleet. He backed the LCS, he said, because it would help meet an array of the Navy’s needs as fast as possible.

Even as a growing number of senior officers began to criticize the ships, Mabus expanded the program, drawing on his political connections and savvy dealmaking to defend the LCS against powerful opponents on the Hill and in the Pentagon.

Navy Secretary Ray Mabus continued to expand the LCS program even as a growing number of senior officers began to criticize the ships. (Jason Lee/Reuters)

Mabus acknowledged that his support of the LCS project put him at odds with some of the Navy’s top officers and the nation’s civilian military leadership. He recalled resistance from what he dubbed the “Alumni Association,” powerful former Navy officers who he said reflexively and unfairly disliked the ship because it was so different from anything else the Navy had built. For Mabus, his key role as civilian leader of a tradition-bound military service was overcoming its hostility to change and innovation.

Chief among the old-school critics, he said, was Sen. John McCain, a Republican from Arizona and decorated Navy veteran whose father and paternal grandfather had both been Navy admirals. He, along with Sen. Carl Levin, a Michigan Democrat, had emerged as skeptics of the LCS as leaders of the Senate Armed Services Committee. Both were alarmed by the costs, which had soared to more than $750 million apiece for the initial ships.

In response to such concerns, the Navy lowered the price by pitting the two teams of contractors against each other in a bidding war. Austal and Lockheed Martin turned in two different ship designs with similar price tags. Navy leaders dithered over which to select.

In the fall of 2010, Work, the Navy undersecretary at the time, said Mabus gathered senior naval leaders together to ask a blunt question: “Do we want this ship to survive?”

When the group answered yes, Mabus proposed a politically adroit solution: The Navy would select both companies to build the new ships in two shipyards, one in Alabama and one in Wisconsin.

Mabus calculated that he would win the support of congressional delegations from both places by delivering thousands of jobs and millions in spending to each, Work recalled. Spreading the wealth would increase the ships’ chances of survival. But it would also make the program harder to kill when problems arose.

“He was looking at the problem in a different way than we were looking at it because he was a professional politician,” Work said.

Mabus’ plan concerned some Navy leaders. The Austal ship, which was the basis for the Independence class, would be an aluminum trimaran — a ship with three hulls. The Lockheed Martin ship, which formed the basis for the Freedom class, would be a more conventional monohull forged of steel. The radically different designs meant that the ships could not trade parts or sailors, making them more expensive to maintain and crew. In addition, the contracts called for the contractors to build a total of 20 vessels, a large commitment for a relatively unproven warship.

But Mabus and his team argued that those additional costs would be dwarfed by the savings the Navy would enjoy in the long run — one top official found that the Navy would save $2.9 billion by awarding long-term contracts to both companies.

To Mabus, it was a win-win for all involved: each ship had its own benefits, taxpayers would get a better price, the Navy would get more ships faster and the shipyards would get more jobs.

He told ProPublica that keeping the shipyards active was always a “consideration, but it wasn’t the main driver” behind the decision. The real incentive, he said, was price, not politics.

But the political payoff soon became evident.

McCain held a hearing, where he excoriated the Navy. “The story of this ship is one that makes me ashamed and embarrassed as a former Navy person and as a person who’s responsible to the taxpayers of my state,” he said. (McCain died in 2018.)

But in a last-minute budget bill to keep the government open in late December, Sen. Richard Shelby, the Alabama Republican, inserted language to buy ships from both shipyards.

He made sure it happened,” a Shelby spokesman said at the time.

And Levin, the Michigan Democrat once critical of the ships, now supported them. The Marinette shipyard is just over the Michigan border in Wisconsin. Levin called the plan to build 10 ships there “a major boost for the region’s economy” and applauded the Navy in its efforts to bring costs down. (Levin died in 2021).

As one former vice admiral put it, “politics is king in the shipbuilding business.”

4. OUT AT SEA: “We Ask for Help, but There Isn’t Enough” Work aboard the USS Fort Worth. There was “no break, no reprieve, just increasing daily tasking,” one sailor said of their time on board. (Antonio Turretto Ramos/U.S. Navy)

Just a month after the USS Milwaukee stalled in Virginia, the ship it was supposed to join in the South China Sea suffered its own embarrassing breakdown.

The USS Fort Worth was nearing the end of an otherwise successful deployment. It had helped with a search-and-rescue operation following an Indonesian commercial plane crash and participated in joint exercises with several allied navies.

But the Navy had decided to frequently rotate the small LCS crews in order to reduce burnout and, in November 2015, a new, inexperienced crew took over.

Even the commanding officer, Michael Atwell, had “few opportunities to gain valuable at sea experience” before his deployment, according to a later Navy investigation.

On Jan. 5, hundreds of gallons of fuel spilled into the ship’s main machinery room. The sailors had to spray chemical foam on the fuel to prevent it from catching fire. Then, in grueling, filthy shifts, they took turns crawling into the tight compartment to clean it up with rags and pumps.

The day after the spill, the Fort Worth pulled into a port in Singapore for a week of scheduled maintenance.

There it became clear that the ship had been “ridden hard,” according to officers interviewed in the Navy investigation. Leaks had sprung out of various parts, the engines were in bad shape, the electric generators needed work and the crew was exhausted. There was “no break, no reprieve, just increasing daily tasking,” one sailor said of their time on board.

The ship’s executive officer, the second in command, complained of a lack of support from superiors.

“We ask for help, but there isn’t enough,” he said, adding that he was told “they don’t have the bodies.”

The ship was originally supposed to leave by Jan. 12 for a “high visibility” port visit in Hong Kong. Atwell and his executive officer described a “tremendous amount of pressure” to make it happen, according to the Navy investigation.

The crew took shortcuts as it scrambled to test the engine. One of the sailors in charge of starting it skipped a routine step, failing to properly lubricate the combining gears.

“I messed up everything because I was going too fast,” the sailor later explained.

The mistake damaged the ship’s combining gear, forcing it to sit for seven months while waiting on replacement parts.

Navy leaders deemed Atwell unfit for command and removed him from his position.

Reached by phone, Atwell declined to comment.

The breakdowns on the Milwaukee and Fort Worth formed the beginning of a pattern that came to punctuate the life of the LCS program:

Ships were rushed to sea with faltering equipment. Shorthanded crews and captains without sufficient training or support tried to make them work. Breakdowns ensued. Then, the pressure to perform and restore the reputation of the program intensified anew and the cycle repeated itself.

Soon it would be the USS Freedom’s turn.

5. INSIDE THE PENTAGON: “We Were Essentially Telling a Lie” The Pentagon (Pablo Martinez Monsivais/AP)

In early 2012, sitting beneath the fluorescent glow of a Pentagon briefing room, Rear Adm. Sam Perez received a stern warning.

Weeks earlier, Chief of Naval Operations Jonathan Greenert had asked Perez to produce a report that would help him figure out how best to use the dozens of littoral combat ships that would be delivered to the Navy in the coming years.

The results were grim.

Discussing the details around a conference table, one fellow officer raised a finger to his own temple and mimicked a gun going off: Perez, he signaled, was about to risk career suicide.

It was a pattern with the LCS. Officers who criticized the ships faced consequences. An assignment to an undesirable post. Even dismissal.

Perez had found that the crews were too small. Some were stretched so thin that commanding officers had to spend time sweeping the decks, when they could have been studying intelligence reports and focusing on navigating the ship.

Contrary to what Clark observed in Denmark, the various weapons systems would not be easy to swap out. The Navy hadn’t factored in the weeks it could take for all the contractors, sailors and others who were needed to fly in from around the world to help outfit the vessels for different missions.

The two versions of the LCS complicated the problems. The designs were vastly different: They could exchange neither parts nor sailors. Perez and his staff worried that the ships would wind up sidelined because they lacked either equipment or trained crew members.

Comparing the LCS to the fleets of potential adversaries, Perez concluded that the vessels were only capable of fighting against lightly armed small, fast attack boats.

A fellow officer warned him that painting this kind of damning portrait for the highest ranking officer in the Navy, the chief naval officer, could hurt his career. At that point, the Navy had already committed to buying at least 20 more ships worth billions of dollars.

Perez had already shared some of his findings with Vice Chief of Naval Operations Adm. Mark Ferguson, the second highest ranking official in the Navy.

According to a former senior officer familiar with the events, Ferguson told Perez that he was looking at the vessels the wrong way. The small ship’s performance should be compared to a patrol boat.

Perez objected. Patrol boats aren’t supposed to clear mines, fight submarines or attack surface warships. They are far smaller, designed primarily for surveillance and interdiction.

The staffers worked on the comparison for about two weeks before they began “tearing each other up because we were essentially telling a lie,” according to the former officer who worked on the project. After a vote, they decided to stop comparing the LCS to a patrol boat.

Immediately after Perez delivered the report, he received a call from Bynum, a former rear admiral who at the time worked for Ferguson. Bynum told Perez to classify the report secret.

“That was absolutely my recommendation,” Bynum said in an interview with ProPublica. The report, he said, included a “host of vulnerabilities that didn’t need to be shared in the open press.”

At a PowerPoint presentation of his findings, Ferguson was curt. The former officer said Ferguson only allowed Perez about two words per slide, instructing him to flip to the next image before he could finish the last one.

In an interview with ProPublica, Ferguson did not recall asking Perez to compare the LCS to a patrol boat, but he acknowledged he was disappointed by key aspects of the report. Known to have a brusque style, he said he may well have sped through his presentation.

“I didn’t dispute any of the critique,” Ferguson said. “LCS had serious issues. But I wanted more in the way of recommendations on how to go forward; how to integrate them into the fleet.”

Soon after, Perez was assigned to the international relations department of the Navy. About a year after that, he became liaison to the State Department. Neither are regarded as ideal assignments for an admiral who had spent a career carrying out missions at sea.

Perez declined to comment.

For his part, Greenert said the idea that Perez was punished for speaking up was “nonsense.” On the contrary, he said it helped prompt him to increase the staffing and budget for LCS.

Around the same time, Greenert asked another senior officer, three-star Adm. Tom Copeman, to evaluate the LCS as part of a larger report on the surface fleet.

Copeman, then in charge of the fitness of the Navy’s vessels for combat, echoed concerns about the ship’s combat abilities. He thought the LCS was not lethal enough. The Navy’s contract called for 24 ships, with plans to build more than 50. Copeman recommended that the Navy halt building the ships after fulfilling the contract.

In March 2013, the memo was leaked to the trade press. Copeman immediately received calls from one of Mabus’ top staffers. He told Copeman that Mabus was extremely disappointed that Copeman had publicly disagreed with him. Copeman told him that the memo was never intended for public consumption and that he didn’t know how it got out.

As ProPublica previously reported, Greenert asked Copeman to retire early in mid-2013 after he had publicly expressed concerns over the fitness of the Navy’s ships for combat.

Greenert said Copeman was not asked to retire early. He said Copeman helped to convince him to ask for more weapons on the LCS.

Copeman declined to comment.

The Navy needed a lot more ships, and the LCS program was going to help provide them.

6. OUT AT SEA: Freedom’s Troubles Sailors board the USS Freedom in August 2013 in Singapore. Back in San Diego, the ship had been nicknamed “Dry Dock One” because it so rarely left port, according to one former lieutenant. (Jay C. Pugh/U.S. Navy)

About six months after two of its sister ships were docked for repairs, it was the Freedom’s turn in the spotlight.

But on July 7, 2016, the day before the ship was supposed to begin its part in the global Navy exercise, a string of equipment failures forced its captain into a bad spot: Wohnhaas had to submit a “fail to sail” message to his superiors — an embarrassing signal that the ship was not ready to go.

Working through the night, engineers on the Freedom eventually realized a part called a cannon plug used in the ship’s complicated propulsion system needed to be replaced. Without it, the ship couldn’t go anywhere.

They discovered one in Port Hueneme, about an hour north of Los Angeles. The engineer battled through five hours of Southern California traffic to pick it up and bring it back. The ship departed its port in San Diego a day late, then suffered another setback.

Three miles outside Mexican territorial waters, a loud metallic noise clanged out, startling the crew. Wohnhaas slowed the ship down but it began to drift. The crew dropped anchor to stop the ship and then steamed back to port.

He was sent back out to sea and senior officers later criticized him for holding up the mission.

Then on the evening of July 11, a leak erupted inside the main machinery room, the mechanical heart of the ship, spraying the electrical system with seawater. An inch or two pooled on the floor. If the leak wasn’t stopped immediately, it could cause short-circuiting or even a fire.

One sailor searched for the source of the leak by hand, burning his arm on a hot pipe before finding a hole seeping water. The sailors plugged the hole, but the repair backfired. It forced water to burst through a rubber seal that kept seawater out of the ship’s lubrication oil system. The water mixed with the oil, pumping a kind of emulsified goo through one of the ship’s four engines.

Two days later, the crew, again, had to return the ship to dock in San Diego. The engineer responsible for the ship while in port determined that a full repair of the engine could take as long as two weeks. Wohnhaas’ superiors rejected the idea. Time was running out for the ship to participate in the Rim of the Pacific exercise, or RIMPAC.

A Navy diesel engine expert proposed a procedure to block further corrosion of the engine with a special rinse.

A Navy expert in Philadelphia, referred to as “the guru” in the Navy investigation, approved that approach, which would allow the ship to get back to sea more quickly and complete the mission by using the ship’s three remaining engines.

Throughout the exercise, a parade of high-ranking Navy officials — including two rear admirals, a Marine Corps general, and a commodore — visited the vessel to turn up the heat on the crew and its captain.

They made clear that the Freedom’s participation in RIMPAC was “crucially important” to the entire LCS program and that there was “no appetite” for the Freedom to delay its departure. Freedom’s performance, they believed, would “perhaps modulate some of the program’s critics,” the investigation said.

The Freedom left San Diego to take part in the Rim of the Pacific naval exercise in 2016. (Stacy M. Atkins Ricks/U.S. Navy)

Given what happened on the Fort Worth and the Milwaukee months earlier, top Navy leaders “felt pressure to deliver a ‘win’ for the program,” according to the investigation, which called the pressure on Wohnhaas “severe.”

One senior officer invoked the commander of the Pacific Fleet, Adm. Scott Swift, as wanting to use the region as a “testing grounds” for the Navy.

Reached by phone, Swift said he was a “believer in the LCS” and acknowledged that he had encouraged the Navy to test new weapons systems in the Pacific. But he emphasized that it was not an order to deploy ships at any cost.

“We made it clear if you want to take them off line, take them off line, but I am not surprised that people further down the chain didn’t feel they had that option,” he said. “The offer could have been perceived as an order, or taken advantage of by those that wanted to push harder to get a win out of LCS.”

“As a four star, if you ask for something too often people think of it as a requirement,” he said.

On the morning of July 17, 2016, the ship finally seemed ready to go.

The contractors completed the rinse and were packing up to leave. But when the chief engineer looked at samples taken from inside the engine, he was deeply worried.

“Holy shit,” he thought, according to an interview in a Navy investigation. “There’s still water in the engine.”

He sent a message to Wohnhaas that he later acknowledged was misleading because it suggested the ship was ready to go. He blamed the mistake on “not proof-reading” the text prior to sending it.

“Sir, the flush is done,” he wrote at 9:50 a.m. “I [assess] that we are still on track for tomorrow.”

Wohnhaas took this as good news and passed it on to his superiors:

“Everything is tracking toward an on-time departure,” he said in an email sent to his commodore, Warren Buller, at 11:36 a.m.

In fact, the procedure approved by the Philadelphia guru hadn’t solved the problem. Investigators would later determine the procedure could not have worked — it was meant to remove grit, not seawater, from engine oil.

The following morning, as the Freedom was preparing to depart, a senior enlisted engineer ran into a contractor he knew as Joe.

Joe told him that the engine was still contaminated.

Alarmed, the engineer discussed the situation with his supervisor, the chief engineer, who was smoking a cigarette on the front deck of the ship.

If they went to sea, the engine would rust, the engineer said. The chief engineer told him he knew it and he was on his way to tell Wohnhaas.

In an interview with investigators, the chief engineer said he told Wohnhaas something to the effect of “we can’t get underway like this, we gotta do something.”

Wohnhaas declined to comment for this story. In his interview with investigators, he said that when he learned of the contaminated samples from the chief engineer, he understood the engine was inoperable. But he was confident he could avoid further damage and complete the mission by relying on the ship’s other engines.

“There was a strong sense that we couldn’t have another LCS not meet mission,” Wohnhaas said. He did not tell his superior officers the uncomfortable fact that the engine was still contaminated because of the pressure to get underway, the investigation said.

The Freedom sailed out and detected mines in the water. The mission was a success — at least so everyone thought.

But on Aug. 3, five days after Wohnhaas returned the ship, a routine inspection revealed major damage to the engine, corrosion so extensive that the ship was docked in repairs for two years. The engine needed to be replaced.

The Navy investigation found that one failure led to another on the Freedom: The inexperienced crew used the wrong procedure to stop the leak; the Navy’s “technical community” then recommended another incorrect procedure to flush the engine; contractors executed it, providing “false hope” that it would prevent the corrosion.

Wohnhaas’ key error, according to the investigation: He failed to tell his superiors that the engine was still contaminated by seawater.

Wohnhaas was removed from command over the incident. Others, whose names and titles are redacted from the Navy report, were also recommended for discipline.

7. OUT AT SEA: “It Just Felt Like a Big Joke” Sailors take part in a ribbon-cutting for a littoral combat ship facility in 2015. Some ships of this class are being retired after less than a decade of service, despite being designed to last 25 years. (Timothy Schumaker/U.S. Navy)

By early 2017, Lt. Jett Watson was beginning to wonder whether he had signed up to squander his naval career.

He was in the middle of training to serve as an LCS officer, spending hours inside virtual reality simulators set up in San Diego to make participants feel as if they were driving the ship.

The digital experience was impressive, but getting a real LCS out to sea was more complicated.

“I’m sure it was funny to watch us get underway just to have a big cloud of smoke go out because an engine went down and then have the tugboats pull us right back into the pier, which happened very often,” he said in an interview with ProPublica. “I mean, it was almost a game just to watch.”

Becoming a full-fledged surface warfare officer in the Navy requires hundreds of hours at sea. In interviews with current and former officers, the LCS program was described as a place where careers go to die. The ships broke down so frequently that officers spent key years in which they were supposed to gain experience at sea sitting around waiting for repairs to be completed.

Watson felt deceived.

A couple of years earlier, he had come under the spell of the LCS as a student at the Naval Academy.

There, recruiters for the program spread the gospel of its small crew size and purportedly aggressive deployment schedule, convincing him that the ship suited only the most elite sailors and officers.

Watson was so taken by the promise of the ship that he became a kind of “LCS evangelist,” convincing his friends at the academy to join the program with him.

He remembered sweltering beneath the Maryland sun during his graduation ceremony, where Mabus delivered a kind of a final exhortation to the newly sworn in officers.

“We are America’s away team,” Mabus said. “You didn’t come to Annapolis to sit at home when you leave here, and you won’t be sitting at home. Sailors and Marines, equally in times of peace and at war, are deployed around the world.”

Hailing from Lubbock, Texas, Watson thought the LCS would be his ticket to a meaningful and exciting career in the Navy.

He went on to serve on three littoral combat ships, each belonging to the less problematic Independence class.

“I would hesitate to say we ever did a mission,” he said.

Instead, he and others had to stomach what one current senior noncommissioned officer described as “a big shit sandwich” when they first came on board.

General Dynamics and Lockheed Martin considered much of the data and equipment on the LCS proprietary — a problem that the GAO has identified throughout the military. As a result, only their employees were allowed to do certain repairs, former officers said. This sometimes meant that contractors would go overseas to help, adding millions in travel costs and often delaying missions. The Navy recently purchased some of the data. A Navy spokesperson would not disclose the price “due to proprietary reasons.”

Watson and others spent much of their time escorting contractors while on board because so many areas on the ship were considered classified, reducing their ability to do their own jobs, according to interviews with multiple officers who had served on the LCS.

Cumbersome negotiations meant it could sometimes take weeks to get contractors on board. The delays were especially frustrating when trying to fix the computer network that connected everything from the radars, to the weapons systems, to the ship’s canteen. That system, another former lieutenant said, frequently shut down because of software glitches.

“You can’t ask for help from your superior commands” on shore, said the former lieutenant, who worked as a communications officer on Independence-class ships. “And you can’t even go buy yourself a soda.”

The ships needed constant repairs. But technical manuals were sometimes written only in the native language of the contractor that built the equipment. One former officer said that a manual for a davit, a type of crane used to lower a search-and-rescue boat, was written in Norwegian. He said the Navy had to spend thousands of dollars to fly in a contractor from Norway to change two fuses.

The Navy has recently increased the amount of maintenance performed by sailors.

“It just felt like a big joke,” said Watson, who left the Navy in 2021. He said many of the highly qualified sailors he worked with sought mental health assistance because they felt that their time on an LCS was a waste, affording them little opportunity to apply their skills or learn new ones.

“An average week would consist of 90 to 100 hours in port doing, honestly, nothing,” Watson said. “It felt ridiculous. Many times we were there just because we had to be there.”

At one point, a senior Navy official addressed a group of more than 50 LCS sailors assembled in an auditorium and asked how many would volunteer to come back. Two former officers familiar with the presentation said only a handful said yes.

8. INSIDE THE PENTAGON: A Fight Over the Future

The ships’ mounting problems drew attention from the highest reaches of the Pentagon, eventually prompting two successive defense secretaries to try to halt their construction.

The first, in 2014, was Chuck Hagel, a former Army infantry squad leader and U.S. senator. The military was fighting wars in Afghanistan and Iraq, but it also needed to save money. Hagel’s advisers told him he could do that by keeping the LCS fleet to 32 ships, abandoning plans to build 52 of them.

He’d be cutting what was already understood to be a deeply troubled vessel. Studies showed that the ship couldn’t continue to fight after a missile strike and that the interchangeable warfighting packages — an idea originally at the heart of the LCS — were failing to perform.

“Do we want one-fifth of the future Navy fleet to be a ship that can’t take a hit and continue its mission?” one adviser recalled thinking at the time.

In February 2014, Hagel pledged to make the cut to 32 and asked the Navy to come up with a design for a new frigate — a larger, tougher type of warship. But Mabus pushed back. A Navy task force suggested that the LCS could be transformed into a frigate. The Pentagon’s top weapons tester told Hagel that was infeasible. But Hagel agreed with the task force, because the Navy was “going to have to live with it, and justify it. And count on it,” he said in an interview with ProPublica.

In December 2014, in one of his final acts as secretary of defense, Hagel agreed to allow the Navy to build up to 52 smaller ships: a mix of the littoral combat ships and the new frigates, which would be based on the LCS design, but with more weapons.

In response to critics who said he had capitulated, Hagel characterized his decision as a “compromise” based on the advice of the government’s top experts.

“We brought in a lot of different people on both sides of it,” he said. “That’s the only responsible way you can evaluate these big projects as secretary of defense, because you can’t know everything about this. It’s just, no one person is that smart.”

The Navy later awarded a contract to the shipbuilder Fincantieri Marine Group to build a new line of frigates based on a different design.

Defense Secretary Ash Carter, who followed Hagel, also took aim at the LCS.

Defense Secretary Ash Carter in 2016. In a 2015 memo, he said the Navy was guilty of “prioritizing quantity over lethality.” (Alex Brandon/AP)

In a sharply worded December 2015 memo to Mabus, Carter said the Navy was guilty of “prioritizing quantity over lethality.” He told the Navy to limit future purchases to 40 ships, including littoral combat ships and frigates.

Mabus told ProPublica that he was blindsided by the change of course and that it led to “heated discussions” with Carter in private.

In public, he opposed his boss too: first at a naval symposium, then before Congress, then at a Wisconsin shipyard where he assured LCS builders they were working on the best ship in the world. In March 2016, under questioning from Rep. Bradley Byrne, an Alabama Republican who called the LCS his “favorite topic,” Mabus told the House Armed Services Committee that the Navy had a “validated need” for the 52 ships.

Even as Mabus testified, the ships were breaking down at sea with increasing frequency.

Mabus downplayed the severity of the incidents.

“We took it seriously,” he said. “But it did not seem, from what we were looking at, that it was a systemic problem.”

The contractors who built the ships defended their performance.

Eric Dent, a spokesperson for the Italian-based shipbuilder Fincantieri, which also built the Freedom ships in Marinette, said it did so to a design from Lockheed Martin and the Navy, referring questions to both.

Lockheed Martin spokesperson Patrick McNally said the company is proud of its work with the Navy and is focused on delivering “affordable improvements to the platform.”

Australian-based shipbuilder Austal, which constructs the Independence class of ships, and General Dynamics, which built the infrastructure for the ship’s computers, both declined to comment for this story.

The weapons systems were failing as badly as the ship’s engines.

Without them, the LCS was “only a box floating in the ocean,” said former Lt. Cmdr. Mark West, who helped lead the Navy’s development of the warfighting packages for years in uniform and as a civilian.

To help the LCS find mines, an important mission in 21st-century warfare, the Navy built a remotely operated minisubmarine designed to detect underwater explosives. West and others said it turned out to be too difficult to operate. The Navy is now dependent on an aging fleet of minesweepers that often cannot deploy.

“Imagine a 25-year-old sailor trying to remotely control a [minisubmarine] in the water that weighs 20,000 pounds as the ship is going 4 or 5 knots,” one current senior enlisted sailor said. “Then trying to bring it to the surface as a crane lowers a saddle on top of it to get it out of the water. It was damn near impossible.”

After 15 years of development and more than $700 million invested in the remote minehunting system, the Navy canceled it in March 2016.

To hunt submarines, the defense contractors created a sonar device the ship dragged through the water on a long cable from the stern. When the device detected a submarine, it was supposed to send a signal to the ship, which then dispatched a helicopter to hover over the ocean and plunge another sonar device into the water. The helicopter then dropped a torpedo to destroy the sub.

None of these components effectively communicated with one another. And the wake of the LCS made it extremely difficult to launch and recover the sonar, according to one former commodore with direct knowledge of the program.

After pouring hundreds of millions into the module, the Navy shifted the function to its new frigate.

In an interview, West said the Navy never gave the modules the same priority as the ships. They always played “second fiddle,” West said. Those working on them had to “fight and claw” to get the time and money necessary to “ensure their success.”

9. OUT AT SEA: Coronado and Montgomery

About a month after the Freedom’s engine failed, a fourth LCS, the USS Coronado, broke down on its way to Singapore and had to limp back to Hawaii.

The USS Coronado returns to Joint Base Pearl Harbor-Hickam in Hawaii after breaking down on its way to Singapore. (Katarzyna Kobiljak/U.S. Navy)

The breakdowns had become routine by this point. First came the fanfare over a newly christened ship, with all the requisite flag waving, handshaking, speechmaking and celebratory Champagne bottle breaking. Later, a perilous journey: a few days or weeks at sea, followed by another busted part and another tow back to port.

This time, on the Coronado, a part called a coupling would be the culprit. The device, which helped connect the water jets to the engine, had failed, hindering the ship’s complicated propulsion system. The Navy discovered it was a problem on several other littoral combat ships, too.

The GAO, which has produced dozens of reports criticizing the ships, later learned that the Coronado failed to sail six times between 2016 and 2017 because “it did not have correct parts on board to fix simple problems.”

Important items like “circuit card assemblies, washers, bolts, gaskets, and diaphragms for air conditioning units were not on board,” the report found. “The LCS may not have adequate space onboard to stock these items.”

In August 2016, the Navy ordered a 30-day stand down of all littoral combat ships to retrain the engineering crews and improve the fleet’s performance.

A month later, a fifth ship, the USS Montgomery, suffered a series of mishaps. Over a two-month stretch, its engine malfunctioned, it collided with a tugboat and it then cracked its hull after striking a lock in the Panama Canal.

10. INSIDE THE PENTAGON: “The Navy Doesn’t Want Them”

On May 4, 2017, about three months into the administration of President Donald Trump, the director of the White House Office of Management and Budget at the time, Mick Mulvaney, sat for an interview with conservative talk radio show host Hugh Hewitt.

They talked about “Game of Thrones,” the repeal of Obamacare and a new hire at the OMB before turning to Trump’s promise to increase the Navy’s fleet to 350 ships. How, Hewitt wanted to know, was the president going to achieve that?

Mulvaney said that the day before he had missed a meeting on the Paris Agreement — the international treaty to avert the catastrophic consequences of climate change — in order to discuss whether to buy more littoral combat ships.

