ProPublica

by Cassandra Jaramillo, Jeremy Kohler and Sophie Chou, ProPublica, and Jessica Kegu, CBS News

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 reported in partnership with CBS News.

Year after year, while Roe v. Wade was the law of the land, Texas legislators passed measures limiting access to abortion — who could have one, how and where. And with the same cadence, they added millions of dollars to a program designed to discourage people from terminating pregnancies.

Their budget infusions for the Alternatives to Abortion program grew with almost every legislative session — first gradually, then dramatically — from $5 million starting in 2005 to $140 million after the U.S. Supreme Court overturned the right to an abortion.

Now that abortion is largely illegal in Texas, lawmakers say they have shifted the purpose of the program, and its millions of dollars, to supporting families affected by the state’s ban.

In the words of Rep. Jeff Leach, a Republican from Plano, the goal is to “provide the full support and resources of the state government … to come alongside of these thousands of women and their families who might find themselves with unexpected, unplanned pregnancies.”

But an investigation by ProPublica and CBS News found that the system that funnels a growing pot of state money to anti-abortion nonprofits has few safeguards and is riddled with waste.

Officials with the Health and Human Services Commission, which oversees the program, don’t know the specifics of how tens of millions of taxpayer dollars are being spent or whether that money is addressing families’ needs.

In some cases, taxpayers are paying these groups to distribute goods they obtained for free, allowing anti-abortion centers — which are often called “crisis pregnancy centers” and may be set up to look like clinics that perform abortions — to bill $14 to hand out a couple of donated diapers.

Distributing a single pamphlet can net the same $14 fee. The state has paid the charities millions to distribute such “educational materials” about topics including parenting and adoption; it can’t say exactly how many millions because it doesn’t collect data on the goods it’s paying for. State officials declined to provide examples of the materials by publication time, and reporters who visited pregnancy centers were turned away.

Funding for Texas’ Anti-Abortion Program Has Skyrocketed

As they restricted access to abortion, lawmakers also poured money into a program that was first called Alternatives to Abortion and recently rebranded as Thriving Texas Families. The program funds counseling, baby items and brochures, but not medical care.

Note: Data represents the amounts budgeted for Alternatives to Abortion, now called Thriving Texas Families, for each two-year budget period, including amendments made in that period. Sources: Alternatives to Abortion annual reports and the 2024-25 Texas budget bill (Lucas Waldron/ProPublica)

For years, Texas officials have failed to ensure spending is proper or productive.

They didn’t conduct an audit of the program in the wake of revelations in 2021 that a subcontractor had used taxpayer funds to operate a smoke shop and to buy land for hemp production.

They ramped up funding to the program in 2022 even after some contractors failed to meet their few targets for success.

After a legislative mandate passed in 2023, lawmakers ordered the commission to set up a system to measure the performance and impact of the program.

One year later, Health and Human Services says it’s “working to implement the provisions of the law.” Agency spokespeople answered some questions but declined interview requests. They said their main contractor, Texas Pregnancy Care Network, was responsible for most program oversight.

The nonprofit network receives the most funding of the program’s four contractors and oversees dozens of crisis pregnancy centers, faith-based groups and other charities that serve as subcontractors.

The network’s executive director, Nicole Neeley, said those subcontractors have broad freedom over how they spend revenue from the state. For example, they can save it or use it for building renovations.

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Pregnancy Center of the Coastal Bend in Corpus Christi, for instance, built up a $1.6 million surplus from 2020 to 2022. Executive Director Jana Pinson said two years ago that she plans to use state funds to build a new facility. She did not respond to requests for comment. A ProPublica reporter visited the waterfront plot where that facility was planned and found an empty lot.

Because subcontractors are paid set fees for their services, Neeley said, “what they do with the dollars in their bank accounts is not connected” to the Thriving Texas Families program. “It is no longer taxpayer money.”

The state said those funds are, in fact, taxpayer money. “HHSC takes stewardship of taxpayer dollars, appropriated by the Legislature, very seriously by ensuring they are used for their intended purpose,” a spokesperson said.

None of that has caused lawmakers to stop the cash from flowing. In fact, last year they blocked requirements to ensure certain services were evidence-based.

Leach, one of the program’s most ardent supporters, said in an interview with ProPublica and CBS News that he would seek accountability “if taxpayer dollars aren’t being spent appropriately.” But he remained confident about the program, saying the state would keep investing in it. In fact, he said, “We’re going to double down.”

What’s more, lawmakers around the country are considering programs modeled on Alternatives to Abortion.

Last year, Tennessee lawmakers directed $20 million to fund crisis pregnancy centers and similar nonprofits. And Florida enacted a 6-week abortion ban while including in the same bill a $25 million allocation to support crisis pregnancy centers. John McNamara, a longtime leader of Texas Pregnancy Care Network, has been working to start similar networks in Kansas, Oklahoma and Iowa. He’s also reserved the name Louisiana Pregnancy Care Network.

And U.S. House Republicans are advocating for allowing federal dollars from the Temporary Assistance for Needy Families program — intended to help low-income families — to flow to pregnancy centers. In January, the House passed the legislation, and it is pending in the Senate. Rep. Elise Stefanik, R-N.Y., castigated Democrats for voting against the bill.

“That’s taking away diapers, that’s taking away resources from families who are in need,” she said in an interview with CBS News after the vote.

But, as Texas shows, more funding doesn’t necessarily pay for more diapers, formula or other support for families.

Watch the CBS News Report

Lawmakers rebranded Alternatives to Abortion as Thriving Texas Families in 2023. The program is supposed to promote pregnancies, encourage family formation and increase economic self-sufficiency.

The state pays four contractors to run the program. The largest, which gets about 80% of the state funding, is the anti-abortion group Texas Pregnancy Care Network.

Human Coalition, which gets about 16% of the state funding, said it uses the money to provide clients with material goods, counseling, referrals to government assistance and education. Austin LifeCare, which gets about 3% of the state funding, could not be reached for comment about this story. Longview Wellness Center in East Texas, which receives less than 1% of the funds, said the state routinely audits its expenses to ensure it’s operating within guidelines.

Texas Pregnancy Care Network manages dozens of subcontractors that provide counseling and parenting classes and that distribute material aid such as diapers and formula. Parents must take a class or undergo counseling before they can get those goods.

The state can be charged $14 each time one of these subcontractors distributes items from one of several categories, including food, clothing and educational materials. That means the distribution of a couple of educational pamphlets could net the same $14 fee as a much pricier pack of diapers.

A single visit by a client to a subcontractor can result in multiple charges stacking up. Centers are eligible to collect the fees regardless of how many items are distributed or how much they are worth. One April morning, a client at McAllen Pregnancy Center, near the Texas-Mexico border, received a bag with some diapers, a baby outfit, a baby blanket, a pack of wipes, a baby brush, a snack and two pamphlets. It was not clear how much the center invoiced for these items.

McAllen Pregnancy Center and other Texas Pregnancy Care Network subcontractors were paid more than $54 million from 2021 to 2023 for distributing these items, according to records.

How much of that was for handing out pamphlets? The state said it didn’t know; it doesn’t collect data on the quantities or types of items provided to clients or whether they are essential items like diapers or just pamphlets, making it impossible for the public to know how tax dollars were spent.

Neeley said in an email that educational materials like pamphlets only accounted for 12% of the money reimbursed in this category last year, or roughly $2.4 million out of $20 million. She did not respond to questions from ProPublica and CBS News about evidence that would corroborate that number.

The way subcontractors are paid, and what they’re allowed to do with that money, raised questions among charity experts consulted for this investigation.

In the nonprofit sector, using a fee-for-service payment model for material assistance is highly unusual, said Vincent Francisco, a professor at the University of Kansas who has worked as a nonprofit administrator, evaluator and consultant over the past three decades. It “can run fast and loose if you’re not careful,” he said.

Even if nonprofits distribute items they got for free or close to it, the state will still reimburse them. Take Viola’s House, a pregnancy center and maternity home in Dallas. Records show that it pays a nearby diaper bank an administrative fee of $1,590 for about 120,000 diapers annually — just over a penny apiece. Viola’s House can then bill the state $14 for distributing a pack of diapers that cost the center just over a quarter.

But before they can get those diapers, parents must take a class. The center can also bill the state $30 for each hour of class a client attends.

Rep. Donna Howard, a Democrat from Austin, said the program could be more efficient if the state funded the diaper banks directly. Last year, she proposed diverting 2% of Thriving Texas Families’ funding directly to diaper banks, but the proposal failed.

Records show that in fiscal year 2023, Viola’s House received more than $1 million from the state in reimbursements for material support and educational items plus another $1.7 million for classes. Executive Director Thana Hickman-Simmons said Viola’s House relies on funding from an array of sources and that just a small fraction of the diapers it distributes come from the diaper bank. She said the state money “could never cover everything that we do.”

In some cases, reimbursements have created a hefty cushion in the budgets of subcontractors. The state doesn’t require them to spend the taxpayer funds they get on needy families, and Texas Pregnancy Care Network said subcontractors can spend the money as they see fit, as long as they follow Internal Revenue Service rules for nonprofits.

McAllen Pregnancy Center received $3.5 million in taxpayer money from Texas Pregnancy Care Network over three years, but it spent less than $1 million on program services, according to annual returns it filed with the IRS. Meanwhile, $2.1 million was added to the group’s assets, mostly in cash. Its executive director, Angie Arviso, asked a reporter who visited in person to submit questions in writing, but she never responded.

Texas Taxpayers Gave One Crisis Pregnancy Center $3.5 Million Over Three Years. It Spent Less Than $1 Million on Programs.

The nonprofit McAllen Pregnancy Center is a case study showing how anti-abortion centers can amass a surplus from the Alternatives to Abortion program, which is now called Thriving Texas Families

Note: Figures are rounded to the nearest thousand. Sources: McAllen Pregnancy Center Form 990 for 2020, 2021 and 2022, and Texas Health and Human Services Commission records obtained by ProPublica and CBS News. (Lucas Waldron/ProPublica)

“This is a policy choice Texas has made,” said Samuel Brunson, associate dean for faculty research and development at the Loyola University Chicago School of Law, who researches and writes about the federal income tax and nonprofit organizations. “It has chosen to redistribute money from taxpayers to the reserve funds of private nonprofit organizations.”

Tax experts say that’s problematic. “Why would you give money to a recipient that is not spending it?” said Ge Bai, a professor of accounting and health policy at Johns Hopkins University.

The tax experts disagree with Texas Pregnancy Care Network’s argument that the money is no longer taxpayer dollars after its subcontractors are paid.

“It’s still the government buying something,” said Jason Coupet, associate professor of public management and policy at Georgia State University, who has studied efficiency in the public and nonprofit sectors. “If I were in the auditor’s office, that’s where I would start having questions.”

State legislators and regulators haven’t installed oversight protections in the program.

Three years ago, The Texas Tribune spotlighted the state’s refusal to track outcomes or seek insight into how subcontractors have spent taxpayer money.

Months later, Texas Pregnancy Care Network cut off funding to one of its biggest subcontractors after a San Antonio news outlet alleged the nonprofit had misspent money from the state.

KSAT-TV reported that the nonprofit, A New Life for a New Generation, had used Alternatives to Abortion funds for vacations and a motorcycle, and to fund a smoke shop business owned by the center’s president and CEO, Marquica Reed. It also spent $25,000 on land that was later registered by a member of Reed’s family to produce industrial hemp.

In an interview with ProPublica, a former case manager recalled how Reed would get angry if employees forgot to bill the state for a service provided to a client.

The former case manager, Bridgett Warren Campbell, said employees would buy diapers from the local Sam’s Club store, then take apart the packages. “We’d take the diapers out and give parents two to three diapers at a time, then she would bill TPCN,” said Campbell.

Reed declined to comment to a ProPublica reporter or to answer follow-up questions via email or text. Neeley, the Texas Pregnancy Care Network’s executive director, said the pregnancy center was removed from the program because its nonprofit status was in jeopardy, not because it had used money on personal spending. She said the network wasn’t responsible for monitoring how A New Life for a New Generation spent its dollars: “The power to investigate these matters of how nonprofits manage their own funds is reserved statutorily to the Texas Attorney General and the IRS.”

The Texas attorney general’s office would not say whether it has investigated the organization. Records show that after KSAT’s story, state officials referred the case to an inspector general and that the Texas Pregnancy Care Network submitted a report detailing how it monitored the subcontractor.

The state requires contractors to submit independent financial audits if they receive at least $750,000 in state money; Texas Pregnancy Care Network meets this threshold. However, its dozens of subcontractors don’t have to submit these audits — something experts in nonprofit practices said should be required. In the fiscal year before the alleged misspending came to light, A New Life for a New Generation received more than $1 million in reimbursements from the state, records show.

When ProPublica and CBS News asked how the Health and Human Services Commission detects fraud or misuse of taxpayer funds, Jennifer Ruffcorn, a commission spokesperson, said the agency “performs oversight through various methods, which may include fiscal, programmatic, and administrative monitoring, enhanced monitoring, desk reviews, financial reconciliations, on-site visits, and training and technical assistance.”

Through a spokesperson, Rob Ries, the deputy executive commissioner who oversees the program at Health and Human Services, declined to be interviewed.

The agency has never thoroughly evaluated the effectiveness of the program’s services in its nearly 20 years of existence.

It is supposed to make sure its contractors are meeting a few benchmarks: how many clients each one serves and how many they have referred to Medicaid and the Nurse-Family Partnership, a program that sends nurses to the homes of low-income first-time mothers and has been proven to reduce maternal deaths. The Nurse-Family Partnership does not receive Alternatives to Abortion funding.

In 2022, the Texas Pregnancy Care Network failed to meet two of three key benchmarks in its contract with the state: It didn’t serve enough clients and it didn’t refer enough of them to the nursing program. The state didn’t withhold or reduce its funding. McNamara disputed the first claim, saying the state changed its methodology for counting clients, and said the other benchmark was difficult to hit because too few clients qualified for the nursing program.

In May 2023, when lawmakers passed the bill rebranding the program, the state also ordered the agency to “identify indicators to measure the performance outcomes,” “require periodic reporting” and hire an outside party to conduct impact evaluations.

The agency declined to share details about its progress on those requirements except to say that it is soliciting for impact evaluation services. Records show the agency has requested bids.

Lawmakers decided last year against enacting requirements that would ensure certain services were evidence-based — proven by research to meet their goals — instead siding with an argument that they would be too onerous for smaller nonprofits.

Texas’ six-week abortion ban took effect in 2021, and more than 16,000 additional babies were born in the state the following year. Academics expect that trend to continue.

But the safety net for parents and babies is paper thin.

Texas has the lowest rate of insured women of reproductive age in the country and ranks above the national average for maternal deaths. It’s last in giving cash assistance to families living beneath the poverty line.

Mothers told reporters they are struggling to scrape together enough diapers and wipes to keep their babies clean. A San Antonio diaper bank has hundreds of families on its waitlist. Outside an Austin food pantry, lines snake around the block.

Howard, the Austin state representative, said ProPublica and CBS News’ findings show that the program needs more oversight. “It is unconscionable that a [Thriving Texas Families] provider would be allowed to keep millions in reserve when there is a tremendous need for more investment in access to health care services,” she said.

Do you have any tips on state-funded anti-abortion programs? Cassandra Jaramillo can be reached by email at cassandra.jaramillo@propublica.org or by Signal at 469-606-9665.

Caroline Chen and Kavitha Surana contributed reporting.

by Jessica Priest

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This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues.

A West Texas pastor who used his parish’s resources to campaign for office and several pastors from other churches who donated to him were fined after the state’s ethics commission determined that each violated election law.

The fines, some of which were issued last month, are the latest sanction from the commission following reporting from ProPublica and The Texas Tribune, which revealed that three churches donated to the campaign of Scott Beard, founding pastor at Fountaingate Fellowship church, despite state and federal prohibitions on such activity.

Beard, who was fined $3,500, showed a “lack of good faith” in accepting the donations and in posting campaign signs on church property for his unsuccessful Abilene City Council race despite the commission’s warnings against doing so, it found.

“Because the respondent committed extensive corporate contribution violations in defiance of the applicable law, a substantial penalty is required,” the commission wrote about Beard. He did not respond to a request for comment.

The commission separately fined the pastor of Hope 4 Life Church, Bruce Tentzer, $200. Tentzer purchased a ticket to Beard’s fundraising dinner with funds from the parish, also known as Hope Chapel Foursquare Church. He told the commission the money was drawn from a special church fund set aside for his personal use.

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Those actions come after the ethics commission on Dec. 21, 2023, ordered Dewey Hall, pastor of Fountaingate Merkel Church, to pay $400 for donating from church coffers to Beard’s campaign. In an interview, Hall said that he does not believe in the separation of church and state, but that his church would not donate to a political candidate again. No fines appear on the commission’s website related to Remnant Church, the third parish to give Beard campaign money. Remnant representatives did not respond to a request for comment.

Kristin Postell, an Abilene attorney who filed a complaint with the commission about Beard’s actions, said she was pleased with the fines levied against him. Given the severity of his actions, she believed the churches should pay less than him. But Postell said such low fines are not sufficient deterrents for violators.

“I don’t think anybody is going to be super cautious about following the rules unless there is a real financial burden to breaking them,” Postell said.

Under state law, violations are punishable by up to $5,000, or triple the amount at issue, whichever is greater, and a third-degree felony charge. (No criminal charges were brought in these cases.) J.R. Johnson, the commission’s executive director, declined to comment and did not answer questions about whether the fines were sufficient.

Roger Borgelt, an Austin lawyer who provides ethics advice to political candidates, said the stigma of being found in violation of the law is often a bigger deterrent than the fines themselves.

“The ethics commission, in terms of its practical function, as a deterrent, has been more to provide campaign fodder than anything else,” he said.

It’s unclear if Beard or the churches will face any additional sanctions. Abilene residents filed complaints with the IRS accusing Beard’s church of illegally campaigning. An IRS spokesperson declined to comment, saying that federal law prohibits the agency from confirming or denying investigations.

The federal agency can strip churches of their tax-exempt status for violating a federal law banning all nonprofits from engaging in political activity, but there has been only one public example of such a revocation.

by Craig Silverman

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After Russian intelligence launched one of the most devastating cyber espionage attacks in history against U.S. government agencies, the Biden administration set up a new board and tasked it to figure out what happened — and tell the public.

State hackers had infiltrated SolarWinds, an American software company that serves the U.S. government and thousands of American companies. The intruders used malicious code and a flaw in a Microsoft product to steal intelligence from the National Nuclear Security Administration, National Institutes of Health and the Treasury Department in what Microsoft President Brad Smith called “the largest and most sophisticated attack the world has ever seen.”

The president issued an executive order establishing the Cyber Safety Review Board in May 2021 and ordered it to start work by reviewing the SolarWinds attack.

But for reasons that experts say remain unclear, that never happened.

Nor did the board probe SolarWinds for its second report.

For its third, the board investigated a separate 2023 attack, in which Chinese state hackers exploited an array of Microsoft security shortcomings to access the email inboxes of top federal officials.

A full, public accounting of what happened in the Solar Winds case would have been devastating to Microsoft. ProPublica recently revealed that Microsoft had long known about — but refused to address — a flaw used in the hack. The tech company’s failure to act reflected a corporate culture that prioritized profit over security and left the U.S. government vulnerable, a whistleblower said.

The board was created to help address the serious threat posed to the U.S. economy and national security by sophisticated hackers who consistently penetrate government and corporate systems, making off with reams of sensitive intelligence, corporate secrets or personal data.