The Navy doesn’t want them,” Mulvaney said.

With the Navy on its way toward building the more powerful frigate, it appeared that the LCS program was on its last legs. The Navy requested funding for only one LCS that year.

But once again, politics intervened.

Tammy Baldwin, the Democratic senator from Wisconsin, fought for more. She wrote to Trump on May 12, casting the LCS as a rare opportunity for her and the president to work together. Both support American workers making American products, she said, but too few of the vessels in the budget would cause her state’s shipyard to lay off hundreds of workers.

On May 24, in a move that shocked the defense community, the Trump administration inserted one more ship into the budget after it had already been sent to Congress.

The Trump administration had suddenly placed a $500 million order for a new ship that the Navy didn’t ask for.

In an email to ProPublica, Baldwin said she takes “great pride in representing Wisconsin’s shipbuilding industry,” adding that she supported the LCS because it “provided new capabilities and capacity to the Navy.”

Over the next year, Congress funded yet more ships, leaving the force with 35, three more than the Navy said it needed. The additions cost taxpayers more than $1.5 billion.

In the years since, both variants of the LCS have continued to grapple with major problems. The Independence version has shown cracks in the hulls of nearly half the class. The Navy determined that a flaw in the combining gear affected the entire Freedom class. The Navy came up with a fix at a reported cost of $8 million to $10 million per ship — an expense split with Lockheed Martin.

Naval experts worry that the failures of the LCS have put the Navy at a greater disadvantage against China, which boasts the largest Navy in the world with some 340 ships and submarines, according to the Pentagon’s most recent report to Congress on the state of the Chinese military. By comparison, the Navy has roughly 294 ships and submarines.

The Navy has begun to mothball littoral combat ships far before the end of their expected lifespans.

In March 2022, the Navy announced plans to retire nine Freedom-class vessels early because of their inability to hunt submarines.

In a predictable pattern, lawmakers representing states where the ships are based fought to keep more of the ships at sea. They allowed the Navy to decommission only four. The first of those, retired last month, is less than five years old. Three other LCS had already been mothballed.

The Navy is now trying to retire two more, including the USS Jackson, the ship named for the capital of Mabus’ home state. It wrapped up its first deployment last October. Meant to have a 25-year lifespan, the ship would last only nine.

Kirsten Berg, Mollie Simon and Joshua Kaplan contributed research.

Design and development by Zisiga Mukulu and Lena V. Groeger.

by Joaquin Sapien

Idaho Created a $25 Million Fund to Fix Unsafe Schools. Why Is Nobody Using It?

1 year 7 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with the Idaho Statesman. Sign up for Dispatches to get stories like this one as soon as they are published.

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As a member of the school board in the remote Central Idaho town of Salmon, Josh Tolman worried that an earthquake would turn the elementary and middle schools to rubble. The foundations of the schools were crumbling. The floors buckled. The district canceled school whenever a few inches of snow fell for fear the roofs would cave in.

But Tolman and the school district were in a bind: They couldn’t convince enough voters to support a tax increase that would allow the district to build a new facility. The school board ran six bond elections in seven years. But even though 53% of the community supported the bond in one of their first attempts in 2006, it wasn’t enough. Idaho is one of two states that require two-thirds of voters to support a bond for it to pass.

“Unless an existing school actually falls to the ground and becomes unusable, I don’t perceive them ever passing a bond,” Tolman said in a recent interview.

By 2012, the school board and its superintendent had had enough. They decided to turn to a state program that lets school districts borrow money from the state if they have unsafe facilities and can’t pass a bond or figure out another way to fix them. The loan program had been created after the state Supreme Court ruled that Idaho had failed to comply with its constitutional mandate to provide a “safe environment conducive to learning.”

Earlier this year, the Idaho Statesman and ProPublica reported that dozens of school bonds that were supported by a majority of voters had nonetheless failed because of the two-thirds threshold. But, like the bond elections, this state fund also set a high bar and never became a solution to the funding problem schools faced. Since it was created in 2006, the program has been used only twice. And it hasn’t been used in nearly a decade.

Ultimately a state panel decided that Salmon’s problems — though bad enough to pose safety hazards — did not warrant a new school under the law, only new roofs and seismic reinforcements.

The approved funding was only a quarter of the amount the district estimated it would need to build a new K-8 school. And with dwindling enrollment, the school board decided it couldn’t afford to keep both the elementary and middle schools open.

“It was at that point where you’re grasping at straws to try and get something done for the children of this community, and the state basically said, ‘Keep on grasping,’” Tolman said.

The district closed the middle school and added portable buildings — trailers without bathrooms or sinks — to the elementary and high schools.

Today, the abandoned Salmon Middle School sits behind a tall razor-wire fence in a valley said to be the birthplace of Sacagawea, the Shoshone woman famous for her critical work on the Lewis and Clark expedition. The building’s roof is pocked with gaping holes, and insulation hangs down into hallways. Framed accreditation certificates, a crushed globe and pieces of ceiling tiles pepper the ground of eerily quiet classrooms.

Salmon Middle School continues to deteriorate after it was shuttered by the district.

The building is now an eyesore, visible from the nearly 70-year-old elementary school next door. Despite the structural repairs to that building, Salmon — where 43% of students are from low-income families — faces many of the same problems that existed when the district went to the state for help, plus some new ones. About 275 elementary students go to school with failing plumbing and uneven floors, where sewage sometimes backs up into a corner of the kitchen. For years, water from the drinking fountains came out brown.

Students who learn in deteriorating facilities have worse educational outcomes than those in newer, more functional schools, national research shows.

“How long are you going to keep kids in subpar classrooms and subpar situations?” said Russ Chinske, who has been a teacher in Salmon for about 20 years. “How long are you going to force the school district to use stuff that’s used up?”

Cori Allen has two kids in the district. Her oldest, now a sophomore in high school, could have been in the first kindergarten class to attend school in the new K-8 building. Instead, he spent years attending school in portable buildings.

The state constitution talks about “equal education,” and Salmon kids “are in facilities that are, in my opinion, totally inappropriate for a child to be learning in,” Allen said. “It’s just not fair that geographically we have to put up with it.”

Russ Chinske’s third grade class In Salmon’s elementary school, which is still in use, cracks have appeared in the floors and a drain in the kitchen occasionally backs up with sewage. A Fund Designed to be “Difficult to Use”

The majority of districts in Idaho are smaller, rural communities — including many with vast areas of federal land — and are less able to support tax increases. Some have a growing number of retirees who don’t have kids in school; others have shrinking enrollment because of a decline in logging or other industries. Idaho’s limited resources and restrictive policies have left the state with aging schools and left districts without funding to replace them.

For decades, educators have raised the alarm about the condition of school buildings in Idaho. In the 1990s, a group of superintendents, districts and parents sued the state over inadequate funding. A statewide assessment funded by the Legislature shortly after found that 71 facilities, or about 10% of the buildings used for instruction in the state, were dangerous or had serious problems needing immediate attention. As the case progressed, a district court cited an analysis that found an American Falls school, in southeastern Idaho, would likely collapse in a seismic event, a probable threat for that area. In Troy, an inspection found the high school was unsafe to occupy. But with no funds to fix it, the school remained open for years.

After multiple appeals, the Idaho Supreme Court sided with the education stakeholders in 2005. The justices agreed with a lower court that the state’s “reliance on loans alone to pay for major repairs or the replacement of unsafe school buildings was inadequate for the poorer school districts.” They told the Legislature that lawmakers had a responsibility to make sure school facilities were adequately funded. “The list of safety concerns and difficulties in getting funds for repairs or replacements is distressingly long,” the court said.

The next year, legislators tried to address the ruling. A Republican lawmaker introduced a bill to start the process of lowering the two-thirds requirement that made it so difficult to pass bonds, but legislators never gave it a hearing.

Instead, the Legislature took up a bill that several lawmakers said at the time wouldn’t fully solve the problem. One key element would create a $25 million loan program, the Public School Facilities Cooperative Funding Program, intended to help districts that couldn’t pass bonds to repair or replace their unsafe schools.

The proposed program had a high bar: School districts would qualify only if their buildings presented either an “unreasonable risk of death or serious bodily injury” or an “unreasonable health risk.”

The old Salmon Middle School

The program’s money would also come with strings attached. If approved, district officials would have to agree to forgo local control throughout the process and give a state-appointed supervisor the power to make decisions for the schools — even the power to dismiss the superintendent. The state would then impose a tax on the local community to repay the loan, a potentially enormous deterrent, since the community had already voted down a bond.

The issue generated weeks of legislative debate. One concern was that the new measure would undermine the state’s long commitment to local control of school districts. Some legislators went further, arguing that the program would give too much power to the state, with one state senator predicting that the public response would be like “the revolution that started as a result of the Boston Tea Party.” Some also argued that taxpayers who supported bonds to rebuild schools in their communities shouldn’t be forced to pay for schools in other areas.

Other legislators and education stakeholders believed the bill didn’t go far enough. Robert Huntley, the attorney who sued the state back in 1990, said the Supreme Court decision was “not just about safety issues,” but the Legislature appeared to be focusing on only that aspect. Justices also ruled that the environment had to be “conducive to learning.” “There is serious underfunding and new money is needed,” Huntley told lawmakers, according to legislative meeting minutes.

Despite the concerns, many legislators agreed that it was a step in the right direction. The resulting compromise bill passed with a large majority in support.

Now-Lt. Gov. Scott Bedke, who sponsored the legislation, acknowledged in a recent interview that it’s ultimately the state’s responsibility to provide safe facilities. But, he said, the program was also intended to be a last resort, and the conditions on the funding were meant to provide oversight for the spending of taxpayer money.

“It was created to be, frankly, difficult to use,” said Mike Rush, the former executive director of the State Board of Education who served on the state panel that assessed program applications, including Salmon’s.

The program’s requirements were “onerous,” said Shawn Keough, a former Republican state senator who sponsored the bill that created the program, and that only two districts have used it shows it wasn’t the tool districts wanted.

“I supported the incremental step forward as a potential solution,” she said. “One of my regrets from my 22 years of service was not being able to fix that problem of school facility funding.”

Salmon Closes a School

Tolman, who served on the Salmon school board from 2008 to 2013, was hopeful when the district applied to the state program in 2012. He’d grown up in Salmon and heard about a time when the elementary school had outdoor hallways, a layout ill-suited to a town where winter temperatures sometimes fall below zero. The district eventually enclosed the hallways, but turning what was designed to be a sidewalk into a hallway contributed to cracks and buckling floors.

Many floors in the elementary school are uneven and present a tripping hazard.

Less than three years before Salmon applied for the loan, the state agreed to build an entirely new school for the Plummer-Worley School District in North Idaho, where inspection reports had found major structural issues, and the panel determined that the most economical solution was to replace the school. Tolman hoped for a similar outcome in Salmon’s case.

In assessing both districts’ applications, the state panel — which included top officials from the State Board of Education and the divisions of building safety and public works — focused heavily on the funding program’s limitations. According to meeting minutes, panel members said that the remedy had to focus on Salmon’s “safety problem, not the educational environment or the adequacy of the facilities for education.”

They also discussed the law’s language that allowed intervention only in the face of “unreasonable” risks. The term “unreasonable” was not defined in state law, so the panel had to consider what an “unreasonable risk of death” was. Salmon sits in a seismically active area. In 1983, an earthquake killed two children on their way to school in Central Idaho, and in 2020, a 6.5-magnitude earthquake cracked the courthouse in the next county over and spurred avalanches in the Sawtooth mountains. Was the earthquake risk unreasonable?

The panel also struggled with whether repairs alone would be enough to make the schools last another 20 years, which the law also required.

Rush, who voted in favor of repairing the schools in Salmon, said patching up a safety hazard is almost never the best solution. But that was as much as Rush said the panel could offer while still abiding by the law. “By the time the facility gets to the point where it needs to come to this process, they need a new facility,” he said.

Rush said he felt like the program was designed to use the potential for a state takeover to pressure the local community to pass a bond on its own.

In a 2013 bond election, the district had estimated a new K-8 school would cost taxpayers over $14 million. Instead, the panel in 2013 approved $3.6 million to renovate the elementary and middle schools.

Faced with a constrained budget, the district shuttered the middle school. That would leave taxpayers on the hook to repay the state only about $1.7 million for repairing the elementary school and bringing in portable buildings to accommodate middle school students.

The years of debate over how to handle the school conditions created turmoil and sowed distrust in the community, with lots of blame to go around. For some parents, it felt like throwing money at a school that couldn’t be fixed.

“We got a new roof on a turd over there,” said Allen, a Salmon parent. She said it also wouldn’t have gone over well if the state had charged taxpayers for a new school they didn’t vote for. “They could have offered us some resources or some education or opportunities or some sort of a lifeline,” she added. “But they just didn’t.”

The playground outside Salmon’s elementary school

While Rush sees value in the program to abate unsafe situations, he said it’s not the ideal solution for aging and deteriorating schools like the one in Salmon.

“For those of us in the educational environment, we wouldn’t say that’s the kind of facility we’d want to send our kids to for the next 20 years,” Rush said. “Granted, they might not die while they’re going to school. But that’s not the only criteria one might want to have for your kids.”

“Our Children Deserve More”

For parents, teachers and staff in Salmon, the conditions of the schools remain a regular frustration a decade after the repairs.

Becky Harbaugh, the head cook at Salmon’s Pioneer Elementary School, has made do with ovens that don’t cook evenly and kitchen drawers and cabinets without handles that she opens with pieces of string. In the winter, her hands have stuck to door handles in subzero temperatures as she gets food from outside storage rooms. The district hasn’t renovated the kitchen, in part because the cost to bring it into compliance with the Americans with Disabilities Act would be too high, Superintendent Troy Easterday said.

What really worries Harbaugh, though, is the narrow hallway and staircase that students have to navigate while carrying their trays of food from the kitchen down into the cafeteria.

“It’s just scary sometimes. I mean, I worry about those kids. Hot soup day, you ought to see me,” she said, holding her breath and staring, motionless, in anticipation of disaster.

First image: Head cook Becky Harbaugh and cook Rick Palmer prepare food for lunch. Second image: In the elementary school kitchen, drawers and cabinets have pieces of string in place of handles. Third image: Students have to carry their trays down a narrow staircase and hallway to the cafeteria.

Students who use wheelchairs face a different problem. They can’t even line up to get their meals; there’s no ramp.

Many of the school’s problems today look nearly identical to those featured in the district’s structural evaluations and engineering reports dating back nearly two decades.

Rebar still sticks out of the crumbling foundation on the side of the building, just as it did more than a decade ago. The internet closet — a stack of shelves in the middle of the hallway — has the same tangle of dozens of wires it did long before students regularly used laptops or tablets in their classrooms. The uneven floors, buckled by what administrators believe are frost heaves from when water freezes or thaws in the foundation, pose tripping hazards — just as they did in 2012. The only difference is the school has put down new carpet.

“It’s just a money pit,” said Bobby Lewis, the maintenance director for the district. When he needs to fix a plumbing problem, he’ll sometimes have to crawl through a 3-square-foot tunnel and chisel out part of the concrete foundation to replace a section of the pipe that’s broken. At some point, that won’t be an option anymore, he said, because it would become unsafe to keep cutting out the foundation.

To deal with the brown water, students carried water bottles throughout the day. Shortly after the state stepped in, the district saved enough to replace its water lines. Over the years, district officials also made one of the bathrooms accessible for staff members with disabilities.

The district invested in its schools to make them as functional as possible, but nothing they did could fix the underlying issues.

“I know we lose people. When they move into town, they’re like, ‘Yeah, I’m not gonna send my kids to school in a facility like this and next to something — razor-wire-topped fence, looks like an old prison,’” Easterday said. “Our buildings scare people off.”

Superintendent Troy Easterday points out exposed rebar in the crumbling foundation of the elementary school building — a condition that was also flagged in an engineering report in 2005. Bobby Lewis, maintenance director for the district, displays the tangle of wires in the elementary school’s internet closet, which looks much the same as it did in a 2013 report.

In 2019, the district tried again to pass a bond. It conducted an analysis that showed that despite the state-mandated repairs, the internal issues in the elementary school would be too costly to renovate and would not address the overcrowding, according to documents on the bond effort. The most cost-effective move, the board decided, would be to build a new school.

The district ran a $25 million bond to build a K-8 school — about $10 million more than it had asked for in its previous bond effort in 2013.

The board held meetings and shared information online. But it was still hard to reach the bond threshold. A growing portion of Salmon residents are retired and no longer have kids in school. Some in the community said that if the schools had been good enough for them, they were good enough for current students; others didn’t want higher taxes or felt excluded from the bond process. The district also faced a last-minute push from the Idaho Freedom Foundation, a conservative group that opposes public schools, which it has accused of “indoctrinating students with leftist nonsense.” Disagreements broke out on social media between supporters and opponents.

When the election came around, the bond received the most support that a measure in Salmon had gotten in decades. More than 58% of voters said the district needed a new school and they were willing to pay for it. But once again, it wasn’t enough.

“Our children deserve more than we’re giving them,” said Nancy Fred, who had three sons in the schools, the youngest of whom graduated in 2014.

This summer, a group of parents and community members again held meetings to try to figure out a solution for their schools. Hundreds attended. One parent wrote if they’d had kids before moving to Salmon, they wouldn’t have come, according to documents compiling the feedback from the meetings. Others said the aging buildings make it hard to recruit teachers and professionals to Salmon and that Pioneer Elementary is falling apart “everywhere you look.”

During a tour in May, Jill Patton, Pioneer’s principal, praised teachers for all they have been able to do with what they have. But with a new building, she said, they could do so much more.

“You look at this building, and you can see such heart and such love for kids and such great learning taking place,” Patton said. “And I think, ‘Wow, what it could be if the barriers of the building weren’t there.’”

On the day of the tour, the students in Betsi LaMoure’s first grade class had been working on some addition problems. She was trying out a smartboard that a vendor had lent to Salmon in hopes that the district would buy them. But the WiFi wasn’t strong enough to get it working. Connectivity is poor in the area, and retrofitting such an old building is difficult. After multiple attempts, LaMoure gave up. She pivoted to a much older technology, writing on a piece of paper and using a projector to display it on the chalkboard.

Betsi LaMoure’s first grade class

Idaho: Help Us Show Readers and Officials Issues With Your School Building

by Becca Savransky, Idaho Statesman, photography by Sarah A. Miller, Idaho Statesman

The Texas Attorney General Is Supposed to Represent State Agencies. Ken Paxton Has Repeatedly Refused To.

1 year 7 months ago

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When Texas Attorney General Ken Paxton held a news conference in May decrying state lawmakers’ anticipated vote to impeach him, he framed the decision as not only a threat to his political career but as one that endangered the slew of lawsuits he’d filed against the Biden administration.

Paxton, who has since been suspended from office, faces an impeachment trial that starts today. He has long positioned himself as one of the country’s strongest conservative attorneys general, relentlessly pursuing nearly 50 lawsuits against the federal government on issues that include immigration, health care and the environment. Such messaging raised Paxton’s national profile, appealed to his base of conservative supporters and helped him tamp down political pushback stemming from allegations of wrongdoing that have dogged his eight-year tenure.

But as Paxton has aggressively pursued such lawsuits, he has repeatedly declined to do a critical but less glamorous part of his job: represent state agencies in court.

Despite his role as Texas’ lead attorney, Paxton has denied representation to state agencies at least 75 times in the past two years, according to records obtained by ProPublica and The Texas Tribune. The denials forced some of those agencies to assume additional, unanticipated costs as they scrambled to secure legal assistance.

“Every time he backs out of one of these cases – and an agency, a university has to get outside counsel, if they get the funding approved – that's costing the taxpayers a lot of extra money, because that's one of the principal reasons the AG’s office exists, is to provide these basic legal services, basic legal defense,” said Chris Toth, former executive director of the National Association of Attorneys General.

Over the years, some of Paxton’s representation denials have become public. Among those is his longtime refusal to defend the state Ethics Commission against lawsuits filed by the now-disbanded Empower Texans, a political action committee, and the PAC’s then-head Michael Quinn Sullivan. Empower Texans contributed hundreds of thousands of dollars to his campaign and loaned him $1 million, according to campaign finance reports. Another has been his choice not to represent the State Commission on Judicial Conduct after it issued a public warning to a justice of the peace who refused to perform same-sex marriages despite a U.S. Supreme Court decision that legalized the unions.

But the scope of the denials has not been fully known. Neither have details of other times he has said no to state agencies seeking representation.

In one such instance, Paxton declined to represent the University of Houston–Clear Lake after students filed a lawsuit alleging the university wouldn’t recognize their organization because of the group’s requirement that its officers be Christian. Until then, the attorney general’s office had never before declined to represent the university in a case, said university spokesperson Chris Stipes.

In another instance, Paxton’s office not only held off on a decision to represent the University of Texas System in an affirmative action case, but also withheld a determination on whether the university could hire outside legal counsel, forcing multiple delays. That choice stands in contrast to Republican Gov. Greg Abbott’s decision to represent the University of Texas at Austin in a similar case 15 years earlier when he was the state’s attorney general.

Texas lawmakers in 2021 required the attorney general’s office to begin reporting each time it declined to represent a state agency. It’s unclear what prompted the mandate.

ProPublica and the Tribune obtained records documenting dozens of denials through a Public Information Act request, but the vast majority do not include a clear reason for the decisions. The attorney general’s office declined to provide specifics about its communications with state agencies, including those that occurred before the reporting requirement went into effect, citing attorney-client privilege. The office also did not respond to a question about whether the agency tracked these denials prior to 2021.

Lawmakers took additional action this year, requiring the attorney general to start giving reasons for the denials beginning Sept. 1.

Paxton’s office has claimed that the bulk of those denials were because agencies preferred to hire their own attorneys or because the office was statutorily prevented from representing them. Other requests, Paxton has said, were turned down because they would have required his office to take a position opposite of what it had previously argued or because he believed they would run contrary to the state’s constitution.

An office spokesperson said the attorney general approves the vast majority of solicitations for help, but neither the office nor Paxton responded to requests for interviews or to detailed questions about specific denials.

Such transparency is necessary, according to former attorneys general and legal experts, who say that Paxton’s denials reflect a broader polarization among attorneys general across the country, threatening the claim that they represent the rule of law.

“He certainly was one of those people that was leading the way of this idea that they don't have to enforce or defend anything they don't like,” Toth said. “And that's not what AGs are elected to do. And it's not the courageous thing to do either because AGs have to do the right thing by the law, even when it's not popular.”

In 2014, Colorado’s then-Attorney General John Suthers, a Republican, penned an opinion piece in the Washington Post that warned against such politicization of the office. In the piece, Suthers criticized three Democratic attorneys general at the time, including California’s Kamala Harris, now U.S. vice president, for refusing to defend their state’s ban on gay marriage ahead of the Supreme Court’s 2015 decision legalizing the unions. “I fear that refusing to defend unpopular or politically distasteful laws will ultimately weaken the legal and moral authority that attorneys general have earned and depend on,” he wrote.

Suthers reiterated the same concern about Paxton’s refusal to defend state agencies in an interview with ProPublica and the Tribune.

“If you decide for yourself what laws ought to be defended, what agencies ought to be defended on other than dictates of the courts, then you come across as nothing but a wholly political entity,” Suthers said. “That's not the role that you're supposed to play in the system. Let the legislature and the governor be political. You're supposed to be adhering to the rule of law."

Growing Costs

During a legislative committee hearing in February, Mary González, a state representative from the El Paso area, grilled Paxton about his decisions to not represent state agencies. She and other lawmakers had just finished asking Paxton about his office’s agreement more than a week earlier to pay $3.3 million to settle a whistleblower lawsuit with former employees who had accused him of bribery and retaliation.

González, a Democrat, asked Paxton if he had made an active decision to have the attorney general’s office take on the lawsuit filed against him. She noted that Paxton’s office could have declined to represent him in court the same way it had denied representation to state agencies.

“Ultimately, the attorney general isn't doing his job,” González said in an interview with the news organizations. “We should care if any elected official is not doing their job.”

Paxton and his staff did not directly answer González’s question but raised the various reasons the office would not take on a case, including instances when it thinks an agency’s argument violates the constitution.

“If we’re given a case that appears to us clearly to be unconstitutional, they want us to take a position against the constitution. That’s a real problem for me given my oath,” Paxton said.

Two days later, Jacqueline Habersham, executive director of the State Commission on Judicial Conduct, appeared before the same legislators to request $150,000 to help cover legal fees over the next two years. Paxton has refused to defend the commission in two ongoing lawsuits.

In late 2019, a justice of the peace in Waco, Texas, less than two hours south of Dallas, sued the judicial commission in district court after it issued her a public warning because of statements she made to the media about disagreeing with and refusing to perform same-sex marriages after they’d been legalized, casting “doubt on her capacity to act impartially.” The lawsuit argued that the commission’s public punishment of the justice of the peace constituted “a substantial burden” on her “free exercise of religion,” according to court records.

A few months later, the county judge of Jack County, northwest of Fort Worth, sued the judicial commission in federal court, arguing that he also was at risk of being sanctioned because he did not perform same-sex marriages. An attorney for the county judge declined to comment.

The cases, and the costs, are ongoing.

Even before Habersham went to lawmakers for help, the judicial commission had already spent $120,000 for outside counsel because Paxton had declined to provide representation. She said the small agency had previously not budgeted for such expenses. With the commission having no way to know if the attorney general will deny legal help again, “we’re just hoping that no other lawsuits are filed against us, where the AG will also decline (to represent us) again,” Habersham said in an interview with ProPublica and the Tribune.

In 2015, after the U.S. Supreme Court legalized gay marriage, Paxton issued an opinion that said judges should not have to perform these ceremonies if they have religious objections. Asked in 2020 about not representing the commission, an attorney general spokesman told the Houston Chronicle, “We believe judges retain their right to religious liberty when they take the bench.”

The statement and Paxton’s decision against defending the judicial commission “certainly has the appearance that he's refusing to do it because he disagrees with the Supreme Court decision, and therefore he's making a political decision and not a legal decision,” said Suthers, the former Colorado attorney general.

The plaintiffs in both lawsuits filed against the commission have at some point been represented by First Liberty Institute, a Plano-based conservative Christian law firm. The firm’s president and chief executive, Kelly Shackelford, is a longtime friend of Paxton and has contributed $1,000 to a legal defense fund Paxton has used to fight an ongoing criminal indictment for securities fraud. First Liberty board member Tim Dunn is among Paxton’s biggest individual donors, having given him $820,000 since he first ran for attorney general. Political action committees associated with Dunn have also donated more than $950,000 combined to Paxton. Neither Shackelford nor Dunn responded to a request for comment.

First Liberty’s executive general counsel, Hiram Sasser, who briefly worked for the attorney general’s office under Paxton, said he doesn’t know how donations would have affected the attorney general’s decision.

But Sasser said he would have been disappointed had the attorney general chosen to represent the commission. He alleges that the commission is violating the Waco justice of the peace’s rights under the Texas Religious Freedom Restoration Act, which limits government actions that substantially burden someone’s ability to freely exercise their religion, and the Texas Constitution because it violates her freedom of speech and religion.

The judicial commission’s private attorneys said that the justice of the peace argued those points before the commission in 2019 but lost the case. They maintain that she did not appeal that case, so she has no right to pursue a new lawsuit that claims the warning was invalid.

State law says the attorney general’s office shall represent the judicial commission in court at its request, which indicates Paxton has minimal wiggle room to refuse to defend them, said Paul Nolette, director of the Les Aspin Center for Government at Marquette University, who researches attorneys general.

“This seems more like the AG choosing to adopt a certain constitutional interpretation and then saying, 'Well, I believe it's unconstitutional, therefore, I'm not going to defend it.' But it's still ambiguous. It's not like an open and shut case.”

Contrasting Legal Approaches

While about 15 years apart, two cases against the University of Texas at Austin lay bare the different approaches taken by Paxton and Abbott, Paxton’s predecessor and now the state’s Republican governor.

Under Abbott’s leadership, the attorney general’s office defended UT-Austin in federal district court against a lawsuit filed by Abigail Fisher and another student. In the 2008 lawsuit, the students, who were white, alleged that the school’s consideration of race in admissions prevented them from being accepted. The attorney general’s office argued that the university’s admission policy was legal because Fisher had not proven it was adopted in bad faith. The office also argued the policy was narrowly tailored to achieve needed diversity there.

Fisher appealed the district court’s decision in favor of the university in 2009. Although Abbott did not represent the university throughout the entire appeals process, he submitted a nearly 50-page brief in December 2011 when the case first went before the Supreme Court, urging the high court to reject the case. The attorney general office’s leading argument was that Fisher, by then scheduled to graduate from another university in 2012, could no longer assert that she intended to apply to UT-Austin as a freshman or transfer student.

Abbott did not respond to a request for comment.

In 2016, the Supreme Court upheld UT’s affirmative action policies in a 4-3 decision. (Justice Elena Kagan did not take part in the decision and one seat was vacant at the time.)

In contrast, Paxton not only withheld a decision on representing the UT System in another affirmative action case earlier this year, but also kept the agency in limbo by holding off on allowing it to hire outside legal counsel.

On Jan. 12, a lawyer with the UT System sent a letter to the attorney general requesting representation after a man named George Stewart filed a federal lawsuit against six medical schools that had rejected his applications for admission. All but one of the schools were in the UT System. Stewart, who is white, argued that the schools were “unlawfully discriminating against whites, Asians, and men.” Stewart and his attorneys declined to comment.

Over the next several weeks, UT System attorneys contacted a deputy chief in Paxton’s office numerous times. They called. They emailed. The deputy chief told UT lawyers that “decisionmakers” at the attorney general’s office were aware that filing deadlines were approaching but were still considering the request, court documents show.

UT System lawyers eventually were forced to ask the plaintiff’s lawyer for an extension, delaying the case.

More than a month passed before the attorney general formally responded.

The attorney general’s office wrote in a letter that it agreed with the plaintiff’s argument that considering race and gender in student admissions was illegal and that it was awaiting the outcome of other affirmative action cases before the Supreme Court. The attorney general’s office also wrote in the letter that it had filed briefs urging the court to do away with affirmative action because it was “abhorrent to the Constitution.”

“For these reasons, we are choosing at this time to withhold a decision on your request for representation and for outside counsel,” the letter said.

UT could represent itself, the letter continued, but only for the purpose of requesting extensions in the case. Although state agencies like UT often have their own in-house general counsel, the attorney general is officially their lawyer. The state agency lawyers aren’t necessarily litigators, or litigation may only be a small part of their job. Often, their time is spent giving internal legal advice, reviewing contracts or consulting on employment issues. State agencies smaller than UT may not even have attorneys on staff.

Catherine Frazier, a UT System spokesperson, would not comment on the lawsuit or answer questions but said that the school, like every state agency, is required to ask the attorney general for representation or outside counsel. Every case is different, she said, and the UT System has ultimately been able to secure counsel.

Months later, the Supreme Court would rule in a 6-3 decision that consideration of race in college admissions violates the U.S. Constitution. But neither the attorney general nor UT lawyers knew how the high court would vote when Stewart filed his lawsuit.

“The law was clear that affirmative action was allowed (at the time),” said Terry Goddard, a Democrat who was Arizona’s attorney general from 2003 to 2011. “I don't think you get to wait for the next round of Supreme Court decisions to make up your mind.”

Goddard’s approach to the attorney general role, he said, was that if he could make any constitutional argument in support of a law, whether or not he agreed with it, “it was your job to take that argument and do the best job you could.”

"Now, that's not what we're hearing today from people like Paxton,” Goddard said. “He's basically saying, 'Look, I'm not gonna make the argument at all.' He didn't even take what I think is the appropriate fallback, which is, ‘I won't support it. And the record will show that I'm not supporting your position, but I'm going to get you counsel.'"

About a month after Paxton was impeached by the Texas House and suspended from his position, the attorney general’s office, while under the leadership of interim Attorney General John Scott, finally allowed the UT System to hire outside lawyers in the affirmative action case.

“Playing Favoritism”

Just as Paxton has declined cases where he has an opposing view, he has chosen to get involved with others with whom he is aligned ideologically.

In 2020, Lucas Babin, a district attorney in East Texas, obtained an indictment against the streaming service Netflix for distributing the French film “Cuties,” a documentary about a Senegalese immigrant who joins a children’s dance troupe. The director has said the film critiques the sexualization of young girls, but critics focused on some of the film’s advertising depicting the girls dressed in tight, midriff-baring clothing or scenes showing them dancing. Babin alleged the film violated a state law that bans the “lewd exhibition of the genitals or pubic area of a clothed or partially clothed child,” which Netflix has disputed.

Less than two weeks before Babin announced the indictment, Paxton was one of four attorneys general who signed a letter to Netflix “vehemently” opposing the continued streaming of the film.

After an appellate court ruled in an unrelated case in 2021 that the lewd exhibition charge was unconstitutional, Netflix requested that Babin dismiss his indictment. Babin dropped that charge in March 2022 after he brought four new indictments that alleged the film violated state child pornography statutes.

On March 3, 2022, Netflix filed a request for injunction in federal court, arguing Babin was “abusing his office” by bringing the new indictments in response to Netflix’s effort to get the first indictment dismissed. The film had won awards, Netflix argued, and Babin was infringing on the company’s “constitutional rights.” (The Texas Tribune is among a group that has filed an amicus brief in support of Netflix in its case against Babin.)

The following day, Babin arrived in court, this time as a defendant, with a lawyer of his own: an assistant attorney general from Paxton’s office.

Under Texas state law, the attorney general is obligated to represent state district attorneys under limited circumstances, specifically when the case is in federal court and when the person filing the lawsuit is in prison.

It’s not unusual for a district attorney to ask the attorney general’s office for help, said Nolette. What’s surprising, he said, is that the state said yes.

“This isn't a case where the DA said, ‘Please help me in this case to prosecute Netflix,’” Nolette said. “It's that they're being sued by Netflix for essentially prosecutorial misconduct. And yet, the AG is getting involved in a local issue where this is not a state agency.”

“It just gives the perception, and obviously some of this is specific to Paxton, that he's playing favoritism,” Nolette said.

Neither Babin nor Netflix responded to a request for comment.

In November 2022, a federal judge granted Netflix’s request for a preliminary injunction, essentially preventing Babin and his office from pursuing new indictments against the tech company until the initial case is resolved. Babin has appealed that decision.

The attorney general’s office, along with a private attorney, continue to represent him.

Carla Astudillo of The Texas Tribune contributed reporting.

by Vianna Davila and Jessica Priest

Why the Destruction of a Black Neighborhood Matters to Me — and Should Matter to Everyone

1 year 7 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with the Virginia Center for Investigative Journalism. Sign up for Dispatches to get stories like this one as soon as they are published.

As a high school sprinter in Virginia’s Tidewater region, I often participated in meets at Christopher Newport University’s Freeman Center, which had one of the few indoor tracks in the area. I won 500-meter races against top runners, and my high school was team champion.

Track and field was a huge part of my identity. I looked forward to crossing the Monitor-Merrimac bridge over the James River to Newport News, and I saw the opportunity to display my skill at Christopher Newport as a way to impress colleges and earn an athletic scholarship. It wouldn’t be until 20 years later that I understood the underlying irony. The construction of Christopher Newport, where Black athletes like me competed alongside our white counterparts, had displaced Black homeowners whose hopes and aspirations were dashed by racism.

That personal connection helps explain why I have spent more than two years exploring a largely forgotten tragedy: how Newport News officials and educational leaders eradicated the Black middle-class area of Shoe Lane to establish and expand Christopher Newport’s campus.

Month after month, first under a Columbia University grant, and then under a ProPublica/Virginia Center for Investigative Journalism fellowship, I pored over archival records in Newport News libraries and city offices, reconstructing Shoe Lane’s history. Often going back a century or more, I examined land deeds, voter rolls, newspaper clippings, City Council minutes, marriage licenses and obituaries. I also interviewed remaining residents, descendants of former property owners, eminent domain and civil rights attorneys, local historians, academic experts and Virginia legislators.

My investigation cast my home region in a different light. I thought about how racism had constrained where my parents and grandparents could live. My father managed a grocery store in Newport News, but I hadn’t known much about the city’s past. Now I recognized that housing patterns, such as the concentration of Black people in the impoverished downtown at the southern tip, didn’t simply reflect market conditions such as prices and availability. They also resulted from government actions, like redlining or eminent domain seizures, that have contributed to a widening racial gap in homeownership nationwide. About 73% of white households own their homes, compared with 44% of Black households, according to the National Association of Realtors.

I also realized that colleges and universities have at times exacerbated those inequalities. All too often, educational institutions also control the narrative about their role in society, including their expansion into diverse communities, and it’s the journalist’s responsibility to find victims and make their voices heard. “The University publicly acknowledges that residents of a valuable and well-established neighborhood were displaced by decisions made about the location of the University,” spokesperson Jim Hanchett said in a statement. “University faculty have spearheaded efforts to raise awareness of this history and its impact. At the same time, the University’s growth has fueled the economic revival of Newport News’ mid-city area.”

I first learned about the neighborhood that was destroyed to make way for Christopher Newport from an alumnus. I was looking for a reporting project near my hometown of Chesapeake, Virginia. After a decade of reporting nationally, I wanted to make an impact in my home community. My source told me about the demolition of the Shoe Lane area, adding that a Christopher Newport professor, Phillip Hamilton, had written a paper about it.

Initially, I juggled my Shoe Lane reporting with my day job as a CBS producer in Washington, D.C. I spent nights and weekends researching the history of Black communities in Virginia and throughout the South. I found that a neighborhood of Black property owners was unusual but hardly unprecedented. In the late 19th century, freed slaves and other African Americans who were shut out of white areas formed communities where they could seek refuge from racism. Sometimes Black Civil War veterans pooled money to buy land, or Black people acquired property from white former slave owners with whom they had kinship ties. Joseph Clarke, a former slave, bought 100 acres from a white landowner and divided them among Black families to establish the town of Eatonville in central Florida in 1887.

In Virginia, rates of landownership among freed slaves and their descendants were consistently high. In one Virginia county, 76% of Black heads of household owned land in 1890. In 1915, about 60% of Virginia’s landowners were African American, according to Adrienne Petty, a professor of history at William & Mary.

When I spoke with Hamilton, I asked if he felt there was anything missing from his research. He said he wished that he could have talked with the families exiled by eminent domain, but that they were long gone.

I wasn’t so sure. The alumnus had mentioned that a few families remained in the area. I decided to look for them. Crossing the bridge again to Newport News, I drove around the campus. I noticed one house surrounded by Christopher Newport buildings and only accessible through a university parking lot. I knocked on the door but no one answered, so I left my business card in the mailbox.

I had better luck at a house on Shoe Lane, where an elderly Black resident, Barbara Johnson, opened her door. I introduced myself and told her that I had learned about the community that used to exist where the college is now and that I wanted to tell its story.

Standing on the front porch while keeping the door ajar, Barbara told me that I should speak with her husband, James, who grew up in the community. I told her that my experience covering national stories had ignited a passion to return to my roots and report on barriers facing the local Black community.

After a brief conversation about her memories of the neighborhood and race relations in Newport News, she gave me their phone number, which I called a few days later. James answered.

"I don’t know if I can be beneficial to you or not," he told me. “I don't get involved with politics, because I like a quiet life. But if I can do anything to connect dots you already have, perhaps I can try.” He said he had some photos and documents that he might be willing to show me.

I told him I would appreciate anything he could share and asked if I could meet him and Barbara at their home. He agreed, and we scheduled a time.

Barbara and James Johnson in their living room (Christopher Tyree/VCIJ at WHRO)

When I sat down at the Johnsons’ dining room table two days later, I discovered James had more to offer than I ever imagined. He and Barbara told me about growing up on a farm there, and about how the seizure of the neighborhood’s core by eminent domain had thwarted their family’s plan to build a subdivision for Black families. He showed me albums and notebooks filled with his photos of the demolished houses and with newspaper clippings he had collected. He described how preserving these records had been cathartic for him. It became clear that this quiet, seemingly stoic man had organized and collected over 60 years’ worth of records out of a deep attachment to the only place he knew as home.

James Johnson looking through one of his scrapbooks (Christopher Tyree/VCIJ at WHRO)

I realized that, despite our differences in age and occupation, he and I weren’t that different. We both were dedicated to preserving the history of the community. James inspired me to work harder, and I often told him that he would have been a terrific journalist.

The Johnsons were well aware that the same forces that uprooted their community had devastated other Black neighborhoods across the country. As I continued reporting, I realized just how fiercely the Johnsons and other Black families had fought against redlining and other outgrowths of systemic racism, how doggedly they had pursued their piece of the American dream, and how much they had sacrificed.

As a Black journalist, I’m grateful for the unique access the Johnsons granted me. They and others from the Shoe Lane community gave me the rare opportunity to witness its history and shift the narrative.

Reach Brandi Kellam at brandi@brandikellam.com or brandi.kellam@vcij.org.

by Brandi Kellam, Virginia Center for Investigative Journalism at WHRO

Erasing the “Black Spot”: How a Virginia College Expanded by Uprooting a Black Neighborhood

1 year 7 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with the Virginia Center for Investigative Journalism. Sign up for Dispatches to get stories like this one as soon as they are published.

Katie Luck was sitting in her yard under a magnolia tree one afternoon in April when a school bus passed by. A white elementary school student shouted at her from a window, “You don’t belong here.”

The 81-year-old grandmother and retired teacher, who is Black, was so distressed that she called James and Barbara Johnson, who live down the road from her on Shoe Lane in Newport News, Virginia. The Johnsons, perhaps better than anyone, knew just how wrong the elementary schooler was. The stacks of files and photo albums on their dining room table are a shrine to what the Shoe Lane area used to be — and what it might have become.

Around 1960, in the last gasp of the Jim Crow era, the Shoe Lane community consisted of a church and about 20 Black families, including teachers, dentists, a high school principal and a NASA engineer. They owned ranch-style houses along Shoe Lane and three other streets, which formed a trapezoid enclosing woods and farmland. The Johnsons were planning to sell some of the farmland to Black people who aspired to the American dream of homeownership but were shut out of white neighborhoods by racist banking and zoning policies. The enclave’s population was about to grow.

But geography — and racism — were against them. The 110-acre Shoe Lane area lay beside one of the city’s most affluent white sections, where Newport News’ power brokers played golf at a segregated country club. Aware that more Black families would be moving to the area, the Newport News City Council wielded its most powerful weapon: eminent domain, the government’s right to forcibly purchase private property for public use. In 1961, it seized the core of the Shoe Lane area, including the Johnsons’ farmland, for a new public two-year college — a branch of the Colleges of William and Mary system. The council overrode protests from homeowners and civil rights advocates that there were more suitable, and less expensive, sites elsewhere for the college, which today is Christopher Newport University. The city worsened the blow by paying 20% less for the properties than the value set by an independent appraiser, council records show.

The campus location “was almost entirely a racial issue,” said Christopher Newport professor Phillip Hamilton, author of a history of the institution, who examined records including minutes of the City Council’s deliberations. “I believe they wanted to remove the Black community from here. They certainly wanted to halt the arrival of middle-class Blacks.”

The Shoe Lane seizure was an “egregious wrong,” said Anthony Santoro, Christopher Newport’s president from 1987 to 1996. “Historically, the city has to own up to the fact that this was a deliberate attempt to get rid of a Black community, because there were many places that the school could have been built.”

Christopher Newport University (Christopher Tyree/VCIJ at WHRO)

All white at its inception, the college enrolled its first Black student in 1965. It became independent from William and Mary in 1977. As it expanded into a university under Santoro’s leadership, it was eyeing the parts of Shoe Lane that weren’t affected by the initial taking. While it ruled out using eminent domain, it sought to acquire the remaining homes and businesses through traditional sales. Feeling blindsided, homeowners sued the school in 1989. They contended that, because Christopher Newport had extended its boundaries to encompass their houses, they couldn’t sell to anyone else. The case was dismissed.

Santoro’s successor, longtime president Paul Trible, said publicly he wouldn’t need to invoke eminent domain. But his administration used it as leverage to force at least one homeowner to sell in 2005, records show. That same year, the school’s governing board approved its use for three other properties that Christopher Newport said it ultimately acquired without resorting to eminent domain.

Christopher Newport “publicly acknowledges that residents of a valuable and well-established neighborhood were displaced by decisions made about the location of the University,” spokesperson Jim Hanchett said in a statement. “University faculty have spearheaded efforts to raise awareness of this history and its impact. At the same time, the University’s growth has fueled the economic revival of Newport News’ mid-city area.” Trible, who is retired, could not be reached for comment.

Today, only five Black households, including the Johnsons and Katie Luck, are left in the Shoe Lane area. One sits between sorority and fraternity houses and a residence hall; the only street access is through a university parking lot. A dorm and a student center occupy land that the Johnsons hoped to develop.

Barbara and James Johnson sit in their living room in July. They helped build the home on family property almost 60 years ago. (Christopher Tyree/VCIJ at WHRO)

One spring afternoon, the Johnsons sat and reminisced in the home they helped build with their own hands. They’ve lived there since they were married, in their 20s, except when James was in the Army. Now in their 80s, the couple lamented the absence of family and former neighbors, now scattered far and wide.

Their scrapbooks trace the dismantling of a vibrant Black community. Six-decade-old civil engineering maps detail the family’s plans to develop the farmland that was taken by eminent domain. Faded news clippings, carefully snipped and placed in chronological order inside sheet protectors, recount the City Council’s selection of Shoe Lane for the college campus. Rusted metal staples fasten protest letters homeowners sent to college officials and papers from their unsuccessful federal lawsuit.

Thumbing through the albums, James Johnson paused suddenly, as if struck by a distant memory. He disappeared into the back of his house and returned with yet two more scrapbooks: pages of original land deeds more than a century old and images of one- and two-story homes photographed hastily before they were demolished in the 1990s and 2000s.

Scrapbooks on the Johnsons’ dining room table chronicle the demise of the Shoe Lane community. (Christopher Tyree/VCIJ at WHRO)

An auto mechanic by trade, Johnson became the self-appointed historian of his vanishing neighborhood. “When things started moving fast, I woke up one morning and told my wife, ‘I got to document this community,’” James said. “This helped me get through.” He peered through his bifocals at a photo of dump trucks carrying debris from houses leveled to make way for the college. Affixed to the photo was a yellow sticky note: “The trucks that haul our homes away after they have been trashed.”

“This was truly a village,” Barbara said. “Young folks don’t know anything about what used to be here.”

James Johnson became the self-appointed historian of his vanishing neighborhood. (Christopher Tyree/VCIJ at WHRO. Original photographs taken by James Johnson.)

James Johnson’s lips curled into a resolute half-smile partially covered by his salt-and-pepper mustache. “I’m the last of the Mohicans,” he said. “All the guys I grew up with moved away. It was hard.

“We’ve known, all over the country, this is what they’ve done to neighborhoods where Blacks are. We all felt it was taken because it was a Black neighborhood.”

The Johnsons raised three children in their Shoe Lane home. (Christopher Tyree/VCIJ at WHRO. Original photographs taken by James Johnson.)

As debate rages over the reality of historical and present-day racial discrimination, the Shoe Lane saga illuminates a long-standing aspect of the African American experience: the confiscation and destruction of Black neighborhoods for higher-education facilities in the post-World War II period. A federal program that provided financial incentives for university expansions was responsible for displacing nearly 20,000 families in the U.S. between 1959 and 1966, according to University of Richmond professor Robert Nelson, who has compiled an online database on the topic. While working-class white residents were also dislodged, roughly 40% were Black families, about four times the Black proportion of the U.S. population at the time. Local and state programs expelled thousands more Black families, like the Shoe Lane homeowners, for higher-education projects.

Eminent domain seizures by universities exacerbated the racial gap in homeownership and the widespread loss of Black-owned properties, resulting in “the loss of wealth by African American communities and individual African Americans,” Nelson said. Even those residents who found better housing “still lament the fact that their community and their neighborhood was destroyed.”

University seizures were part of a broader policy of urban renewal, famously dubbed “Negro removal” by author James Baldwin. Touted for improving ramshackle neighborhoods, urban renewal also ravaged thriving communities. Eminent domain was, and remains, its favored tool.

The government has long had broad powers to take property for roads, bridges and infrastructure projects. But in 1954, the same year that the U.S. Supreme Court desegregated public schools in the Brown v. Board of Education decision, the court broadened government authority to acquire land by eminent domain for other public purposes, such as urban renewal. The condemning agency only had to show that some part of the area was poorly maintained.

Four children carry flyers for a community demonstration against the expansion of Temple University in Philadelphia in the mid-1960s. (Harold M. Lambert/Getty Images)

“If you wanted to, you could find pretty much any neighborhood blighted,” said James Burling, vice president of legal affairs at the Pacific Legal Foundation, a nonprofit that specializes in lawsuits against what it considers government overreach. “There was very little thought about what was going to happen to the people that lived there.”

Across the country, government agencies acquired Black neighborhoods through the use or threat of eminent domain, often for less than market-rate prices. A study by the Institute for Justice, a libertarian public interest law firm, shows that two-thirds of the 1 million people displaced by eminent domain and urban renewal projects between 1949 and 1973 were Black.

Communities near colleges were especially vulnerable. As the Cold War created a clamor for more scientific training, universities rushed to build classrooms and dorms for the first wave of baby boomers and lobbied Congress for funding and authority to take over surrounding areas. “Without the right of eminent domain,” a vice president of NYU told Congress in 1959, “our institutional planning and development could be totally blocked for the future.” Local officials supported these demands, since universities served as economic-development engines for cities struggling with white flight to suburbia. That same year, an amendment to the Federal Housing Act gave colleges wider latitude — and generous subsidies — to ally with cities to expand into stable neighborhoods.

In the 1960s, some of the nation’s most prominent universities swept into Black neighborhoods. The University of Pennsylvania forced almost 600 families out of a predominantly African American neighborhood known as Black Bottom to make room for a science center, touching off protests and student sit-ins. The University of Georgia leveled Linnentown, a Black community of 50 families, for dorms and parking. The University of Oklahoma took an area of more than 650 Black families in Oklahoma City for a medical center. In Virginia, cities seized Black properties to expand public campuses in Norfolk and Charlottesville, as well as Newport News.

“Small colleges, large colleges, small cities, large cities — it was widespread just in the same way that urban renewal, more broadly, is widespread,” said Virginia Tech professor LaDale Winling, author of “Building the Ivory Tower.”

How Christopher Newport University Uprooted a Black Neighborhood Maps were created using land deeds and parcel geodata from the Newport News, Virginia, assessor’s office. Campus boundaries are based on analysis of aerial imagery that was obtained from the Newport News city planning department. Some buildings or locations may be omitted from historical maps because city records only reflect current parcels. (Lucas Waldron/ProPublica)

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A statue of jaunty, bearded Christopher Newport, wearing a cavalier hat and leaning on a sword, looms at the entrance to his namesake university. Behind the mariner who transported settlers to the Virginia Colony in the early 17th century lies a campus of brick Colonial and Georgian-style buildings named after public officials, university administrators and wealthy donors.

A statue of Christopher Newport, the ship captain for whom the university is named, stands at the entrance to campus. (Christopher Tyree/VCIJ at WHRO)

The land where the 4,500-student university now stands had been a Black community at least as far back as the turn of the 20th century. Black people, likely including freed slaves and their descendants, settled the area, working on farms or at the shipyards, scraping together money for their piece of America. Back then it was a mix of forests, farmland and dirt paths that led to a couple of dozen homes bordered by four streets: Shoe Lane, Moores Lane, Prince Drew Road and Warwick Boulevard.

James Johnson’s grandfather Edward Johnson came from Chesterfield, Virginia, about 90 miles north of Newport News. In 1907, he purchased slightly more than 30 acres of land in the Shoe Lane area. Since he could barely read or write, his wife, Nannie, helped him arrange it. Edward raised pigs and grew peas, beans and corn. During World War II, he received a certificate of appreciation from President Franklin Roosevelt for his work with the draft board.

James Johnson’s grandfather and grandmother. Edward Johnson bought 30 acres in the Shoe Lane area in 1907. (Christopher Tyree/VCIJ at WHRO)

James was born in 1938 and grew up on Shoe Lane, then a dirt road. Across from its entrance, close to where the Christopher Newport statue stands today, one of James’ uncles erected a statue of a horse. It served as a signpost for customers of a horse training school across the street from the Johnsons. As a boy, James made money by charging the school’s patrons to park on his grandfather’s land during riding shows.

“At the end of a day of parking cars, 25 cents a car, I had a pocketful of quarters,” James said. “I thought I was rich.”

A Daily Press article from 1954 featured the statue that was a signpost for customers of a horse training school across from the Johnsons’ house. (Daily Press/TCA)

The community was remarkably self-sufficient. Neighbors helped build and refurbish each other’s houses and loaned each other money for funeral expenses. Many families were connected by blood or marriage. James’ aunt Alice lived on Shoe Lane and taught Sunday school at nearby First Baptist Church Morrison. She baked and sold brownies to take her class on field trips.

Barbara, James’ future wife, grew up nearby. They met in middle school and began dating in high school. An avid photographer from his early teens, he chronicled their blossoming relationship. He still keeps a selfie, which he took by holding a camera in his outstretched hand, of their first kiss. Barbara played alto sax in the band in high school and at Virginia State University, a historically Black college, graduating with a degree in home economics. James was drafted into the U.S. Army.

James Johnson kept this selfie of his and Barbara’s first kiss. (Christopher Tyree/VCIJ at WHRO. Original photograph by James Johnson.)

In the mid-1950s, many white developers across the country were building suburban subdivisions. Hidenwood, then a whites-only housing development, sprang up around the James River Country Club, adjacent to Shoe Lane. At the time, the Johnsons’ extended family owned several houses and 20 acres of farmland. They had the idea to convert the farmland into lots for middle-class Black families who were excluded from Newport News’ desirable white neighborhoods.

In 1956, the Johnsons started dividing 5 acres on the corner of Shoe Lane and Moores Lane into six lots. With the city’s approval, they sold them to several middle-class Black buyers, including William Walker, a real estate developer. They dubbed the new subdivision Johnson Terrace.

In 1959, the Johnsons began planning to divide their other 15 acres into at least 35 lots. They hired a civil engineer, who drew up plans that included curbs, gutters, a new road and sewers, at a cost of at least $75,000.

The Johnsons sold lots to middle-class Black families for a new subdivision they called Johnson Terrace. (Christopher Tyree/VCIJ at WHRO)

The Johnson Terrace project typified the emerging economic and political activism in the Black community nationwide. The Civil Rights Movement was growing, and the Brown v. Board decision was opening opportunities for Black children to learn side by side with white students. The Rev. Martin Luther King Jr. regularly traveled to the Tidewater area to address church congregations, urging Black parishioners to protest for economic and social equality.

State leaders resisted change. U.S. Sen. Harry F. Byrd Sr., boss of Democratic politics in Virginia for nearly four decades, led a campaign known as Massive Resistance to shutter public schools rather than integrate. Private whites-only schools sprang up.

“As you know, we face a grave crisis in Virginia,” Gov. J. Lindsay Almond wrote to a Norfolk schoolteacher in October 1958. “Mixing of the races will destroy public schools in many areas and seriously militate against their efficient operation in other areas.”

In 1960, only four of Virginia’s 13 predominantly white public colleges enrolled African Americans. Of the 31,000 students in those 13 schools, just 50 were Black. The all-male Virginia Military Institute did not have a single Black cadet until 1968.

One of the Johnsons’ children played on the foundation of their house when it was under construction. (Christopher Tyree/VCIJ at WHRO. Original photograph by James Johnson.)

The Johnsons’ plans for a Black development soon collided with the ambitions of Newport News’ City Council. As the Cold War boosted production at the shipyards, the local economy was booming, and civic leaders wanted a college to educate and train the workforce. In 1960, the city of Newport News established a William and Mary branch, but it needed a permanent location.

Black residents would have little say in a decision that would drive some of them from their homes. While Black people made up 43% of Newport News’ population in 1950, poll taxes and literacy tests prevented many of them from voting. The city’s 1958 merger with the whiter surrounding county further diluted Black political power. As a result, the mayor and all the city councilors were white. They winnowed at least five potential sites for Christopher Newport College down to two only a three-minute drive apart: a racially integrated area north of Roys Lane, and the Shoe Lane area.

Newport News officials offered race-neutral reasons for considering Shoe Lane and Roys Lane, such as easy commutes for students and proximity to medical facilities. But they had repeatedly targeted neighborhoods where Black people lived for eminent domain takings. Between 1955 and 1960, they seized 30 acres farther east on Shoe Lane and 70 acres on Roys Lane for all-white public schools. Ivy Francis, James Johnson’s great-uncle, lost his Shoe Lane home in that taking and moved up the street, closer to James’ family.