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For decades, the cybersecurity community has called for a cyber equivalent of the National Transportation Safety Board, the independent agency required by law to investigate and issue public reports on the causes and lessons learned from every major aviation accident, among other incidents. The NTSB is funded by Congress and staffed by experts who work outside of the industry and other government agencies. Its public hearings and reports spur industry change and action by regulators like the Federal Aviation Administration.

So far, the Cyber Safety Review Board has charted a different path.

The board is not independent — it’s housed in the Department of Homeland Security. Rob Silvers, the board chair, is a Homeland Security undersecretary. Its vice chair is a top security executive at Google. The board does not have full-time staff, subpoena power or dedicated funding.

Silvers told ProPublica that DHS decided the board didn’t need to do its own review of SolarWinds as directed by the White House because the attack had already been “closely studied” by the public and private sectors.

“We want to focus the board on reviews where there is a lot of insight left to be gleaned, a lot of lessons learned that can be drawn out through investigation,” he said.

As a result, there has been no public examination by the government of the unaddressed security issue at Microsoft that was exploited by the Russian hackers. None of the SolarWinds reports identified or interviewed the whistleblower who exposed problems inside Microsoft.

By declining to review SolarWinds, the board failed to discover the central role that Microsoft’s weak security culture played in the attack and to spur changes that could have mitigated or prevented the 2023 Chinese hack, cybersecurity experts and elected officials told ProPublica.

“It’s possible the most recent hack could have been prevented by real oversight,” Sen. Ron Wyden, a Democratic member of the Senate Select Committee on Intelligence, said in a statement. Wyden has called for the board to review SolarWinds and for the government to improve its cybersecurity defenses.

In a statement, a spokesperson for DHS rejected the idea that a SolarWinds review could have exposed Microsoft’s failings in time to stop or mitigate the Chinese state-based attack last summer. “The two incidents were quite different in that regard, and we do not believe a review of SolarWinds would have necessarily uncovered the gaps identified in the Board’s latest report,” they said.

The board’s other members declined to comment, referred inquiries to DHS or did not respond to ProPublica.

In past statements, Microsoft did not dispute the whistleblower’s account but emphasized its commitment to security. “Protecting customers is always our highest priority,” a spokesperson previously told ProPublica. “Our security response team takes all security issues seriously and gives every case due diligence with a thorough manual assessment, as well as cross-confirming with engineering and security partners.”

The board’s failure to probe SolarWinds also underscores a question critics including Wyden have raised about the board since its inception: whether a board with federal officials making up its majority can hold government agencies responsible for their role in failing to prevent cyberattacks.

“I remain deeply concerned that a key reason why the Board never looked at SolarWinds — as the President directed it to do so — was because it would have required the board to examine and document serious negligence by the U.S. government,” Wyden said. Among his concerns is a government cyberdefense system that failed to detect the SolarWinds attack.

Silvers said while the board did not investigate SolarWinds, it has been given a pass by the independent Government Accountability Office, which said in an April study examining the implementation of the executive order that the board had fulfilled its mandate to conduct the review.

The GAO’s determination puzzled cybersecurity experts. “Rob Silvers has been declaring by fiat for a long time that the CSRB did its job regarding SolarWinds, but simply declaring something to be so doesn’t make it true,” said Tarah Wheeler, the CEO of Red Queen Dynamics, a cybersecurity firm, who co-authored a Harvard Kennedy School report outlining how a “cyber NTSB” should operate.

Silvers said the board’s first and second reports, while not probing SolarWinds, resulted in important government changes, such as new Federal Communications Commission rules related to cellphones.

“The tangible impacts of the board’s work to date speak for itself and in bearing out the wisdom of the choices of what the board has reviewed,” he said.

“We Have Fully Complied With the Executive Order”

The SolarWinds attack was a wakeup call for the federal government and the private sector. The White House’s executive order was designed to allow officials to move quickly to implement new cybersecurity practices.

But the executive order limited what the new cybersecurity board could do: The president cannot allocate funding from Congress or grant subpoena power.

When the board launched in early 2022, it bore little resemblance to the cyber board that Wheeler and her co-authors outlined in their Harvard report.

“Not a single one of our recommendations was adopted,” she said.

Housed in DHS’ Cybersecurity and Infrastructure Security Agency, the board consists of 15 unpaid volunteers — eight from government agencies and seven from the private sector. Silvers said this ensures the board has cutting-edge knowledge and the ability to follow through on its recommendations.

Although the board’s first mandate was to investigate SolarWinds, Homeland Security Secretary Alejandro Mayorkas and CISA Director Jen Easterly tasked the board instead to review a recently discovered vulnerability in Log4j, software used by millions of computers, which could allow attackers to breach systems worldwide, including some used by the U.S. government.

Silvers said it “was a perfect use case” for the board’s first review and that the White House agreed.

The board’s Log4j report, published in July 2022, found there had been no significant attacks on critical infrastructure systems due to this vulnerability. It offered 19 recommendations for companies, government bodies and open-source software developers.

Silvers continued to face questions about the decision not to probe SolarWinds but maintained that Log4j had been the more pressing topic for review.

“We have fully complied with the executive order,” Silvers told media on a call that month.

At first, a government watchdog agency disagreed.

When the GAO conducted its review of the executive order’s implementation, it found that the board had failed to fulfill its mandate. In its draft report, it recommended that Homeland Security direct the board to review SolarWinds as the president had instructed.

That didn’t sit well with DHS, which was given a chance to review and comment on the draft as part of the GAO’s standard process. DHS argued in a letter that the “intent” of a board review of SolarWinds had been met by references to the hack in the board’s Log4j report and previous research on SolarWinds by the DHS agency that administers the board.

Homeland Security also noted that the executive order had set a 90-day deadline for the board to complete the SolarWinds review, which it said was “unachievable.” Directing the board to do such a review now, it argued, would be “duplicative of prior work and an imprudent use of resources.”

“We request that GAO consider this recommendation resolved and closed, as implemented,” the letter said.

GAO agreed. Its final study said the mandate for a board review of SolarWinds had been “fully implemented.” The GAO accepted two government reports in place of one from the board: the Log4j review and a 2021 review of SolarWinds by the National Security Council, which is not public.

An aide to Wyden said the senator had not seen the NSC review. Neither has the GAO. Instead, the GAO told ProPublica that it “interviewed key contributors” to the security council’s review. The office also summarized three recommendations that the NSC deemed acceptable for public release, including a call for better information sharing among federal agencies. A spokesperson from the security council declined to comment.

The GAO said it accepted the board’s Log4j review because it included “information from the SolarWinds incident.” But aside from footnotes, the report mentions SolarWinds only once.

A board report would have been more beneficial to the cybersecurity community because it would have offered a detailed, public accounting of a major attack, said Steven Bellovin, a professor of computer science at Columbia University who has written articles and given presentations about the need for an independent cybersecurity board. “A secret report does not accomplish that,” he said.

Trey Herr, an assistant professor of foreign policy and global security at American University who co-authored reports on the CSRB and SolarWinds, also criticized the GAO’s decision. “I don’t know why GAO would suggest a private NSC review and a different CSRB work product are equivalent, given their vastly different authorities, scope, operation and expectations of transparency,” he said.

Asked to explain why it credited Homeland Security for completing a review that never occurred, Marisol Cruz-Cain, a director with GAO’s information technology and cybersecurity team, said in a statement that the office “stands by the statements and assessments.”

“GAO believes the government had taken sufficient steps to review the SolarWinds incident,” she said, including through collaboration with multiple federal agencies and the private sector and “by disseminating relevant guidance about SolarWinds.”

GAO also conducted its own study of SolarWinds, which was published in 2022. Like the other government reviews, it did not probe Microsoft’s role in the attack. A spokesperson said the GAO was focused on the impact the hack had on the federal government, so “we did not engage with Microsoft.”

“This Intrusion Should Never Have Happened”

After the 2023 Chinese-led hack used Microsoft vulnerabilities to infiltrate U.S. systems, the board scrutinized the tech giant’s role in the attack.

The report was scathing. “The Board concludes that this intrusion should never have happened,” the report found, citing a “cascade of security failures at Microsoft.” The board called for an overhaul of Microsoft’s “inadequate” security culture and listed seven areas where the company failed to apply proper security practices or to detect or address flaws or risks.

Microsoft announced a series of changes and said it would implement all of the board's recommendations.

The report triggered a House Homeland Security Committee hearing with Microsoft president Smith last month. Smith said the company was making security its top priority.

He also raised concerns about the board’s conflicts of interest. While Wyden and other experts have criticized the role of federal officials, Smith complained about the board’s private-sector members, including executives from Google and other Microsoft competitors. “I think it’s a mistake to put on the board the competitors of a company that is the subject of a review,” he said. Smith warned that other companies might not be as cooperative with the board as he said Microsoft had been.

Three of the board’s private-sector members — including board Vice Chair Heather Adkins, a Google executive — recused themselves from the Microsoft report, as did two members from the Office of the National Cyber Director and one from the FBI, who were replaced by one colleague from each agency.

A DHS spokesperson declined to say why the public-sector members recused themselves but said board members are required to step aside if a review includes “examinations of their employers’ products or those of competitors” or if a board member has “financial interests relating to matters under consideration.”

Silvers said every board member, including public-sector members, goes through a “rigorous” review of conflicts of interest. He said the current model has proven effective and is less costly than standing up an independent agency.

“Creating an entirely new agency with a professional workforce would be exceedingly expensive, would take many years to do and could cannibalize the scarce cyber talent that we have in the U.S. government as it is,” he said. “In an era of scarce budgets, belt tightening, competition for talent, it’s really a terrific model.”

Still, DHS acknowledges that the board needs more resources and investigative muscle. Last year, the department released proposed legislation to make the board permanent, with dedicated funding, limited subpoena power and a full-time staff.

Silvers said the bill has the support of the Biden administration, but it has not been introduced and does not have a sponsor.

Wheeler, the cybersecurity executive, said she recognizes how challenging any reforms would be but that she and others will keep advocating for the board to become an independent government agency.

“I am frankly surprised that they got [the board] done at all,” she said. “Now I want them to make it better.”

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Update, July 8, 2024: After this story was published, the Department of Homeland Security clarified that both Secretary Alejandro Mayorkas and Cybersecurity and Infrastructure Security Agency Director Jen Easterly had tasked the Cyber Safety Review Board with reviewing a recently discovered vulnerability in Log4j.

by Eric Umansky

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New York Police Commissioner Edward Caban on Tuesday evening issued a five-page statement defending how he has handled officer discipline in the year since he was appointed to lead the department.

The statement, posted on the social media platform X, came in response to a story published last week by ProPublica and The New York Times that detailed how Caban has buried dozens of cases of alleged police misconduct involving officers accused of, among other things, wrongly using chokeholds, deploying Tasers and beating protesters with batons. Some episodes were so serious that a police oversight agency, the Civilian Complaint Review Board, concluded the officers likely committed crimes.

Caban, ProPublica found, has prevented 54 officers from facing a public disciplinary trial in his roughly one year in office — a tactic known as retention. His predecessor, Keechant Sewell, did it eight times in her first year.

Well before our story was published, we asked for an interview with Caban and sent the New York Police Department detailed questions about our reporting. In response, the department offered a one-sentence statement: “The NYPD continues to work closely with the Civilian Complaint Review Board in accordance with the terms of the memorandum of understanding.” That memorandum gives the commissioner the authority to preemptively end cases without a trial.

On Tuesday, Mayor Eric Adams was asked at a press briefing about our story. “I have committed my life to police reform and proper policing,” he said. “I monitor these cases, I don’t interfere. But I’m very clear on what I expect. We are going to have a police department that’s professional.” Adams offered his full support to Caban, saying the commissioner has “been extremely clear in doing that.”

Caban followed with the five-page statement taking issue with the story.

He identified no inaccuracies but instead argued that the story was unfair. “No one is more invested in a fair, effective, and efficient NYPD discipline process than I am,” Caban wrote. “Any suggestion that my handling of an incredibly complex, collaborative process undermines these standards simply does not survive honest scrutiny.”

Caban also argued that he was more efficient and effective at administering justice than the Civilian Complaint Review Board.

Here are a few of Caban’s assertions and what our reporting found:

“This was and remains an open process.”

When the CCRB adjudicates misconduct accusations, its lawyers serve as prosecutors at an NYPD trial that is open to the public, where evidence is presented and officers are questioned about what happened.

When the commissioner retains a case, he decides in private whether the officer’s behavior was justified, and he alone determines whether they should be punished. He sends a letter to the CCRB laying out his reasons, but the department does not publish the letter, and the CCRB only does so months after the fact.

The process is so opaque that civilians we interviewed about their pending misconduct cases did not know that the cases had been swept away.

When we told Brianna Villafane that the commander who grabbed her by the hair and yanked her to the ground during a Black Lives Matter march had been cleared by the commissioner, she gasped and shook her head. “Who am I supposed to call to feel safe now?” Villafane asked. “Not him.”

“Each and every time I have retained a case, it is in compliance with” the memorandum of understanding’s “mutually understood guidelines and agreed upon guidelines.”

ProPublica’s reporting shows this is not the case. One of the few limitations on a commissioner’s ability to end cases is that he may only do so for officers with clean records.

We found multiple instances where the commissioner ended the cases of officers whose records included previous substantiated cases of misconduct.

The department’s public information office did not respond to questions about these cases for our original story and the mayor’s chief counsel did not respond to a similar question at Tuesday’s news conference. On Wednesday, ProPublica asked the police department about these cases again, and the department did not immediately respond.

“Police officers face unparalleled penalties.”

We tracked the punishment that Caban has given in the cases he short-circuited. Forty percent of the time, he gave officers no punishment at all.

In the cases in which he has ordered discipline, it has mostly been light, such as the loss of a few vacation days. The most severe punishment, we found, was a case in which he docked an officer 10 vacation days.

In more than 30 other instances, Caban upended cases in which officers themselves had already agreed to punishment, doing so more times than any other commissioner in at least a decade.

“In the past year, the sheer number of cases that I have adjudicated has greatly increased, so it is only logical that the number of cases I retain would increase as well.”

ProPublica looked at this very issue. According to CCRB data, Caban had faced 409 cases from the agency in his first 11 months, compared to 521 cases for his predecessor, Sewell, in her first year.

One thing we found that the commissioner didn’t address:

Retention is not the only way the NYPD has been blocking cases.

As we reported, there are seven cases in which the NYPD has, since last summer, declined to formally notify officers of charges brought against them. Without such notification, there can be no disciplinary trial.

These cases include chokeholds, Tasings and beating a teenager with a baton. Each one was so serious that the CCRB concluded that the officers’ conduct was likely criminal. And there is no public disclosure when the department simply doesn’t inform an officer, effectively stalling the case indefinitely.

We asked the NYPD and the commissioner about these cases for our earlier story. They did not respond.

Do you have information about the police we should know? You can email Eric Umansky at eric.umansky@propublica.org or contact him securely on Signal or WhatsApp at 917-687-8406.

by Alejandro Serrano and Robert Downen, The Texas Tribune, and Vianna Davila, ProPublica and The Texas Tribune

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This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues.

An El Paso judge on Tuesday denied Texas’ efforts to shut down a migrant shelter network that Attorney General Ken Paxton claimed was violating state law by helping people he suspected of being undocumented immigrants.

Although the case centered around immigration, it was one of more than a dozen instances ProPublica and The Texas Tribune recently identified in which Paxton’s office has aggressively used the state’s powerful consumer protection laws to investigate organizations whose work conflicts in some way with his political views or the views of his conservative base.

Two weeks ago, lawyers for the Texas attorney general’s office argued to state District Judge Francisco Dominguez that El Paso-based Annunciation House should be closed, accusing the 46-year-old nonprofit of violating laws prohibiting human smuggling and operating a stash house.

Dominguez ruled on Tuesday that the state’s claim, “even if accepted as true, does not establish a violation of those provisions,” according to the order. He ruled that the state laws are preempted by federal law and “unenforceable.”

Paxton’s office did not respond to a request for comment on the ruling.

“The volunteers of Annunciation House have a lot of work to do, and they just continue to do it. They can just do it more at peace today than they did yesterday,” said Jerry Wesevich of Texas RioGrande Legal Aid, who represents the shelter network. “There is some relief at knowing that the court agreed with their view of the law.”

Paxton’s office initially sought records from Annunciation House about the shelter’s clients in February. Officials from the attorney general’s Consumer Protection Division showed up on the nonprofit’s doorstep, demanding to come inside and search its records, including all logs identifying immigrants who received services there going back more than two years.

Consumer protection laws give attorneys general broad legal authority to request a wide range of records when investigating businesses or charities for allegations of deceptive or fraudulent practices. Attorneys general like Paxton, however, have increasingly used their powers to also pursue more political investigations, experts told the news organizations.

The attorney general’s office previously confirmed to the news organizations that no consumer complaints had been filed against Annunciation House. Complaints aren’t required to launch an investigation.

In the case of Annunciation House, the attorney general gave the shelter director, Ruben Garcia, one day to turn over the documents. The news organizations found this to be an unusual practice: ProPublica and the Tribune identified several other cases in which the Consumer Protection Division sent its requests for records by mail and gave organizations weeks to respond.

Garcia’s lawyer told the state its deadline did not give the shelter enough time and asked a judge to determine which documents shelter officials were legally allowed to release. Interpreting that as noncompliance, Paxton’s office filed a countersuit to shutter the shelter network.

Wesevich and another lawyer representing an organization Paxton’s office investigated using the consumer protection law said they believe he launched the investigations to harass their clients and to cause a chilling effect among organizations doing similar work. Both said the attorney general’s demands violate the First Amendment, which guarantees the right to free speech, association and religion, and the Fourth Amendment, which offers protection against unreasonable search and seizure.

In his ruling on Tuesday, Dominguez said that Paxton’s “predetermined efforts” to shut down the nonprofit were “substantially motivated by his retaliation against Annunciation House’s exercise of its First Amendment right to expressive association.” He also said the investigative document the state agency gave to Annunciation House, demanding access to the nonprofit’s records, violated the Fourth Amendment.

Annunciation House opened its first shelter at a Catholic church nearly 50 years ago. The nonprofit primarily serves people who are processed and released into the U.S. by immigration officials. Garcia communicates regularly with Border Patrol and other federal agencies that ask for help finding shelter for people who turn themselves in to authorities or are apprehended but have nowhere to go while their cases are processed.

Paxton’s decision to sue Annunciation House came against the backdrop of a yearslong effort by right-wing Christian groups and figures to paint immigrants as part of a Democratic plot to undermine American Christianity — despite a large percentage of migrants being Christian.

Texas Lt. Gov. Dan Patrick, a Republican, echoed those claims in a speech at the Republican Party of Texas’ convention in May, telling delegates that immigrants were part of a plan by the “Marxist, socialist left” to “take God out of the country.” At the same convention, Paxton’s wife, state Sen. Angela Paxton, also claimed that Republicans were in the middle of a battle “against spiritual forces of evil in the heavenly realms.”

Far-right Catholics have mobilized against groups such as Catholic Charities, branding it an “enemy of the people” and calling for the defunding of bishops who assist migrants. In a 2022 interview with the right-wing group Church Militant, U.S. Rep. Marjorie Taylor Greene, R-Ga., claimed that Catholic Charities’ work was proof of “Satan controlling the church.”

by Sergio Hernandez

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The New York Police Department restored more than 2,000 previously missing discipline records to its public database of uniformed officers last month, weeks after a ProPublica report revealed data reliability issues that dogged the site for almost two years.