This house, owned by Ivy Francis, was taken by eminent domain in the 1950s. (Christopher Tyree/VCIJ at WHRO. Original photographer unknown.)

“Does it not seem more than coincidental that, with the hundreds of undeveloped acres in the city, the sites recently chosen by the city for condemnation are sites owned by Negroes?” local civil rights leader C. Waldo Scott, a Black surgeon, wrote in Newport News’ Daily Press newspaper.

Although it’s not clear if the Johnsons submitted their plans for a 35-lot Black development to the city, there’s evidence that Mayor Oscar Brittingham Jr., who chaired the City Council, was aware of them. While the council was considering the Shoe Lane site, Brittingham corresponded with a real estate agent, who told him about discussions he’d had with the Johnsons regarding a residential development.

The Johnson Family’s Land Was Near a Sprawling Whites-Only Golf Course and Country Club An aerial image of the Shoe Lane area and the country club’s golf course in 1959. Boundaries were created using parcel geodata and historical maps from the Newport News, Virginia, assessor’s office. Aerial imagery was obtained from the Newport News city planning department. (Lucas Waldron/ProPublica)

Hamilton, the Christopher Newport historian, said that city leaders likely focused on Shoe Lane because it was close to the all-white James River Country Club. The club’s manager declined to provide member rosters for this article, but indicated that at least one city councilor belonged in the early 1960s. So did the city’s business elite. Even a quarter-century later, when Christopher Newport hired Santoro as president, the club didn’t admit Black or Jewish people. (He said he joined anyway because college board members told him he had to: It was where “all the money people” — prospective donors — were.)

In a series of tense City Council hearings across 1960 and into 1961, Shoe Lane residents fought for their homes. They enlisted two civil rights attorneys, W. Hale Thompson and Philip Walker (William’s brother). Along with helping to integrate the Newport News library, Thompson had represented the Johnson family on business transactions, while Walker had argued desegregation cases alongside famed civil rights lawyer and Supreme Court Justice Thurgood Marshall.

Many homeowners in the Shoe Lane area, including the Johnsons, wrote letters urging political and educational leaders to select a different site for the campus. (Obtained by ProPublica)

Thompson and Walker contended that cheaper and better vacant sites were available and would not harm the Black community. “It is an indisputable fact that the desirable residential sites for non-white use are extremely limited,” Thompson and Walker said in a public statement. “We implore you to abandon the thought of acquiring the land in this area for public use.”

The homeowners’ white allies included Anne W. Fullman. A devout Methodist and president of Church Women United, Fullman advocated for Black people, women and migrant workers. At a City Council hearing on May 8, 1961, she deplored the “racial overtones” of the proposed purchase. “There are some very fine Negro homes in the Shoe Lane area. There should be fair play and justice for all.” Black families “too like nice homes in nice areas,” she added. “It is harder for them to buy such desirable sites.”

At one point, city councilors said they would rely on guidance from William and Mary’s governing board. The Johnsons pleaded with the all-white board. “Because of the number of Negro families which will be displaced, [we] strongly advise that the Board of Visitors not choose this site for the college,” they wrote. “This has greatly disturbed every homeowner in the area.”

But the college didn’t take a stand, deciding on May 20 that either location would be “entirely suitable,” according to meeting minutes. The board left the choice to the City Council.

There was intense local interest over whether Shoe Lane or Roys Lane would be chosen for the new college. (Daily Press/TCA)

Nine days later, residents packed every seat and lined the wood-paneled council chambers for a special hearing to select the college site. Thompson made a blunt final appeal. The city’s goal, he said, “was to eliminate the possibility of Negroes building homes in that area.” The council surveyed attendees of both races, and a majority favored the integrated Roys Lane as the college site, though most of the white residents preferred Shoe Lane. By a 5-2 vote, the all-white council picked Shoe Lane.

Santoro believes that city leaders at the time wanted to destroy the entire Shoe Lane community. “I had heard that the goal was to wipe it out completely, you know, no houses or anything,” he said. “I was told that that was the plan: It was to erase the Black spot — they called it a ‘Black spot.’ And I didn’t like hearing that at all.”

But “there was such an uproar” that the city narrowed its sights, he said. Enclosed by Shoe Lane and the other three streets, the 60-acre zone designated for the new campus by the City Council was a mix of houses, woods and farmland. James’ home, and his parents’, lay outside its boundary, as did the finished 5-acre subdivision. The zone did include the 15 acres that the Johnsons planned to develop, as well as the house where James’ uncle Ivy had moved after the prior Shoe Lane seizure. He was twice dispossessed.

At this standing-room-only hearing, the Newport News City Council picked Shoe Lane as the site for Christopher Newport Junior College. (Daily Press/TCA)

With the council’s approval, Newport News moved to buy the Shoe Lane properties. Undaunted by the political setback, most of the families refused to sell. The city invoked eminent domain to acquire 18 properties. Laws at the time allowed cities to choose favorable assessed values. Unhappy with an independent appraiser’s assessment of $363,000 combined for the properties, the city ordered another valuation. The council accepted a lower appraisal of $290,000. One couple received $500 — about $5,000 in today’s dollars — for a quarter-acre parcel.

The Johnsons held out so long that the city boosted its original offer for the 15 acres — $35,250 — to almost $53,000. Still, they had to surrender the land that they wanted to develop. Their hopes of creating a refuge for Black people from housing discrimination had been crushed.

Anthony Santoro was an outsider: an Illinois native and president of a college in Maine. When he became Christopher Newport’s fourth president, in 1987, he inherited what he called an “impossible situation.”

Former Christopher Newport president Anthony Santoro, shown here in his office, said that the taking of the core of the Shoe Lane area by eminent domain was an "egregious wrong.'' (Christopher Tyree/VCIJ at WHRO)

The city, Santoro said, had “made a mess of” acquiring property for the campus. “They tried to build a school by eradicating a community, but they were only able to eradicate part of it. And that exacerbated the problem.”

While Christopher Newport occupied the geographic center of the Shoe Lane area, more Black families had moved there in the quarter-century since the 1961 taking. They built homes around the campus perimeter, joining longtime residents like the Johnsons. After serving six years in the Army, James Johnson worked at automotive plants, while Barbara taught home economics in a school for the deaf and blind. They raised three children, two boys and one girl.

The school’s master site plan called for extending the campus boundary and swallowing 90 more properties, including the rest of the Shoe Lane homes. Santoro dismissed using eminent domain: “It would have just started a new war.” The school had also promised not to “initiate, nor actively seek” to buy property in the Shoe Lane area. Nevertheless, Santoro said, Christopher Newport contacted each homeowner. Some simply refused to sell. But if the issue was money, the school met their price. “We paid a premium, as we should have,” Santoro said.

An aerial view of Christopher Newport University in 2015 (Daily Press/TCA)

Many homeowners felt differently. They learned about the site plan not from Christopher Newport but from the newspaper, heightening their fears of a 1960s rerun, according to court documents. They felt that the plan would decimate their community. Additionally, despite Christopher Newport’s disavowals, they worried that the school might eventually take their properties by eminent domain, and that this prospect would scare off other buyers. They formed an association, which hired Richmond civil rights lawyer Gerald Zerkin. “It just seemed like they were getting screwed by Christopher Newport,” Zerkin said in an interview.

In 1989, the association sued Christopher Newport’s board and president and the governor of Virginia in federal court, seeking to block the expansion. Lawrence Brown, a resident who worked on the Apollo project for NASA, served as lead plaintiff. Katie Luck, who had moved to Shoe Lane in 1985 to care for an elderly friend, was among the homeowners who, through a public records request, gained access to Christopher Newport’s expansion plans. School officials contended that the site plan was merely “advisory” and an “internal working document.”

This news article alerted homeowners that Christopher Newport was planning more expansion in their neighborhood. (Christopher Tyree/VCIJ at WHRO)

Judge Robert Doumar ordered the plaintiffs to include all affected Shoe Lane homeowners in the lawsuit. Otherwise, if some of them wanted to sell to the school, a ruling for the plaintiffs would interfere with legitimate transactions, he said. Saying it would be costly and time-consuming to track down all the homeowners and gain their permission, the association refused to comply with the order. Shortly before the trial was supposed to start, Doumar dismissed the lawsuit.

James Johnson was disappointed but not surprised. “We didn’t expect it to be in our favor,” he said. “We were against the whole city and the state.”

The defeat spurred James to photograph houses within the school’s site plan, knowing they might soon be razed. “I realized that people will never know this community, how it was,” he said. “I became very depressed.”

Christopher Newport kept expanding. From 1987 to 2019, it acquired at least 70 properties in the Shoe Lane area, far more than the city had taken by eminent domain in the 1960s, according to an analysis of real estate records. In 2003, the university, state and city partnered to acquire the Baptist church where many of the families worshipped; it was demolished to widen Warwick Boulevard.

During that period, the Johnsons sold one property to the university. Shoe Lane was being rerouted, creating a new entrance to the campus, and Aunt Alice’s old house, which James and Barbara had inherited, lay squarely in the road’s path. Having no other choice, they visited President Trible to talk terms. It was a cordial conversation, but the Johnsons were dismayed to see a map of the Shoe Lane area on Trible’s office wall, and a list of residents. Their name was on it.

Trible, a former U.S. senator from Virginia who was president of Christopher Newport from 1996 to 2022, said in 2001 that the university would not need to acquire properties by eminent domain. “Time favors Christopher Newport University,” he told the Daily Press. “This university is going to be around for hundreds of years. We’re going to get that land eventually.”

In practice, the university wasn’t so patient. In 2005, its board of visitors authorized Trible to take three properties by eminent domain for a parking lot, after negotiations reached an impasse. Black people appeared to own two of the lots. The university sought court approval to take at least one parcel, records show. A university spokesperson said that Christopher Newport’s real estate foundation purchased the properties without resorting to eminent domain.

Doug Hornsby, chief executive of the real estate foundation, left his business card in a Black resident’s mailbox in 2010. He followed up with a letter asking the homeowner to have the house appraised at his expense.

James’ aunt’s house at 40 Shoe Lane was later demolished. (Christopher Tyree/VCIJ at WHRO. Photograph on the right taken by James Johnson.)

“I need you to know that I am not interested in selling my home,” the resident responded. Hornsby declined comment.

The next year, Trible advised the homeowner in a letter to expect to be “enveloped by bulldozers, cars and students in the days ahead.” He added, “If you decide you wish to sell your property, my colleagues and I would be happy to discuss this with you.”

Between the homes of Luck and the Johnsons lies a three-quarter-acre patch of grass and trees owned by the university. It’s marked by a 2019 plaque that infuriates the Johnsons.

The plaque on the site of “Walker’s Green” honors their late neighbor William Walker. Walker was a real estate developer and president of the NAACP’s Newport News chapter. But he also served on Christopher Newport’s board while the school was expanding and the homeowners sued.

The university’s plaque honoring William Walker infuriates the Johnsons. (Christopher Tyree/VCIJ at WHRO)

The plaque notes that Walker “initially opposed” locating the college on Shoe Lane in the 1960s “because it required the taking of lands from African-American families.” But what it omits is that during his time on the board, other homeowners were upset that Walker didn’t update them about the school’s intentions, and encouraged them to compromise. “He told us we should be happy we were in the master plan because we would always be assured” of a buyer for the homes, Luck recalled. The homeowners’ association terminated his membership. Rather than reflect this conflict, the plaque praises Walker for emerging “as a staunch supporter of the school.”

Hanchett, the Christopher Newport spokesperson, said that the park and the marker are “a tangible reflection of the University’s concern and respect for its neighbors past and present” and “honor the neighborhood’s residents who led the opposition.”

Former Christopher Newport president James C. Windsor, whom Hamilton interviewed for his book on the school’s history, advised him to leave out the debate over its location because it was too controversial, the historian said. Hamilton had been unfamiliar with the issue, but the ex-president’s comment piqued his interest, and he dug into the taking of Shoe Lane. Windsor died in 2016.

Like Christopher Newport, William & Mary hasn’t fully grappled with its role in Shoe Lane’s demise. Its official history states that the city donated the land, without mentioning how, and from whom, it was obtained. In 2009, William & Mary’s board did acknowledge that the college had failed to take a stand against segregation during the Jim Crow era. Nine years later, it apologized for perpetuating “the legacies of racial discrimination.”

Nationally, and in Virginia, the higher-education playbook has hardly changed. In the past two decades, universities in Miami, Phoenix, Philadelphia and more than a dozen other cities have developed research parks in former Black and Latino communities, often through eminent domain, said Davarian Baldwin, an American-studies professor at Trinity College in Hartford, Connecticut.

“We want to hold on to the belief in the idea that universities are a positive influence on communities around them,” Baldwin said. “But there's a whole area of consequences that we have rarely looked at until very recently.”

Some Black community leaders have called for reparations. Baldwin has worked with residents and elected officials in Connecticut, Pennsylvania and California to push for compensation and support for displaced communities. In 2021, the mayor of Athens, Georgia, apologized to the Linnentown families whose homes were demolished for the University of Georgia’s expansion.

James Johnson indicates the campus boundaries on the university’s master site plan. (Christopher Tyree/VCIJ at WHRO)

In Newport News today, the mayor and all but one city councilor are Black. The James River Country Club admitted its first Black member in 1990. “I worked very hard to get the club to change its policies,” Santoro said. It “has everybody in it now.” Although Newport News is more than 40% Black, just 7% of Christopher Newport’s students are Black.

Save for the plaque to Walker and another on the former site of the Baptist church, the once-prosperous Black community on Shoe Lane has almost vanished. In a cemetery just down the road from the university, the headstones marking where residents and church parishioners are buried are worn with time, some barely legible.

Despite the schoolboy’s taunt, Luck is staying put. “I’m not selling to the college,” she said. “I don’t know what my children might do. But I’m not selling.”

The Johnsons say they aren’t bitter toward Christopher Newport. Two of their children graduated from the university. But they say they feel like strangers on land where they should belong. They don’t know how much longer they will stay in their home, or if the decision will be up to them — or their children, who would inherit under their will. The university’s updated site plan calls for acquiring the last houses in the neighborhood by 2030.

Barbara Johnson is often asked why she and her husband chose to live in the middle of a college campus. “They didn’t know we were here before the college,” she said.

“This is where we have our roots. We built this ourselves. When you put your sweat and blood into something, you don’t give it up.”

Gabriel Sandoval, of ProPublica, contributed research.

Some reporting for this story was supported by a fellowship from Columbia University’s Ira A. Lipman Center for Journalism and Civil and Human Rights.

Reach Brandi Kellam at brandi@brandikellam.com or brandi.kellam@vcij.org and Louis Hansen at Louis.hansen@vcij.org.

by Brandi Kellam and Louis Hansen, Virginia Center for Investigative Journalism at WHRO

Wealthy Family Wants to Reopen Major Industrial Polluter in Alabama Despite Mounting Debts and Proposed Regulation

1 year 7 months ago

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The ultrawealthy family of West Virginia Gov. Jim Justice is looking to reopen a shuttered industrial plant that for decades emitted chemicals that have harmed historically Black neighborhoods in Birmingham, Alabama. But the family faces a series of new regulatory and financial hurdles — including a push by local regulators to throw the governor’s son in jail over thousands of dollars in unpaid penalties connected to the plant’s pollution.

The century-old facility, which burns coal to make coke, a key ingredient for manufacturing steel, was the subject of a 2022 ProPublica investigation that showed how the family’s company and the plant’s past owners repeatedly failed to make necessary repairs. Without timely maintenance, Bluestone Coke released more cancer-causing chemicals into the air breathed by residents of three surrounding communities on Birmingham’s north side. In 2021, local regulators declined to renew Bluestone’s permit because of its repeated violations of air pollution regulations, but the plant kept operating as Bluestone appealed the decision. Months later, the company idled its coke ovens because of major equipment problems.

The Environmental Protection Agency recently proposed changes to the way toxic air pollution is controlled at coke plants. It would require Bluestone and other companies to install monitors along the fence lines of coke plants to detect whether high levels of benzene, a cancer-causing air pollutant found in coke oven emissions, are wafting into surrounding communities. If the monitors detect high levels of benzene, plant operators would have to identify the source of the pollution leaks and submit plans to bring the facility back into compliance.

EPA spokesperson Shayla Powell said in a statement that the rule would help to address “concerns by stakeholders about ground-level emissions affecting nearby communities.”

The proposal seeks to reduce the disproportionate amounts of coke plant pollution released in Black communities from Alabama to Indiana. For decades before Bluestone acquired the plant in 2019, nearby residents were exposed to some of the nation’s highest levels of contaminants in the air and soil. The air pollution had discolored the sides of houses, decimated property values and sickened residents. In recent years, a local environmental group called the Greater-Birmingham Alliance to Stop Pollution, or GASP, has monitored the air outside the Bluestone plant site and detected benzene levels high enough to elevate cancer risk for nearby residents.

The proposed regulation complicates the Justice family’s plans to reopen the plant. The company’s intended overhaul — estimated by experts to cost more than $150 million — would become even more expensive under the agency’s proposal.

West Virginia Gov. Jim Justice has vowed that his family would “do the right stuff” regarding the problems at the Bluestone Coke plant. (Justin Merriman/Stringer/Getty Images)

Adrienne Lee, an attorney for the environmental law firm Earthjustice, said that the EPA had failed to comply with key requirements of the Clean Air Act Amendments of 1990 — and that failure, according to environmental advocates, enabled coke plants to delay renovations to their facilities. In 2019, the Sierra Club, GASP and two other environmental groups filed a lawsuit against the EPA for not having conducted reviews of coke oven emission standards since 2005. A federal judge later ordered the EPA to finish its review of coke oven regulations by May 2024.

Jane Williams, chair of the National Clean Air Team for the Sierra Club, said that the EPA’s proposal could “force facilities to manage leaks differently” and further protect people living near coke plants.

“If you insist on operating a jalopy, you need to meet modern emissions standards,” Williams said.

The proposed regulation also comes as Bluestone is facing consequences over millions of dollars in unpaid debts. A judge recently ordered that Bluestone refrain from “engaging in the conduct of business” in Birmingham until the company has paid the city more than $1 million in back taxes.

Separately, last December, Bluestone agreed to pay nearly $1 million to the Jefferson County Board of Health to settle alleged violations over the excessive pollution releases. But when Bluestone failed to make some of those payments, the board called for another judge to jail Jay Justice, Jim Justice’s son and the head of the company, until Bluestone paid.

In an August court hearing over the missed payments, Jay Justice testified that Bluestone had lost more than $2 million in the first half of the year. Overall, he said, the family’s companies have “huge, huge debt and huge cash flow problems.”

“I don’t think Bluestone Coke has, you know, $100,” he said. “I don’t think they have any money.”

Justice also testified that he and his family “still want” to “restart or rebuild the plant.” A Bluestone lawyer wrote in a court filing last month that the company has caught up on some of the settlement payments it owes to the health board. Because of those payments, the lawyer wrote, the board of health’s “continued insistence on contempt and specifically incarceration of Jay Justice is inappropriate.” (The judge wrote in an Aug. 17 order that Bluestone Coke is “in breach and has been in breach of some of its duties under the Consent Order.” But as of Aug. 28, he has refrained from ordering Justice to serve time in jail.)

Justice and his father, along with Bluestone lawyer Steve Ruby, did not respond to ProPublica’s questions. Ruby said in a statement to ProPublica last December that Bluestone has already invested “tens of millions of dollars” into a plant that was purchased “in a state of severe disrepair.”

Ahead of the EPA’s announcement of the proposed regulation, the agency faced pushback from a leading trade group that represents coke plant owners. The EPA had asked coke plant operators to install new air monitors along their plants’ boundaries and to collect data to inform changes to the coke oven regulation. According to documents obtained by ProPublica through an open records request, the American Coke and Coal Chemicals Institute contested some of the agency’s data collection efforts. The trade group urged the EPA to scale back certain testing requirements, in part because it felt those data collection efforts were “excessive.” The EPA rejected most of the ACCCI’s requests, the records show. (ACCCI President David Ailor did not respond to a request for comment.)

The EPA will accept public comments on the proposed changes to its regulation through Oct. 2. Powell, the EPA spokesperson, said that after public comment ends, the EPA plans to finalize the rule before the court-ordered deadline in May 2024.

In an EPA analysis of the proposed regulation’s economic impact on the country’s 14 remaining coke plants — which cites ProPublica’s past reporting on Bluestone — agency officials wrote that the price of complying with the rule changes was estimated to be lower for the Justice family than all but one of the other plant owners. Bluestone’s costs were also estimated to be a small fraction of the overall revenues the plant would bring if it reopened.

Sarah Stokes, a senior attorney in the Southern Environmental Law Center who works with GASP, said that the “amount of money it’s going to take to reopen the plant is astronomical.” She questions whether the Justice family will find a way to fund the overhaul before it can even install air monitors.

“The likelihood of them opening is very low,” Stokes said.

by Max Blau

Clarence Thomas Acknowledges Undisclosed Real Estate Deal With Harlan Crow and Discloses Private Jet Flights

1 year 7 months ago

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Supreme Court Justice Clarence Thomas for the first time acknowledged that he should have reported selling real estate to billionaire political donor Harlan Crow in 2014, a transaction revealed by ProPublica earlier this year. Writing in his annual financial disclosure form, Thomas said that he “inadvertently failed to realize” that the deal needed to be publicly disclosed.

In the form, which was made public Thursday after he’d received an extension on the filing deadline, Thomas also disclosed receiving three private jet trips last year from Crow. ProPublica reported on two of those trips.

Thomas defended his previous practice of not disclosing private jet flights provided to him over the years.

In a statement Thursday, an attorney for Thomas, Elliot Berke, said that “after reviewing Justice Thomas’s records, I am confident there has been no willful ethics transgression, and any prior reporting errors were strictly inadvertent.”

Thomas’ expanded disclosures for 2022 follow a series of ProPublica stories that documented an array of undisclosed luxury vacations and other gifts Thomas has received over the years from a cadre of billionaires, including Crow. ProPublica revealed Texas real estate magnate Crow’s generosity toward Thomas, including yacht cruises, private jet flights, the purchase of his mother’s house in Georgia and tuition payments. Subsequently, we reported that Thomas has received at least 38 destination vacations and 26 private jet flights from multiple billionaires. Thomas’ latest filing brings the total number of jet flights he’s received even higher.

In its initial story, ProPublica reported Thomas took a trip to Crow’s private resort in the Adirondacks last July and to a conservative think tank conference in Dallas last May, noting that flight records suggested he flew to and from both places on Crow’s jet. In his new form, Thomas confirmed that Crow provided the private plane travel.

In the form, Thomas said that his security detail recommended he fly private whenever possible “because of the increased security risk following the Dobbs opinion leak.” The Supreme Court did not respond to a question about whether all justices are now advised to take private jet flights for security purposes.

Thomas also disclosed one previously unknown private jet trip he received from Crow. He reported taking a private plane on the way home from a February conference in Dallas because of an “unexpected ice storm.”

In his form, Thomas wrote that he “continues to work” with judiciary staff to determine “whether he should further amend his reports from any prior years.”

The disclosure contains Thomas’ first public comments on his failure to disclose a 2014 real estate deal with Crow. As ProPublica reported this spring, Crow purchased Thomas’ mother’s house and two nearby vacant lots from Thomas and his relatives for $133,363. Thomas’ mother continues to live at the property, which Crow now owns. Crow has said he plans to someday turn the house, which was Thomas’ childhood home, into a museum.

In the form, Thomas said he took a loss on the deal because he and his wife “put between $50,000 to $75,000 into his mother’s home in capital improvements over the years.”

Thomas also defended his practice for more than two decades of not disclosing private jet trips provided by Crow and other wealthy businessmen.

Justices are required by a federal ethics law passed after Watergate to publicly disclose most gifts. Thomas’ defense centers on a carve-out in the law known as the “personal hospitality” exemption. The exemption states that gifts of “food, lodging, or entertainment received as personal hospitality” don’t have to be disclosed. The judiciary updated its guidelines earlier this year to make explicit that the exemption doesn’t apply to private jet travel.

Seven ethics law experts told ProPublica that even before the update, both the law and the judiciary’s regulations have required that gifts of transportation, such as private jet travel, be disclosed because they are not food, lodging or entertainment. Reviewing other federal judges’ financial disclosure filings, ProPublica found at least six examples of judges disclosing gifts of private jet travel in recent years prior to the update.

In the new filing, Thomas for the first time said he got advice that he did not have to disclose such flights from staff at the Judicial Conference, the policymaking arm of the federal judiciary. He said he received that advice from “Conference staff, and in conversations with court officers and colleagues early in his tenure on the Court.” In his previous statement on the matter, Thomas did not say he had consulted the ethics staff.

Prior to his most recent disclosure, Thomas had reported receiving one private jet trip from Crow in 1997, the year after the pair met.

Thomas also pointed to advice received in 2006 by a lower court federal judge, Ray Randolph, that a private jet flight to Alaska didn’t need to be disclosed.

A judiciary spokesperson declined to comment Thursday on whether it has ever been the Judicial Conference’s position that judges can accept gifts of private jet travel without disclosing them.

She also declined to confirm Thomas’ account of past advice he’d received from conference staff. “Advice sought by any filer is confidential and we do not discuss that advice publicly,” the spokesperson said.

The Supreme Court press office did not immediately respond to a request for more details on the advice Thomas said he received.

Thomas’ attorney criticized watchdog groups and Democratic members of Congress who have called for Thomas to be investigated.

“The attacks on Justice Thomas are nothing less than ridiculous and dangerous, and they set a terrible precedent for political blood sport through federal ethics filings,” Berke wrote.

Justice Samuel Alito’s filing was also released Thursday. His did not contain any new disclosures of gifts. Earlier this year, ProPublica reported that in 2008, Alito accepted a private jet flight to Alaska from a hedge fund billionaire who later had cases before the Supreme Court. Alito said that he was not required to disclose the gift, and that when the billionaire’s companies came before the court, Alito was unaware of his connection to the cases.

by Joshua Kaplan, Justin Elliott and Alex Mierjeski

I Set Out to Create a Simple Map for How to Appeal Your Insurance Denial. Instead, I Found a Mind-Boggling Labyrinth.

1 year 7 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This story was co-published with The Capitol Forum.

Have you ever had a health care claim denied by your insurer? Ever tried to appeal it? Did you wind up confused, frustrated, exhausted, defeated?

I’ve been a health care reporter for more than 40 years. And when I tried to figure out how to appeal insurance denials, I wound up the same way. And I didn’t even try to file an actual appeal.

ProPublica came to me earlier this year with what might have seemed like a simple proposition. They wanted me to create an interactive appeals guide that would help readers navigate their insurers’ maze. (A team of reporters at ProPublica and The Capitol Forum has been investigating all the ways that insurers deny payments for health care. If you’ve got a story to share, let them know here.)

Over the next several weeks, I spoke with more than 50 insurance experts, patients, lawyers, physicians and consumer advocates. Nearly everyone said the same thing: Great idea. But almost impossible to do. The insurance industry and its regulators have made it so complicated to file an appeal that only a tiny percentage of patients ever do. For example, less than two-tenths of 1% of patients in Obamacare plans bothered to appeal claims denied in 2021.

The central problem: There are many kinds of insurance in the U.S., and they have different processes for appealing a denial. And no lawmakers or regulators in state and federal governments have forced all insurers to follow one simple standard.

I tried to create a spreadsheet that would guide readers through the appeals process for all the different types of insurance and circumstances. When a patient needs care urgently, for instance, an appeal follows a different track. But with each day of reporting, with each expert interviewed, it got more and more confusing. There was a point when I thought I was drowning in exceptions and caveats. Some nights were filled with a sense that I was trapped in an impossible labyrinth, with signs pointing to pathways that just kept getting me further lost.

Here are some of the issues that make it so confusing:

First, people have to know exactly what kind of insurance they have. You may think that UnitedHealthcare is your insurer because that’s the name on your insurance card, but that card doesn’t tell you what kind of plan you have. Your real insurer may be your employer. Some 65% of workers who get their coverage through their employers are in what’s known as “self-funded plans,” according to KFF (formerly Kaiser Family Foundation). That means the employer pays for medical costs, though it may hire an insurance company like UnitedHealthcare to administer claims.

The other main type of insurance that companies provide for their workers is known as a “fully insured plan.” The employer hires an insurer to take all the risk and pay the claims. With that kind of plan, the name on your card really is your insurer. Why does this difference matter? Because the route you follow to challenge an insurance denial can differ based on whether it’s a fully insured plan or a self-funded one.

But all too often people don’t know what kind of plan they have and aren’t really sure how to find out. I’m told that some employers’ human resources departments don’t know either — although they should.

“It is a little scary, because people honestly don’t really know what they have,” said Karen Pollitz, a senior fellow at KFF who specializes in health insurance research. “I’m just going to warn you that if you set up the decision tree with an A: yes, B: no, or C: not sure, you’ll find a lot of people clicking not sure.”

Government insurance is its own tangle. I am a Medicare beneficiary with a supplemental plan and a Part D plan for drug coverage. The appeals process for drug denials is different from the one for the rest of my health care. And that’s different from the process that people with Medicare Advantage plans have to follow.

A spokesperson for the Centers for Medicare & Medicaid Services, the federal agency that oversees Medicare, wrote in an email that the agency “has been actively engaged in identifying ways to simplify and streamline the appeals process and has worked with stakeholders and focus groups to identify ways to better communicate information related to the appeals process with the beneficiaries we serve.”

And we can’t forget about Medicaid and the Children’s Health Insurance Programs, which together covered 94 million enrollees as of April, more than a quarter of the U.S. population. The federal government sets minimum standards that each state Medicaid program has to follow, but states can make things more complicated by requiring different appeal pathways for different types of health care. So the process can be different depending on the type of care that was denied, and that can vary state to state.

And don’t even get me started on how baffling it can be if you’re one of the 12.5 million people covered by both Medicare and Medicaid. As far as which appeals path you have to take, Abbi Coursolle, a senior attorney with the National Health Law Program, explains: “It’s Medicare for some things and Medicaid for others.”

I sought help from Jack Dailey, a San Diego attorney and coordinator for the California Health Consumer Alliance, which works with legal-aid programs across the state. On a Zoom call, he looked at an Excel spreadsheet I’d put together for Medi-Cal, California’s Medicaid program, based on what I had already learned. Then he shook his head. A few days later, he came back with a new guide, having pulled an all-nighter correcting what I had put together and adding tons of caveats.

It was seven single-spaced pages long. It detailed five layers of the Medi-Cal appeals process, with some cases winding up in state Superior Court. There were so many abbreviations and acronyms that I needed to create a glossary. (Who knew that DMC-ODS stands for Drug Medi-Cal Organized Delivery System?) And this was for just one state!

Dr. Christianne Heck, a neurologist specializing in epilepsy with Keck Medicine of the University of Southern California, said her health system has a team of professionals dedicated to appealing denials and making prior-authorization requests — where you have to call the insurer and get approval for a procedure beforehand.

“It’s a huge problem,” Heck said. “It usually takes multiple attempts. We have to play this horrible, horrible game, and the patients are in the middle.”

It’s especially complicated in oncology, said Dr. Barbara McAneny, a former president of the American Medical Association who runs a 6,000-patient oncology practice in Albuquerque, New Mexico.

“My practice is built on the theory that all the patients should have to do is show up and we should manage everything else … because people who are sick just cannot deal with insurance companies. This is not possible,” she said.

McAneny told me she spends $350,000 a year on a designated team of denial fighters whose sole job is to request prior authorization for cancer care — an average 67 requests per day — and then appeal the denials.

For starters, she said bluntly, “we know everything is going to get denied.” It’s almost a given, she said, that the insurer will lose the first batch of records. “We often have to send records two or three times before they finally admit they actually received them. … They play all of these kinds of delaying games.”

McAneny thinks that for insurance companies, it’s really all about the money.

Her theory is that insurance companies save money by delaying spending as long as possible, especially if the patient or the doctor gives up on the appeal, or the patient’s condition rapidly declines in the absence of treatment.

For an insurance company, she said, “you know, death is cheaper than chemotherapy.”

I asked James Swann, a spokesperson for AHIP, the trade group formerly known as America’s Health Insurance Plans, what his organization thought of comments like that. He declined to address that directly, nor did he answer my question about why the industry has made appealing denials so complex. In a written statement Swann said that doctors and insurers “need to work together to deliver evidence-based care and avoid treatments that are inappropriate, unnecessary, and more costly. Most often, a claim that is not immediately approved just requires the provider to submit additional information to appropriately document the request, such as the diagnosis or other details. If a claim is not approved after correct and complete information is submitted, there are several levels of appeal available to the patient and their provider.”

Swann outlined some of the appeals steps available, including a review by a doctor who wasn’t involved in denying the claim initially, the chance to submit additional clinical rationale and a review by an entity that’s independent of the insurer. He also noted that Medicare Advantage and Part D programs have multiple levels of appeals before winding up in court, including a step that requires a review by an outside, independent organization.

Domna Antoniadis is a health care attorney in New York who co-runs the Access to Care nonprofit, which educates patients and providers on their health insurance rights. She spent hours helping me navigate various appeal systems.

She offered up one important tip for people who use commercial insurance: Get the full plan document for your policy and read it. It’ll be around 100 pages and will tell you what medical services are covered and detail all the steps needed to appeal a denial. Don’t rely on the four-page summary, she said. It probably won’t help.

Likewise, Medicare, Medicare Advantage and Medicaid denial letters should explain the steps to appeal the decision.

When you can, enlist the help of your medical provider. Sometimes an insurer says no to a claim because a doctor’s office submitted it under the wrong code, and that can be fixed quickly.

Antoniadis acknowledged the challenges but believes that consumers have a lot more power than they realize. They can push back to advocate for themselves.

“The appeals process is not always handled properly by the plans, which is why consumers need to report and complain to their relevant government regulators when they believe they’ve been unfairly denied,” she said. “That’s integral to changing the system.”

by Cheryl Clark for ProPublica

They Were Promised Help With Mortgage Payments. Then They Got a Foreclosure Notice.

1 year 7 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

When Noelle Geraci lost her job at a private investment firm this year, she did everything she could to protect her most important asset: the house she owns with her mother in a Las Vegas suburb.

That same day she started applying for work and signed up for unemployment benefits. Then she called her mortgage company, Flagstar Bank, to see if it would reduce or pause her payments until she found another job. The bank recommended she apply to the Nevada Homeowner Assistance Fund, a pandemic-era program to help the unemployed with their mortgage payments.

Geraci and her mother, Shirley, who had co-signed the loan for the 2,300-square-foot stucco house in 2011, were reluctant to ask for help. Under Nevada’s program rules, the assistance is paid as a loan that’s forgiven after three years if the homeowner stays in their house.

They were also unsettled that the program required a three-year lien in exchange for the assistance. The lien was meant to ensure that the program would be reimbursed if they tried to sell the house or take out equity within three years, but it also could deprive them of flexibility in tough financial times.

But with Shirley Geraci retired, her daughter job hunting in a city with one of the highest unemployment rates in the nation and interest rates too high to make a loan modification work, they decided to apply. They qualified for up to a year’s worth of mortgage payments. The small nonprofit that runs the program in Nevada would make the monthly payments for them. It felt as if an unbearable weight was lifted.

Then a foreclosure notice arrived in the mail. The money that was supposed to flow from the U.S. Treasury, through Nevada’s assistance program and to their bank hadn’t reached Flagstar. And Noelle Geraci couldn’t get anyone to explain what was going on.

“It’s a complete nightmare,” she said. “My mom is a senior. Me losing my job has impacted us in a severe way. The one and only thing we have is our home. Everything we have is about to be gone.”

To distribute its share of the federal money, the state had chosen the Nevada Affordable Housing Assistance Corporation, a small nonprofit with a troubled history of administering federal assistance.

To keep their home, the Geracis were relying on NAHAC to deliver money to their mortgage servicer on time each month. But the bureaucratic chain connecting the Treasury, state agencies and banks can create delays. They soon learned that when payments are late, homeowners bear the risks.

Nevada’s isn’t the only program plagued by issues. This year, The Wall Street Journal detailed problems in multiple states similar to those the Geracis would face. In Pennsylvania, those seeking help used the same word as Noelle Geraci to describe the program: nightmare.

After the Geracis were approved for up to a year’s worth of assistance in May, NAHAC told them to stop paying their mortgage because the program would do it for them.

The foreclosure notice came in July: “Flagstar Bank is hereby notifying you that your above described loan is in default because the required payments have not been made,” the letter read.

Shirley Geraci panicked.

“I don’t want to lose my house,” she told ProPublica soon after the notice arrived. “I don’t want to end up in an apartment and lose everything we built.”

“It’s our investment,” she added. Eventually it will be her daughter’s if “life plays out the way it is supposed to.”

The foreclosure warning spurred a round of phone calls that elicited conflicting information from her bank and NAHAC. A NAHAC representative told Noelle Geraci not to worry about the notice, but the bank said if the family didn’t pay the arrears the foreclosure would proceed.

When Geraci told NAHAC that “the foreclosure is real; the clock is ticking,” the nonprofit was unable to tell her when or how much it had paid Flagstar and why the payment hadn’t yet been applied to her account, she said. And it wouldn’t provide anything in writing.

Shortly after a ProPublica reporter called the bank, a Flagstar representative contacted Geraci to assure her she wouldn’t be foreclosed on but, like NAHAC, told her it couldn’t provide that assurance in writing. A few days later, the bank called Geraci to say it had received payments for May and June, but the amounts were less than required. She also was told that if the bank didn’t soon receive payments for July and August, she would likely receive another foreclosure notice. In August, a letter informed her that she was again behind on payments.

“I don’t have any certainty,” Geraci said.

A Flagstar spokesperson said in a statement to ProPublica that despite the late and incorrect payments, the Geracis won’t face foreclosure. She said Flagstar will work directly with NAHAC to bring the mortgage current and will stay in contact with the Geracis.

Flagstar later confirmed it had received funds to bring the Geracis’ mortgage current.

“We would also like to clarify that no foreclosure was ever started on the loan, and that no negative credit reporting was made,” the spokesperson said.

The spokesperson said Flagstar is a “strong supporter” of the assistance program.

Verise Campbell is NAHAC’s chief executive officer. She was appointed in 2016 to improve the nonprofit after a federal audit found previous leadership had squandered federal aid to homeowners caught up in the 2008 foreclosure crisis.

Campbell said it isn’t unusual for the program to make late payments and for participants in the assistance fund to receive foreclosure notices. The program makes payments in bulk to banks on behalf of multiple clients, and there’s a lag between the bank receiving the money and applying it to individual accounts.

“It’s not just, ‘Oh, I got approved and then I get the money,’” Campbell said of the program. “There’s a whole machine behind all of this.”

NAHAC was supposed to make its first payment — covering May and June — to Flagstar on July 1. But Campbell said a staffing change caused the nonprofit’s late payments to banks in July. Flagstar didn’t receive the July 1 payment until July 28, two days after ProPublica contacted NAHAC about the Geracis’ situation.

The nonprofit also paid the wrong amount because the money needed to bring the loan current and the regular monthly payment amount had both changed between the time the Geracis were approved for the program and when the first payment was made, according to Campbell.

She said late payments and shortages are reconciled at the end of each month to keep individual mortgages current.

After ProPublica began asking questions about the Geraci case, Campbell had her staff reach out to Flagstar to speed up that reconciliation process. She said the bank assured NAHAC that it would not initiate foreclosure proceedings because of the late and inaccurate payments but that it was obligated to continue sending the notices to the Geracis. Federal consumer protection regulations require lenders to notify borrowers of delinquencies.

According to the most recent Treasury data, Nevada has been slow to enroll people and disburse the $120 million it was awarded for the program. At the end of the first quarter, it had distributed $17 million — less than 14% of its total award — ranking it 43rd among the states for getting money to homeowners.

As of Aug. 15, according to NAHAC’s data, Nevada had distributed an additional $12 million. And Campbell said the state is now on target to disburse all of its funds by Sept. 30, 2025, when the program comes to an end.

U.S. Sen. Catherine Cortez Masto, D-Nev., who the Geracis also reached out to for help, has been a proponent of NAHAC and worked to improve it when its earlier troubles came to light in 2016. Her spokesperson, Josh Marcus-Blank, declined to comment on the Geracis’ situation but said Cortez Masto continues to support the program.

“Senator Cortez Masto is focused on making sure Nevadans can stay in their homes, and she will continue working to make sure programs like NHAF are serving communities across the state by improving and streamlining their processes,” Marcus-Blank said.

Federal regulators have discouraged banks like Flagstar from foreclosing on homeowners who apply to or have been approved for the assistance program. In March, the Consumer Financial Protection Bureau promised “increased scrutiny” of mortgage servicers who foreclose on program participants. While the Geracis ultimately were not foreclosed on, neither states nor the federal government track whether foreclosures are occurring, said Stacey Tutt, a National Housing Law Project senior staff attorney who works with states to improve their program.

In some cases, federal regulators have erected guardrails to protect program participants from foreclosure prompted by delays in the program. Fannie Mae and Freddie Mac loan servicers are required to pause foreclosure proceedings against participants for 60 days, but when it comes to servicers of FHA-insured loans, that guidance is only a suggestion. And often the program delays are much longer than 60 days, Tutt said.

“It’s just not enough time,” she said.

States can fix the problem by requiring banks to halt foreclosures on participants. NAHAC’s Campbell said servicers participating in Nevada’s program have voluntarily agreed to postpone foreclosures.

Tutt said participants who do receive a foreclosure notice while in the program can get help from trained housing counselors or, in some cases, legal aid centers, which also get money from the program.

“It’s a lot to navigate,” she said. “Most of our homeowners are in a crisis and are working in jobs they can’t take time off from to keep monitoring and putting pressure on these different entities.”

Tutt also criticized Nevada’s decision to require a three-year lien in exchange for helping homeowners because it delays the process, adds to administrative costs — county recorders charge fees to record liens — and scares homeowners.

“They would say it ensures homeowners don’t just take this money, turn around and sell the home and get a windfall,” Tutt said. “That’s just devoid of the reality of what these homeowners are going through.”

Campbell said the requirement was included to “assist with housing stabilization.” Homeowners who sell their houses within three years, or refinance their mortgage to take cash out from the equity, would be required to repay the assistance in order to remove the lien. She denied the requirement causes delays and described the recording fees as “minimal.”

Despite the challenges, Tutt said the federalHomeowner Assistance Fund remains the best option for those who face losing their homes. Homeowners should take advantage of housing counselors to help them through the process instead of “giving up on the program,” she said.

Shirley Geraci feels differently. States are “flying by the seat of their pants” to run the program and “people are suffering,” she said.

In the month it has taken to resolve the payment issues, Noelle Geraci found a new job. The Geracis are eligible for three more months of assistance, but the stress of participating in the program has made them unsure of whether to accept it.

“People shouldn’t have to go through this,” Shirley Geraci said.

by Anjeanette Damon

The NYPD Denied Our Request for Body Camera Footage of a “Friendly Fire” Killing. Here’s How We Got It Anyway.

1 year 7 months ago

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In March 2021, I received a tip to look into the police killing of a Bronx man who was shot dead in 2017 while in the throes of a mental health crisis. The source suggested I request the investigative files from the NYPD’s Force Investigation Division, the internal unit that spent two years probing the case.

At the time, I was in the midst of reporting for a book on the NYPD’s secretive disciplinary system, in which FID plays an integral role. So I filed a records request under New York’s Freedom of Information Law, but it seemed to go nowhere. Every few months, the NYPD requested an extension while deciding how to respond. Roughly nine months passed with no records. I was not shocked by these delays. When former New York City Mayor Bill de Blasio conducted an audit that gave grades to the city’s agencies for their public record responsiveness, the NYPD received an F.

But then, on the last day of 2021, an email from the NYPD hit my inbox. The department had provided not just the investigative report on the Bronx man’s death, but the complete record of audio interviews with the officers involved in the case and their body-camera footage as well. This reporting got me interested in learning more about FID, which investigates every incident where an NYPD officer fires their weapon. I decided to file additional FOIL requests for the internal investigative files for a number of fatal shootings by the NYPD.

One case involved the police killing of a man named Kawaski Trawick, who was shot dead in his apartment while in the grips of a mental health crisis. Another involved the deaths of Officer Brian Mulkeen and a man named Antonio Williams in a public housing complex. After about a year, the NYPD sent me hundreds of pages from the final FID reports for both cases. But unlike the first batch I had received, this one contained none of the body-camera videos or audio of the FID’s officer interviews. So I appealed and, to my surprise, won.

The NYPD soon sent me all the video and audio related to the Trawick investigation. Along with the files, a sergeant in the NYPD’s Records Bureau included a note explaining that the omission appeared to have been an administrative “oversight.” The records system, he wrote, was “glitchy,” and the investigator had simply “just missed the upload of the case file.”

The records enabled ProPublica’s Eric Umansky and me to publish a revelatory story that exposed how the FID failed to probe key moments in the Trawick incident, including when one officer tried to stop his partner from shooting the man in crisis.

From a media perspective, the episode illustrated a triumph of New York’s public records laws. Or so I thought.

Two weeks after publication, I got another letter from the NYPD, this time denying much of the outstanding part of my records request in the Mulkeen-Williams case, in which police killed a suspect as well as a fellow officer. After releasing the full audio and video footage for two prior cases, the NYPD now claimed that providing the same types of files in this instance would “constitute an unwarranted invasion of personal privacy” for its officers. The letter referred me to the edited video compilation the department had publicly posted to YouTube after the shootings. If I wanted to contest their records denial, I would have to file a lawsuit, the department said — a time-consuming and potentially costly proposition.

In spite of the setback, I kept reporting and soon spoke to David Rankin, an attorney for the Williams family who offered to share the records that he had obtained from the NYPD through his own FOIL request. I was stunned: The department had provided him with some of the exact records that I had been denied — most notably, the complete body-camera footage. Separately, Rankin gave me access to audio of FID’s interviews, which he had obtained from the city Law Department as part of ongoing litigation.

As with the Trawick case, the complete record allowed me to piece together a fuller — and ultimately, more damning — picture than the one the NYPD had presented publicly. Time and again, the records showed, FID investigators stopped short in their questioning of officers, even when the conduct at issue led to the death of a colleague. This type of accounting would not have been possible without the video footage of the shooting and the audio of FID’s interviews with the officers.

Of course, I can’t say whether that — or my prior coverage — played into the NYPD’s decision to withhold the records from me. Prior to publication, I asked the department why it denied my request while granting the attorney’s. The NYPD did not respond.

Mike Hayes is a freelance journalist and author of “The Secret Files: Bill De Blasio, The NYPD, and The Broken Promises of Police Reform.”

by Mike Hayes for ProPublica

A Chicago Cop Is Accused of Lying Under Oath 44 Times. Now Prosecutors Are Dropping Cases That Relied on His Testimony.

1 year 7 months ago

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Prosecutors in Illinois have dropped at least 15 court cases that hinged on the word of a former Chicago police officer who’s now charged with perjury and forgery after he got dozens of traffic tickets dismissed by testifying each time that his girlfriend had stolen his car.

Jeffrey Kriv is accused of lying under oath 44 times to get out of speeding, parking and red light camera tickets involving his personal vehicles.

In his 26 years as a Chicago officer, Kriv was known for being one of the city’s most prolific drunken-driving enforcers, which means many more pending cases in which he was an arresting officer could be in peril. The most recent DUI arrests he made involve allegations of dangerous driving.

On just one morning this month, an assistant state’s attorney made motions declining to prosecute seven cases where Kriv was the arresting officer, some of which dated to 2021. The assistant state’s attorney offered no reason, but in court, defense attorneys mentioned Kriv’s alleged credibility issues.

“This is the officer who has been charged with a felony,” one defense lawyer told Judge Chloe Pedersen after his client’s DUI case was called.

“This is a Kriv matter,” another defense attorney said as his client’s case was dismissed.

Kriv is charged with perjury and forgery. (Via Chicago Police Chaplains Ministry)

While Kriv retired in January just before he was charged criminally, he had faced nearly 100 misconduct complaints from citizens and fellow officers in his tenure on the force. ProPublica and the Chicago Tribune previously detailed Kriv’s long history of alleged misconduct as an officer and his current legal trouble. Prosecutors charged him in January with four counts of perjury and five counts of forgery, all felonies, in connection with four of the traffic tickets he accrued. He has pleaded not guilty.

The Chicago Police Department knew in early 2022 that the Office of Inspector General was investigating Kriv for lying to get out of tickets. Then, on Oct. 28, the state’s attorney’s office added Kriv to its list of officers whose credibility issues meant the office would not call them to testify in criminal cases, sometimes called the do-not-call list.

But the Police Department would not answer ProPublica when asked why it kept Kriv on the streets until January, when it stripped him of police powers.

In those few months, Kriv made two dozen arrests and issued seven traffic citations, according to Police Department records obtained by ProPublica. He was the primary arresting officer in 18 of those cases; charges already have been dropped in seven of them. A spokesperson for the Police Department declined to comment.

The state’s attorney’s office said there are 10 pending felony cases in which Kriv was the arresting officer. Two cases filed after he was put on the do-not-call list are moving forward; the other eight cases remain under review, a spokesperson said.

There may be other cases — most of them likely misdemeanor DUIs — involving Kriv that are still pending. The state’s attorney’s office said it does not track misdemeanors, and the Cook County clerk’s office and chief judge’s office also said they did not have that information. Most DUI cases are misdemeanors, however, and Kriv regularly made about 100 arrests a year on DUI charges, according to annual counts published by an anti-drunken-driving group. Kriv estimated last year that hundreds of his cases might be awaiting an outcome.

Kriv’s attorney, Tim Grace, told reporters that he and his client would not comment for this story, though Kriv has twice emailed reporters to defend himself against misconduct complaints and call ProPublica’s reporting biased, including in an email last week.

In a 2,000-word email sent in June, he said that he had nearly 150 honorable mentions and two life-saving awards and was consistently one of the city’s top arresting officers for DUI charges. He also criticized other officers, a judge and the Police Department as a whole.

“I’ve been on the job for 27 years and I was a worker. Any officer that works will get complaints. Some false, some true,” Kriv wrote. “I could do what many, many officers do and that would be nothing.”

Kriv also sent a strongly worded email to a prosecutor last November, while he was still working as a police officer, after he learned he would not be allowed to testify about arrests he made. In the email, he defended his honesty and threatened to “not go out of my way to arrest people for DUI” going forward.

“My reputation as a Chicago Police Officer is immaculate and all my testimony on any case that I have been involved in is spot on,” he wrote to Assistant State’s Attorney Emily Leuin, after calling her a coward. ProPublica obtained the email through a public records request.

“Go ahead and dismiss my cases where someone was seriously hurt because the offender was drunk. This is something you have to live with but by all accounts, you obviously have no qualms about doing so. I’m sure [anti-drunk-driving groups] will like to know what is going on with the dozens, if not hundreds of cases of mine that are currently pending an outcome,” he wrote.

The beginning of an email that Kriv sent to Assistant State’s Attorney Emily Leuin. (Obtained by ProPublica. Redacted by ProPublica)

Leuin did not respond to a request for comment.

Despite his threats, Kriv did make DUI arrests for the rest of his tenure as an officer. He arrested a Chicago man in December 2022 after he said he watched the driver go the wrong way on a one-way street and then go through a stop sign. “Very strong odor of alcoholic beverage on breath, slurred/thick-tongued speech, glassy eyes, confused,” Kriv wrote in the charging documents.

That case was dismissed in April.

Other cases, meanwhile, are moving forward despite Kriv’s indictment. In traffic court this month, defense attorney Steve Roach asked the prosecutor whether Kriv, who made the arrest, would be subpoenaed in his client’s DUI case. The prosecutor said no, leaving Roach to wonder how the state could continue with its case.

“Because you’ve got a primary arresting officer who has an indictment against him which involves questions of one’s honesty, I wouldn’t be playing games with these cases,” Roach said in an interview.

The Cook County public defender’s office is representing several people in Kriv’s arrest cases. A spokesperson said that in cases the state continues to pursue, the office will demand trials and the state will have to decide whether to make its cases without Kriv.

The collapse of Kriv’s cases shares some similarities with the problematic DUI arrests made by Chicago police officer John Haleas nearly 20 years ago. Even after the police administration confirmed that Haleas had falsified reports in DUI arrests, he remained on duty. (In fact, he is still a Chicago police officer, though he was later convicted of attempted obstruction of justice and the department tried to fire him.)

There’s also a key difference between Haleas and Kriv: how the state’s attorney has reacted to pending court cases. The state’s attorney dismissed more than 150 of Haleas’ pending cases when he was found to have lied.

The state’s attorney’s office in July made public its list of officers in Cook County who it has barred from testifying in criminal cases — more than 300 officers in all, the vast majority of them from the Chicago Police Department. About 60 officers were added this year, and the office adopted a new policy last month that spells out prosecutors’ duty to disclose its problematic witnesses to defendants.

“The culture that allowed disreputable law enforcement officers to testify in court propelled Cook County’s reputation as the wrongful conviction capital of the country,” State’s Attorney Kim Foxx said in a press release about the disclosure list.

Chicago has a long history of scandalous cops whose cases fell apart when their own corruption or misdeeds were revealed. Over the years, officials have grappled with how to handle the fallout in court, as well as what to disclose to defendants and the public about these cases.

A spokesperson for the state’s attorney’s office said the list of officers with credibility issues is public and that disclosures to defendants would be made when evidence is typically shared.

ProPublica contacted more than a dozen defense attorneys currently representing clients arrested by Kriv, and only one said he had been notified by a prosecutor that Kriv was barred from testifying. Other lawyers were unaware that Kriv would not be called as a witness. One said the state’s attorney’s office had left his case “in limbo” and he is skeptical that the prosecutor can mount a case without Kriv.

“Every time I show up, the state’s attorney doesn’t know what’s going on,” said defense attorney Marco Rodriguez, who is representing a client in a DUI case.

Among the Kriv cases that have been dismissed is one from October 2022 involving a woman who was idling in a crosswalk but asleep, according to Kriv’s police report. He noted in the report that there was vomit on the car seat and on the woman’s pants. Her blood alcohol content was 0.19%, more than twice the legal limit to drive, according to the report, obtained through a public records request.

Prosecutors dropped the case against her in March.

Even in his last weeks as a police officer, Kriv arrested at least five people over four days on DUI charges, including a 41-year-old driver he said he’d found on Dec. 10 passed out behind the wheel of his running Honda Accord in the middle of a dead-end street. The man “seemed confused” and the “whole front end” of his car was damaged and the tires shredded.

Kriv noted that the driver had an explanation for the car’s damage.

He wrote that the man “stated his car was like that from his girlfriend as it was her fault previously.”

That case also has been dismissed.

by Jennifer Smith Richards and Jodi S. Cohen

How Norfolk Southern Is Addressing Blocked Train Crossings in Hammond, Indiana

1 year 7 months ago

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Since the school year began this month, there have been no reports of what was once a common sight in Hammond, Indiana: children, climbing over or under idling trains, risking their lives to get to class. Local officials say this is thanks to reforms enacted in response to an investigation by ProPublica and InvestigateTV.

Norfolk Southern, whose trains routinely stretched across multiple intersections, halting traffic and preventing pedestrians from crossing, committed to stopping its trains east of the Chicago suburb and splitting any that blocked crossings for more than 40 minutes. It also pledged to issue email alerts to help school, fire and police officials work around disruptions.

The company made an even larger commitment it has yet to follow through on, according to Mayor Thomas McDermott Jr.: helping fund a pedestrian overpass.

Norfolk Southern CEO Alan Shaw called McDermott the day after the investigation was published to begin discussing a fix, the mayor said, adding that he and Shaw discussed the pedestrian bridge and its potential cost during the conversation. McDermott hoped it would only take a month or two before he could announce the overpass.

Notes from the Federal Railroad Administration taken during meetings between city officials and Norfolk Southern show that there was at some point a plan for the rail company and the city to release a joint announcement for the beginning of the school year.

But the company has not confirmed it will pay any portion of the estimated $5 million overpass.

“We have been in communication with Norfolk Southern and are looking forward to Norfolk Southern confirming their funding that we discussed so this can be built,” McDermott said. “It’s the only way that 10 or 20 years down the road, I will know that a permanent long-term solution fixed this 100-year-old problem in my city. This needs to get done.”

He said he was pleased about the improvements from the “short-term” fixes implemented thus far but added, “That doesn’t go far enough.”

In hopes of an agreement, city engineers and a Norfolk Southern design team are working together on specifications for a potential bridge, city officials said.

A spokesperson for Norfolk Southern did not answer any of ProPublica’s questions, saying only that the company hadn’t received recent reports of stopped trains and that officials continue to talk with McDermott.