The department also revamped the site, including removing case numbers, which will make it more difficult for the public to identify or track missing cases. When the revamped site was published two weeks ago, the number of cases dropped again.

The system, known as the Officer Profile Database, was launched in 2021 after the New York state legislature repealed a law that, for decades, kept officer discipline records exempt from public disclosure. But a ProPublica analysis of more than 1,000 daily snapshots of the database found that, for almost two years, officers’ discipline records frequently vanished from the NYPD’s site for days — sometimes weeks — at a time, obscuring the misconduct histories for officers at all ranks, including its most senior uniformed officer. At that time, about half of cases that had at one point been in the system were missing.

Since late April, the number of cases in the database has climbed steadily, suggesting the department may have resolved whatever issue previously caused cases to disappear from the system. An updated analysis shows the restoration of cases began around May 5, more than a week after ProPublica contacted the department for comment and four days before the news organization published its initial story.

After ProPublica Story Reveals NYPD Database as Unreliable, Missing Discipline Records Reappear

More than 2,000 previously missing discipline records have been restored to a New York Police Department database, just weeks after a ProPublica story revealed pervasive issues with the system’s reliability.

(Chart: Sergio Hernandez. Source: <a href="https://github.com/ryanwatkins/nypd-officer-profiles">ProPublica analysis of archived NYPD data</a>.)

Police officials did not respond to ProPublica’s repeated inquiries seeking to confirm why cases had been removed or restored. But the recent streak of steady or rising case numbers appears to be the longest such run in more than a year. That streak ended with the site update June 18; since then, the number of cases has again fallen by about 200 from its all-time high.

Representatives for RockDaisy, the software vendor that developed the original system, also did not respond to multiple requests for comment. Last month’s software update appears to have removed all references to the company from the site’s source code, and the firm’s involvement with the latest version of the site is unclear.

Lupe Aguirre, a senior staff attorney at the New York Civil Liberties Union, said she remains concerned that the database has been so inconsistent and, more broadly, that the department’s website discloses only a subset of all misconduct and discipline cases.

“The fluctuation in the data is still concerning and reflects a continued pattern of secrecy in how the department handles disciplinary matters,” Aguirre wrote in an email. “New Yorkers deserve full transparency into the NYPD’s internal accountability systems, especially given the department’s culture of impunity.”

Because the department’s database is designed to show discipline only for active officers, some cases relating to former officers might have been removed from the data over time. Yet that would have explained only a fraction of the missing cases. For most of the past year, at least a third of cases that had previously appeared in the database were missing.

Those cases involved officers at all levels, including Chief of Department Jeffrey Maddrey, the force’s highest-ranking uniformed officer, and at least six deputy chiefs with prestigious assignments whose offenses ranged from discourteous behavior to drinking on duty and wrongful searches, frisks and uses of force.

Police reform advocates, including Aguirre, previously argued that the database issues uncovered by ProPublica underscored the need for agencies to publish data through the city’s open-data program, as required by a 2012 law. A recent schedule of upcoming releases shows the NYPD’s officer profile data was supposed to be added by the end of 2023, but that still has not happened.

The NYPD’s site and broader discipline process have come under scrutiny in recent days. City & State reported Friday that an administrative page on the site failed to require authentication, potentially allowing bad actors to tamper with the database’s records. And that same day, a ProPublica investigation, co-published with The New York Times, revealed how top police brass have secretly buried dozens of discipline cases involving NYPD officers. Their actions ensured that those cases would never appear in the online database.

by ProPublica

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In the wake of President Joe Biden’s poor debate performance, his opponents and most major media organizations have pointed out that he has done few interviews that give the public an opportunity to hear him speak without a script or teleprompters.

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So much has been made of this limited access that the impressions from Special Counsel Robert K. Hur about his five hours of interviews with the president on Oct. 8 and 9 drove months of coverage. The prosecutor said Biden had “diminished faculties in advancing age” and called him a “well-meaning, elderly man with a poor memory.” Biden angrily dismissed these assertions, which Vice President Kamala Harris called “politically motivated.”

House Republicans on Monday sued Attorney General Merrick B. Garland for audio recordings of the interview as the White House asserts executive privilege to deny their release.

ProPublica obtained a rare interview with Biden on Sept. 29, nine days before the Hur interviews began. We released the video, which was assembled from footage shot by five cameras, on Oct. 1. We edited out less than a minute of crosstalk and exchanges with the camera people, as is customary in such interviews.

Today, we are releasing the full, 21-minute interview, unedited as seen from the view of the single camera focused on Biden. We understand that this video captures a moment in time nine months ago and that it will not settle the ongoing arguments about the president’s acuity today. Still, we believe it is worth giving the public another chance to see one of Biden’s infrequent conversations with a reporter.

The Interview With the Camera Focused on Biden The Interview as Published

Conducting the interview was veteran journalist and former CNN White House correspondent John Harwood, who requested it and then worked with ProPublica to film and produce it.

He did not send questions to the White House ahead of time, nor did he get approval for the topics to be discussed during the interview.

Recording began as soon as Biden was miked and sitting in the chair that Friday at 2:50 p.m. Earlier that day, Biden’s press staff had said the president would have only 10 minutes for the interview, instead of the previously agreed upon 20 minutes. We requested that the interview go the full 20 minutes. You can hear during the unedited interview a couple of moments when White House staff interrupted to signal that the interview should come to a close. Biden seemed eager to continue talking.

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by Irena Hwang, Sophie Chou and Duaa Eldeib

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At her baby shower in the summer of 2019, Ava Jones’ smile radiated above the gingham dress that fell snug around her growing belly.

Jones’ pregnancy had been smooth — not even morning sickness — until four days before her due date. That afternoon, she realized that she couldn’t feel her baby move. Jones and her husband, Gregory, rushed to their hospital in Dallas, where she labored for two days before she delivered her stillborn baby.

They named their 6-pound, 4-ounce boy Giles, a nod to his father, who was also named for a saint. When a nurse placed Giles in her arms, he looked like he was sleeping.

“Wake up,” his mother begged. “Please.”

Nearly five years later, the keepsake box for her son has the pajamas they had packed in the hospital bag, a mold of his tiny hand and a small crochet pillow. But what was missing was an official record of his birth. Jones has no fetal death certificate, though Texas requires that one be completed within five days of a stillbirth. She said she was not asked for the necessary information while she was in the hospital and no one there told her how to request the document.

First image: Ava Jones. Second image: A keepsake box that Jones keeps to remember Giles includes the pajamas she and her husband packed to bring to the hospital. (Nitashia Johnson, special to ProPublica)

From a public health perspective, fetal death certificates provide essential data that helps shed light on stillbirth, the death of an expected child at 20 weeks or more of pregnancy. They serve as the underpinning for much of the research on stillbirth, as well as an evaluation of care in pregnancy and delivery. Tracking the cause of death is key to understanding how to prevent stillbirth, which research shows may be possible in nearly 1 in 4 stillbirths.

ProPublica, which has spent the past two years reporting on stillbirths, has found that state and federal health agencies, lawmakers and local hospitals have failed to prioritize data collection needed to accurately track and understand stillbirth or provide parents with that critical information. Data is frequently incomplete and delayed and is sometimes inaccurate, particularly when it comes to cause of death. Data on stillbirth risk factors and race also is deficient.

And it’s getting worse. A ProPublica analysis of data from the Centers for Disease Control and Prevention for 2019 through 2021 found that the records for more than a third of all 63,437 stillbirths in the U.S. were missing perhaps the most crucial information about the stillbirth: the cause of death. For those stillbirths that happened at 37 weeks or more, that proportion was even higher — and it’s rising, from 41% in 2019 to nearly 44% in 2021.

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Even the threshold for reporting a stillbirth is not uniform. Some states use fetal weight as a requirement; others use weeks of pregnancy; some combine the two.

“If we don’t have accurate data, we don’t know the scope of the problem and how to move forward,” said Lauren Christiansen-Lindquist, a maternal and child health epidemiologist and an associate professor at Emory University. “It’s really the foundation of our ability to make any difference in stillbirth rates in the U.S.”

The National Institutes of Health, which last year released a study mirroring ProPublica’s reporting on stillbirth, has started the discussion about improving stillbirth data. In January, the Stillbirth Working Group of Council of the Eunice Kennedy Shriver National Institute of Child Health and Human Development discussed ways to address the data problems, beginning with standardizing the definition of stillbirth across states.

Dr. George Saade, the co-lead of the Stillbirth Working Group’s data subgroup, said the health care system should be set up to give patients accurate information.

“Except we suspend that expectation when it comes to stillbirth. That’s wrong, particularly given that this is such a devastating outcome,” said Saade, who is also chair of obstetrics and gynecology and associate dean for women’s health at Eastern Virginia Medical School. “We’re basically telling them it doesn’t matter.”

State laws require all stillbirths to be reported, and federal law directs the CDC to collect and publish data on stillbirths. That data collection typically begins at the hospital when an employee gathers information from the pregnant person and her medical records; funeral directors and medical examiners may also provide information. That data is sent to the state health department, which ultimately forwards it to the CDC.

But the process is fraught at nearly every level, from untrained hospital staff to state health departments not reporting large amounts of data. The CDC cautioned in a report last year that variation among states’ reporting requirements when it comes to stillbirths “can have implications for data quality and completeness.”

In response to questions from ProPublica, a CDC spokesperson acknowledged challenges with data collection around stillbirths, saying the issue boils down to “lack of resources, which makes it difficult to prioritize fetal death data at both the state and federal levels.”

Improving data collection is a key component to federal legislation championed by maternal health advocate Debbie Haine Vijayvergiya, whose daughter Autumn Joy was stillborn in 2011. The Stillbirth Health Improvement and Education (SHINE) for Autumn Act aims to improve the collection, reporting and timeliness of stillbirth data. It also increases education and awareness and paves the way for research and training in fetal autopsies.

The bill, which would be the most comprehensive stillbirth legislation on record, is still pending in Congress.

“Since Autumn died, I’ve been on this quest to understand why stillbirth has remained a tragically neglected public health crisis and what needs to change to address it,” she said. “I quickly learned how vital good data is in our efforts to improve stillbirth outcomes.”

Minnesota is among the states that have made stillbirth data a priority. A small team there is responsible for data quality, which includes following up with hospitals if the fetal death information it receives is missing information.

Less than two weeks before Jones’ stillbirth in Texas, Minnesota mother Kate Braun also delivered a stillborn boy at term. Braun and her husband, Jason, named him Isaac Edward, affectionately referring to him as Ike.

When the doctor told Braun, who was nearly 38 weeks pregnant, that her baby had died, she threw up. Then she sobbed uncontrollably before throwing up again.

Sue Steen, a nurse and stillbirth expert, walked Braun and her husband through the documents used to register the stillbirth with the state’s health department. They filled out two forms: one for the mother’s demographic information and another to capture the cause of death and medical information. Minnesota uses that information to create a fetal death record and, upon request from parents, a certificate of birth resulting in stillbirth.

“There’s something powerful about it being a formal document,” Braun said. “We have very few physical things to point to that validate his existence.”

First image: Kate Braun. Second image: The certificate of birth resulting in stillbirth for Braun’s son, Isaac Edward “Ike” Braun. (Caroline Yang, special to ProPublica)

Not all causes of stillbirth can be determined. The CDC reported that in about 30% of stillbirths, the cause of death is unknown, and the way data is collected makes it difficult to know whether the cause couldn’t be medically determined or was just not recorded. A stunningly low number of autopsies exacerbates the problem, which is due in part to doctors not always offering the procedure to families and the federal government not covering its cost.

The CDC excludes states that have more than half of cases with unknown causes from its analysis. ProPublica found at least 10 states that did not meet that bar. In at least one year between 2019 and 2021, Georgia, Hawaii, Michigan, Mississippi, North Carolina, North Dakota, Vermont, Arizona, Wisconsin and New York were flagged for having insufficient data.

States registered the stillbirths but in many cases could not check off any of the dozens of causes that led to them because that information was not provided. State officials provided a variety of reasons for the lack of information. Although the hospital, doctor or parents in Arizona can submit the cause of death, “they often do not,” a spokesperson for the state Department of Health Services said. In hopes of improving its data quality, the state is working on hiring staff to reach out to the facilities that report data to the health department.

In Mississippi, which consistently has the worst stillbirth rate in the country, a state health department spokesperson said the agency doesn’t know if the information was not available or if the person completing the certificate didn’t retrieve it from the patient’s chart.

And while it’s possible to amend the fetal death certificate if the cause is later determined, it almost never happens, in part because the process often requires the person who signed the certificate to update it. Between 2019 and 2021 in Georgia, for instance, only 18 of nearly 2,000 stillbirths in the state that were missing a cause of death were updated.

Cause of death is only one of the many data points missing from stillbirth records. Year after year, states lacked data on crucial risk factors that could illuminate why a stillbirth happened, including cigarette smoking, diabetes, previous preterm births and blood pressure disorders.

In 2021, Washington state didn’t include any maternal risk factors in nearly 36% of stillbirths. Rhode Island was missing a similar percentage of information about cigarette use. And Washington, D.C., lacked information in more than 40% of its records about maternal prepregnancy weight, despite obesity being a risk factor for stillbirth.

In addition, important fetal data, such as information that could help indicate whether the fetus was growing as expected — another significant risk factor — was absent in many states. In 2021, New York — excluding New York City — Washington and Colorado were each missing birth weight in more than 20% of stillbirth records. That year, Hawaii was missing birth weight data in nearly 60% of cases.

More than 1,800 stillbirths nationally were missing race data in 2021, an increase from previous years. Race information is critical when considering the stark racial disparities in stillbirths overall and term stillbirths specifically. In an analysis for this story, ProPublica found that non-Hispanic Black women were about 1 1/2 times as likely as non-Hispanic white women to deliver a stillborn baby at or near their due date. Non-Hispanic Native Hawaiian or other Pacific Islander women were 2 1/2 times as likely to, compared with non-Hispanic white women.

Dr. Joy-Sarah Vink, a maternal fetal medicine specialist at Kapi‘olani Medical Center for Women & Children in Honolulu, wants to see stillbirth data reporting improve, especially when it comes to Native Hawaiian or other Pacific Islander women, who have among the highest rates of stillbirth in the U.S.

“There is no formal training for medical staff, no standardized training across the states as to how to best approach that,” she said.

As a Black woman, Jones had braced herself for the possibility of preeclampsia, a potentially fatal blood pressure condition that occurs during pregnancy that Black women are more likely to experience than white women. But she said no one told her about the risk of stillbirth, and especially not that it could happen days before her due date.

Jones and her husband, Gregory, playing with their two boys, Kalan and Lawrence (Nitashia Johnson, special to ProPublica)

Texas, like many states, requires a fetal death certificate to be completed within five days of the death and workers to ask parents for help with multiple fields, including mother’s race. But Jones said no one ever asked her for that information. Even in her pain, she said she wished they would have.

Jones went on to have two more boys, Kalan and Lawrence. But after years without a certificate for Giles that she could safely tuck away with her other sons’ birth certificates, she put in an expedited request in March to the Texas Department of State Health Services. In June, she received a certificate of birth resulting in stillbirth but has yet to get the fetal death certificate.

A Texas spokesperson said the agency cannot locate her request for the fetal death certificate but offered to expedite one. He said he understands the value of the document for grieving parents.

“It’s meaningful documentation,” Jones said. “It’s the legal proof of him existing.”

A certificate also would have saved her from uncomfortable conversations and the constant anguish of reliving her son’s death. Before Giles was born, she and her husband had reserved a spot for him at a day care center. After his stillbirth, Jones mustered the courage to call and tell them they wouldn’t need it anymore.

“Don’t go somewhere else,” the employee told her, thinking she had chosen another day care.

“No, no,” Jones sputtered.

Finally, she blurted out words no mother wants to say.

“He died.”

by Alec MacGillis

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This story is exempt from our Creative Commons license until Oct. 29, 2024.

Drive an hour south of Nashville into the rolling countryside of Marshall County, Tennessee — past horse farms, mobile homes and McMansions — and you will arrive in Chapel Hill, population 1,796. It’s the birthplace of Confederate Gen. Nathan Bedford Forrest, who helped found the Ku Klux Klan. And it’s the home of Todd Warner, one of the most unlikely and important defenders of America’s besieged public schools.

Warner is the gregarious 53-year-old owner of PCS of TN, a 30-person company that does site grading for shopping centers and other construction projects. The second-term Republican state representative “absolutely” supports Donald Trump, who won Marshall County by 50 points in 2020. Warner likes to talk of the threats posed by culture-war bogeymen, such as critical race theory; diversity, equity and inclusion; and Shariah law.

And yet, one May afternoon in his office, under a TV playing Fox News and a mounted buck that he’d bagged in Alabama, he told me about his effort to halt Republican Gov. Bill Lee’s push for private school vouchers in Tennessee. Warner’s objections are rooted in the reality of his district: It contains not a single private school, so to Warner, taxpayer money for the new vouchers would clearly be flowing elsewhere, mostly to well-off families in metro Nashville, Memphis and other cities whose kids are already enrolled in private schools. Why should his small-town constituents be subsidizing the private education of metropolitan rich kids? “I’m for less government, but it’s government’s role to provide a good public education,” he said. “If you want to send your kid to private school, then you should pay for it.”

The coronavirus pandemic provided a major boost to supporters of school vouchers, who argued that extended public school closures — and the on-screen glimpses they afforded parents of what was being taught to their kids — underscored the need to give parents greater choice in where to send their children. Eleven states, led by Florida and Arizona, now have universal or near-universal vouchers, meaning that even affluent families can receive thousands of dollars toward their kids’ private school tuition.

The beneficiaries in these states are mostly families whose kids were already enrolled in private schools, not families using the vouchers to escape struggling public schools. In larger states, the annual taxpayer tab for the vouchers is close to $1 billion, leaving less money for public schools at a time when they already face the loss of federal pandemic aid.

Voucher advocates, backed by a handful of billionaire funders, are on the march to bring more red and purple states into the fold for “school choice,” their preferred terminology for vouchers. And again and again, they are running up against rural Republicans like Warner, who are joining forces with Democratic lawmakers in a rare bipartisan alliance. That is, it’s the reddest regions of these red and purple states that are putting up some of the strongest resistance to the conservative assault on public schools.

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Conservative orthodoxy at the national level holds that parents must be given an out from a failing public education system that force-feeds children progressive fads. But many rural Republican lawmakers have trouble reconciling this with the reality in their districts, where many public schools are not only the sole educational option, but also the largest employer and the hub of the community — where everyone goes for holiday concerts, Friday night football and basketball. Unlike schools in blue metro areas, rural schools mostly reopened for in-person instruction in the fall of 2020, and they are far less likely to be courting controversy on issues involving race and gender.

Demonizing public education in the abstract is one thing. But it’s quite another when the target is the school where you went, where your kids went. For Todd Warner, that was Forrest High School in Chapel Hill. “My three kids graduated from public schools, and they turned out just fine,” he said. “Ninety-five percent of our students, our future business owners, our future leaders, are going to the public schools. They’re not going to private. Why take it away from them?”

Warner and two of his children attended Forrest High School in Chapel Hill, Tennessee. (Whitten Sabbatini)

The response from voucher proponents to the resistance from fellow Republicans has taken several forms, all of which implicitly grant the critics’ case that voucher programs currently offer little benefit to rural areas. In some states, funding for vouchers is being paired with more money for public schools, to offer support for rural districts. In Ohio, voucher advocates are proposing to fund the construction of new private schools in rural areas where none exist, giving families places to use vouchers.