“I will say the train [officials] seem earnest to work with us,” said Scott E. Miller, the superintendent of Hammond schools. “But my biggest concern is, this isn’t the first time we’ve had conversations like this, and two years from now, where are we going to be?”

The superintendent lauded the company for making the short-term changes and for continuing to participate in monthly meetings with community leaders, but he said he was eager for the company to put longer-term solutions in writing.

“It’s about the safety of the kids,” he said.

In reaction to comments made by McDermott, Miller and others about the need for a longer-term fix like a bridge, a Norfolk Southern spokesperson said: “We’re proud of the collaboration between the Norfolk Southern team and local leaders to improve safety in Hammond. Since crafting a solution together, there have been no blocked crossings in the area, and we’re committed to continuing that.”

Since classes started on Aug. 14, Akicia Henderson and her two children have not had to climb over the train like in the past to get to the elementary school, she said. “It came yesterday while I was picking my daughters up, but it didn’t stop. It kept going, and I was happy about that.”

Blocked crossings, an age-old problem perpetuated by all rail companies, have gotten more attention in recent years as communities complain about trains getting longer and blocking more crossings for increasing periods of time.

Sen. Raphael Warnock, D-Ga., cited ProPublica and InvestigateTV’s reporting in May when he announced the Senate Commerce Committee’s passing of the bipartisan Railway Safety Act. Warnock inserted provisions into the legislation that would make it easier for communities to access grant money to build bridges over or tunnels under railroad tracks that are routinely blocked; the legislation would also create a process for communities to report blocked crossings directly to railroad companies and not just the government.

The day after the Senate committee passed the Railway Safety Act, Rep. Marcy Kaptur, D-Ohio, read the blocked crossings investigation into the congressional record. The bill’s momentum has stalled since May.

Kenny Edwards, the Indiana legislative director for the International Association of Sheet Metal, Air, Rail and Transportation Workers, or SMART Union, said he was happy the temporary fixes were having a positive impact thus far in Hammond, but he described the moves as “putting a Band-Aid on a cancer.” Elected officials and community members have to continue to hold Norfolk Southern accountable or the company will gradually slip back into its old behavior and continue blocking Hammond’s crossings, he said.

“They’ll wait till those images of those children and the trains fade out of people’s memories,” he said. “They’re the masters of that.”

Indiana state Rep. Carolyn Jackson, a Democrat who represents the Hammond area, has filed a bill attempting to address blocked crossings every session for the past five years. None has ever gotten a hearing. Jackson said Norfolk Southern has known about the critical situation in Hammond for decades and the company has dodged efforts to fix the issue for just as long.

She had hoped that by the start of the school year, an agreement and long-term plan would have been in place.

“I understand that they have given their word that they would move [the train] east, and they would do this and they will do that,” Jackson said. “However, I can’t say that I really trust that.”

She said the company has a history of making idle promises and skirting the blame for its behavior. The lawmaker said it shouldn’t take four months for the company to agree on an amount to kick in for the overpass, which has been needed for more than 20 years. It feels like the company is trying to wait the community out, she said.

Jackson and Edwards both said that while there’s a chance the urgency of the issue could get forgotten, they believe the images of children having to crawl under and over trains to get to school will stick with officials and members of the public, who will continue to hold the company accountable.

Jackson said she was encouraged to hear that there haven’t been any issues in the first two weeks of the school year, but the sample size is too small to wave a victory flag.

“It just doesn’t take long for a person or a company to resort back to their same ugly ways,” she said. “You can only keep up a front for so long.”

Henderson said it’s sad that her children and their classmates have to begin the school year without a commitment from the railroad or the city that a permanent fix is coming — but it’s not surprising.

“This has been going on forever, so what makes me think that we’re special and that they are finally going to do something?” she said. “Honestly, I’m not really expecting anything to be done. All I can do is pray that [the train] doesn’t sit there.”

Her thoughts on the overpass: “I’ll believe it when I see it.”

Do Blocked Railroad Crossings Endanger Your Community? Tell Us More.

by Topher Sanders

A Washington Special Education School That Was Accused of Harming Kids Is Now Barred From Taking New Students

1 year 7 months ago

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Washington education officials have barred a private special education school from accepting new students this fall after a state investigation found “unacceptably high” levels of physical restraints and of staff isolating students in locked rooms.

The state Office of Superintendent of Public Instruction launched the investigation after a Seattle Times and ProPublica series last year revealed that the Northwest School of Innovative Learning had long been the subject of allegations that it abused students, misused isolation rooms, let unqualified aides lead classes, and lacked basic educational materials, including textbooks.

As of the 2021-2022 school year, Northwest SOIL was the largest institution in Washington’s network of privately owned “nonpublic agencies,” specialized facilities that serve public school students who have complex disabilities. Its three campuses served more than 100 public school students through contracts with school districts across western Washington.

In June, regulators placed Northwest SOIL on “provisional status,” suspending new student placements. It also has to follow a corrective action plan this school year. But the state left open the possibility of reinstating the school’s status and lifting the admissions ban.

Tania May, left, an official in Washington’s Office of Superintendent of Public Instruction, wrote that Northwest SOIL had an “unacceptably high” number of instances in which it restrained or isolated students. (Ken Lambert/The Seattle Times)

“Our priority is to make sure that the students who are placed there are receiving their services and are safe,” Tania May, assistant superintendent for special education, said in an interview. “We recognize the improvements that the facilities made and will continue to support them however we can.”

The school already was losing students in the wake of the news investigations, and Northwest SOIL had closed two of its three campuses by the time the state’s ban on new students was issued. In an email to staffers, Northwest SOIL attributed the closures to “declines in enrollment and budget shortfalls.”

Some districts removed their students at the urging of parents, according to May. Tacoma Public Schools stopped sending students to Northwest SOIL altogether, according to a district spokesperson. Tacoma was once the school’s largest client, sending more than 20 students a year.

Northwest SOIL, which is owned by Fairfax Behavioral Health, explains in court filings that it is now fighting for survival because it can’t fill slots left by students who transfer or graduate. Fairfax sued the state in late July to reverse the suspension of student placements.

“As outlined in the lawsuit, the prohibition on new students is unlawful,” Christopher West, CEO of Fairfax Behavioral Health, said in an email. The superintendent’s office “is inserting the state agency into decisions that should be made by parents or guardians and local school districts about where a child with mental health issues should receive an education.”

The state has asked the court to dismiss the lawsuit, and a hearing is set for Sept. 29. In a court filing, the state argues that Northwest SOIL has potentially violated the rights of special education students, that letting the lawsuit go forward would improperly bypass an administrative process the school can use to fight its state suspension, and that Northwest SOIL is overstating the potential harm of the suspension.

Northwest SOIL only accepts students whose tuition is paid for by taxpayers. Across Washington, nonpublic agencies received more than $50 million in public funding in the 2021-2022 school year to serve roughly 500 students.

The Times and ProPublica reported last year that police repeatedly visited Northwest SOIL to investigate allegations of abuse, including a claim that a teacher placed a 13-year-old boy in a chokehold. Former staffers said they felt pressured by Fairfax and its parent company, Universal Health Services, to cut back on staffing and basic resources and to enroll more students than the staff could handle.

In a statement at the time, Northwest SOIL declined to comment on specific allegations of abuse but said “use of restraints and seclusion are always used as a last response when a student is at imminent risk of hurting themselves or others.” Fairfax denied allegations that it understaffed schools or pressured staff to take on more students. Its parent company declined to comment beyond pointing to Fairfax’s statement.

The state’s failure to take action against Northwest SOIL amid the complaints highlighted major gaps in oversight, the Times and ProPublica reported.

In January, the state superintendent’s office launched a rare probe into the school’s policies and practices. State regulators demanded records of allegations of “mistreatment, maltreatment, abuse or neglect” by school staff against students, as well as documents related to calls to law enforcement and restraint and isolation, among other records.

Regulators visited Northwest SOIL’s three campuses in May to observe conditions and interview administrators, teachers and other instructional providers.

Northwest SOIL closed its Tumwater and Redmond campuses at the end of the school year, on June 20, and consolidated operations in Tacoma. Roughly 50 students remain.

Northwest SOIL’s Redmond campus closed in June. Enrollment dropped after The Seattle Times and ProPublica highlighted abuse allegations at the school. (Ken Lambert/The Seattle Times)

Later that month, the state outlined some of the findings of its investigation in a letter to Northwest SOIL informing it of the enrollment ban. The state made no announcement to the public about its June decision, which surfaced last week at a meeting of Washington disabilities advocates.

Based on initial restraint and isolation data provided by the school, the state found that “the current numbers are unacceptably high and that patterns of practice need to change,” the letter from the assistant superintendent reads. Physical restraints, or holding students to restrict their movement, are allowed under state law only when a student’s behavior “poses an imminent likelihood of serious harm.”

In 2022, the most recent year for which data is available, Northwest SOIL reported isolating students 446 times and restraining students 475 times on its three campuses, which, as of June of that year, served 119 students.

By comparison, in the 2021-2022 school year, Seattle Public Schools — the state’s largest district, with more than 6,000 students in special education programs — reported 16 incidents of isolation and 249 incidents of restraint. Seattle Public Schools banned isolation at the beginning of that school year.

The state also found that Northwest SOIL had no handbooks for teachers and other staff outlining their roles and responsibilities. The school didn’t track its contacts with law enforcement agencies, nor did it track complaints about its services, among other deficiencies, according to the state.

The superintendent’s office acknowledged that Northwest SOIL has made some improvements, including “taking steps to improve the quality of instruction provided to students and to support the teachers and staff responsible for implementing such changes.”

Despite those improvements, the state found that the school needed to demonstrate it was making more progress. May, the assistant superintendent, said that the state has developed a corrective action plan in conjunction with Northwest SOIL but declined to provide a copy of that plan this week.

West, the Fairfax Behavioral Health executive, said in an email that Northwest SOIL has improved its training for staff and teachers and has acquired new smartboards and new computers for students and teachers. But he said the improvements, which began in early 2022, “have been as a result of our internal assessments in the best interests of our students and not due to any external matters.”

Fairfax contested the decision to restrict student placements in a filing with the state superintendent’s Office of Administrative Hearings and in its lawsuit, which was filed in Thurston County Superior Court. It was the first time a nonpublic agency legally contested the suspension or revocation of its status, May said.

The school “strongly disagrees” with the state’s decision to place it in a provisional status and limit new admissions, West wrote in an email.

Separate from the state’s legal actions, the Times sued Fairfax in 2022 to turn over documents under the state Public Records Act, arguing that Northwest SOIL should be subject to state transparency laws because it was acting as a public agency. These records would have shed light on some of the restraint and isolation trends later reported by the state superintendent’s office.

A judge sided with the Times in January, but Fairfax appealed and the case remains in court.

The Times and ProPublica’s reporting prompted lawmakers this year to strengthen regulations governing nonpublic agency schools, expanding the superintendent’s office’s responsibility to investigate complaints. As required under the new law, the superintendent’s office has scheduled on-site visits to new nonpublic agencies.

The agency also plans to hire consultants to advise on how it can improve the application process for becoming a nonpublic agency and provide better guidance for families on navigating the special education system, May added.

As the state steps up its oversight of nonpublic agencies, advocates and special education attorneys have called for closer scrutiny of Northwest SOIL. Some even want it to be closed completely.

“While we would like to hope that increased oversight by OSPI” — the superintendent’s office — “will ensure that what happened at NW SOIL does not happen again, we will continue to advocate against placement there on behalf of students who require truly therapeutic programming,” said Lara Hruska, an attorney with Cedar Law. Her office represents families in litigation against four small rural school districts that either have students at Northwest SOIL or are trying to place students there.

“I think it is good that OSPI is not allowing new students to enroll,” said Karen Pillar, director of policy and advocacy at TeamChild, an advocacy group for at-risk youth.

But, Pillar and other education advocates say, the state education system’s shortcomings run deeper. Some point to a chronic underfunding of systems designed to help students with disabilities and say there’s a lack of appropriate programs in public schools. There needs to be “meaningful investment in both resources and policy that support students at home, at their local schools, and within their communities,” Pillar said.

Taylor Blatchford of The Seattle Times contributed reporting.

by Mike Reicher and Lulu Ramadan, The Seattle Times

Despite Major Reform to Military Justice System, Navy Still Leaves Public in Dark

1 year 7 months ago

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As President Joe Biden announces major reforms to how the military prosecutes sexual assault, the U.S. Navy is still shrouding those court proceedings in secrecy and fighting a ProPublica lawsuit to make such cases public.

Last month, Biden issued an executive order that finalized a mandate from Congress to drastically change who had authority over sexual assault and murder cases in the military. The order strips military commanders of the power to press charges or drop a case. Instead, a special military prosecutor will make the decision.

The administration, calling it the most significant change to the military’s justice system in more than 70 years, said that in part the changes would “better protect victims and promote fairness before, during and after court-martial proceedings.”

Yet, the Navy’s policy is to withhold court records from the public throughout most, if not all, of those proceedings, preventing independent scrutiny into how sexual assault cases are prosecuted. New Navy rules released this month, a little over a week after Biden’s order, maintained these policies.

What happens in the crucial period before a court-martial is never made public by the Navy. The public doesn’t even know if a sailor or Marine has been charged with a crime unless the case goes to trial. The Navy provides no notice of when the service is holding an Article 32 hearing, which determines if there’s enough evidence for trial. And the related pretrial records are concealed permanently.

That critical preliminary stage of a case is precisely what prompted the change to the Uniform Code of Military Justice. In the prior system, a service member’s commander had the discretion to decide whether claims of assault deserved legal action. As reports of sexual assault in the military grew, a bipartisan group of lawmakers criticized the military’s low prosecution rate, placing the blame squarely on commanders. Advocates said commanders were too willing to dismiss allegations.

Under the Navy’s records policy, the public won’t be able to discern if the new special prosecutors are handling cases any differently.

ProPublica sued the Navy last year for refusing to release court records in a high-profile arson case. In 2020, the USS Bonhomme Richard, a $1 billion amphibious assault ship, burned for more than four days and was destroyed. A ProPublica investigation showed the Navy prosecuted a sailor with scant evidence and ignored a judge’s recommendation to drop the case.

Seaman Recruit Ryan Mays was found not guilty at his court-martial. ProPublica’s lawsuit was successful in getting the Navy to release hundreds of pages of court-martial documents in the Mays case.

The ongoing lawsuit in the Mays case is currently challenging the Navy’s overall policy to keep most records and pretrial hearings secret. Congress has repeatedly made clear that the armed services must comply with the principle of public access to courts “and provide greater transparency, but the Navy has refused to do so,” ProPublica’s lawsuit states.

The Navy asked the court to partially dismiss ProPublica’s lawsuit. ProPublica opposed that motion in July.

Pentagon guidance released this year was supposed to update public access based on a 2016 law that required transparency, but instead endorsed most of the Navy’s policies. From what is publicly available, little changed from the Navy’s old rules and its new ones. In January, Caroline Krass, general counsel for the Defense Department, told the services they do not have to make any records public until after a trial ends. It gives the military the discretion to suppress key trial information, such as transcripts and exhibits. And in cases where the defendant is found not guilty, the military services will be allowed to keep the entire record secret permanently, preventing any review of how those cases are handled.

ProPublica’s lawsuit challenges the legality of the guidance.

“Congress mandated transparency from our military to make certain that crimes like sexual assault don’t fester in secrecy as they have for years. But the Navy rejected this law,” Sarah Matthews, ProPublica’s deputy general counsel, said. “It keeps even heinous criminal accusations under wraps except in the rarest of circumstances, something that the law, and the First Amendment, cannot tolerate.”

Since the Pentagon guidance has been released, ProPublica has requested court documents from the Navy in 70 active sexual assault cases, including ones involving rape and sexual assault of a child, as well as three homicides. ProPublica also requested records for active sexual assault cases not listed on the public docket but received none.

Of the sexual assault cases, ProPublica has received limited records from just 14 — and only after they were closed. The Navy released limited records in two of the homicide cases. The Navy will not release court transcripts, exhibits or any pretrial records. In federal and state courts, those records are almost always public except in narrow circumstances.

Throughout the lawsuit, and as recently as April, the Navy has cited the federal Privacy Act as a reason the service can’t release court records to ProPublica. Yet, in 2021, the Pentagon issued a public notice saying that due to Congress’ mandate for transparency, the Privacy Act did not prevent the disclosure of military court records.

This led the staff of the Military Justice Review Panel, an independent body created by Congress, to conclude in a research paper that the rules are “inconsistent with the disclosure requirements of the law.”

The court has not yet ruled on the Navy’s motion to dismiss ProPublica’s suit. The service said its new rules will go into effect by Sept. 14.

Correction

Aug. 25, 2023: This story originally implied that the Navy’s new rules for handling court records had not been released. The story has been updated throughout to reflect that the new rules were released Aug. 9 and go into effect Sept. 14.

by Megan Rose

NYPD “Friendly Fire” Killed an Officer. Investigators Seemed to Ignore Video of Police Being Commanded to “Stop Shooting.”

1 year 7 months ago

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In December 2019, the New York Police Department released video of a fatal police shooting in the Edenwald Houses, a sprawling public housing complex in the Bronx. Similar videos — recorded by officers’ body-worn cameras — had been made public after other shootings. But this one differed in one key way: In addition to killing a suspect, police had killed one of their own, Officer Brian Mulkeen.

Mulkeen and his fellow officers had been patrolling the area as part of an initiative to get illegal guns off the street. Shortly after midnight, they came upon a man named Antonio Williams, who ran when they identified themselves as police. The video, shaky footage compiled from five body cameras, showed Mulkeen and other officers chasing Williams through the darkness and then tackling him. Williams, it turned out, had a revolver in his waistband.

“He’s reaching,” one officer yelled, as Mulkeen wrestled with the suspect. “Mulk! Mulk!”

Mulkeen fired five bullets into Williams, killing him. But just seconds later, as three other officers ran to the scene to provide backup, they fired their guns toward the two men and struck Mulkeen in the head.

Deputy Chief Kevin Maloney, the head of the NYPD’s Force Investigation Division, explained in the video that the release of the “relevant” footage would help the public “gain a better understanding of the events that led up to the incident.” The footage, he added, would also be a critical component of his team’s “thorough” investigation, which ultimately cleared the officers involved in the shooting that night.

The finding of no wrongdoing aligned with the view of then-Commissioner James O’Neill, who had rendered his own verdict months earlier in Mulkeen’s eulogy. “As every cop knows, one person is responsible for Brian’s death. And that’s the person carrying a loaded, illegal gun and decided to run from the police,” he said. “Every cop knows that, and every New Yorker should know that.”

New Yorkers, however, only saw a small portion of the video footage from that night — and only got a piece of the full story. The complete footage makes clearer just how far the shooters were when they fired and just how poor the visibility was that night as Mulkeen and Williams wrestled in the dark, according to a ProPublica review of the video, which was obtained by the news organization.

In fact, the NYPD’s crime scene measurements show the three officers who shot from the sidewalk were positioned 60 to 70 feet away, a fact that was not publicly disclosed by the department. At that distance, according to their training, the officers had just a coin-flip’s expectation of accuracy. The full video shows two of the officers with Mulkeen dodging the incoming bullets and yelling at their colleagues to “stop shooting.” The unpublished footage also reveals the immediate aftermath. Notably, one of the shooters runs from the sidewalk to the scene — which takes him a full five seconds, underscoring his distance from his target — and starts shouting expletives as he realizes Mulkeen has been hit.

Seven months later, when the FID interviewed the officers who shot their weapons, investigators did not ask about these key exchanges or challenge the officers when their accounts differed from what was captured on video, according to audio of the interviews, which was also obtained by ProPublica. In fact, two of the shooters misstated their distance, giving the impression they were much closer to the action when they fired their guns. Investigators allowed those misstatements — and others — to stand, despite having nearly a half-hour’s worth of body camera footage that disproved them. Detectives conducted relatively short interviews with the officers, ranging between 16 and 28 minutes each, and spent less than half their sessions discussing the actual shooting.

ProPublica requested an interview with Maloney for this story, but he did not respond. The news organization also sent a list of detailed questions to the NYPD and the union representing the officers involved in the case who are still on the force. None of the parties responded, despite multiple attempts to reach them. ProPublica also made several attempts to reach Daniel Beddows, a detective who is now retired but was also involved in the case, and sent questions via email to his former union, the Detectives’ Endowment Association, which said it “will bring it to the attention of the appropriate parties.” There was no further response. Mulkeen’s family, through its lawyer, declined to comment. The office of Mayor Eric Adams, who has championed the kind of anti-crime unit in which the officers served, also declined to comment, referring our questions to the NYPD.

The incident is the latest in a string of cases where the FID seemed to ignore evidence that was potentially damaging to officers who killed people in the line of duty. This year, ProPublica reported that in the FID’s investigation of the killing of Kawaski Trawick, the division never questioned officers about body-worn camera footage showing one of them trying to stop his partner from shooting Trawick, who was in the grips of a mental health crisis. Investigators also failed to challenge officers when their statements contradicted the available video.

Together, the shortcomings raise serious questions about how the NYPD is using body-worn camera video — especially when it implicates one of its own — both in its investigations of fatal shootings and in its messaging to the public, to which it releases edited and redacted cuts, if footage is released at all. In the Mulkeen case, time and again, investigators stopped short in their questioning of officers, even when the conduct at issue, which led to the death of a colleague, was on tape.

Former NYPD Detective John Baeza, who now serves as an expert witness on police misconduct and use of force in civil and criminal cases, said the FID failed in its mission to carefully examine every detail of what happened in this case.

“They don’t do a reconstruction,” said Baeza, who reviewed the FID report obtained by ProPublica. “You don’t see any police reports about anyone going out there, and having a couple guys on the ground, and then having somebody 60 feet away — photos of what it actually looks like when you’re 60 feet away from three guys on the ground.”

Such exercises could inform future training and potentially save lives, he said.

“Those are the things that first of all prevent police officers from being shot,” Baeza said, adding, “And the same thing goes for perpetrators.”

Indeed, Mulkeen’s father, who initially thanked the department for its response, is now suing the NYPD and the city. In his lawsuit, he accused the city of failing to properly train and supervise the officers in Mulkeen’s former unit. The shooters’ actions, Mulkeen’s father says in court filings, “were of such a wanton, willful, and reckless nature as to evince a callous disregard for human life.”

For the parents of the other man killed in the chaotic shootout, the FID’s clearing of the officers is part of what they call an NYPD “cover-up” of their son’s “murder.”

“This level of brutality and misconduct deserves far more than a twenty minute interview after waiting over half a year for the officers to get their stories straight so they can protect themselves,” Shawn and Gladys Williams said in a statement to ProPublica. The couple is also suing the NYPD and the city, alleging that officers illegally stopped their son that night in the Edenwald Houses.

The city denies the allegations in both cases, which are ongoing. The city’s Law Department, which is also representing the officers, declined to comment for this story.

When former NYPD Commissioner Bill Bratton created the FID in 2015, he told the public this new unit of “top investigators” would take advantage of the latest technology to produce detailed probes of police shootings. “I will get a better investigation, a speedy investigation, a more comprehensive investigation,” he said.

Three years later, Maloney, the head of the FID, told NBC New York that advancements like body-worn cameras were helping the division “to be transparent.” By using video, he said, the public will “know that when an incident happens, they’re going to get the truth of why it happened.”

In the Mulkeen case, the division had access to more than 28 minutes of body-worn camera footage from the five officers working with Mulkeen, each of whom belonged to the NYPD’s controversial “anti-crime” unit. Tasked with getting illegal guns off the streets and dressed in plainclothes, its members were responsible for a disproportionate number of police shootings at the time. (An investigation by The Intercept found that between 2000 and 2018, anti-crime officers committed about a third of NYPD killings, despite accounting for just 6% of the force.)

Several members of Mulkeen’s team also had disciplinary and legal histories. By the time they entered the Edenwald Houses in September 2019, four of the six members — Detective Daniel Beddows, Sgt. Jason Valentino, and Officers Brian Mahon and Keith Figueroa — had racked up a total of 17 departmental violations, including conducting illegal stop and frisks, restricting a person’s breathing and abusing their authority by drawing a gun. Each of the same officers, plus Mulkeen, were also named in at least one lawsuit alleging civil rights violations. (The officers denied the charges, and the cases were settled for a combined $280,000.)

That night at the Edenwald Houses, Mulkeen rode with two colleagues, Mahon and Officer Robert Wichers. As their unmarked police car approached, Williams grew “wide eyed” and “nervous,” Mahon later told investigators.

Williams took off running, and Mulkeen and Wichers went after him on foot. Mahon, who thought Williams was a potential decoy, stayed with another man on the scene. He radioed to officers in the area that his partners were in pursuit of a suspect, who he said he had seen reaching into his pants.

Mulkeen and Wichers soon caught up to Williams in a dark path and wrestled him to the pavement. Stuck at the bottom of the pile, Mulkeen managed to pull his gun and shot Williams five times just as Wichers jumped off the two men. Wichers and another officer, Beddows, then each fired one round at Williams.

As the shots rang out, Valentino and Figueroa, who had responded to the radio call, got out of their cruiser. The two officers, along with Mahon, ran toward the gunfire. When the three officers got to the sidewalk, about 60 to 70 feet away, they fired into the scene. Mulkeen’s body instantly tensed as one of the bullets entered his skull. Beddows jumped back. “Stop shooting!” he yelled to his colleagues. Wichers echoed Beddows: “Stop shooting! Stop shooting!” Video shows Mahon then ran toward the men, taking five seconds to close the distance between the sidewalk and the scene. As he gets closer, he shouts expletives.

Multiple former NYPD officers who reviewed the footage told ProPublica they took issue with the officers’ decision to fire toward the struggle from that far away.

Daniel Modell, a former NYPD lieutenant who ran the department’s Tactical Training Unit, said if the officers believed they needed to shoot to protect Mulkeen, “I would think that calculus might be made by someone close to the struggle — not at a distance of 20 yards.”

Baeza, the former NYPD detective, agreed. “At 60 feet, these guys didn’t have time to set up and aim,” he said. “Plus, what are you aiming at? The first thing is: Know your target. Well, you’ve got three men involved in a scuffle, and how do you know what your target is? They’re moving around.”

Former NYPD Sgt. Joe Giacalone, who worked in the Edenwald Houses, said the emotional rush of such situations introduces more potential for error. “If you are in a situation where people are thinking your life’s in danger, your accuracy gets even worse,” he said. “Was it a good decision? Maybe not. But, that still doesn’t make it justified or unjustified.”

Seven months passed before the FID interviewed the five officers who fired their guns that night. But investigators raised few questions about the “friendly fire” part of the incident, according to the division’s full report, which included audio interviews with the officers — even when two of the shooters misrepresented how far away they were from the scuffle.

Mahon, for example, estimated that he observed Williams and the muzzle flash from 25 to 30 feet away, though he added that he was “not exactly sure” of his position. Body-camera evidence and crime scene measurements showed he was much farther than that. In fact, Mahon was more than twice that distance — about 70 feet away — when he fired, according to the Bronx District Attorney’s Office, which also looked into the incident. The office cited measurements taken by the NYPD Crime Scene Unit, in coordination with the FID. Figueroa, who was standing next to Mahon, also told investigators he was about 20 feet away, though he was “not sure.” Despite having the correct information, the FID detectives did not follow up.

That kind of deference is notable, given that making false, misleading or inaccurate statements is punishable under the NYPD’s disciplinary system, depending on the circumstances.

Investigators did ask the three officers who fired from the sidewalk whether they could tell who was shooting in the scuffle, Mulkeen or Williams. But when each said they could not make that distinction, detectives did not press any further.

Investigators also failed to question officers about other key details captured on their body-worn cameras. Most notably, the FID did not ask Wichers and Beddows — the two officers closest to Mulkeen and the struggle — about the “stop shooting” commands they shouted just after their colleagues fired from the sidewalk. For their part, neither officer mentioned the exchange, which would have underscored just how much the shooters had endangered everyone on the scene, including police.

Beddows told investigators that after he fired at Williams he “gave all his attention to Police Officer Mulkeen.” Maloney asked Beddows if he made any statements after he heard the gunshots from the officers on the sidewalk. He said no. Investigators did not press him any further.

Wichers also left out the exchange in his telling of the shooting. “After all the gunshots have stopped,” he told investigators, “I immediately go and try to render aid to Mulkeen.” Investigators did not challenge him. Instead, they asked Wichers if Mulkeen or Wiliams were still in possession of their firearms, who recovered the guns from the scene and if Wichers had any prior dealings with Williams.