But the overriding Republican response to rural skeptics has been a political threat: Get with the program on vouchers, or else.

That’s what played out this year in Ohio’s 83rd District, in the state’s rural northwest. Last summer, Ohio adopted universal private school vouchers, with middle- and working-class families eligible for up to $8,407 per high school student and even the very wealthiest families eligible for almost $1,000 per child. Private school leaders urged already enrolled families to seek the money, and more than 140,000 families applied for vouchers. The cost has exceeded estimates, approaching $1 billion, with most of it going to the parochial schools that dominate the state’s private school landscape. Voucher advocates are now pushing to create educational savings accounts to cover tuition at unchartered private schools that are not eligible for the vouchers.

School leaders in Hardin County — with its cornfields, solar panel installations and what was once one of the largest dairy farms east of the Mississippi — are deeply worried that vouchers stand to hurt county residents. Only a single small private school is within reach, one county to the south, which means that virtually no local taxpayers would see any of that voucher money themselves — it would be going to private school families in Columbus, Cincinnati and other large population centers. (And under Ohio law, the very public schools that are losing students must pay to transport any students who attend private institutions within a half-hour drive of the public school.)

Chapel Hill (Whitten Sabbatini)

Craig Hurley, the superintendent for Hardin’s Upper Scioto Valley District, is a solidly built 52-year-old who calls himself a staunch conservative. He attended the district’s schools and has worked in them for 30 years. He knows that they provide meals to 400 students, nearly two-thirds of whom qualify for free and reduced lunch. Even though the high school can muster only 20 players for football — basketball fares better — the fans come out to cheer. “Our district is our community,” he told me. “The more you separate that, the less of a community we’re going to be.”

Hurley has calculated that local schools are receiving less state funding per student than what private schools now receive for the maximum possible voucher amount. Yet private schools face almost none of the accountability that public schools do regarding how the money is spent and what outcomes it achieves. “We have fiscal responsibility on all of it, on every dime, every penny we spend,” he said. “There’s no audit for them.” Not to mention, he added, “a private school doesn’t have to accept all students, right? They pick who they want.”

Thirteen miles east, Chad Thrush, the school superintendent in Kenton, the county seat, noted that his school system is the second-largest employer in town, after Graphic Packaging, which makes plastic cups for vending machines. He worries that the rising cost of the voucher program will erode state funding for public schools, and he worries about what would happen to his district if a new private school opened in town. Thrush understands the appeal of vouchers for parents who want a leg up for their kid. But, he told me, “we need to be looking at how we’re preparing all students to be successful, not just my student.”

As it happens, the two superintendents have a crucial ally in Columbus: their state representative, Jon Cross. Like Warner in Tennessee, Cross is an ardent pro-Trump conservative and deeply opposed to private school vouchers. At a legislative hearing last year, he cut loose at a lobbyist for Americans for Prosperity — the conservative advocacy group founded by the industrialist Koch brothers — who was testifying for vouchers, one of the organization’s long-standing causes. “Wouldn’t we be better off taking some money in our budget to fix the schools?” Cross said. “I tell you what, I really like my public schools. I’m really proud that Carson and Connor, my sons, go to Kenton City Schools and get an education from there just like I did.”

Cross’ resistance to vouchers earned him the animus of the state Senate president, Matt Huffman, an avid voucher proponent. Huffman encouraged a primary challenge of Cross. So greatly did local school officials value Cross’ support that shortly before the March 19 primary, they held a public meeting to explain the threat vouchers posed, with Cross in attendance. “If the economy goes bad, are we going to pull $1 billion out for private schools?” Thrush said. Or, he continued, would the public schools be left with less money?

The schools in Hardin and Marshall counties are majority white. But some rural Republican legislators in other states have been willing to buck their party leaders on vouchers even in more racially diverse districts. In Georgia, of the 15 Republican state representatives who blocked a voucher proposal last year, more than half came from rural areas with substantial Black populations. One of them was Gerald Greene, who spent more than three decades as a high school social studies teacher and has managed to survive as a Republican in his majority-Black district in the state’s southwestern corner after switching parties in 2010.

Greene believes vouchers will harm his district. It has a couple of small private schools in it or just outside it — with student bodies that are starkly more white than the district’s public schools — but the majority of his constituents rely on the public schools, and he worries that vouchers will leave less money for them. “I just felt like we were abandoning our public schools,” he told me. “I’m not against private schools at all, but I just did not see how these vouchers would help southwestern Georgia.”

After failing to pass a voucher program last year, the state’s Republican governor, Brian Kemp, and proponents in the legislature tried again this year, and this time they succeeded, albeit with vouchers more constrained than elsewhere: They can be used only by students in school districts that are ranked in the bottom quartile and whose families make less than 400% of the poverty level ($120,000 for a family of four), and their total cost can’t exceed 1% of the state’s total education budget, which caps them now at $140 million.

Partisan pressures simply became too strong for some skeptical Republicans, including Greene’s counterpart in the Senate, Sam Watson. Seminole County Superintendent Mark Earnest told me about the conversation in which Watson let him know that he was going to have to support the limited vouchers. “They have turned this into a caucus priority. It’s getting very political,” Watson said. “Thanks for letting me know,” Earnest replied, “but all vouchers are bad for public education.” Watson’s response: “I know, but I couldn’t go with the Democrats. Sorry.” (Watson did not respond to a request for comment.)

The highest-profile rural Republican resistance to vouchers has come in Texas, the land of Friday Night Lights and far-flung oil country settlements where the public schools anchor communities. Late last year, the Texas House voted 84-63 to strip vouchers out of a broad education bill. In response, Gov. Greg Abbott launched a purge of anti-voucher Republicans in this year’s primaries, backed by millions of dollars from the Pennsylvania megadonor Jeff Yass, a finance billionaire.

Among those targeted was Drew Darby, who represents a sprawling 10-county district in West Texas and who frames the issue in starkly regional terms: The state’s metro areas depend on his constituents to provide “food, fiber and hide,” to “tend the oil wells and wind turbines to provide electricity to people who want to be just a little cooler in the cities.” But without good public schools, these rural areas will wither. “Robert Lee, Winters, Sterling, Blackwell,” he said, listing some hamlets — “these communities exist because they have strong public schools. They would literally not exist without a good public school system.”

Darby, a fiscal conservative, is also opposed to a new entitlement for private school families that is projected to soon cost $2 billion a year. “In rural Texas, there’s not a whole lot of private school options, and we want our schools to get every dollar they can. This doesn’t add $1, and it’s not good for rural Texas.”

Darby managed to stave off his primary challenge, but 11 of the 15 voucher resisters targeted by Abbott lost, several in races so close that they went to a runoff. Abbott is unapologetic: “Congratulations to all of tonight’s winners,” he said after the runoff. “Together, we will ensure the best future for our children.” Also succumbing to his primary challenger was Jon Cross, in western Ohio. His opponent, Ty Mathews, managed to make the campaign about more than just vouchers, taking sides in a bitter leadership split within the GOP caucus.

And for all the concerns that local school leaders have about the effect of vouchers, the threat remained abstract to many voters. “I’m not worried about it, because we don’t have the revenue here anyways in this town for anything to be taken from us to be given to a bigger town,” one 60-year-old woman told me after casting her vote for Mathews. A younger woman asked simply: “What exactly are the vouchers?”

Warner, outside the office of his construction company (Whitten Sabbatini)

But in Tennessee, Todd Warner and his allies staved off the threat again this year. To overcome rural resistance, voucher proponents in the Tennessee House felt the need to constrain them and pair them with hundreds of millions of dollars in additional funding for public schools, but this was at odds with the state Senate’s more straightforward voucher legislation. The two chambers were unable to come to an agreement before the session’s end in April, by which point the House bill had not even made it to the floor for a vote.

For Democratic voucher opponents in the state, the alliance with Warner and other rural Republicans was as helpful as it was unusual. “It was strange,” Rep. Sam McKenzie, a Black Democrat from Knoxville, told me. McKenzie compared it to “Twins,” a movie in which Arnold Schwarzenegger and Danny DeVito played unlikely fraternal twins: “Representative Warner and I were in lockstep opposition to this voucher scam.”

One voucher supporter, Rep. Scott Cepicky, told me he was confident that his side would eventually prevail. “We’ll work on this again next year,” he said. “The governor is committed that we’re going to run on school choice again.” And Americans for Prosperity has made clear that it’s coming after voucher opponents. Its Tennessee state director, Tori Venable, told Warner during the legislative session that “I can’t protect you if you ain’t on the right side of this.”

Another conservative group, the American Federation for Children, sent out a text message in March attacking Warner for his opposition to “parental rights,” without using the term vouchers. And a retired teacher in Marshall County, Gwen Warren, told me she and her husband recently got a visit from an Americans for Prosperity canvasser citing Warner’s opposition to vouchers. “She said: ‘We’re going around the neighborhood trying to talk to people about vouchers. We feel like Tennesseans really want the voucher system.’” To which, Warren said, her husband replied: “You’re very much mistaken, lady. We don’t want vouchers in this county, and you need to go away.”

Warner remains unfazed by all this. He is pretty sure that his voucher opposition in fact helped him win his seat in 2020, after the incumbent Republican voted for a pilot voucher system limited to Nashville and Memphis. And he notes that no one has registered to challenge him in the state’s Aug. 1 primary. “They tried to find a primary opponent but couldn’t,” he said with a chuckle. “I was born and raised here all my life. My family’s been here since the 18th century. I won’t say I can’t be beat, but bring your big-boy pants and come on, let’s go.”

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by Nicole Santa Cruz

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The U.S. Supreme Court’s decision to give cities broader latitude to punish people for sleeping in public when they have no other options will likely result in municipalities taking more aggressive action to remove encampments, including throwing away more of homeless people’s property, advocates and legal experts said.

In its 6-3 decision on Friday, the conservative majority upheld Grants Pass, Oregon’s ban on camping, finding laws that criminalize sleeping in public spaces do not violate the Eighth Amendment’s protections against cruel and unusual punishment.

Writing for the majority, Justice Neil Gorsuch said that the nation’s policy on homelessness shouldn’t be dictated by federal judges, rather such decisions should be left to state and local leaders. “Homelessness is complex,” Gorsuch wrote. “Its causes are many. So may be the public policy responses required to address it.”

“At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not,” he wrote.

A lower court ruling that prevented cities from criminalizing the conduct of people who are “involuntarily homeless” forced the U.S. Court of Appeals for the 9th Circuit to confront what it means to be homeless with no place to go and what shelter a city must provide, Gorsuch wrote. “Those unavoidable questions have plunged courts and cities across the Ninth Circuit into waves of litigation,” he wrote.

In a dissenting opinion, Justice Sonia Sotomayor wrote that, for some people, sleeping outside is a “biological necessity” and it’s possible to balance issues facing local governments with constitutional principles and the humanity of homeless people. “Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested,” she wrote.

Criminalizing homelessness can “cause a destabilizing cascade of harm,” Sotomayor added. When a person is arrested or separated from their belongings, the items that are frequently destroyed include important documents needed for accessing jobs and housing or items required for work such as uniforms and bicycles, Sotomayor wrote.

Advocates and experts said that since the ruling allows municipalities to issue more citations and arrests without violating the Eighth Amendment, the decision could lead to more legal claims over other constitutional protections, which could include the disposal of people’s property during encampment removals. Other legal claims over cities’ treatment of homeless people have focused on rights protecting against unreasonable search and seizure and guaranteeing due process, in the Fourth and 14th Amendments.

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“There will be even more of these sweeps and attempts to just close down encampments or harass people who are living on the streets to just basically make them become less visible, maybe leave town,” said Stephen Schnably, a law professor at the University of Miami who has advocated for the rights of homeless people in lawsuits.

If more cities enact camping bans, which could require an increased law enforcement response, those interactions could lead to loss of property, said Ann Oliva, the CEO of the National Alliance to End Homelessness. The ruling “opens that door,” she said.

ProPublica has been reporting on the impact of encampment removals and recently found that the city of Albuquerque, while removing homeless encampments, had discarded personal property in violation of city policy and a court order that has since been lifted. Some people told ProPublica that they had belongings discarded multiple times by city crews. They described losing survival gear, including tents and sleeping bags during freezing weather; important documents such as birth certificates; and irreplaceable mementos like family photos.

Recently, dozens of people with lived experience and advocates from across the country have described to ProPublica having their property discarded during encampment removals.

Legal experts said the practical implications of the decision is that it empowers local governments to issue citations and make arrests with the possibility of jail time.

Donald Whitehead, the executive director of the National Coalition for the Homeless, said he expects it will cause communities to think criminalization is the “right direction” and dissuade policymakers from developing new ways to provide more affordable housing. “Why come up with innovative, creative solutions when you can simply raid encampments and put people in jail,” he said.

Whitehead said he is worried that the ruling will lead homeless people to become more isolated and vulnerable to crime.

States have already enacted new legislation that criminalizes camping on public land.

A new Florida law, which takes effect Oct. 1, prohibits counties and municipalities from allowing camping or sleeping on public property. The law directs the state’s Department of Children and Families to certify designated camping areas for people experiencing homelessness. Beginning in January, private citizens, business owners or the state attorney general can sue if a county or municipality fails to adhere to the law.

Kentucky lawmakers overrode a veto by Gov. Andy Beshear, a Democrat, to enact the Safer Kentucky Act, which makes camping on certain private and public property a misdemeanor after multiple violations. The law also allows property owners to use deadly force against people who are illegally camping and goes into effect in July.

Grants Pass, a city of about 39,000, along with a large number of cities and states, asked the Supreme Court to hear the case, arguing that a 2018 lower court ruling, Martin v. Boise, prevented cities across the West from responding to the growth of encampments. The 9th Circuit — covering states with some of the highest populations of people experiencing unsheltered homelessness, including California, Oregon and Washington — ruled that homeless people cannot be punished for sleeping outdoors on public property if they don’t have anywhere else to go.

In its appeal to the Supreme Court, Grants Pass argued that the status quo harms local governments, residents and people experiencing homelessness. “Public camping laws” are a “critical (and constitutional) backstop” to halt the growth of encampments, lawyers wrote.

“Even when coupled with offers of shelter and other services, efforts to enforce common sense camping regulations have been met with injunctions.”

The lawyers representing people experiencing homelessness argued that the 9th Circuit ruling did not deprive cities of their ability to clear encampments. Lawyers pointed out that Grants Pass had continued to dismantle encampments throughout the legal proceedings, “as it is free to do.” “That is a policy choice not a judicial mandate,” the lawyers wrote, adding the politicians have “chosen to tolerate encampments” instead of addressing the West’s severe housing shortage.

Jesse Rabinowitz, communications director for the National Homelessness Law Center, said the Supreme Court’s decision empowers cities and states to play a “national game of human Whac-A-Mole and continually do what they were very clear they wanted to do in Grants Pass, which is to push people into another town. We would see that happening on a national level.”

Bob Erlenbusch, a board member for the National Coalition for the Homeless who has advocated for homeless people for four decades, said that since the Martin v. Boise decision, cities have found other ways to criminalize homelessness and clear encampments.

“It’s an everyday occurrence that encampments are swept,” Erlenbusch said, describing city workers in Sacramento, California, who use bulldozers and shovels and in the process destroy belongings. “And that will increase around the country.”

In an amicus brief in the Grants Pass case, the Western Regional Advocacy Project, an organization led by people with experience living on the streets, described a winter encampment removal in Denver where people lost “food, essential paperwork, sleeping bags, clothing, work tools, medication, identification, blankets, survival gear and more.”

Sara Rankin, a law professor with Seattle University who contributed to the amicus brief and studies the criminalization of homeless people, said the court’s Friday ruling will embolden the dehumanization of unsheltered people. “Cities have always had the ability to sweep and they continue to do that at reckless paces,” she said. “What happens to people? Will people be more harmed as a result? I would say that is a very, very deep concern.”

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Ruth Talbot contributed reporting.

by Jessica Miller, The Salt Lake Tribune

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Utah OB-GYN David Broadbent was charged Thursday with forcible sexual abuse, as prosecutors allege he sexually touched a patient during a 2020 exam.

Broadbent has been accused in civil lawsuits of inappropriately touching more than 100 patients during exams — but this is the first time Utah County prosecutors have filed a criminal charge against him. He faces a second-degree felony, which carries a potential penalty of up to 15 years in prison.

Over the past year, The Salt Lake Tribune and ProPublica have reported multiple stories about the difficulties women faced as they raised complaints of sexual misconduct against Broadbent, including obstacles in the courts and in reporting to police.

In charging records, prosecutors say one of Broadbent’s patients came to see him in 2020 regarding a bump in her vaginal area. Broadbent allegedly instructed the patient to undress from the waist down — but when he returned to the exam room after she changed, prosecutors say he lifted up her shirt and bra and touched her breasts. He then grabbed her leg “in what felt like a sexual manner,” prosecutors say, and began a vaginal examination.

An attorney representing Broadbent in his civil litigation did not respond to a request for comment. No attorney is yet listed in his criminal case.

Deputy Utah County Attorney Tim Taylor, who is a spokesperson for the prosecutor’s office, said Thursday that police and prosecutors are continuing to investigate and are still considering whether to file additional charges against the OB-GYN.

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At least 49 women have reported to the Provo police that Broadbent sexually abused them during exams, and prosecutors have been weighing whether to file charges for 18 months. This month, the county attorney’s office agreed to pay for a nurse practitioner who specializes in sexual assault exams to review the evidence that prosecutors have and to do research and advise them on what the standard of care is for an OB-GYN appointment.

Many of the women who made reports to the police allege Broadbent inappropriately touched their breasts, vaginas and rectums during exams — often without warning or explanation and in ways that hurt them and made them feel violated. Other former patients, along with many of the women who went to the police, have also sued Broadbent or the hospitals where he worked, with a total of nearly 120 women making sexual assault allegations in two civil lawsuits.

In September 2022, a judge dismissed one of the civil cases, which was filed by 94 women, when he ruled that it fell under medical malpractice law instead of a civil sexual assault claim. That meant it had faced — and missed — tighter filing deadlines. The women have appealed the ruling to the Utah Supreme Court, and they have been waiting for seven months for its decision.

In a different civil suit, 20 other women sued two hospitals where Broadbent worked and had privileges at, alleging they knew of alleged misconduct and failed to act. That case is still pending; the hospitals have argued in court records that Broadbent’s alleged actions against these women didn’t take place on their premises and therefore they are not liable.

Broadbent has agreed to stop practicing medicine while this criminal investigation is ongoing. In response to the civil case filed by the group of 94 women, Broadbent’s attorneys have said sexual assault allegations against him are “without merit.”

The woman whose report led to the criminal charge saw Broadbent in July 2020. A year and a half later, in December 2021, another former patient of Broadbent’s spoke out publicly on the podcast “Mormon Stories,” describing the painful way she said he had examined her years before and how it left her feeling traumatized.

After the podcast aired, women started coming forward publicly in civil lawsuits accusing Broadbent of inappropriate touching. Former patients also started making reports with the police, though it’s not clear from court records when the woman whose report led to the criminal charge went to law enforcement.

by T. Christian Miller

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In 2020, Congress passed the No Surprises Act to protect patients from exorbitant medical bills that had burdened Americans with tens of thousands of dollars in debt. The law was designed to decrease the charges for patients treated by an out-of-network doctor during medical emergencies. Such ER visits often left people vulnerable to so-called surprise bills, in which their insurer would only pay a portion of the expensive treatment.