Omissions of material facts are also punishable under the NYPD’s disciplinary system, but they must be found to be intentional.

A review of the audio interviews shows that the FID spent between seven and nine minutes questioning each of the officers about why they decided to fire their guns. In each interview, investigators spent almost as much time asking about logistical details, such as whether they were carrying a taser, if they were wearing a windbreaker or not and where their badge was positioned on their clothes.

By contrast, the FID spent considerably more time investigating Williams, the other victim in the shooting. Records show the division searched the Bronx apartment of Williams’ godmother, whom he was visiting the night he was killed. Investigators also spoke to his parole officer, the manager of a restaurant he worked at in Binghamton, New York, and his girlfriend, who also lived upstate. Additionally, the investigators probed the alleged gang ties of Williams and the other man standing with him on the sidewalk when they were stopped by the NYPD. The FID’s report included both men’s complete criminal records and a review of Williams’ and his girlfriend’s social media profiles.

Two years after the shooting, the FID presented its report to the NYPD’s Use of Force review board, which makes recommendations on discipline to the police commissioner. The FID said it found no violations of department policy by the officers, and the board agreed. According to the FID file, in January 2022, the commissioner signed off on this recommendation and the officers were cleared of all wrongdoing. Like prior FID reports, it was not released publicly.

The FID, however, was not the only law enforcement entity to review the shooting. The Bronx District Attorney’s Office did its own investigation, drawing heavily from the body-worn camera footage. In all, its report makes 17 references to the videos, compared with just nine mentions in the FID probe. And although the DA’s office said it did not have enough evidence to support criminal charges against the officers who shot Mulkeen, it did find that they had misstated key details in their recollections of the shooting and made some critical mistakes that night.

Notably, the DA’s office said that Mahon “mistook” Mulkeen for the suspect, Williams, when he claimed he saw a person on the ground holding a gun. The DA said “it is doubtful that Officer Mahon actually observed the weapon at that point” because it was underneath Williams, who was lying face down after being shot by Mulkeen.

The DA also challenged the account of Figueroa, who said he believed Williams was attempting to stand up and shoot at Beddows.

“Officer Figueroa was mistaken,” the DA wrote. “At the time of Officer Figueroa’s discharge, Mr. Williams had already been separated from Officer Mulkeen and was on the ground facing away from Officer Figueroa.”

Likewise, the DA concluded Valentino’s recollection that he could “clearly” see Williams at the time he fired was “controverted by the body worn camera evidence.”

“In fact, by the time that Sergeant Valentino began firing, Mr. Williams had already rolled off of Officer Mulkeen, was motionless on the ground, and Officer Mulkeen was no longer in danger,” the report said.

While no charges were filed by the DA and no discipline administered by the NYPD, the matter is not completely closed. Today, the city’s NYPD watchdog, the Civilian Complaint Review Board, is investigating a misconduct claim over the officers’ actions that night inside the Edenwald Houses. The CCRB confirmed the probe is ongoing but declined to make further comment for this story.

Meanwhile, Mulkeen’s father’s lawsuit against the NYPD and the city is on hold, pending the outcome of the CCRB investigation. So is the separate lawsuit by Williams’ family.

In the years since the Mulkeen shooting, the city disbanded the anti-crime unit, which department officials at the time said was a “seismic shift” away from the “brute force” tactics of the past. The officers involved in the case have gone in various directions. In October 2020, Beddows retired after he reached the 20-year mark with the NYPD, according to New York City employment records. Valentino and Wichers were each promoted and reassigned to nonpatrol units.

Mahon and Figueroa are still in the field, reassigned to another specialized NYPD unit. Its task: recovering illegal guns.

Last year, Adams announced that he would reinstate the anti-crime unit his predecessor had disbanded. “In doing this, we will avoid mistakes of the past,” he said. To assure New Yorkers, he noted officers would be identifiable as NYPD, receive enhanced training and be equipped with body cameras.

Video editing by Chris Morran and Kassie Navarro.

by Mike Hayes for ProPublica

127,000 New York Workers Have Been Victims of Wage Theft

1 year 7 months ago

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For Marcelino Zapoteco, the final straw came on a quiet night in 2018 at the restaurant Brioso on Staten Island. He was working alongside one of the managers who had been pulled in by the restaurant’s co-owner Pietro “Peter” DiMaggio to help as a waiter. At one point during the shift, Zapoteco watched the manager slip tip money into his pocket, when he was supposed to pool it to be shared with others.

Zapoteco, an undocumented immigrant from Mexico, said he knew that the restaurant was grossly underpaying him during the more than seven years he worked there. When he served as a runner, bringing food to customers’ tables, he received as little as $10 for lunch and dinner shifts — far below the required minimum wage even when tips were included, he said.

But that night, when he saw the manager pocketing the tip, Zapoteco had enough. A few days later, he and his co-workers went to DiMaggio and complained — but to no avail. “If you guys don’t like me or don’t like Brioso, the door is over there,” DiMaggio told them, according to a state investigator’s report, which included a transcript of a recording of that conversation.

Zapoteco quit and made his way to the offices of the New York State Department of Labor in Manhattan the next day, telling an investigator about what happened.

“I explained to her everything that was going on. She said: ‘Don’t worry. We’re going to investigate,’” Zapoteco said. “‘We’re going to help you.’”

Every year in New York state, thousands of workers face predicaments similar to that of Zapoteco and his former Brioso co-workers. From 2017 through 2021, federal and state investigators found more than 13,000 cases of wage theft, according to an analysis of two databases obtained from the U.S. and New York Labor departments. The databases provide previously unreported details on how much money has been stolen from workers and also shed light on which businesses have committed wage theft.

In all, federal and state investigators determined during the five-year period that more than $203 million in wages had been stolen from about 127,000 workers in New York, the analysis shows.

The amount of wage theft is almost certainly a significant undercount, according to the U.S. Department of Labor. In 2014, for instance, the agency analyzed census and employment data to compare the reported wages of New York workers against what they should make under local minimum wage, and it estimated that state employers steal up to $1 billion from their workers every year.

Federal and state investigators determined that more than $52 million had been stolen from people working in restaurants, more than in any other industry in New York, accounting for more than 25% of all reported wage theft, the analysis shows.

Wage theft was also a problem in the health care industry ($28.4 million); construction ($27.6 million); janitorial services and retail stores ($5.9 million each); and supermarkets and convenience stores ($5.8 million).

State-to-state comparisons of wage theft are difficult because of how data is collected locally. But an analysis of cases reported to the U.S. Department of Labor and substantiated by federal investigators shows that New York ranked eighth highest in the amount of back wages owed per worker.

Advocates say that the federal and state agencies are failing to stamp out wage theft, and that they have little faith in the agencies’ ability to protect workers’ livelihoods.

“Wage theft is not taken seriously as a crime by this system, by the New York state law enforcement groups or the elected leaders of our state,” said JoAnn Lum, executive director of the National Mobilization Against Sweatshops, a New York-based workers’ rights organization. “How are working people who are working so hard expected to survive if it’s OK to have their wages stolen?”

Hildalyn Colón Hernández, deputy director of New Immigrant Community Empowerment, a New York-based worker advocacy organization, said, “Employers are operating with no consequences.” One of the reasons, she said, is that the federal and state agencies haven’t fully adapted to the changing business landscape — with technology and the so-called gig economy complicating the employer-employee relationship — that makes wage theft even harder to address.

Colón Hernández added that her organization now trains its employees on how to investigate wage theft because it would take too long if they had to rely on federal or state investigators to recover back wages.

The U.S. Department of Labor did not respond to requests for comment.

Aaron Cagwin, spokesperson for the state Department of Labor, highlighted his agency’s work with the Wage Theft Task Force, a collaboration with the state attorney general’s office and other law enforcement agencies that began in 2015. Last year, Gov. Kathy Hochul announced that the task force had secured felony convictions of nine employers for a variety of charges, from defrauding the New York State Insurance Fund to falsifying business records and failing to pay wages.

Cagwin said his agency uses “every resource available to protect New Yorkers, ensure workers are paid what they’re owed and hold bad actors accountable.”

Frank A. Oswald, a lawyer for the owners of Brioso, said his clients disputed the wage theft allegations made by Zapoteco and other former workers. He noted that the owners eventually agreed to settle the civil lawsuit that the former workers filed against them, and that was because of the Chapter 11 bankruptcy that the restaurant filed “due to the exorbitant costs of the wage litigation in the District Court that threatened to put the restaurant out of business.”

In 2018, a lawyer representing the Brioso owners at the time also wrote to a state investigator claiming that Zapoteco quit his job not because of wage theft but because of a disagreement over payment method. Zapoteco, the lawyer wrote, insisted on being paid in cash, instead of through an automatic payroll system. Zapoteco denied the allegation.

Zapoteco moved to New York City from the Mexican state of Guerrero in 2009 in search of work and education opportunities. A year later, he began working at Brioso after a cousin who had been living in the city told him about the job. Zapoteco became a busser, taking dirty plates to the kitchen. He was soon promoted to runner after a worker in that role quit.

Throughout his time at the restaurant, Zapoteco said, he experienced wage theft. Carlos Ortiz, a state investigator assigned to the case, detailed in reports obtained by Documented and ProPublica a number of ways DiMaggio stole money from his workers: DiMaggio deducted 5% of their tips “supposedly to pay for the computer system” and sometimes took more in certain circumstances, such as when customers complained about their food — a form of wage theft under New York law. Ortiz also found that DiMaggio made some workers buy uniforms and pay for broken plates — another form of wage theft.

Labor experts say wage theft is prevalent in the restaurant industry because its workforce is heavily made up of undocumented immigrants, who are less willing to speak up because of their status.

More than 60% of restaurant workers living in New York City are immigrants, according to a 2020 study by the New York state comptroller’s office. Of the 317,800 workers in the industry, 44% were Hispanic and 20% were Asian, the study found.

At Brioso, Ortiz found that the workers’ immigration status left them exposed. When one employee complained about stolen tips, for instance, DiMaggio responded by threatening to report the employee to the immigration authorities, slamming tables and then firing him.

“Mr. DiMaggio would make statements to the Hispanic employees, such as, ‘I’ll personally make sure that you all get sent back to Mexico,’ or, ‘Thank god that Trump is doing everything possible to get you guys the fuck out of here,’” Ortiz wrote.

In New York, the state’s minimum wage rules can also work against restaurant employees. The normal rate is $14.20 to $15 an hour, but it’s $9.45 to $10 for food service workers — with a requirement for their employers to make up the rest if tips don’t cover the difference. This creates a complex system that makes it easy to exploit workers, said Teofilo Reyes, chief program officer for Restaurant Opportunity Center United, a national organization advocating for better pay and working conditions for restaurant workers.

Elizabeth Joynes Jordan, co-legal director at Make the Road New York, an immigrant-rights organization, said wage theft is essentially “the business model” for restaurants.

Some places are exploring banning the two-tiered minimum wage system entirely. Washington, D.C., for instance, voted in November to phase out the system by 2027. But no similar measures have been adopted in New York.

Like restaurant employees, experts say, construction workers in New York often experience wage theft, given that the industry also employs a high number of undocumented immigrants.

About 1,600 construction companies — including ones that specialize in carpentry, electrical work and iron work, as well as general contractors — were found to have stolen wages from more than 7,700 New York workers from 2017 through 2021, the analysis shows.

Health care workers, including nurses and employees at hospitals and nursing homes, faced about as much wage theft as construction workers, the analysis shows.

Lum of National Mobilization Against Sweatshops said the unique working conditions of many health care workers make them vulnerable to wage theft. For instance, home health care aides, who had the highest amount of wage theft found by federal and state investigators among all professions in the industry, often have to work 24-hour shifts but are not paid for breaks built into the schedule for eating and sleeping. Lum said this payment structure rarely reflects the reality that patients need care at odd hours of the night, meaning workers are on call continuously.

“When they try to report that they don’t sleep, then they’re ignored and retaliated against, or even punished,” Lum said.

Some members of the National Mobilization Against Sweatshops were involved in arbitration claims filed in 2019 against 42 home health care companies alleging that they underpaid more than 100,000 workers in New York. In February, an arbitrator awarded a $30 million fund, paid for by the companies, to compensate the workers.

Some workers are unhappy with this outcome and say they are owed as much as $6 billion. Lum said the arbitrator’s ruling amounts to a slap on the wrist for the companies. “It sends a message to the employers that you can continue doing what you’re doing,” she said.

In September 2018, seven months after Zapoteco quit his job and went to the New York State Department of Labor, the agency’s investigators visited the restaurant and interviewed several workers. Several months later, as the investigation continued, a Brioso employee called Ortiz, complaining that he and his co-workers had been subjected to retaliatory actions by DiMaggio.

The employee “alleges that Mr. DiMaggio has always yelled at and intimidated the employees, but has become more aggressive since the Department’s visit,” Ortiz later wrote in his report.

The agency eventually reached out to Make the Road New York to see if it could help protect the workers.

Joynes Jordan said Make the Road took on the case after learning that it was “one of the worst cases in terms of conditions that we’ve seen.”

Cagwin, the Labor Department spokesperson, said his agency was able to build “a thorough case” in October 2019 and turned it over to the Richmond County District Attorney’s Office, which handles cases on Staten Island.

Criminal convictions for wage theft are rare, but the district attorney’s office initially expressed interest in pursuing the case, Joynes Jordan said.

The district attorney’s office interviewed several Brioso workers, and in March 2020 a waiter was scheduled to appear before a judge in order to get a search warrant for the restaurant’s computers. But then COVID-19 hit, and his testimony was canceled.

When Make the Road lawyers followed up three months later, the district attorney’s office told them that it needed more information. “We were informed the information they had gotten from our clients was stale at that point,” Joynes Jordan said.

James Clinton, a community liaison for the district attorney’s office, declined to comment.

Meanwhile, concurrently with the criminal investigation by the district attorney’s office, the Department of Labor investigators were still working to recover back wages from Brioso. But Zapoteco and his former co-workers had heard nothing from them. With the case dragging on, Make the Road lawyers and a pro bono partner asked the agency to close the case so that the findings from its investigation could be shared with them and used in a federal civil lawsuit they were planning to file on behalf of the workers. They filed the lawsuit in December 2020, demanding more than $12 million.

During the lawsuit’s discovery process, lawyers found that Brioso had two previous wage theft claims against it: one from a decade earlier in which the agency ordered Brioso to pay a worker more than $12,000, and another from 2017 that it settled for $75,000.

In November, the owners of Brioso agreed to settle the lawsuit with Zapoteco and 11 others for $700,000, with roughly a third of it covering the lawyers’ fees.

In May, roughly five years after he went to the New York State Department of Labor, Zapoteco received his payment from Brioso. But he said he was frustrated with the experience of working with the agency, saying it “doesn’t work well because it took so long — we were waiting forever.”

Zapoteco said neither the agency nor the district attorney’s office was able to hold DiMaggio accountable for what he did. “I wanted him to fix the way he was doing things,” he said.

About the Data

To examine the prevalence of wage theft in New York state, Documented and ProPublica analyzed federal and state databases of labor violations obtained from the U.S. and New York Labor departments.

Documented filed a public records request for the state database in 2019. When the New York State Department of Labor refused to release it, Documented took the agency to court. The agency has since released to Documented and ProPublica its internal database containing information on nearly 97,000 cases that began and concluded from 2005 to Feb. 21, 2023. But the database only provides the dates of when cases began, so we focused our analysis on cases from 2017 to 2021.

For the federal database, we couldn’t use exactly the same time frame because it does not contain information about when cases were opened and closed. Instead, it provides a date when the findings in the case occurred. To try and match up the periods analyzed for both federal and state databases, we focused on the 4,900 cases with dates of findings from 2017 to 2021.

Both federal and state databases provide a number of details on each case, including the names and addresses of businesses that committed the violation, the number of workers who were affected and cited labor law violations.

For the state comparisons, we used the federal database to tally the amount of back wages owed in each state and then adjusted them using labor force size data from the U.S. Bureau of Labor Statistics.

For the industry comparisons, we manually reviewed the industry codes included in both databases and grouped them into larger categories, such as restaurants, construction and health care.

by Max Siegelbaum, Documented, with data analysis by Agnel Philip, ProPublica, and Lam Thuy Vo, special to ProPublica

New York Workers Are Waiting on $79 Million in Back Wages

1 year 8 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with Documented. Sign up for Dispatches to get stories like this one as soon as they are published.

Saprina James was hopeful when she received a letter in 2019 about her wage theft claim against her former employer. The letter said the New York State Department of Labor had substantiated her claim and ordered Mugisha F. Sahini and his company, Riverside Line, to pay her more than $70,000 in back wages. “I was feeling good that the government was on my side, and that I would soon get paid,” she said.

James first started driving a van for Sahini in January 2016, taking people to medical appointments in Buffalo, New York. She often worked six days a week, usually helping dialysis patients who relied on walkers, and drove clients from 4:30 a.m. until 10 p.m. She didn’t mind the long hours — she assumed that her pay would ultimately reflect her hard work.

But James had to lease a Toyota minivan for $700 a week as part of the job. On most weeks, after paying her leasing fee, she was left with less than minimum wage.

“It was very hard for me,” said James, who had a difficult time paying her rent and groceries, as well as taxes owed on her income as an independent contractor.

In late 2017, James quit and filed a wage theft claim with the Department of Labor, accusing Sahini and Riverside Line of violating the minimum wage law. She was later joined by her former co-workers, who also claimed minimum wage violations.

The agency substantiated the workers’ claims two years later, ordering Sahini to pay nearly $425,000 in back wages and $850,000 in penalties.

But the Department of Labor, which is responsible for both investigating wage theft claims and recovering back wages, has not been able to collect even a penny on behalf of James. Sahini flatly refused to pay for more than a year, James said, and then appealed the case, claiming that he wasn’t aware that the workers were earning less than minimum wage. The appeal has since been rejected, but James has yet to receive any payment.

About to turn 60, James said she’s now unemployed and running through her savings to pay her bills. “I’m so upset,” she said. “This is ridiculous. I don’t understand why it takes so long.”

Sahini did not respond to repeated requests for comment.

What happened to James is strikingly common among victims of wage theft in New York state, an investigation by Documented and ProPublica found. She and her former co-workers are among thousands of wage theft victims whose employers were ordered by the Department of Labor to pay, but for whom the agency failed to fully recover back wages, according to an analysis of the agency’s database of wage theft violations from 2017 through 2021.

In all, during the five-year period, the agency determined that at least $126 million in wages had been stolen from workers, the analysis shows. As of Feb. 21, however, the agency still needed to recover about $79 million of that total — or about 63% of the back wages.

Of the outstanding back wages, the agency hadn’t recovered at least $7.8 million because of “uncollectible” circumstances, such as businesses going bankrupt or investigators being unable to track down employers, the analysis shows.

The rest, about $71 million, was labeled by the agency as “pending payment,” which means either that no payments or only partial payments had been made, or that the cases were being appealed.

Of the thousands of businesses in the database, at least 95 with outstanding back wages were repeat offenders, each failing to fully pay in at least two cases during the five-year period, the analysis shows.

A case in point: The agency began investigating Brooklyn-based Reymond Construction in 2018 and opened three additional cases in 2019 based on claims filed by 12 workers. It eventually ordered the company to pay more than $31,950 in back wages, but as of Feb. 21 the payments were still pending. The owner of Reymond Construction did not respond to repeated requests for comment.

Labor experts said it’s hard to compare New York’s wage recovery effort against those of other states because of the paucity of wage theft data. State labor enforcement agencies across the country either do not make such information publicly available or do not maintain it in a standardized format that allows for state-by-state comparisons.

National Mobilization Against Sweatshops, a worker-rights organization, is so frustrated with the Department of Labor’s wage recovery rate that it has mostly stopped sending workers to the agency. “It’s a waste of time,” said JoAnn Lum, the group’s director. “I’ve seen so many workers file claims, and they’re told that they’re owed so much in back wages — and then nothing happens.”

Advocates and labor lawyers, as well as eight former Department of Labor officials interviewed by Documented and ProPublica, said it’s critical for the agency to improve its wage recovery rate. But they said the agency has a number of problems that prevent that from happening: Its enforcement unit is chronically understaffed; it lacks a collections unit tasked with wage recovery; and its investigators, unlike their counterparts in other states, do not have legal authority to take actions against recalcitrant employers.

The former agency officials, some of whom had spent decades working at the Department of Labor, said these challenges often leave investigators incapable of enforcing the law against unscrupulous employers. One official — who still works in state government and did not want his name used out of fear of retaliation — put it this way: “If an employer said, ‘Fuck you,’” in response to a payment demand, “there’s not much the agency can do.”

The Department of Labor, which released wage theft data after Documented sued the agency over its refusal to do so, “works diligently to protect the paychecks of hard-working New Yorkers,” Aaron Cagwin, an agency spokesperson, said in a statement.

Cagwin said the agency is also “consistently making improvements to its wage theft investigations and wage recovery processes,” including improving how wage theft claims can be filed and expanding law enforcement partnerships.

Advocates said workers are the ones who suffer the consequences of the agency’s poor wage recovery rate: They are often forced to move on to other jobs, rely on their family for support, go on public assistance, or relocate to another state or, in the case of immigrants, back to their country of origin.

“Wage theft impacts the lowest-wage workers who need that money to pay the rent, buy groceries, take care of their families,” said Magdalena Barbosa, senior vice president at Catholic Migration Services. She noted that New York has strong labor laws that don’t “trickle down into enforcement — and you have workers waiting sometimes for many years to get a small piece of what they’re owed in back wages.”

Vincent Cao, an organizer with the Chinese Staff & Workers Association, said “it’s the cruelest slap in the face to award them back wages that take so long to arrive.”

On a bitterly cold morning in December, a former senior investigator with the Department of Labor was sitting in a coffee shop in Brooklyn, reflecting on his years at the agency. Bald and bespectacled, he raised his eyebrows and described a Sisyphean environment in which overworked investigators faced scarce resources, bureaucratic obstacles and unscrupulous employers and their lawyers while trying in vain to reduce a backlog of thousands of wage theft cases. “It feels hopeless sometimes,” he said, “but more than hopeless — it makes me angry.”

The former investigator’s assessment was echoed by the seven other agency officials interviewed by Documented and ProPublica. They all expressed their frustration with the agency’s chronic failure to fulfill one of its core mandates: to protect the state’s 10 million workers from wage theft.

The former investigator, who still works in state government and did not want his name used out of fear of retaliation, blamed New York’s political leaders for not prioritizing the agency’s mission and perpetually underfunding it.

Budget figures for the agency’s enforcement arm, the Division of Labor Standards — which the former investigator joined more than a decade ago — are available from 2008 to 2022, and they show that its budget went up by 17.8% from $28 million to $33 million during that period. Just to keep up with the inflation rate, the budget would have had to increase by an additional $5 million.

Some state lawmakers said the agency’s woes were particularly pronounced during the tenure of former Gov. Andrew Cuomo, who ran New York from 2011 to 2021. On the one hand, Cuomo launched two joint task forces made up of multiple agencies to crack down on industries, such as car washes and construction, where wage theft is prevalent. But he also instituted a spending cap that kept most state agencies from increasing their budget by more than 2% each year.

With the tight budget, the Division of Labor Standards reduced the number of employees from 282 in 2008 to 140 in 2017, while the number of open investigations climbed from 6,923 in January 2008 to 15,824 in January 2017, according to agency documents obtained by Make the Road New York, an immigrant-rights organization, and shared with Documented and ProPublica. The vast majority of the division’s employees are investigators, while administrative and support staff make up the rest.

Carmine Ruberto, who ran the Division of Labor Standards from 2007 to 2015, recalled the impact of the tight budget on staff morale and workload. “Do I think we could have done better under Cuomo if we had gotten more people? Sure,” he said.

Richard Azzopardi, a spokesperson for the former governor, said wage theft was “a huge priority” for Cuomo, but his administration’s hands were tied with limited resources.

“In 10 of the 11 years during his administration, we had structural deficits and we came in at the heels of the Great Recession where giant cuts had already been made. And we had to restructure government in order to make things right,” Azzopardi said. “I do understand that some people have different opinions on what the money should have been spent on. But it’s a balance.”

Under Gov. Kathy Hochul, the Division of Labor Standards saw its budget increase by $7 million, or 19.5%, in 2023, but the number of full-time employees now stands at 129 and has increased only by three since the governor took office in 2021.

Justin Henry, deputy communications director for Hochul, declined to comment.

The former investigator said the tight budget also meant that the agency couldn’t form a collections unit fully staffed with those versed in financial fraud investigation, asset tracking and locating employers, which could then be deployed for wage recovery — a task that Terri Gerstein, the agency’s former deputy commissioner, called “a crucial part of the process.”

Instead, the agency has been relying on senior investigators to handle the task, which adds to their workload and sometimes requires them to do tasks they’re not trained for, such as overseeing the payment plans of some employers, several former agency officials said.

The agency needs “a proper collections unit,” Gerstein said.

In addition to the lack of the collections unit, the former agency officials said the process is slowed down because each case has to be reviewed by several layers of officials.

For instance, once a claim is substantiated, the case goes to a senior investigator, who can sometimes take up to a year and a half to review it. Similarly, when an employer is unresponsive, the Division of Labor Standards issues an order to comply, but only after getting approvals from three more layers of officials.

The former investigator said the bureaucratic bottleneck helped create long delays in recovering back wages. “It’s not like we push a button and increase the speed of the machine and then the cases come out at the other end,” he said.

The analysis of the agency’s database appears to back up the former investigator’s claim. As of Feb. 21, the agency had recovered no wages in 8,300 cases — affecting about 29,000 workers — that were at least five years old, or more than a fifth of the total cases from that time period.

Two of the long-pending cases were filed by Fernando, a 49-year-old Mexican immigrant who worked as a delivery driver for two Brooklyn restaurants. He filed his claim against the first restaurant in 2009 and another claim with his co-worker against the second restaurant in 2015.

The agency substantiated the claims, finding that two restaurants owed Fernando and his co-worker a total of more than $380,000 in back wages. Fernando, who requested to be identified by only his middle name because he’s undocumented, said he has not received his back wages. “The most important thing is the DOL could resolve these cases quicker,” he said.

The former agency officials said that when investigators try to go after employers for back wages, they find themselves without effective enforcement tools to force quick payments.

The orders to comply, for instance, can be appealed at the state’s Industrial Board of Appeals, a five-person panel that can take months, or even years, to adjudicate a case. In the vast majority of the cases, the board eventually sides with the agency. But even then, former agency officials said, employers often continue to ignore the orders, knowing that they are unlikely to face any consequences from doing so.

The former agency officials also said filing judgments in court against particularly recalcitrant employers often fails to force quick payments: While it puts a mark on their credit report, employers can and do get around the judgment by conducting their businesses in someone else’s name or getting a private loan from their family and friends.

Advocates and labor lawyers agreed that this was common practice. “Just because you get a judgment doesn’t mean you can collect on it,” said Margaret McIntyre, a lawyer who represents wage theft victims.

Advocates and labor lawyers said New York could adopt a number of tactics that have been successfully deployed in other states.

In Maryland and Wisconsin, for instance, workers are allowed to place a lien on their employers’ personal property to secure the payment of back wages. This has proven to be effective, according to a 2015 report by the Legal Aid Society, Urban Justice Center and the National Center for Law and Economic Justice. “A wage lien not only encourages an employer to dispute the matter and play fair in court, but ensures that if the workers win their case, they may actually be able to enforce a judgment against the employers’ property and collect the wages they are owed,” the report said.

New York, in fact, has had a lien law for decades, but it only applies to certain workers in the construction industry. Industry pressure, especially from the powerful New York City Hospitality Alliance, which represents restaurant owners, has helped defeat legislation introduced in recent years to expand the law’s scope.

In June, after the latest lien bill stumbled in Albany, the Hospitality Alliance issued a statement, saying it would have been a violation of due process to allow an employee to place a lien on “the private property of the owners, investors and even managers of the business based solely on the accusation of wage violations.”

In California, businesses appealing the finding of wage theft violations are required to post a surety bond up to $150,000, which they forfeit if they fail to pay back wages after losing on appeal. Those who fail to post the bond can be and are prohibited from doing business in the state.

In New York, the state has a similar bonding rule, which was implemented in the wake of a 2015 New York Times exposé on working conditions in nail salons, but it only applies to owners of nail salons with at least two workers. New York City also has a limited bonding rule that applies to owners of car wash businesses. Advocates for nail salon and car wash workers said they didn’t have enough data to know whether the bonding rules have significantly helped reduce wage theft.