One of the biggest health care reforms since Obamacare, the No Surprises Act appears to have worked in one important sense. Patients have reported fewer crippling bills. Although little hard data exists, an insurance industry survey found that consumers avoided some 10 million surprise bills in the first nine months of 2023. A think tank report also suggests that people are paying less for the care they receive in the ER and other medical situations covered by the law, such as air ambulance trips.

But a cumbersome government system to resolve payment disputes between doctors and insurers now threatens to undermine the law’s promise, according to interviews with industry players, recent data analyses and government documents.

One potential outcome: higher insurance premiums for everyone.

Another: fewer physicians available to treat rural populations.

Doctors said that insurance companies have been abusing the system to lower payments, stiff medical practices and kick physicians out of their networks.

“I’m trying to think of a polite word to describe the experience, but it has been just chaotic and inefficient,” said Dr. Andrea Brault, the head of the Emergency Department Practice Management Association, a physicians’ trade group. “It’s a costly, lengthy process.”

Insurers, however, charged that big physician groups — some of them owned by private equity investors — are trying to manipulate the process to squeeze out higher payments. “A small but significant number of bad actors” have flooded the system with cases “as a way to maximize revenue,” said Kelly Parsons, a spokesperson for the Blue Cross Blue Shield Association. “Should this trend continue, health care costs are likely to rise unnecessarily.”

An official at the Centers for Medicare & Medicaid Services said the rising number of disputes was a byproduct of the law’s success.

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“The No Surprises Act is protecting millions of patients from surprise medical bills when they experience an emergency or get care from an out-of-network provider at an in-network facility,” said Jeff Wu, the deputy director of policy of CMS’ Center for Consumer Information and Insurance Oversight. “The incredibly large volume of disputes submitted since the law’s surprise billing protections became effective demonstrates the need for this law.”

For decades, private insurance customers had to worry about receiving giant bills from using out-of-network doctors, who typically charge more for services. This was especially true when they had to go to an emergency room, where people have little ability to choose which doctor or hospital to treat them. The No Surprises Act aimed to fix the problem by protecting ER patients so that they would get billed essentially the same as if they received care from in-network physicians and hospitals.

The law radically changed the dynamics of billing disputes. “Before the No Surprises Act, you had doctors and physicians fighting, with patients stuck in the middle. Now you just have doctors and insurers fighting,” said Zack Cooper, a professor of public health and economics at Yale whose research helped shape the law.

Under the law, out-of-network doctors or hospitals invoice insurers, which counter with their own offer. Some 80% of claims are resolved this way, according to the survey conducted by the insurance trade groups.

But when the two sides can’t agree, they go to battle in a system created by the CMS and other government agencies. There, an independent arbiter weighs various factors and determines the final payment amount. This arbitration is at the heart of many of the law’s unintended consequences.

Originally, the government estimated there would be about 17,000 cases a year. But in 2023, almost 680,000 were filed, according to data released in June. The result is an enormous backlog that has slowed payments to doctors, hospitals and medical groups. Decisions are supposed to take 30 days. Since 2022, however, more than half of the cases remain unresolved. Some have lasted more than nine months. Wu said that arbiters have “scaled up their operations” to reduce the delays.

In addition, the law has been challenged repeatedly in court — health care provider associations and air ambulance groups have filed nearly 20 lawsuits involving the No Surprises Act, according to legal experts at the O’Neill Institute for National and Global Health Law. Two cases have overturned the initial CMS guidelines governing the arbitration. The agency has been forced to make numerous adjustments to the process that have contributed to the long delays.

The most heated debate over the dispute system surrounds the payment and enforcement of arbiters’ decisions.

Federal health officials at first thought that the law would help lower the cost of medical care. Instead, arbiters have awarded higher amounts to doctors and other providers than expected — potentially driving up insurance premiums.

“The most likely outcome is that this law doesn’t save consumers on net and potentially pushes in the opposite direction,” said Loren Adler, a researcher at the Center on Health Policy at Brookings, which issued a recent study on the possibility.

While the amounts are higher than expected, they remain lower than what doctors’ groups have billed. Doctors charge that insurance companies are submitting artificially low payment amounts. As proof, they point to data from June that shows arbiters rule in favor of doctors the vast majority of the time.

Still, overall, providers have seen nearly a 40% decrease in reimbursements since the law took effect in 2022, according to a recent survey by the emergency physicians trade group. At least one doctors’ group, Envision Healthcare, mentioned the No Surprises Act as one of the reasons it filed for bankruptcy. (The company has since emerged from court oversight.)

If revenue decreases continue, some doctors’ groups may have to cut back on services. This would most likely be felt in rural hospitals, which often operate with thin profit margins and already have difficulty recruiting ER doctors. “This is threatening to the sustainability of many, many practices,” said Randy Pilgrim, the enterprise chief medical officer for SCP Health, which provides doctors to emergency rooms across the country. “There have been few practices in the over 30 states where we operate that haven’t been affected by this.”

Doctors have also said that insurance companies are making late or incomplete payments after decisions by the arbiter. Complaints to CMS have been ignored, doctors said. Wu, the CMS official, said the agency actively investigates complaints under its jurisdiction.

It is also not clear whether courts can force an insurance company to pay. Pilgrim said his company had submitted almost 75,000 letters to insurance companies pleading for reimbursements after winning an arbitration decision.

“There’s very little teeth” in the process, he said. “You just continue to plead your case and hope you get somewhere.”

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by Eric Umansky

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This article was published in partnership with The New York Times.

Brianna Villafane was in Lower Manhattan protesting police violence in the summer of 2020, when officers charged into the crowd. One of them gripped her hair and yanked her to the ground.

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“I felt someone on top of me and it was hard to breathe,” she said. “I felt like I was being crushed.”

The New York City civilian oversight agency that examines allegations of police abuse investigated and concluded that the officer had engaged in such serious misconduct that it could constitute a crime.

Villafane received a letter from the agency about its conclusions. “I was happy and I was relieved,” she recalled. The next step would be a disciplinary trial overseen by the New York Police Department, during which prosecutors from the oversight agency would present evidence and question the officer in a public forum.

New York’s civilian oversight agency found that an NYPD officer engaged in misconduct when he grabbed Brianna Villafane by the hair during a protest. (Stephanie Mei-Ling, special to ProPublica)

Then last fall, the police commissioner intervened.

Exercising a little-known authority called “retention,” the commissioner, Edward Caban, ensured the case would never go to trial.

Instead, Caban reached his own conclusion in private.

He decided that it “would be detrimental to the Police Department’s disciplinary process” to pursue administrative charges against the officer, Gerard Dowling, according to a letter the department sent to the oversight agency. The force that the officer used against Villafane was “reasonable and necessary.” The commissioner ordered no discipline.

Today, Dowling is a deputy chief of the unit that handles protests throughout the city.

Video Taken by a Civilian Shows NYPD Officer Gerard Dowling Grabbing Brianna Villafane’s Hair During a Protest (Courtesy of Brandon Remmert)

Watch video ➜

His case is one of dozens in which Caban has used the powers of his office to intervene in disciplinary cases against officers who were found by the oversight agency to have committed misconduct.

Since becoming commissioner last July, he has short-circuited cases involving officers accused of wantonly using chokeholds, deploying Tasers and beating protesters with batons. A number of episodes were so serious that the police oversight agency, known as the Civilian Complaint Review Board, concluded the officers likely committed crimes.

As is typical across the United States, New York’s police commissioner has the final say over officer discipline. Commissioners can and often do overrule civilian oversight boards. But Caban’s actions stand out for ending cases before the public disciplinary process plays out.

“What the Police Department is doing here is shutting down cases under the cloak of darkness,” said Florence L. Finkle, a former head of the CCRB and current vice president of the National Association for Civilian Oversight of Law Enforcement. Avoiding disciplinary trials “means there’s no opportunity for transparency, no opportunity for the public to weigh in, because nobody knows what’s happening.”

Indeed, the department does not publish the commissioner’s decisions to retain cases, and the civilian oversight agency makes those details public only months after the fact. Civilians are not told that the Police Department ended their cases.

To piece together Caban’s actions, ProPublica obtained internal records of some cases and learned details of others using public records, lawsuits, social media accounts and other sources.

Retention has been the commissioner’s chief method of intervention. He has prevented the cases of 54 officers from going to trial in his roughly one year in office — far more than any other commissioner, according to an analysis of CCRB data. His predecessor, Keechant Sewell, did it eight times in her first year, even as she faced more disciplinary cases.

In addition, under Caban, the Police Department has failed to notify officers that the oversight agency has filed charges against them — a seemingly minor administrative matter that can actually hold up the disciplinary process. The rules say that without this formal step, a departmental trial cannot begin. Seven cases have been sitting with the department since last summer because it has never formally notified the officers involved, according to the CCRB.

These cases are particularly opaque, as there is no publicly available list of them.

In one episode, the CCRB found that an officer had shocked an unarmed man with a Taser four times while he was trying to back away.

William Harvin Sr. was shocked with a Taser by an NYPD officer four times while trying to back away. (Stephanie Mei-Ling, special to ProPublica)

“He Tased me for no reason,” recalled William Harvin Sr. “He was coming to me, Tasing my legs, my back.”

The review board found that the officer, Raul Torres, should face trial. But the Police Department has yet to move the case forward, a fact Harvin learned from a reporter. “They take care of their own,” he said, shaking his head. (Torres, who has since been promoted to detective, declined to comment and his lawyer said the officer had “no choice” but to use force.)

Video Shows an NYPD Officer Shocking William Harvin Sr. Four Times With a Taser (Video obtained by ProPublica)

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In more than 30 other instances, Caban upended cases in which department lawyers and the officers themselves had already agreed to disciplinary action — the most times a commissioner has done so in at least a decade. Sewell set aside four plea deals during her first year as commissioner.

For one officer, Caban rejected two plea deals: In the first case, the officer pleaded guilty to wrongly pepper-spraying protesters and agreed to losing 40 vacation days as punishment. Caban overturned the deal and reduced the penalty to 10 days. In the second, the officer pleaded guilty to using a baton against Black Lives Matter protesters “without police necessity.” Caban threw out the agreement, which called for 15 vacation days to be forfeited. His office wrote that it wasn’t clear that the officer had actually hit the protesters, contrary to what the officer himself already admitted to in the plea. The commissioner ordered no discipline.

The under-the-radar moves run counter to Mayor Eric Adams’ pledge during his candidacy to improve policing by “building trust through transparency.” This year, in his State of the City address, Adams also promised that cases of alleged misconduct would “not languish for months.”

In a statement to ProPublica, a spokesperson for the mayor’s office defended the Police Department and Caban’s record: “Mayor Adams has full confidence in Caban’s leadership and ability to thoroughly review all allegations of police misconduct, and adjudicate accordingly.”

A Police Department spokesperson declined to answer detailed questions, responding instead with a one-sentence statement: “The NYPD continues to work closely with the Civilian Complaint Review Board in accordance with the terms of the memorandum of understanding.”

That memorandum stemmed from a political compromise reached about a decade ago. Concerned that the department’s policing tactics were too aggressive, members of the City Council pushed for the CCRB to be able to prosecute cases rather than simply make recommendations to the police commissioner.

The final memorandum, produced after protracted negotiations with the Police Department, included the mechanism that has since allowed Caban to intervene in disciplinary cases. The agreement states that the commissioner may take cases away from CCRB prosecutors if the commissioner determines that allowing the agency to move ahead will be “detrimental to the Police Department’s disciplinary process” or if the “interests of justice would not be served.”

Chris Dunn, the legal director of the New York Civil Liberties Union, objected at the time to that veto power. Shown the number of cases that Caban has retained, he told ProPublica, “This is exactly why we were so concerned about this authority.”

The agreement stipulated that retentions can be used only on officers with “no disciplinary history,” a limitation that Caban and other commissioners have not always followed. Caban has on three occasions retained cases of officers who the CCRB had previously found engaged in misconduct.

While commissioners can still choose to impose significant punishment after retaining a case, they often don’t. In 40% of the cases that Caban has retained, he has ordered no discipline. In the cases in which he has ordered discipline, it has mostly been light, such as the loss of a few vacation days. The most severe punishment, ProPublica found, was docking an officer 10 vacation days for knocking a cellphone out of the hand of someone who was recording him.

A Retreat Under Adams

Adams appointed Caban as his new NYPD commissioner at a press conference in New York City last year. (David Dee Delgado/Bloomberg via Getty Images)

Disciplinary trials can produce significant consequences for officers — if they’re allowed to proceed.

In 2018, CCRB prosecutors brought charges against the officer who killed Eric Garner, the Staten Island man whose cries of “I can’t breathe” helped ignite the Black Lives Matter movement. It would be a last chance to hold the officer, Daniel Pantaleo, accountable after a grand jury had declined to indict him. The commissioner at the time, James O’Neill, moved to handle the case internally, according to multiple current and former review board officials. (O’Neill did not respond to a request for comment.)

The CCRB, however, pushed back. “I went to war,” recalled Maya Wiley, the chair of the board at the time, who went to City Hall to argue against the Police Department’s plans. Officials in Mayor Bill de Blasio’s administration overruled the commissioner and let the trial move ahead. Pantaleo was found guilty of using a banned chokehold. Amid huge public interest and scrutiny, the police commissioner then fired him.

The current approach to police discipline under Caban is something civil rights advocates attribute to his boss, Adams, a former police captain who has struck a tough-on-crime image and opposed policing reforms since taking office two years ago. “We cannot handcuff the police,” Adams told reporters when vetoing two criminal justice reform bills in January.

Last year, the mayor reportedly urged Sewell to reject recommended disciplinary action against a top uniformed officer, who was also an Adams ally. She declined and pushed to discipline the officer, resigning shortly afterward. Mr. Adams then appointed another close ally to the position: Caban.

Caban has his own history with the disciplinary process. Over his 30 years on the force, he has twice been found by the CCRB to have engaged in misconduct, making him an outlier in the department. The vast majority of officers have never been found by the oversight agency to have committed any misconduct.

In one case, he was ordered to complete more training after he arrested a civilian for not providing ID. In the other, related to refusing to provide the names of officers to a civilian who said they had mistreated her, there is no record of discipline.

The Police Department did not comment on Caban’s record, but it previously said, “Caban’s awareness of that process will only help him bring a fair and informed point of view to those important decisions.”

Caban recently rejected discipline in a case in which two officers had killed a man in his own apartment during a mental health crisis. The chair of the review board criticized the decision, a move that earned Adams’s ire. She also requested more resources to investigate complaints, which rose 50% last year. Instead, the Adams administration imposed cuts, forcing the board to stop investigating various kinds of misconduct, including officers who lie on the job.

“In this administration we have a mayor who runs the Police Department,” said Dunn, of the New York Civil Liberties Union. “He sets the tone, and the tone is ‘we’re cutting police accountability and discipline.’”

The police union, the Police Benevolent Association, disagrees, saying Caban’s actions are a critical counter to what it sees as frequent overreach by the civilian oversight board. “The police commissioner has a responsibility to keep the city safe,” the union’s president, Patrick Hendry, said in a statement. “CCRB’s only goal is to boost their statistics and advance their anti-police narrative by punishing as many cops as possible.”

Last fall, Caban sent his own signal. He gave one of the department’s top positions to an officer who tackled and shocked a Black Lives Matter protester with a Taser in the summer of 2020. Tarik Sheppard, a captain at the time, was heading to a disciplinary trial when his case was retained a year later, with no discipline given. Sheppard is now deputy commissioner for public information. He regularly appeared on television this spring to talk about the Police Department’s response to campus protests over the Israel-Hamas war.

Tarik Sheppard, center, NYPD’s commissioner of public information, speaks at a press conference in New York City on April 19. (Angela Weiss/AFP via Getty Images)

The outcomes have been different for the victims. Destiny Strudwick, the protester who was tackled and shocked with a Taser, has struggled since the encounter nearly four years ago. “Sometimes I feel like the human psyche is only made to handle so much,” she said. “And what happened to me, it just was too much.”

Sheppard did not respond to requests for comment.

The Police Department never informed Strudwick or Villafane that the cases against the officers who hurt them had been upended. After learning what had happened, both felt that the department had denied them justice.

“That makes my heart sink,” said Strudwick, after ProPublica told her of Sheppard’s retention.

As for Villafane, she gasped when she was shown the Police Department letter wiping away the case against Dowling, who did not respond to requests for comment. She slowly read a line out loud, “His actions therefore do not warrant a disciplinary action.”

She shook her head. “He’s supposed to be protecting us and he’s hurting us,” Villafane said. “Who am I supposed to call to feel safe now? Not him.”

Do you have information about the police we should know? You can email Eric Umansky at eric.umansky@propublica.org or contact him securely on Signal or WhatsApp at 917-687-8406.

by B. “Toastie” Oaster, High Country News

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

When Yakama Nation leaders learned in 2017 of a plan to tunnel through some of their ancestral land for a green energy development, they were caught off guard.

While the tribal nation had come out in favor of climate-friendly projects, this one appeared poised to damage Pushpum, a privately owned ridgeline overlooking the Columbia River in Washington. The nation holds treaty rights to gather traditional foods there, and tribal officials knew they had to stop the project.

Problems arose when the Federal Energy Regulatory Commission, the agency in charge of permitting hydro energy projects, offered the Yakama Nation what tribal leaders considered an impossible choice: disclose confidential ceremonial, archaeological and cultural knowledge, or waive the right to consult on whether and how the site is developed.

This put the Yakama Nation in a bind. Disclosing exactly what made the land sacred risked revealing to outsiders what they treasured most about it. In the past, disclosure of information about everything from food to archaeological sites enabled non-Natives to loot or otherwise desecrate the land.

Even now, tribal leaders struggle to safely express what the Pushpum project threatens. “I don’t know how in-depth I can go,” said Elaine Harvey, a tribal member and former environmental coordinator for the tribal fisheries department, when asked about the foods and medicines that grow on the land.

“It provides for us,” echoed Yakama Nation Councilmember Jeremy Takala. “Sometimes we do get really protective.”

Although government agencies have sometimes taken significant steps to protect tribal confidentiality, that didn’t happen with the Pushpum proposal, known as the Goldendale Energy Storage Project. Tribal leaders repeatedly objected, telling the agency that if a tribal nation deems a place sacred, they shouldn’t have to break confidentiality to prove it — a position supported by state agency leaders and, new reporting shows, at least one other federal agency.

Nonetheless, after seven years, in February FERC moved the project forward without consulting with the Yakama Nation.

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The process known as consultation is often fraught. Federal laws and agency rules require that tribes be able to weigh in on decisions that affect their treaty lands. But in practice, consultation procedures sometimes force tribes to reveal information that makes them more vulnerable, without offering any guaranteed benefit.

The risks of disclosure are not hypothetical: Looting and vandalism are common when information about Indigenous resources becomes public. One important mid-Columbia petroglyph, called Tsagaglalal, or She Who Watches, had to be removed from its original site because of vandalism. And recreational and commercial pickers have flooded one of Washington’s best huckleberry picking areas, called Indian Heaven Wilderness, pushing out Native families trying to stock up for the winter.

The Yakama Nation feared similar outcomes if it fully participated in FERC’s consultation process over the Goldendale development. But there are alternatives. The United Nations recognizes Indigenous peoples’ right to affirmatively consent to development on their sacred lands. A similar model was included in state legislation in Washington three years ago, but Gov. Jay Inslee vetoed it.

The requirements of the consultation process are poorly defined, and state and federal agencies interpret them in a broad range of ways. In the case of Pushpum, critics say that has allowed FERC to overlook tribal concerns.

“They’re just being totally disregarded,” said Simone Anter, an attorney at the environmental nonprofit Columbia Riverkeeper and a descendant of the Pascua Yaqui and Jicarilla Apache nations. “What FERC is doing is so blatantly, blatantly wrong.”

Left to right: Local leaders Elaine Harvey, Jeremy Takala and Simone Anter have expressed concern about the fate of Pushpum. (Photo illustration by J.D. Reeves. Portraits by Leah Nash, Jurgen Hess/Columbia Insight, and Steven Patenaude. Map via the U.S. Geological Survey. Documents via the Federal Energy Regulatory Commission.)

The Yakama Nation has been outspoken in its support for renewable energy development, including solar and small-scale hydro projects. But not at Pushpum; it’s sacred to the Kah-milt-pah people, one of the bands within the Yakama Nation, who still regularly use the site.

The proposal would transform this area into a facility intended to store renewable energy in a low-carbon way. Rye Development, a Florida-based company, submitted an application for permits for a “pumped hydro” system, where a pair of reservoirs connected by a tunnel store energy for future use.

FERC has offered few accommodations for the Yakama Nation on the Goldendale project.

FERC spokesperson Celeste Miller told High Country News and ProPublica in an email that “we will work to address the effects of proposed projects on Tribal rights and resources to the greatest extent we can, consistent with federal law and regulations. This is a pending matter before the Commission, so we cannot discuss the merits of this proceeding.”

“FERC legally doesn’t have to do very much here,” said Kevin Washburn, a dean of the University of Iowa College of Law, a citizen of the Chickasaw Nation of Oklahoma and a former assistant secretary of Indian affairs at the Department of the Interior. “Consultation is designed to open the door so tribes can get in the door to talk to decision-makers.” According to experts, the process can range from collaborative planning that addresses tribal concerns to a perfunctory discussion with minimal impacts, depending on the agency.

“This is the problem with consultation and its lack of teeth,” said Anter. “If the federal government is saying, ‘Hey, we consulted, check that box,’ who’s to say they didn't?”

There’s another problem with consultation, too: Any discussions with a federal entity are subject to public disclosure. That’s good for government transparency, Washburn said, but it can make tribal nations even more vulnerable. “And it’s why tribes are right to be cautious in what they share with feds,” he said.

That’s an obstacle at Pushpum. Things became even harder there in August 2021, when FERC notified the Yakama Nation that federal consultation would be carried out not by the agency itself, but by the developer. The Yakama Nation pushed back, asserting its treaty rights to negotiate as a sovereign nation only with another nation, not with a private entity. FERC, however, insisted that designating a third party was “standard practice.” The National Historic Preservation Act, signed into law in 1966, says an agency “may authorize an applicant or group of applicants to initiate consultation,” but maintains that the federal agency is still “responsible for their government to government relationships with Indian tribes.”

The Yakama Nation also worried about commission rules that require anything the tribal nation says to FERC be shared with the developer. “It gets very sensitive when we share those kinds of stories,” said Takala, the tribal councilmember. “We just don’t share to anyone, especially a developer.”

Some say FERC could change that internal rule, since it isn’t required by law. “For them to cite their own regulations and be like, ‘Our hands are tied,’ is ridiculous,” Anter said. For months, FERC and the Yakama Nation went back and forth over the conditions under which the tribal government would share sensitive information, with the Yakama Nation repeatedly asking to share information only with FERC.

This is the problem with consultation and its lack of teeth. … If the federal government is saying, ‘Hey, we consulted, check that box,’ who’s to say they didn’t?

—Simone Anter, environmental attorney and descendant of the Pascua Yaqui and Jicarilla Apache nations

Ultimately, FERC proposed four ways the Yakama Nation could participate in consultation. In the eyes of tribal leaders, all these options either posed significant risks to the privacy of their information or rendered consultation meaningless.

The first three were laid out in a letter from Vince Yearick, director of FERC’s division of hydropower licensing, sent on Dec. 9, 2021. For option one, it suggested the tribal nation request nondisclosure agreements from anyone accessing sensitive information. Yearick did not specify whether FERC would be responsible for issuing or enforcing these NDAs.

Delano Saluskin, then-chair of the Yakama Nation, called this option “far from the requirements of NHPA or in line with the trust responsibility that the Federal Agency has to Yakama Nation,” citing FERC policies and National Historic Preservation Act law in a February 2022 letter to state and federal government officials requesting support. He added that it “describes a process that does not protect information that is sacred and sensitive from disclosure.”

Alternatively, FERC said, the Yakama Nation could simply redact any sensitive information from documents it filed. This option, however, would leave FERC in the dark about the details of what cultural resources the project would imperil. That would make it harder for FERC to require project adjustments or weigh the specific impacts in its decision about whether to permit construction.

Third, the Yakama Nation could withhold sensitive information altogether, which would present similar problems.

Lastly, in a June 2022 follow-up letter, the commission suggested that the Yakama Nation submit a document “with more details regarding the resources of concern” and a request that some of the information be treated as privileged or withheld from public disclosure.

Overall, Saluskin described FERC’s options as a “failure” to conduct legal consultation in good faith.

A federal agency similarly raised concerns: In May 2023, the Advisory Council on Historic Preservation, which advises the president and the Congress on protecting historic properties across the country, wrote to FERC suggesting that it “provide the Tribes with opportunities to share information that will be kept confidential.” FERC’s rule regarding disclosure, the council said, could insulate the agency from meaningful consultation, “and as a result from any real understanding of the nature and significance of properties of religious and cultural significance for Tribes.”

The concerns over FERC’s engagement with the Yakama Nation are part of a wider discussion of whether and how the U.S. government should protect tribal privacy and cultural resources. Speaking at a tribal energy summit in Tacoma in June 2023, Allyson Brooks, Washington’s state historic preservation officer, said that even though the consent language was vetoed by the governor, state law for protecting confidentiality around tribal cultural properties is still stronger than federal law, which only protects confidentiality if a site is eligible for the National Register of Historic Places.

In Washington, if a tribal historic preservation officer says, “‘X marks the spot; this is sacred,’ we say, ‘OK,’” Brooks declared. She said asking tribal nations to prove a site’s sacredness is like asking to see a photo of baby Jesus before accepting the sanctity of Christmas. “You don’t. You say ‘nice tree’ and take it at face value. When tribes say ‘X is sacred,’ you should take that at face value too.”

That approach is vital to the Yakama Nation, which recently saw a developer involved with a project proposed in nearby Benton County leak information that the nation believed was private.

We don’t write it, you won’t see it posted. You won’t see it in books. It’s our oral history. It’s sacred.

—Bronsco Jim, a spiritual leader of the Kah-milt-pah people

The Horse Heaven Hills wind farm would be the biggest energy development of any kind in Washington state history. But the sprawling 72,000-acre project overlaps with nesting habitat for migratory ferruginous hawks, a raptor state-listed as endangered.

Court documents related to the permitting proceedings show that the Yakama Nation believed it had identified the locations of the ferruginous hawks’ nests as confidential, in part because the hawks are ceremonially important. In May 2023, the Yakama Nation requested a protective order from the Energy Facility Site Evaluation Council, a state-level analog of FERC. The order, which the council issued, instructed all parties to sign a confidentiality agreement before accessing confidential information, similar to the nondisclosure agreements FERC proposed. If any party disclosed that information, they could be liable for damages.

But the order didn’t stop that information from getting out. In February 2024, the Seattle Times published a story on the Horse Heaven Hills wind farm, which included a map of ferruginous hawk nests — a map that was credited to Scout Clean Energy, the developer.

The Yakama Nation quickly filed a motion to enforce the protective order, alleging that Scout Clean Energy had transgressed by passing protected cultural information to the press.

The developer counter-filed, claiming that even if nest locations were a part of confidentiality discussion, the map itself was not, and that it was so imprecise that the critical details remained confidential. The council ultimately agreed.

Despite the risks, Washburn said that tribes should take any opportunity to share their stories with federal officials, even if the conditions aren’t perfect. “I wouldn’t necessarily encourage tribes to give their deepest, darkest secrets to a federal agency,” he said. “But I would encourage them to meet with FERC and try to give FERC a first-person account of why they think this is important.”

Not all experts agree. Brett Lee Shelton, a member of the Oglala Sioux Tribe and an attorney at the Native American Rights Fund, said FERC is out of step with other federal and state agencies. “It’s hard to believe that it’s anything but disingenuous, using that tactic,” he said. “It’s pretty well known by any agency officials who deal with Indian tribes that sometimes certain specifics about sacred places need to remain confidential.”

And for Bronsco Jim, a spiritual leader of the Kah-milt-pah people, sharing too many details is out of the question. Cultural specifics stay within the oral teachings of the longhouse, the site of the Kah-milt-pah spiritual community. Jim said he doesn’t even know how to translate all of the information into English. “We don’t write it, you won’t see it posted. You won’t see it in books. It’s our oral history. It’s sacred.”

by Tony Schick, Oregon Public Broadcasting

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

The Biden administration released a report last week acknowledging “the historic, ongoing, and cumulative damage and injustices” that Columbia River dam construction caused Northwest tribal nations starting in the 20th century, including decimation of the salmon runs that Indigenous people were entitled to by government treaty.

Across 73 pages, the report from the U.S. Department of the Interior concludes “the government afforded little, if any, consideration to the devastation the dams would bring to Tribal communities, including to their cultures, sacred sites, economies, and homes.”

But here’s what’s not in the report: The injuries to Native people were not just an unforeseen byproduct of federal dam building. They were, in fact, taken into account at the time. And federal leaders considered that damage a good thing.

In government documents from the 1940s and 1950s, obtained by Oregon Public Broadcasting and ProPublica, government officials openly discussed what they called “the Indian problem” on the Columbia River, referring to the tribes’ fisheries that were protected under federal treaties. At times, they characterized the destruction of the last major tribal fishery as a benefit that dam construction would bring.

The archival government records were released to Columbia River treaty tribes several years ago under the Freedom of Information Act. They were first made public by OPB and ProPublica in March and April episodes of the podcast “Salmon Wars.”

The documents reveal that the government’s 1950s era of dam building on the Columbia was marked not by a failure to consider tribal impacts, but rather by a well-informed and intentional disregard for Native people.

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“These documents shine a spotlight on a historic wrong” U.S. Sen. Jeff Merkley, an Oregon Democrat, said in a statement to OPB and ProPublica. “The government’s actions wiped out tribal communities, houses, villages, and traditional hunting and fishing sites with thousands of years of history.”

In response to emails detailing what the documents contained, Merkley said he would push the federal government to develop new tribal villages to replace the Indigenous fishing settlements that the dams flooded out.

U.S. Sen. Ron Wyden, a fellow Oregon Democrat, said he looked forward to working with tribes and the federal government to “to repair that shameful past.”

The Interior Department’s new report “writes yet one more painful chapter in the awful and deceitful history of federal decisions that willfully ignored Tribal communities’ rights and humanity,” Wyden said in an emailed statement.

What’s Left Out

The report does not mention any of the discussion from government officials previously reported by OPB and ProPublica.

A spokesperson for the Department of the Interior declined to comment when emailed the documents and asked whether the department was aware of them.

“We have nothing further to add beyond what’s in the extensive report,” press secretary Giovanni Rocco said in an email.

The report is a component of a recent 10-year agreement between the White House and tribes to restore endangered Columbia River Basin salmon populations.

Northwest tribes lauded the report as a long-overdue accounting of harms and a demonstration of the current administration’s commitment to listen to tribes and do right by them.

“The analysis highlights the many different ways the dams have impacted our cultures, lifestyles, diets, and economies and it got this information directly from the tribal people who have been affected,” Corinne Sams, chair of the Columbia River Intertribal Fish Commission, said in an emailed statement. “By listening to and including these testimonies, interviews, and statements, the federal government has taken tribes into consideration on this topic from a relationship of respect and willingness to learn.”

Salmon are estimated to have once totaled more than 10 million in the Columbia River, and they were central to the way of life for many tribes across the river basin. People fished along the river and its many tributaries in what are now Oregon, Washington, Idaho and parts of Canada for thousands of years. Salmon were a fixture of Indigenous people’s diet, religion and commercial trade.

Now, the river system’s salmon hover around 1 million. The decline is attributed largely to dams and other habitat loss stemming from development, along with overfishing.

Documents show government officials in the 20th century came to view the Native presence on the river as a detriment to the government’s own plans for hydropower – and harmful to the fish themselves.

In one memo from 1951, Sam Hutchinson, the acting regional director for the Bureau of Fisheries, summarized a conversation about the anticipated impact of The Dalles Dam, which ultimately drowned the tribes’ last major fishery, at Celilo Falls, when it was completed in 1957.

Hutchinson wrote, “I stated that the beneficial effects would compensate for the detrimental conditions that exist there at present.”

One of those benefits, according to Hutchinson: “The Indian commercial fishery would be eliminated and more fish would reach the spawning grounds in better condition.”

The successor agency to the Bureau of Fisheries, which is now a part of the National Oceanic and Atmospheric Administration, declined through a spokesperson to comment on Hutchinson’s historical remarks.

Hutchinson’s sentiment was also documented in meeting minutes from a 1947 committee of state, federal and local governments about future dam plans.

“We get up above and we run into the Indian problem at Celilo and other places. They are allowed to fish at will,” said Milo Moore, director of what was then called the Washington Department of Fisheries, according to the minutes. He said the tribes’ fishing made it difficult to maintain a constant supply of fish for the department’s own purposes. The state agency’s role included protecting and promoting the commercial and sport fisheries downriver, whose participants were predominantly white.

The head of the Port of Vancouver at the time, Frank Pender, also told federal officials of “the Indian problem” and said of tribal fishing, “certainly we don’t want it to stand in the way of the development of our own way of life.”

At one point during the proceedings, a man named Wilfred Steve was introduced as “our public relations officer for the Department of Fisheries and the Indians,” meeting minutes say. Steve acknowledged “these dams are going along and they are going to destroy their very life, the essence of life of these various tribes.”

Later in his remarks, the public relations officer praised the potential of education programs to assimilate Native people and stated “we hope that there will be no Indians.” He recommended paying the tribes in exchange for flooding their lands and destroying their fisheries.

Like the others quoted in the documents, Steve is now deceased.

Paltry Restitution

Randy Settler, a Yakama Nation fisherman whose family history of salmon fishing was previously documented by OPB and ProPublica, said the money his family received in exchange for the dam flooding Celilo and other tribal lands amounted to roughly $3,200 per individual.

Randy Settler at The Dalles Dam (Katie Campbell/ProPublica)

After dam construction, Congress and agency officials created programs to boost fishing opportunities that involved stocking the river with massive numbers of fish.

The archival government documents detail how these programs were used to justify allowing the dams to block the migration of native salmon. However, 99% of the stocked fish were almost entirely aimed at the fishing grounds below the dams that were used predominantly by white fishermen.

“It was kind of like what happened to the buffalo,” Settler told OPB and ProPublica during the initial reporting for “Salmon Wars.” “If they could rid the natural food of those tribes that they were dependent upon, they could weaken the tribes and get them to stop going across their ancestral territories. They would be more confined to their reservation lands where they could be controlled.”

The Biden administration has promised tribes it will restore wild salmon populations. As part of the 10-year agreement it signed with tribes, which includes a pause on any lawsuits over the dam system, the White House announced a plan to invest heavily in tribal-led salmon restoration and energy projects that could potentially replace the power from some hydroelectric dams. President Joe Biden also signed a memorandum calling for federal agencies to prioritize salmon recovery and to review the work to make sure they’re doing enough.

by Jennifer Berry Hawes

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.

One young researcher from Alabama is unearthing the origin stories of schools known as “segregation academies” to understand how that history fosters racial divisions today.

Another is measuring how much these private schools — which opened across the Deep South to facilitate white flight after the 1954 Brown v. Board of Education ruling — continue to drain public school enrollment.

And a third is examining how these academies, operating in a “landscape marred by historical racial tensions,” receive public money through Alabama’s voucher-style private school tuition grants.

All three researchers are white women raised in Alabama, close in age, who grew up near these academies. The women — one recently received a doctorate and the other two are working on theirs — approach their research from the varied disciplines of economics, education and history. Their inquiries are probing the very schools some of their family and friends attended.

In an ongoing series this year, ProPublica is examining the continued effects of hundreds of segregation academies still operating in the South. One of the three researchers played a key role in our initial story. Her experiences, both personally and academically, provided essential context to understanding how one segregation academy in rural Alabama has kept an entire community separated by race.

The research conducted by all three women is especially important now. It comes at a time when Southern legislatures are creating and expanding school-voucher-style programs that will pour hundreds of millions of public dollars into the coffers of private schools, including segregation academies, over the coming years.

Segregation Academies and Voucher Programs

Annah Rogers was working on her undergraduate degree at Auburn University in 2013 when Republican lawmakers suddenly rushed to pass the Alabama Accountability Act. The legislation created a voucher-style system to pay private school tuition for low-income students. As Rogers followed the debates, she wondered just how accessible private schools are to families with few resources, especially in rural areas. She knew that some of those communities don’t have private schools — and where they do exist, they’re often segregation academies.

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Rogers hails from Eutaw, Alabama, a town of 3,000 people located in the Black Belt, a stretch of counties whose dark, rich soil once fueled large cotton plantations. Her parents sent her 45 minutes away to a private Catholic school. (Catholic schools generally aren’t considered segregation academies because most dioceses integrated willingly.) Rogers’ father attended a now-defunct local segregation academy, and her mother went to one in another county.

While working on her doctorate in political science at the University of Alabama, she devoted her 2022 dissertation to examining the state’s voucher-style program and its effects on private schools, including segregation academies. She had expected segregation academies to balk at participating in the program given that more than 60% of students who use it are Black. Yet she found that many do. In fact, they take part at a slightly higher rate — 8% more often — than other private schools.

That discovery prompted more questions: Are the tuition grants enabling Black students to attend segregation academies, making the schools more diverse? Or are the academies merely siphoning off the white students who use the grants?

“The biggest problem is that we don’t know,” said Rogers, who’s now an assistant professor at the University of West Alabama’s education college. She hit a huge hurdle when the state refused to break down by school the demographics of students who use the publicly funded program to pay private school tuition.

Despite that roadblock, she continues to probe these questions while working on related studies, including one that demonstrates how school segregation patterns have continued and even worsened across Alabama’s Black Belt over the last three decades.

Her research will become more critical in the coming years, as more students, including students from wealthier families, will be receiving state money to attend private schools. In March, Alabama lawmakers created a universal voucher-style program to fund private school tuition. It will be open to all children, regardless of household income, starting in 2027.

Segregation Academies and Public School Enrollment

Danielle Graves grew up in Mobile on the Gulf Coast, where she attended a mostly white private Episcopal school. Although it opened long enough before the Brown v. Board ruling that academics don’t label it a segregation academy, its enrollment still grew substantially during desegregation.

Graves left the South to pursue her master’s and doctorate in economics at Boston University, where she is a fourth-year Ph.D. student. While in the Northeast, she realized that private schools there tend to be much older than in the South. The private school tradition didn’t really catch on in the South until white people thought Black students might arrive at their children’s public schools.

Graves also realized how few people outside of the South knew about segregation academies. Economics literature rarely mentioned them at all.