Some states and local communities have also used the licensing and contracting processes to their advantage.

In 2015, for instance, Cook County in Illinois took aim at violators of state and federal wage laws, disqualifying them from lucrative county contracts. In 2019, Santa Clara County in California also launched a pilot project that would suspend the licenses of any business for five days if it fails to pay back wages. Before the year’s end, the county suspended eight licenses, mostly from restaurants, and each led to the payment, according to the county’s Office of Labor Standards Enforcement. “Being closed for five days is really bad for a restaurant’s business, so they seek to avoid that,” Gerstein said.

Adopting these approaches “wouldn’t make wage theft disappear in New York, but it would make a difference,” said Rick Blum, staff lawyer at the Legal Aid Society.

Some workers have already lost faith in the Department of Labor — and this includes a young woman named Kirsten, who filed a wage theft claim with the agency in August 2020 against a downtown Manhattan bar that had repeatedly failed to pay her. Kirsten, who requested to be identified by only her middle name to protect her future employment prospects, said she submitted documents and pay stubs. She didn’t hear back for more than a year and a half, until a phone call and letter from an investigator in the spring of 2022 asking her for more information about the case.

To this day, Kirsten said she has not received her back wages and has given up altogether. The agency “has been useless to me,” she said. “It just feels hopeless, like workers are all alone.”

About the Data

Determining the prevalence of wage theft in New York is more complicated than in some other states, including California, Massachusetts and Texas, because its Department of Labor does not make the results of investigations readily available to the public.

Documented filed a public records request for that information in 2019. When the department refused to release it, Documented took the agency to court. The agency has since released to Documented and ProPublica its database containing information on nearly 97,000 cases that began and concluded from 2005 to Feb. 21, 2023. Department of Labor officials told us that they began using this database fully in 2008, so we only analyzed cases from that year onward.

The database provides a number of details on each case, including the names and addresses of businesses that committed the violation, the number of workers who were affected and cited labor law violations.

But the database only provides the dates of when cases began, so we focused most of our analysis on cases from 2017 to 2021.

To determine how many businesses had multiple wage theft cases and still owed back wages, we manually standardized business names and addresses and counted instances in which a company still owed back wages in at least two cases.

To determine the percentage of back wages recovered, we tallied the amount of collected back wages and divided it by the amount of outstanding back wages in all cases contained in the database. Our metric may overestimate the percentage of back wages recovered. In some cases, the recovered amount recorded in the database might also include “liquidated damages,” which are payments for the harm caused by the wage theft and interest. The database does not differentiate between these different types of collected funds. In cases where the recovered amount was greater than the outstanding back wages, we adjusted the recovered amount to equal the outstanding back wages.

The analysis does not take into account the cases reported to the U.S. Department of Labor, which also investigates wage theft in New York but does not make public any database showing how much back wages have been recovered by the agency.

by Marcus Baram, Documented, with data analysis by Agnel Philip, ProPublica, and Lam Thuy Vo, special to ProPublica

He Needed a Liver Transplant. But Did the Risks Outweigh the Reward?

1 year 8 months ago

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By the time 25-year-old Tyler Waite arrived at Methodist University Hospital in Memphis, Tennessee, in May 2020, his skin had turned a sickly shade of yellow. At 6-foot-3, pushing 330 pounds, his appearance was misshapen by a stomach distended with fluid. His liver had failed so much that, unless he got a new one, he likely wouldn’t live to see summer’s end.

A diehard Pittsburgh Steelers fan who loved fishing, Waite worked at a software company and lived at his parents’ home in the north Atlanta suburbs, saving for a place with his fiancee and working on getting his life back on track. Over the past few years, ever since his young daughter had moved away from Georgia with her mom, Waite had struggled. Many nights, he coped by drinking large amounts of vodka in the quiet of his family’s house.

Two weeks before he arrived in Memphis, a doctor at Piedmont Atlanta Hospital had discovered that Waite’s chronic drinking had gravely damaged his liver. Piedmont’s transplant center considered Waite’s case risky due to his obesity and the briefness of his sobriety. But there was a silver lining: The scarring from alcoholic cirrhosis was so advanced and the liver’s failure so swift that the transplant center’s staff determined he would land near the top of the waiting list for a donated organ.

But just before getting placed on the list, Waite abruptly left Piedmont against the advice of the staff. At home, his mother saw the fear in his eyes. Waite, who’d been cut off from his family because hospital visits were restricted at that point in the pandemic, had made what she thought was a shortsighted but forgivable decision. Marci Waite knew that her son couldn’t remain confined in the comfort of home if he wanted to survive. Once she talked him through that, and after he got to see his daughter once more before she flew back to Texas, he became less anxious. He returned to the hospital the next day.

Unfortunately, his departure added another red flag because it disrupted the dialysis treatment that his kidneys, which were also failing, had badly needed. Some of Piedmont’s staffers saw Waite’s departure as a sign that he wouldn’t take appropriate care of a donated liver, one of the transplant center’s leaders later told his mother. Ultimately, Piedmont refused to add him to the list. (A Piedmont spokesperson did not answer questions about Waite’s case.)

One of Piedmont’s doctors, unwilling to give up on Waite, sent his records to hospitals around the South. Emory University Hospital in Atlanta declined his case. UAB Hospital in Birmingham, Alabama, passed, too. So did UT Southwestern Medical Center in Dallas. Then someone from Methodist reached out. Its staff was willing to consider Waite.

Wow, his mother thought. We’re in luck.

Waite’s parents, Marci and John, at their home in Georgia (Lucy Garrett for ProPublica)

The James D. Eason Transplant Institute took pride in replacing the livers of higher-risk patients turned away by other hospitals, according to its former leader. But at the center of this philosophy is a series of difficult decisions: A transplant center willing to consider extremely ill patients like Waite must determine whether that candidate is healthy enough to survive after surgery — and, given America’s shortage of donated livers, whether someone with a better shot of living longer should get that organ instead.

As Methodist embraced that philosophy, it was also under scrutiny for its high rate of failed liver transplants. Between 2014 and 2018, the liver transplant program had twice been investigated by an oversight committee for the United Network for Organ Sharing, the federal contractor that runs the country’s transplant system, as revealed by ProPublica and MLK50: Justice Through Journalism in a recent story. (UNOS would not comment on the outcome of the investigations; a Methodist spokesperson previously told ProPublica and MLK50 that the liver program is no longer under investigation as of last year.)

Waite’s case illustrates both the promise and peril of Methodist’s approach. On the one hand, no one disagrees that without a transplant, Waite would have died imminently. On the other, six transplant experts told ProPublica and MLK50 that failure to heed the warnings of a patient’s psychosocial risks, such as addiction, can lead to greater suffering. “It’s dangerous, clearly, to overlook psychosocial issues,” said Jody Jones, a transplant psychologist for more than two decades.

A 2018 audit of Methodist’s liver transplant program by an external firm found that “a blatant lack of merit” was given to psychosocial issues by the hospital’s transplant selection committee. As a result, the audit found, the program “routinely transplanted patients with significant psychosocial risk,” including people who had a documented history of psychosis or alcohol recidivism. After the audit, a senior leader of the transplant center determined in an internal analysis that psychosocial risks contributed to the deaths of five liver recipients between 2014 and 2018. ProPublica and MLK50 obtained a copy of the analysis, which states that Methodist “should not have listed” those five patients for transplant. Those five deaths are among 25 that the analysis described as “preventable” in that time period.

Dr. James Eason, for whom the transplant center was named and who oversaw it starting in 2006, parted ways with Methodist last year. Both Eason and a spokesperson for the hospital did not respond to interview requests for this story. The spokesperson said in a statement that “our focus remains on providing the highest quality care to all our patients and this community and we will not deviate from this purpose.” Eason and Methodist also declined to answer written questions about Waite’s care, even though his mother waived her right to privacy so that Eason and the hospital could talk about Waite’s treatment.

Dr. James Eason at the transplant center renaming ceremony at Methodist University Hospital in 2019 (Via Methodist Le Bonheur Healthcare’s Facebook)

In a previous statement to ProPublica and MLK50, Eason said that his program had excelled at lowering the extent to which patients died on the waitlist. He also noted that, while Methodist experienced a small number of “unexpected deaths per year,” his program had “saved more than 100 lives each year” of patients with failing livers.

“I would never choose to let a single high-risk patient die instead of giving that individual a good chance of living,” Eason said in another previous statement.

Because the investigations, audit and internal analysis were not public, Marci Waite did not know about Methodist’s history of failed liver transplants when her son arrived there. Instead, when she read about Eason’s liver transplant program, she felt that her son had finally caught a break. After all, Eason was the surgeon who had replaced the liver of Apple co-founder Steve Jobs back in 2009. If the California billionaire had chosen this program, out of any program in America, she figured it was good enough for her son.

But not long after Waite’s transplant in June 2020, his mother’s hopes of a smooth recovery began to fade. A few weeks after the surgery, she learned from a Methodist staffer that a severe infection had spread throughout Waite’s body, overwhelming his organs. The following month, she was told that several of Waite’s ribs had been cracked when a staffer had to perform CPR after his heart stopped beating. The month after that, doctors had to sedate Waite after he experienced brain seizures — and they couldn’t tell her for days whether her son would fully regain his brain function. Ultimately, Waite would undergo 10 unforeseen surgeries in eight months to deal with his post-transplant complications.

Nevertheless, Methodist staffers voiced optimism about Waite’s future. And that, in turn, made his mother feel optimistic. That September, she wrote on Tyler’s GoFundMe page that things “seem to be going in the right direction again, so let’s pray it keeps going that way.”

Tyler Waite and his daughter (Courtesy of Marci Waite)

On any given day in America, more than 10,000 people are waiting for a new liver, and a shortage of them means that some of those people die before an organ becomes available. Hospitals like Methodist are facing an ethical dilemma regarding the sickest of them.

For patients at extreme risk of death because their drinking has compromised their liver, the likelihood of getting a transplant has, over the past two decades, gone from exceedingly rare to entirely possible. Transplant centers that had once required patients to be sober for six months have loosened their policies to allow more of these patients to be eligible for a new liver. But the increased demand for a limited supply of organs means that patients with other kinds of liver failure potentially wait longer for lifesaving care.

“Let’s make no bones about it: This is an extremely controversial topic within each medical center,” said Dr. Shimul Shah, chief of solid organ transplantation with UC Health in Cincinnati.

The experts who conducted the 2018 audit of Eason’s liver transplant program urged Methodist to create a stricter policy that would deem patients with serious psychosocial issues ineligible for transplant. They also recommended that Eason’s team hire an addiction medicine specialist, who could help perform nuanced evaluations of patients and direct them to treatment for their chronic drinking.

Following the audit, Eason and his colleagues provided documents to the UNOS investigative committee that said Methodist would hire a chemical dependency expert and partner with a “specialized” alcohol addiction unit. Eason did not respond to questions about the experts’ findings. Methodist spokesperson Tabrina Davis said in a previous statement that the transplant center had quickly accepted some of the audit’s recommendations and, nearly five years later, is still considering others.

Transplant centers have increasingly devoted more resources to patients facing addiction. According to a recent survey of 100 U.S. liver transplant programs, over 75% of them have a psychologist and addiction medicine specialist, and more than half have their own treatment programs. Transplant experts said these services are intended to help people who recently stopped drinking get healthier before undergoing a transplant. Dr. Michael Lucey, professor of gastroenterology and hepatology at the University of Wisconsin’s medical school, said those resources are an “integral part” of performing more comprehensive psychosocial evaluations.

But when Waite’s ambulance pulled up to Methodist, the week after Memorial Day, the transplant center had yet to fully implement the changes it had pledged to the UNOS oversight committee more than a year earlier, according to employees who worked at the hospital at the time.

The week after Waite was admitted, members of Methodist’s transplant selection committee met to determine whether he was healthy enough to undergo surgery. They were supposed to decline any patient if they could find one issue that could severely threaten the patient’s survival, such as having high pulmonary arterial pressure or having uncontrolled sepsis, according to the committee’s policy. They also were supposed to reject a patient if that person had three health issues that together posed a serious threat.

Davis, the Methodist spokesperson, said in a previous statement that the transplant center has a “rigorous selection criteria” to decide which referred patients should be made eligible for a transplant. She added that the hospital “declines a significant number of individuals who are sick enough to be transplanted but do not meet the criteria to indicate they would have successful outcomes post-transplant.”

Waite’s medical records show that the committee marked the briefness of his sobriety as one red flag. During his evaluation days earlier, Waite told a Methodist staffer that he had never sought treatment for his alcohol use or attended an Alcoholics Anonymous meeting. His doctors wrote that Waite’s brief period of sobriety “seems entirely due to time spent hospitalized.” While doctors labeled Waite a “high-risk candidate for transplant,” one noted that “given his young age I would like to give him a chance.”

His body mass index was also high enough on his patient evaluation to be counted as a second red flag. Despite that, however, the committee members determined that it wasn’t a concern, records show.

Beyond that, there was a potential third red flag: Waite’s risk of not following instructions from his medical providers. Following such instructions is important because, as Michigan Medicine transplant psychiatrist Dr. G. Scott Winder explains, “so much of a transplant consultation is predicated on trusting the patient.”

“If you really want to spook a transplant team, check yourself out of the hospital against medical advice,” Winder said.

During Waite’s evaluation at Methodist, his social worker had written that his departure from Piedmont was an “isolated event” that should not influence his candidacy for transplant. But shortly after Waite was admitted to Methodist, he had discontinued a round of dialysis against the advice of medical staff. (Marci Waite said that her son was scared of dialysis because he had a painful experience with the treatment at Piedmont.) Even with the additional example of Waite not following the staff’s instructions, the selection committee found that he wasn’t likely to disobey instructions again.

After the meeting ended, Methodist shared the news that Waite and his family had been waiting for. The committee had cleared him for a transplant.

John Waite at home (Lucy Garrett for ProPublica)

The reason that Methodist had considered Waite at all was due to a seismic shift disrupting the field of liver transplantation. For several decades, starting in the 1980s, the industry standard was that patients should be six months sober to be approved for a transplant. When Mickey Mantle’s liver failed in 1995, he was approved for a transplant in Texas only after he had achieved more than six months of sobriety and signed a contract vowing to not to drink once a new liver was placed inside of him.

Over time, as addiction became viewed as more of a chronic disease than a moral failing, transplant experts began to see the six-month rule as a practice that unfairly denied lifesaving treatment to people who struggled with drinking alcohol. Since patients with extreme liver failure often don’t have six months to live, experts wrote in the journal Alcohol and Alcoholism that the rule could be ​​“tantamount to a death sentence.”

In the late 2000s, as evidence emerged that six months of sobriety was a bad indicator of whether a liver recipient would relapse, European researchers sought to disprove the rule. Medical providers in France and Belgium “carefully selected” patients with acute alcoholic hepatitis and a brief period of sobriety for an “early” liver transplant. The researchers found those patients not only were more likely to survive longer than people who didn’t receive a new liver, but they also were unlikely to relapse after transplant. In 2011, they wrote in The New England Journal of Medicine that the findings challenged “the notion of a prescribed abstinence period as the only alcoholism-related criterion for transplant eligibility.”

Dr. Brian P. Lee, a transplant hepatologist with Keck Medicine of USC, said the study “really paved the way for huge change in U.S. practice.” In the years after the study, the overwhelming majority of transplant centers dropped the six-month rule, leading to a surge in the number of people with alcohol-associated liver failure who were approved for the surgery. Methodist was among the transplant programs that allowed for a shorter period of abstinence, approving patients with brief sobriety for transplant if they had a “low risk for recidivism,” according to a paper in the journal Experimental and Clinical Transplantation written by Eason and his colleagues.

Following this change, the proportion of liver transplant surgeries performed on people at extreme risk of death due to alcohol-associated liver disease nearly tripled in a decade, from 3.3% in 2011 to 9.3% in 2020. Over that same period, Methodist’s proportion of transplants for these kinds of patients increased even more, from 2.2% to 11.8%.

While some transplant experts were encouraged by this trend, others worried that the fault lines were shifting too fast. Programs that embraced liver transplants for gravely ill patients with a brief period of sobriety often ended up with those patients at the top of their waitlists. Because they were sicker than patients at the top of other programs’ waitlists, they were positioned to receive a liver faster than patients at those other programs.

Last year Dr. James Trotter, a hepatologist at Baylor University Medical Center, wrote in the journal Transplantation that the trend had spurred “local competition for patients” with alcohol-associated liver disease. That, in turn, pushed more liver transplant programs to loosen their policies on accepting such patients to avoid losing patient referrals, case volumes and revenues. A spokesperson for Eason previously said in a statement that he did not receive additional compensation for performing more transplants, “nor was any aspect of his compensation based on such a metric.” Methodist did not respond to questions about the program’s finances.

Some transplant experts have pointed out that UNOS has yet to pass national standards to ensure that every liver transplant program adheres to the same practices for considering patients with an alcohol-associated liver disease. In a recent American Journal of Transplantation article, Lee and a colleague called for UNOS to create national standards to reduce “disparities in transplant access and patient outcomes” among different transplant programs. UNOS spokesperson Anne Paschke said in a statement that no standards exist because each “transplant team is responsible” for approving these kinds of patients for transplant.

“It’s a bit of the Wild West, from program to program, because of the different standards,” said Shah of UC Health in Cincinnati. “It’s happened many times that we will turn someone down for a transplant, but we’ll refer them to a program that has more lenient standards — and they will transplant.”

From the moments after Eason replaced Waite’s liver in June of 2020, his mother tracked the ups and downs of his recovery. By the end of the month, Waite was discharged to a rehab facility and had been told to look ahead to a potential kidney transplant if his progress continued. Marci Waite couldn’t visit for weeks due to Methodist’s COVID-19 restrictions, so she offered a pep talk from afar. “You are NO LONGER in a damn hospital 🙏,” she texted him. “That is very exciting…we are all cheering.”

But around the Fourth of July, Waite landed back in the intensive care unit. He had complained to his mother about having severe stomach pains; not only was he vomiting bile, but fluids were building up in his abdomen. Eason’s team performed four surgeries that July to better understand the cause of those problems but struggled to find a clear answer.

“I’m miserable 😖,” Waite texted his mother after the surgeries.

“I wish we could just hit a fast forward button,” she wrote.

“I’m ready to tap out 😢,” he replied.

“Ty…no, you can’t,” she wrote back.

It’s difficult to know the extent to which any of Waite’s risk factors, including his history of drinking alcohol, contributed to his complications. But as the weeks passed, his condition deteriorated so much that one day that fall, Marci Waite and her husband, John, were quietly pulled aside by one of their son’s doctors. Given the optimism that had been conveyed by Methodist staffers so far, the Waites were caught off guard by what this doctor had to say: The transplanted liver that was supposed to be saving their son’s life had already started to fail.

At around that time, Waite’s fiancée, Sarah Benson, was finally allowed to visit Methodist. She was shocked by his condition. His hair was falling out. He had lost some of his teeth. He winced in pain whenever she touched him. “I started to cope with the inevitability that, no matter what happened, my Tyler was gone,” she said. Waite’s parents were also beginning to lose hope. By the end of 2020, Waite had undergone eight surgeries to address varying complications. After a brief upswing around Christmas — during which he was healthy enough to have his feeding tube removed and chomp down on pizza and McGriddles — he developed a severe infection. Eason’s team performed two more surgeries in February 2021, including one to remove a portion of his stomach that had started to decay.

After all those surgeries, neither his liver nor his kidneys were getting better. Unlike before, Waite was too sick to immediately get placed on the waiting list. He needed to get better before he had a shot at another liver.

One day in early March, when Eason stopped by to check on Waite, his mother asked him to be upfront about her son’s prognosis. “If he’s not going to make it, I need to know,” she remembers telling Eason. She said he later confirmed her suspicions. Her son wasn’t going to live much longer. She looked at him, knowing the tough call ahead.

That afternoon, the staff ceased further rounds of dialysis and doses of his blood pressure medication. They unhooked his ventilator. His mother recalled him taking a few last peaceful breaths. He died before dusk.

During the dark months ahead, the Waites sought to preserve their son’s memory the best they could. In their living room, they placed photos of him around an urn full of his ashes. In the front yard, John Waite dug a large hole for a memorial pond. On her right arm, Marci Waite got a tattoo of a hummingbird alongside three words that her son used to sign his holiday cards with: “love you lots.”

Marci Waite memorialized her son with a tattoo on her arm. (Lucy Garrett for ProPublica)

As she mourned, she thought about how her son had suffered in the nine months following his transplant. And for what, exactly? She had desperately wanted more time with him. But not like this.

In the end, she was left wondering whether the other four hospitals had, in fact, made the right call.

“That’s what it boils down to,” she recently said. “Methodist shouldn’t have given Tyler a transplant.”

Tell Us About Your Experience With the Organ Transplant System

Wendi C. Thomas, MLK50: Justice Through Journalism, contributed reporting.

by Max Blau

Parental Alienation: A Disputed Theory With Big Implications

1 year 8 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

ProPublica has been reporting on family courts’ handling of custody disputes that involve allegations of child or domestic abuse. The reporting shows that a disputed psychological theory that’s been rejected by mainstream scientists has widespread influence on outcomes in family court.

What is parental alienation?

Parental alienation is a theory in which one parent is accused of brainwashing a child to turn them against the other parent. It is most frequently diagnosed and cited as evidence in divorce and custody cases, even though most mental health professionals reject it as junk science.

The theory was the brainchild of Dr. Richard Gardner, a New York psychiatrist and psychoanalyst who made a career as a paid expert witness in more than 400 child custody cases, testifying most often on behalf of fathers accused of sexually abusing their children.

Gardner developed the theory of parental alienation syndrome, a condition in which children wrongly believe they are being abused, and recommended courts treat the children by placing them in the custody of the parent accused of abuse. “Severe” cases, he argued, required “threat therapy” to disabuse children of their distorted beliefs.

Few mainstream professional groups have accepted it as a diagnosable condition. But today, programs across the country claim to treat parental alienation using similar techniques, according to a ProPublica investigation. These programs, which can cost $15,000 or more for a four-day intervention, are court-ordered.

Contemporary advocates of the theory vary in their allegiance to Gardner and his version of parental alienation as a syndrome. Some classify it as a “relational disorder” rather than a syndrome. Others continue to defend Gardner’s conceptualization of parental alienation syndrome, despite Gardner coming under fire in the 1990s for arguing that pedophilia has benefits for human survival.

Demosthenes Lorandos, a lawyer and parental alienation scholar who knew Gardner personally, said he has been misrepresented. “The woke types would go completely crazy and say, ‘Oh my God, he’s advocating for pedophiles,’ which is the opposite of what he was doing,” Lorandos told ProPublica. The controversy surrounded “Richard’s desire to stop false sexual abuse cases,” he said.

What do mental health professionals say about parental alienation?

Parental alienation is not accepted as a mental health disorder by psychiatry’s diagnostic bodies. The American Psychiatric Association has repeatedly declined to include parental alienation in the DSM-V, the group’s diagnostic manual. Scholars of parental alienation claim it is a rapidly developing field of scientific inquiry and advocate for its inclusion in the diagnostic manual.

It has also been denounced by the World Health Organization and is shunned by the National Council of Juvenile and Family Court Judges for failing to meet court evidentiary standards. And in May, a special report released by the United Nations’ Human Rights Council blasted parental alienation as a “pseudo-concept” and recommended member states prohibit its use in family courts.

Madelyn Milchman, a licensed psychologist in New Jersey who researches child custody and traumatic memory, said the theory relies heavily on “perceptions of women in Judeo-Christian societies as hysterical, vitriolic and irrational.” (Gardner’s original rendering of the theory portrayed mothers in this way, she said.)

“Once you start on that train ride, and you believe that the mother has programmed the child, it no longer matters what the child says because the child is not credible, and the mother’s not credible,” said Milchman, who holds a doctorate in psychology. This doubt can lead to a “snowball effect” in family courts, fueled by “experts who testify on behalf of the alienation belief system.”

Some defenders of parental alienation have tried to separate the theory from its gender-focused origins. Jennifer Harman, an associate professor of psychology at Colorado State University who serves as an expert witness on parental alienation, argues that doing so overlooks men as victims of domestic violence and abuse.

How is parental alienation used in court?

Parental alienation is diagnosed almost exclusively in family courts — either by privately hired expert witnesses or court-appointed custody evaluators. There, it is used to explain why a minor is claiming that he or she is being abused.

For example, in an ongoing case in Utah, siblings Ty and Brynlee Larson accused their father of sexually abusing them. The father’s attorney argued that the children’s mother was brainwashing them to believe their father had abused them. The abuse had been substantiated by state authorities in 2018. As a result, a court official restricted the father’s visits. Earlier this year, a judge agreed that the mother was alienating the minors and authorized police to place them into the custody of their father. In his order, the judge did not mention the previous findings of abuse against the father. The siblings resisted, barricading themselves in a bedroom in their mother’s home where they used TikTok to call attention to the judge’s orders.

Critics of parental alienation say that its nearly exclusive manifestation in custody litigation — and the fact that it almost exclusively affects children from higher socioeconomic backgrounds — further undermines the argument that it is a legitimate disorder. “True mental health disorders are more equally distributed throughout the population, regardless of socioeconomic status, class or social context,” said Dr. David Corwin, a professor and director of pediatric forensic services at the University of Utah and a past president of the American Professional Society on the Abuse of Children.

Corwin also said that the words “parental alienation” do not need to be used in court to implicate the theory in a custody dispute. In fact, many lawyers and custody evaluators specifically avoid using the term because it has become so polarized. Other commonly used terms that implicate the theory include coaching, used to describe a child being trained by an adult to claim abuse when it did not happen; triangulation, used to describe a parent purposely manipulating a child in order to gain power in a conflict; and pathogenic parenting, used to describe parents projecting delusional beliefs onto their children.

Law enforcement and state child welfare agencies also sometimes cite parental alienation to dismiss allegations of child abuse. In a Colorado custody case ProPublica just reported on, state child welfare agencies decided not to investigate dozens of reports by mandatory reporters who expressed concern that a child was being physically and sexually abused by his father. Authorities appeared to believe that the child had been manipulated by his mother to report abuse so she could gain ground in the custody dispute. The court also agreed that the mother’s conduct met the definition of alienation.

The courtroom is where advocates of the theory have pressed for its acceptance. In Colorado, they have seized on a 2020 state Supreme Court ruling that parental alienation is a form of child endangerment.

The first courtroom battle is to establish that parental alienation is “real,” said Amy J.L. Baker, an advocate for the theory who holds a doctorate in developmental psychology but is not a licensed psychologist. “If you have a Supreme Court that’s already said it is, that door is, like, unlocked.”

Baker co-authored a recent proposal to the APA to include parental alienation in the DSM-V. The group previously rejected a similar request made in 2012.

Can a parent lose custody for parental alienation?

In cases when mothers allege abuse and fathers respond with claims of parental alienation, it roughly doubled a woman’s chances of losing custody in court, according to a 2020 national study on parental alienation funded by the U.S. Justice Department.

Another study funded by the Justice Department found the primary reason judges award custody to an abusive parent is that the mother is not viewed as credible. Two-thirds of the mothers in the study were dismissed as psychologically unwell and, in some cases, were denied custody even after their concerns about abuse were found to be valid.

Though family court judges operate with maximum discretion and little oversight — family court records are routinely sealed from the public — an increasing number of custody rulings based on parental alienation are being appealed, according to Paul Griffin, a former litigator of child abuse cases and the legal director of Child Justice, a legal assistance group.

“There are not enough lawyers attacking it sufficiently,” Griffin said. “But that could change as parents realize they have grounds to stand on and lawyers realize the higher courts are starting to pay attention to how a junk theory is proliferating unchecked in lower courts.”

A primary concern among those who oppose the use of parental alienation in the court is that it misinterprets evidence that would otherwise indicate child abuse.

“Parental alienation concocts this notion that if a kid exhibits certain symptoms that, incidentally, are the same symptoms of being abused, it was alienation,” said Richard Ducote, an attorney who specializes in defending parents accused of alienation. “It was a very clever idea to take the evidence of a child being abused and recast it.”

But advocates of parental alienation disagree that the theory provides cover for abusers. Harman argues that children’s reports of abuse cannot be relied upon because they are easily influenced, leading to false claims. “I’m accused all the time of protecting pedophiles. I’m like, why would I do that? No, I don’t protect people who are abusive. If anything, I want children to not be abused in any form.”

by Hannah Dreyfus