“I felt like it was this missing piece,” she said.

A lot of economic research on school desegregation and white flight focuses on cities rather than on rural areas “where segregation academies really play a big role,” Graves said. She jumped into that largely empty research lane.

Graves tackles questions like: How have segregation academies affected the average public school enrollment? Are there differences between rural and urban areas?

She taught a class on the economics and history of school segregation at Harvard University this spring and has spent the last two years researching and presenting her work on the impact that segregation academies have on local public schools.

For the dissertation she is finishing, Graves found that on average, when segregation academies opened in Alabama and Louisiana, they caused white enrollment in neighboring public schools to drop by about a third — and the white population did not return over the 15 years that followed.

Now she is measuring the effects of segregation academies on local public school funding, the students who attended them and the communities where they operate.

Segregation Academies and History

Unlike the other two researchers, Amberly Sheffield went to her local public schools, which were predominantly Black. As she watched other white families pay to send their children to segregation academies, she wondered: why?

Sheffield grew up in Grove Hill, a town of 2,000 people, where her father briefly attended a local segregation academy. After earning her undergraduate degree, she landed a job teaching history at a segregation academy in neighboring Wilcox County. ProPublica’s first story in its series on these academies focused on Wilcox County and the lasting effect that school segregation has had on community members — including, for a time, Sheffield. 

Almost all of her students at Wilcox Academy were white. The entire faculty was white. Yet Wilcox County is 70% Black.

Like most segregation academies, Wilcox Academy doesn’t advertise itself as such. Some of these schools include their founding years on their websites or entrance signs — as Wilcox Academy does — but mention nothing about the fact that they opened to avoid desegregation.

Sheffield wanted to shed light on the context of the schools’ openings. In her 2022 master's thesis at Auburn University, she chronicled Wilcox County’s history of sharecropping, violence against civil rights advocates, and resistance to school integration.

She also documented the many fundraisers white people held to pay for the segregation academies they rushed to open before many Black students arrived at the white public schools. Families forming one academy held a skit night, barbeque, fish fry, bingo party, pet show and pancake supper. The money raised paid for school equipment and salaries “but equally important, it created a new community for its founders, sponsors, and families,” she wrote.

The schools also joined a new group that provided their accreditation and organized sports events. “These academies allowed whites to gain complete control over their children’s education — they no longer had to answer to any form of government but their own,” Sheffield wrote.

Today, she is continuing her research as a doctoral student in history at the University of Mississippi.

“History is very important in understanding how we’ve gotten to where we are today, especially when you look at public schools in rural communities in Alabama,” Sheffield said. Many of these schools are mostly Black, underfunded and struggling. “I want people to understand how it got that way, and the answer usually is segregation academies.”

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Mollie Simon contributed research.

by Mark Olalde

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Last year, representatives of New Mexico’s oil industry met behind closed doors with the very groups with which they typically clash — state regulators and environmentalists — in search of an answer to the more than 70,000 wells sitting unplugged across the state. Many leak oil, brine and toxic or explosive gasses, and more than 1,700 have already been left to the public to clean up.

The situation is so dire that oil companies agreed to help try to find a solution.

After months of negotiations, the state regulators who ran the meetings emerged with a proposal that they hoped would appease everyone in the room. The bill would instruct drillers to set aside more money to plug their wells, authorize regulators to block risky sales to companies that would be unlikely to afford to clean up their wells and implement a buffer zone between wells and hospitals, schools, homes and other buildings.

The industry, unhappy with the state’s final language, turned against the bill it helped shape.

The influential New Mexico Oil and Gas Association told its supporters that HB 133 was “a radical and dangerous approach designed to strangle the oil and gas industry” and asked them to send their elected representatives a form letter opposing it. If passed, the trade group proclaimed, the bill would “Destroy New Mexico.” The Independent Petroleum Association of New Mexico, which represents small oil companies, called the bill “overzealous.”

New Mexico’s main oil trade group came out against a reform bill that it had helped shape, shifting its position to neutral only after the bill was amended. (Screenshot and annotation by ProPublica)

In the face of such opposition, Democrats removed key provisions. The New Mexico Oil and Gas Association eventually changed its position to neutral, but largely stripped of substance, the bill died on the floor of the House of Representatives.

“Industry killing the bills was the dynamic I saw,” said Adam Peltz, a senior attorney with the Environmental Defense Fund who helped write the New Mexico proposal, as well as similar bills in other oil-producing states.

New Mexico faces a multibillion-dollar shortfall between the money companies have set aside to plug wells and the actual cost of doing so, according to state research, a reality mirrored in many states.

Across the country, more than 2 million oil and gas wells sit unplugged, but the money held in cleanup funds, called bonds, is many tens of billions of dollars short of the projected costs, ProPublica and Capital & Main found. Now, a once-in-a-lifetime effort to shrink that shortfall is underway, spurred in large part by federal funding for well-plugging efforts.

As regulators and legislators seek to require that drillers set aside more money for the work, they have invited oil companies and trade groups to help write the regulations. This dynamic — politically expedient in states where the industry wields tremendous influence — has combined with secretive drafting processes and millions of dollars of industry lobbying to weaken or kill proposals in state after state.

In some, including Oklahoma and Utah, lawmakers propose bills only after oil trade groups approve the language. In many others, regulators and drillers work together through organizations such as the quasi-governmental Interstate Oil and Gas Compact Commission to design policy. But even when given a seat at the table, like in New Mexico, the industry has turned against reform efforts.

Holly Hopkins, a vice president of the American Petroleum Institute, the industry’s largest trade group, said in a statement, “We are continuing to work with policymakers to advance balanced regulations that enhance safety, sustainability and environmental stewardship and help ensure that American energy is produced responsibly from start to finish.”

Those working to reform a status quo that has left potentially millions of wells as orphans disagree. Sen. Jeff Merkley, an Oregon Democrat, is preparing to file a bill in Congress targeting oil companies’ use of bankruptcy to offload cleanup obligations on the public.

“The challenge in anything that involves fossil fuels, and particularly that addresses a profit strategy of fossil fuel companies, is you’re taking on the most powerful lobby in the United States of America,” he said.

“All Hell Broke Loose”

After a previous effort to update oil regulations failed in the New Mexico Legislature last year, the state convened a working group. Regulators, the industry and environmentalists spent months negotiating the details. Written with input from this broad coalition, and with the governor’s office and the Legislature in the hands of Democrats, it appeared the political stars had aligned.

But roadblocks quickly appeared. Lawmakers hadn’t been included in the negotiations, even though a sponsor would have to carry the bill through the session, which lasts only a few weeks. The talks were also closed to the public, and some environmental groups had been excluded because of ongoing litigation against the state.

As soon as Rep. Kristina Ortez, a Democrat, filed HB 133, “all hell broke loose,” she said, with infighting from the closed-door negotiations spilling into the Legislature.

“The oil and gas companies didn’t appreciate the language,” Ortez said. “They felt like they weren’t being listened to.”

Some environmentalists, meanwhile, felt that industry representatives had already watered down the bill too much during the negotiations and came out against it, she said.

HB 133 was picked apart further as it worked its way through the legislative process.

New Mexico legislators stripped much of the substance out of HB 133, a bill meant to reform state oil and gas regulations, to muster enough votes to move the measure out of committee. (New Mexico House of Representatives. Annotation by ProPublica.)

With the New Mexico Oil and Gas Association now opposed, House committees submitted substitute measures to shift the industry’s position, gain votes and pass the bill. The amended versions eliminated a requirement that wells be a certain distance from schools and other buildings. Also gone was language to remove a cap on the monetary penalties regulators could assess against oil companies. And bonding requirements were watered down to the point that new, stricter rules would only apply to a handful of drillers.

By the time the rewritten legislation made it to the House floor, “I was so wildly unenthusiastic of the bill,” said Andrew Forkes-Gudmundson, who worked on it for environmental group Earthworks.

Missi Currier, the New Mexico Oil and Gas Association’s president and CEO, said that the group dropped its opposition after the bill was amended. But as the bill’s supporters whipped votes, they still encountered resistance from legislators who had been persuaded by small oil companies’ arguments that the new rules would push drillers out of business, Forkes-Gudmundson recalled.

Having hemorrhaged environmentalists’ support without gaining significant votes from moderates and conservatives, Democratic leadership never brought the bill up for a vote by the full House.

State-Sponsored Influence

Because the oil and gas industry is largely governed at the state level, states banded together in the 1930s with the approval of Congress, and more recently with federal funding, to share best practices for regulating oil. The resulting organization, the Interstate Oil and Gas Compact Commission, has evolved into a forum where, much as happened in New Mexico, the industry influences the ideas that regulators take back to their states and write into the rules governing oil companies.

This was on full display in October at the commission’s annual conference, hosted among Utah’s Wasatch Mountains, which were blanketed by autumnal reds and yellows. With Chevron, ExxonMobil and Oxy Petroleum among the conference’s largest sponsors, oil and gas regulators from across the country had gathered at the Chateaux Deer Valley, an upscale ski resort overlooking Park City’s renowned pistes.

As the conference began, regulators were clear-eyed that taxpayers could be saddled with the cost of plugging orphan wells.

“This year, I spent $29 million, and somehow that’s still not enough,” Jason Harmon, one of West Virginia’s head oil regulators, said about his state’s well-plugging efforts.

Catherine Dickert, New York’s top oil regulator, noted that wells in her state get passed to ever-smaller companies “until finally they get transferred to somebody who owns two wells that never, ever will be able to plug them.”

And cleanup funds are “woefully inadequate in Pennsylvania right now,” Kurt Klapkowski, the commonwealth’s lead oil regulator, told the attendees. “And we’ve gotten a lot of opposition about increasing that.”

But as the conference progressed, talk of bonding regulations gave way to discussions of repurposing old wells. Perhaps natural gas would still be needed to develop hydrogen fuel, an ExxonMobil representative discussed on a panel at the conference. Or wells could be used for storing captured carbon dioxide, an Oxy Petroleum representative said on another. State regulators returned home with these and other pitches from the oil industry on how to manage aging oil fields.

In addition to conferences, the organization pens pro-oil and gas resolutions that it has placed in state legislatures. In these resolutions, its members have called on the federal government to minimize regulations on climate-warming gasses, increase oil-related tax credits and shield certain royalty owners from cleanup costs. States including Wyoming, Utah and Oklahoma, among others, have passed resolutions pushed by the commission.

By the 1970s, the Department of Justice was arguing that the Interstate Oil and Gas Compact Commission had largely become a lobbying organization. Critics today say the commission is hampering reform.

“They’re this unique mechanism for corporate capture,” said Jesse Coleman, a senior researcher with public interest watchdog organization Documented who has tracked the commission for years. “They get to act as this impartial source of information, when in reality, they’re on the industry side.”

While about 60% of the people involved with the group were government officials, a quarter worked in the oil and gas industry, according to a 2021 membership survey Documented obtained via a public records request. The Environmental Defense Fund is typically the only green group in the room.

The survey also found that people involved with the group saw its role as promoting “diverse viewpoints on climate related issues” and “fighting back against measures that seek to ‘keep it in the ground’” — the “it” referring to climate-warming fossil fuels.

Responses from an Interstate Oil and Gas Compact Commission 2021 strategic planning survey (Courtesy of Jesse Coleman/Documented)

As the U.S. Department of the Interior doles out $4.7 billion to plug orphan wells from the Infrastructure Investment and Jobs Act, the commission and its members have helped write guidelines governing the spending, most of which is going to states, documents obtained via public records requests revealed. In many cases, the commission’s suggestions were highly technical and provided assistance to a federal department trying to navigate various states’ unique laws.

But at other times, the commission and its members asked the Interior Department to tear up requirements that states prioritize plugging wells that are emitting methane, a potent greenhouse gas, and pay the regional prevailing wage to workers hired to do the plugging.

In an email responding to questions, Lori Wrotenbery, the commission’s executive director, said the group’s pushback was justified because the Interior Department had exceeded its authority in telling states how to spend the money.

For Coleman, resistance from the commission comes as no surprise.

“The regulations and the resolutions that they promote have allowed a greater degree of pollution,” he said, “and have allowed greater leniency on the oil and gas industry.”

Reform Efforts Failing to Launch

Despite industry pressure, some states have begun addressing the orphan well epidemic. California passed a law in October that could significantly increase oil companies’ bonds. A few weeks later, Louisiana strengthened rules pushing companies to more quickly plug wells that aren’t pumping.

But New Mexico’s story is more typical. There and around the country, reform efforts have foundered.

Oklahoma, for example, faces an estimated shortfall of more than $7 billion between cleanup costs and bonds, according to state data analyzed by ProPublica and Capital & Main. Still, a group of Republican legislators has tried and failed for several years to increase the state’s bonding levels.

This legislative session, Rep. Brad Boles, a Republican, ran a bill to increase the highest level of required bonds from $25,000 to $150,000. Boles told a House committee that he had worked with two oil trade groups on the bill, describing it as “language that helps move the needle but also is not seen as anti-industry.”

His proposal unanimously passed the House of Representatives and a Senate committee. Even so, it died without a vote in the Senate. (Boles declined to “point fingers at any particular person or group” for its failure but said he would try again next session.)

Meanwhile in West Virginia, which has a projected bonding shortfall of more than $15 billion and some of the nation’s weakest bonding laws, a bill to strengthen regulations never made it onto a committee agenda. This is the sixth straight year that such legislation has failed, Mountain State Spotlight reported.

The bill’s lead sponsors did not respond to requests for comment.

“The industry has a pretty solid lock on the Legislature,” said David McMahon, a West Virginia attorney who drafted this year’s bill.

In New Mexico, Ortez, the legislator who ran HB 133, said she was “dismayed” by how the bill fell apart, even though it was “maybe too fair” to oil and gas companies. But she hasn’t given up, pledging to continue pitching the industry on reform and finding language that can secure the necessary votes in advance of next year’s legislative session.

“I feel so strongly about this moving forward,” she said. “We need to make it happen.”

Nick Bowlin of Capital & Main contributed reporting.

by Jeremy Schwartz

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As proponents of private school vouchers racked up win after win across the country in recent years, the largest Republican-led state in the nation remained stubbornly outside their grasp — until now.

Texas Gov. Greg Abbott succeeded in persuading primary voters to remove from office members of his party who had defied him by voting against legislation that would allow the use of state money to pay for private school tuition.

Abbott’s success campaigning against fellow Republicans during the primary election sent a clear message that disloyalty would not be tolerated even for those who supported other priorities he outlined. If the pro-voucher candidates who Abbott supported in their primaries win in the November general election, as many are expected to, the governor argues he has the votes to finally pass legislation.

The governor’s voucher crusade represents the culmination of more than three decades of work by Christian conservative donors, whose influence in Texas politics has never been more pronounced. They have poured millions of dollars into candidates and helped lead or fund a network of organizations, such as the influential Texas Public Policy Foundation, a conservative think tank, to galvanize Republicans around the issue.

“Texas has been kind of an Alamo to the national voucher crowd in the sense that the biggest state down South still hasn’t done it,” said Joshua Cowen, an education policy professor at Michigan State University who opposes vouchers. “When your whole national messaging strategy is based on this unstoppable flood of parents rising up to defeat the woke left in the public schools and Texas is standing there in the middle of the map, the biggest state saying no, that’s just a problem for the overall strategy.”

During his first eight years as governor, Abbott was relatively quiet on vouchers. In 2017, he called on lawmakers to pass such a program for students with disabilities. But Abbott, who did not respond to questions from ProPublica and The Texas Tribune, hadn’t engaged in political warfare on the issue until last year, when he made passing vouchers for all Texas students a top priority. He joined the Texas Public Policy Foundation on a “parent empowerment” tour across the state and urged church pastors to advocate for such legislation from the pulpit.

He also twice ordered lawmakers into emergency legislative sessions to pass measures related to “school choice,” a term supporters have used to describe programs that operate outside of the traditional public school system, including private or religious schools. But lawmakers, including 21 from his own party, rejected the legislation.

Republicans with national ambitions are increasingly expected to fully support vouchers, Cowen said, adding that Abbott’s GOP counterparts in states like Arizona and Florida had overseen successful pushes in their state legislatures.

“Vouchers have absolutely become one of the top issue areas of the litmus test for Republican Party power politics,” Cowen said. “If you want to be a player, you have to really push on the doctrine.”

Supporters say voucher programs give parents more control over their children’s education by allowing them to use public dollars to choose the schools they believe are best, including those that are privately run. Opponents argue that vouchers siphon tax dollars from public education and allow funding to flow into private schools without holding them accountable if they fail children.

The issue has generally been one that falls along partisan lines. But over the years, rural Republicans have broken with their party to vote against vouchers. Public schools, they’ve reasoned, often play a vital role in local communities where private options are limited.

Despite polling showing that slightly less than half of Texas registered voters support vouchers and only 2% of registered Republican voters listed vouchers as a key issue in the GOP primary election, Abbott pursued aggressive campaigns against lawmakers in his party who did not fall in line. Among them were two incumbents he had endorsed two years earlier.

In targeting them, Abbott and his billionaire allies didn’t make vouchers the focus of campaign advertising but rather accused them of being soft on issues like border security.

“In my district, and I think I’ve seen it in other districts as well, the No. 1 issue was the border,” said state Rep. Steve Allison, a San Antonio Republican who lost his primary election in March after voting against vouchers last year. “And school choice was way down the list and behind the economy and behind property taxes. So that’s when he seemed to pivot and say, ‘Well, these guys are weak on the border. They’ve increased property taxes.’ All of that was just absolutely false.”

The primary challenges drew millions in contributions from national groups and billionaire donors like TikTok investor Jeffrey Yass, a Pennsylvania voucher advocate who poured $6 million into Abbott’s campaign. A Texas affiliate of the Betsy DeVos-funded American Federation for Children spent more than $4 million attacking incumbents, and the federal Club for Growth political action committee said it coordinated with another PAC to spend about $8 million on ads targeting Texas voucher opponents.

Allison lost to a challenger who received more than $700,000 in support from Abbott’s campaign.

“Ever since I’ve been in the Legislature, he’s never shown any interest in private school vouchers,” Allison said. “It’s just troubling the way it came out of nowhere and then the way he turned on those of us that just couldn’t go along with him on it. And I have been with him on everything, every single issue request he’s made, except this one.”

A Long Push Supercharged

Shortly after the March GOP primaries, Abbott received a hero’s welcome while addressing attendees at the Texas Public Policy Foundation’s annual policy summit in Austin. He celebrated unseating five Republicans and stoked enthusiasm for the runoff elections, which he hoped would secure enough wins to pass voucher legislation in 2024. (In the May primary runoff, another three anti-voucher Republicans were unseated.)

“We would not be on the threshold of success if it were not for TPPF,” Abbott told the packed room in March. “I come here today with a heart of gratitude.”

The group has pushed for vouchers since its founding in 1989 by Republican Christian conservative donor James Leininger, who funded a pilot voucher program in his hometown of San Antonio for several years. In 1998, billionaire oilman Tim Dunn joined the board, serving as vice chair for more than a decade as he became one of the state’s most prolific campaign donors. Dunn later helped form Empower Texans, a more confrontational organization that graded Republican lawmakers according to their adherence to hard-right principles and funneled money into campaigns against Republicans deemed insufficiently supportive. Those campaigns featured what opponents have called deceptive mailers and an aggressive in-house media operation.

The groups and the pro-voucher billionaires made strategic investments over the years to advance their cause. In 2006, Leininger, who did not respond to questions from the news organizations, spent $2.5 million in an attempt to oust five House Republicans who voted against vouchers. Two lost their seats. Still, the Texas House voted 129-8 against vouchers the following year.

Dunn and West Texas billionaire evangelical donors Dan and Farris Wilks later contributed millions to Lt. Gov. Dan Patrick, who breathed new life into the voucher push. “As a conservative leader on many issues, it should be no surprise that conservatives support me,” Patrick said in a statement about the campaign contributions. He added that his support for school choice initiatives, including vouchers, spans decades.

Neither Dunn nor the Wilks brothers responded to questions about the donations or the voucher push. In an opinion piece published by the Midland Reporter-Telegram last year, Dunn said he has never led statewide school choice efforts. Instead, Dunn argued, he has spent his energy building up Midland Classical Academy, the religious private school he founded more than two decades ago.

Despite Patrick’s influence in the Senate, which passed voucher legislation in 2015 and 2017, the Texas House rejected the plans those years, and the voucher push largely died out afterward.

The arrival of COVID-19 helped reignite the embers of the movement. TPPF promoted vouchers as the solution to anger over COVID-19 restrictions and political battles over what is taught in schools.

In August 2020, TPPF published a piece titled “Coronavirus is forcing a wake-up call on Texas’s education opportunities” that called for education dollars to follow children to the school of their choice, including private schools.

“I think a lot of voucher supporters saw COVID and some of the culture wars as a window for pushing vouchers,” said David DeMatthews, a University of Texas educational leadership and policy professor who does not support using taxpayer money to pay for private schools. “Conservative think tanks like TPPF can help with the framing and crafting a narrative to make a very unpopular policy seem more palatable.”

Brian Phillips, a spokesperson for TPPF, did not respond to specific questions about the group’s advocacy but issued a statement anticipating victory next year. “When school choice legislation passes next year, it will be due to the amazing vigilance of thousands of parents, students, educators, policymakers, activists, pastors, volunteers, and, yes, even a few think tanks,” he said in a statement.

While pushing for vouchers, TPPF also capitalized on debates about how race is taught in public schools. The group published a series of stories attacking critical race theory, an advanced academic concept that examines systemic racism. The “long-term solution to fighting CRT begins with parents fighting for the right to choose the best education for their children,” TPPF wrote in a July 2021 article that advocated for a system in which “a child’s public school funding follows him or her to the school of their parents’ choice.”

Later that year, the focus among pro-voucher forces turned to books with LGBTQ+ themes in Texas school libraries. In a November 2021 fundraising letter, TPPF CEO Kevin Roberts claimed that “pornography and explicit literature” could be found in school libraries and that public schools held students as a “captive audience to both Marxist and sexual indoctrination.”

He told potential donors that the solution was an all-out push for school vouchers.

“TPPF’s policy and communications departments are building this army of hundreds of thousands of ‘education freedom fighters,’” wrote Roberts, who did not respond to a request for comment or to written questions. He later left TPPF to lead the influential conservative Heritage Foundation think tank, where he helms Project 2025 to “institutionalize Trumpism.”

It is “now or never,” Roberts wrote. “The time is ripe.”

A Full-Throated Embrace

As TPPF worked to stoke parental anger over public schools, Abbott had not fully jumped into the fray.

Texas Scorecard, a media outlet formed by Empower Texans in 2015 that has since become an independent nonprofit, highlighted that Abbott had left school choice off his legislative priorities in his 2021 State of the State address.

Texas Scorecard, which is chaired by Dunn, did not respond to questions or a request for comment.

Dunn and the Wilks brothers heavily supported Dallas real estate developer Don Huffines, one of Abbott’s far-right challengers, in the 2021 Republican primary. Their political action committee Defend Texas Liberty poured $3.7 million into Huffines’ campaign. Huffines hammered Abbott from the right on various issues, including criticizing him for not doing as much to promote school choice as Florida Gov. Ron DeSantis did.

Huffines wrote in a statement to ProPublica and the Tribune that while his goal was to win the election, he “knew that the campaign would force the Governor to adopt many of my policy positions, including school choice, which has been a priority of the National and State Republican Party for decades.”

A campaign stop in San Antonio in May 2022 signaled a new phase for Abbott: a full-throated embrace of vouchers as a top legislative priority.

“Empowering parents means giving them the choice to send their children to any public school, charter school or private school with state funding following the student,” Abbott said.

After his reelection and throughout the 2023 legislative session, Abbott joined TPPF campaign director Mandy Drogin in a series of “parent empowerment” rallies across the state that promoted the benefits of vouchers.

But even with Abbott’s campaigning, the voucher push failed by the end of the session in May.

In September, a month before Abbott called lawmakers back to Austin for an emergency session, TPPF helped organize a teleconference call in which the governor urged pastors to promote vouchers during Sunday church services. During the call, Abbott announced his plan to target Republicans in upcoming primaries if they did not support vouchers during the special session.

He fulfilled his promise this spring.

Kel Seliger, a former state senator who recalls being unsuccessfully targeted by Dunn after voting against vouchers, warned that Abbott’s campaign against fellow Republicans sends a chilling message.

“It says, ‘Do not disagree. We don’t necessarily care about people of conscience or anything like that,’” said Seliger, who in 2021 decided not to seek reelection. “‘We have no interest in any diversity of opinion.’ And that’s a tough message to send to people you are obligated to work with.”

Two days after the May primary runoffs, TPPF hosted another celebratory event at its Austin headquarters.

Corey DeAngelis, a senior fellow with the national voucher advocacy group American Federation for Children, whose PAC had spent more than $7 million in the state as of June, declared Texas the “crown jewel” of the national voucher movement. He predicted even Democratic-led states would follow its lead.

“We gotta get Texas,” said DeAngelis, who did not respond to a request for comment. “When Texas comes, the rest of the monopoly dominoes will start to fall all across the country.”

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Dan Keemahill contributed reporting.

by Jennifer Smith Richards and Jodi S. Cohen

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Two more states are now scrutinizing a New York boarding school for autistic students and have warned school districts about troubling conditions there.

In Connecticut, education officials visited Shrub Oak International School and alerted districts that a state watchdog group determined there were ongoing “serious safety concerns” at the unregulated for-profit private school. Separately, the state’s Department of Developmental Services, which serves residents with intellectual disabilities and autism, has decided to stop sending more students there, an agency spokesperson told ProPublica. That agency described the facility as looking “more akin to a penal institution than an educational campus.”

Washington education authorities, meanwhile, visited Shrub Oak this month and warned school districts to contact the state before considering enrolling students there. Officials are reviewing the state’s relationship with the school, officials told ProPublica.

The scrutiny of Shrub Oak comes as a ProPublica investigation published in May documented how parents and workers repeatedly asked New York authorities to investigate their concerns at the school to no avail.

In Massachusetts, officials have already set in motion a plan to pull students out by the end of this month after realizing that Shrub Oak had not sought New York’s approval to operate a school for students with disabilities. Shrub Oak, which opened in 2018, has had about 85 students from 13 states this school year. About 20 students came from Connecticut, Massachusetts and Washington combined. Tuition this school year is $573,200 for students who require a dedicated aide for most of the day.

No New York government agency oversees Shrub Oak because it is not an approved special-education program and it is not licensed as a residential facility. “From a child health and safety perspective, that is crazy,” said Sarah Eagan, who leads the Connecticut Office of the Child Advocate. “It’s really unsafe — they’re not subject to regular inspections, not subject to licensing standards.”

Eagan’s office recently joined an investigation of Shrub Oak that was begun last year by Disability Rights Connecticut, a federally funded watchdog that provides legal services and advocacy for people with disabilities. The child advocacy office will be investigating how the state monitors students in out-of-state schools.

Disability Rights Connecticut noted that, during one of its visits, a student was forced to sleep on the linoleum floor with no bed, “covered in a blanket that appeared to be similar to a moving pad.” The organization also said Shrub Oak used a practice called “hold and close,” which involves placing a student in a padded room, closing the door and holding it shut. That method of managing student behavior would be illegal in many states, including Connecticut.

A dorm room at Shrub Oak International School. Connecticut Department of Developmental Services employees who made an unannounced visit noted concerns about conditions there. (Connecticut Department of Developmental Services)

The group urged the Connecticut State Education Department to bar the use of public money to pay tuition at Shrub Oak and stop allowing students to be placed there. The department is considering what to do next.

In its own investigation, Connecticut’s developmental services agency made an unannounced visit in March and concluded that individuals were not in “immediate jeopardy” but that students were being poorly served as staff focused primarily on managing behavior and not on education or life skills. Students were eating from takeout containers because Shrub Oak lacks a working kitchen, which investigators wrote “compromises their dignity, nutrition and overall well-being.”

In Illinois, which has 15 students at Shrub Oak — more students than come from any state other than New York — state education officials contacted school districts to remind them that they’re responsible for students’ safety and well-being. Illinois State Board of Education spokesperson Lindsay Record said state officials don’t monitor students when they’re sent to residential schools that Illinois does not approve, like Shrub Oak. State law requires the department to fund those schools but does not give it the power to investigate them.

“ISBE has no authority to stop allowing or approving the placement of students in any non-ISBE approved program including and not limited to Shrub Oak,” Record wrote in answer to questions from ProPublica.

Chicago Public Schools plans to enroll a student at Shrub Oak starting July 1 at a cost of $597,990 for one year, records show. The district has sent three students to Shrub Oak in recent years but none of them are still there. A district official said in a public Chicago Board of Education meeting on Tuesday that while the district is aware of news stories about problems at Shrub Oak, the student being sent there needs the school’s services and the student’s parent wants the child to attend.

Education officials in New York declined to comment. There were about 30 students from New York at Shrub Oak this past school year; tuition for New York students often is publicly funded. A disability rights group in that state has been investigating Shrub Oak and, according to court records, has found troubling conditions as well.

In at least five incidents involving suspected abuse, Shrub Oak told local police that it had fired employees, records show. One of them, a former employee charged with menacing, harassment and endangering the welfare of a disabled person — a student from Chicago — is due in court this week.

Shrub Oak spokesperson Richard Bamberger previously said that the school contacts police and fires employees who are “involved in an issue.” He did not respond to a request for comment for this story but has said in the past that the school enrolls students who other schools have rejected. Many of them have complex needs and struggle with self-injurious behaviors, aggression and property destruction, Bamberger has said. He has said that security is a top priority and the property is fenced in because some students have left other schools they’ve attended without permission.

School districts in about a dozen states have sent students to Shrub Oak after determining they can’t be served in their local schools — sometimes after parents sued their districts to be able to send their children there. Most students’ tuition is paid by their public school districts, which are legally obligated to educate all students.

As the investigations continue, parents of students with profound disabilities who need a high level of support are fretting over the limited number of school options. Some fear the scrutiny of Shrub Oak could lead more states or school districts to pull public funding, leaving them with one less choice for their children. Some parents have told ProPublica they feel their own children are safe and want them to stay at the school.

Eagan, the Connecticut child advocate, acknowledged the challenges for parents but said having their children at a facility with no oversight isn’t a good solution. “What they need and deserve is a reliable, well-regulated system that ensures their child can access safe and appropriate care in the least restrictive environment. And they’re not getting it.”

Matthew Brouillard attended Shrub Oak for five months before his parents pulled him from the school after he suffered unexplained injuries. (Photo courtesy of Celeste Brouillard)

A Connecticut mother whose son went to Shrub Oak for five months until January 2023 said she is glad her state is intervening. Celeste and Roger Brouillard pulled their son from Shrub Oak because of indications he was harmed there, records show.

“As a taxpaying citizen, not just a parent who had a child who was physically and emotionally harmed there, they should cease funding immediately,” Celeste Brouillard said, referring to state officials.

Her son Matthew was 17 when he transferred from a different residential school to Shrub Oak after “they made all the promises in the world” that he would get help with daily living and vocational skills as he got older. Instead, “it was five months of hell,” Celeste said. Matthew lost 16 pounds, was left alone in his room for long periods of time, and got multiple black eyes that the staff could not explain, she said.

In December 2022, doctors at the Connecticut Children’s emergency department noted bruising on Matthew’s back, neck and face and tried to report their concerns that he may have been harmed to four New York agencies, according to medical records.

An official at Matthew’s school district, Katie Krasula, also filed an abuse and neglect report in New York in February 2023 after receiving photos, staff names and other information, according to an email she sent to Shrub Oak that ProPublica obtained through an open records request. She told Shrub Oak she had concerns about Matthew’s “continued safety and the ability of your staff to provide appropriate care and supervision for him.”

The school district, Simsbury Public Schools, had contracted to pay more than $530,000 for nearly a year of tuition and an aide for 16 hours a day. Matthew transferred to another residential school.

Shrub Oak’s spokesperson has declined to comment on individual students’ experiences, but after ProPublica’s investigation published last month, the school posted a statement online that downplayed the publication’s findings and told parents “their children are safe, have always been safe, and are being taught and cared for by trained and caring professionals.”

Shrub Oak also has criticized the investigation by Disability Rights Connecticut and another by Disability Rights New York. In an April letter from a Shrub Oak attorney to the watchdog organizations, the school said investigators were unqualified to observe or understand autistic students. The letter criticized the groups for not sharing their findings with the school despite the advocacy organizations having made more than 17 requests for documents and information and more than nine unannounced visits.

The attorney wrote that the school is cooperating but the organizations “are not focused on a complete and balanced understanding of the services and environment SOIS provides to its students. Accordingly, the resulting reports of their investigations are likely to unfairly portray SOIS in a negative light.”

Help ProPublica Report on Education

by Lisa Song, illustrations by Max Guther, special to ProPublica

Last year, I became obsessed with a plastic cup.

It was a small container that held diced fruit, the type thrown into lunch boxes. And it was the first product I’d seen born of what’s being touted as a cure for a crisis.

Plastic doesn’t break down in nature. If you turned all of what’s been made into cling wrap, it would cover every inch of the globe. It’s piling up, leaching into our water and poisoning our bodies.

Scientists say the key to fixing this is to make less of it; the world churns out 430 million metric tons each year.

But businesses that rely on plastic production, like fossil fuel and chemical companies, have worked since the 1980s to spin the pollution as a failure of waste management — one that can be solved with recycling.

Industry leaders knew then what we know now: Traditional recycling would barely put a dent in the trash heap. It’s hard to transform flimsy candy wrappers into sandwich bags, or to make containers that once held motor oil clean enough for milk.

Now, the industry is heralding nothing short of a miracle: an “advanced”type of recycling known as pyrolysis — “pyro” means fire and “lysis” means separation. It uses heat to break plastic all the way down to its molecular building blocks.

While old-school, “mechanical” recycling yields plastic that’s degraded or contaminated, this type of “chemical” recycling promises plastic that behaves like it’s new, and could usher in what the industry casts as a green revolution: Not only would it save hard-to-recycle plastics like frozen food wrappers from the dumpster, but it would turn them into new products that can replace the old ones and be chemically recycled again and again.

So when three companies used ExxonMobil’s pyrolysis-based technology to successfully conjure up that fruit cup, they announced it to the world.

“This is a significant milestone,” said Printpack, which turned the plastic into cups. The fruit supplier Pacific Coast Producers called it “the most important initiative a consumer-packaged goods company can pursue.”

“ExxonMobil is supporting the circularity of plastics,” the August 2023 news release said, citing a buzzword that implies an infinite loop of using, recycling and reusing.

They were so proud, I hoped they would tell me all about how they made the cup, how many of them existed and where I could buy one.

So began my long — and, well, circular — pursuit of the truth at a time when it really matters.

This year, nearly all of the world’s countries are hammering out a United Nations treaty to deal with the plastic crisis. As they consider limiting production, the industry is making a hard push to shift the conversation to the wonders of chemical recycling. It’s also buying ads during cable news shows as U.S. states consider laws to limit plastic packaging and lobbying federal agencies to loosen the very definition of what it means to recycle.

It’s been selling governments on chemical recycling, with quite a bit of success. American and European regulators have spent tens of millions subsidizing pyrolysis facilities. Half of all U.S. states have eased air pollution rules for the process, which has been found to release carcinogens like benzene and dioxins and give off more greenhouse gases than making plastic from crude oil.

Given the high stakes of this moment, I set out to understand exactly what the world is getting out of this recycling technology. For months, I tracked press releases, interviewed experts, tried to buy plastic made via pyrolysis and learned more than I ever wanted to know about the science of recycled molecules.

Under all the math and engineering, I found an inconvenient truth: Not much is being recycled at all, nor is pyrolysis capable of curbing the plastic crisis.

Not now. Maybe not ever.

Let’s take a closer look at that Printpack press release, which uses convoluted terms to describe the recycled plastic in that fruit cup:

“30% ISCC PLUS certified-circular”

“mass balance free attribution”

It’s easy to conclude the cup was made with 30% recycled plastic — until you break down the numerical sleight of hand that props up that number.

It took interviews with a dozen academics, consultants, environmentalists and engineers to help me do just that.

Stick with me as I unravel it all.

Lesson 1: Most of the old plastic that goes into pyrolysis doesn’t actually become new plastic.

In traditional recycling, plastic is turned into tiny pellets or flakes, which you can melt again and mold back into recycled plastic products.

Even in a real-life scenario, where bottles have labels and a little bit of juice left in them, most of the plastic products that go into the process find new life.

The numbers are much lower for pyrolysis.

It’s “very, very, very, very difficult” to break down plastic that way, said Steve Jenkins, vice president of chemicals consulting at Wood Mackenzie, an energy and resources analytics firm. “The laws of nature and the laws of physics are trying to stop you.”

Waste is heated until it turns into oil. Part of that oil is composed of a liquid called naphtha, which is essential for making plastic.

There are two ingredients in the naphtha that recyclers want to isolate: propylene and ethylene — gases that can be turned into solid plastics.

To split the naphtha into different chemicals, it’s fed into a machine called a steam cracker. Less than half of what it spits out becomes propylene and ethylene.

This means that if a pyrolysis operator started with 100 pounds of plastic waste, it can expect to end up with 15-20 pounds of reusable plastic. Experts told me the process can yield less if the plastic used is dirty or more if the technology is particularly advanced.

I reached out to several companies to ask how much new plastic their processes actually yield, and none provided numbers. The American Chemistry Council, the nation’s largest plastic lobby, told me that because so many factors impact a company’s yield, it’s impossible to estimate that number for the entire industry.

Lesson 2: The plastic that comes out of pyrolysis contains very little recycled material.

With mechanical recycling, it’s hard to make plastic that’s 100% recycled; it’s expensive to do, and the process degrades plastic. Recycled pellets are often combined with new pellets to make stuff that’s 25% or 50% recycled, for example.

But far less recycled plastic winds up in products made through pyrolysis.

That’s because the naphtha created using recycled plastic is contaminated. Manufacturers add all kinds of chemicals to make products bend or keep them from degrading in the sun.

Recyclers can overpower them by heavily diluting the recycled naphtha. With what, you ask? Nonrecycled naphtha made from ordinary crude oil!

This is the quiet — and convenient — part of the industry’s revolutionary pyrolysis method: It relies heavily on extracting fossil fuels. At least 90% of the naphtha used in pyrolysis is fossil fuel naphtha. Only then can it be poured into the steam cracker to separate the chemicals that make plastic.

So at the end of the day, nothing that comes out of pyrolysis physically contains more than 10% recycled material (though experts and studies have shown that, in practice, it’s more like 5% or 2%).

Lesson 3: The industry uses mathematical acrobatics to make pyrolysis look like a success.

Ten percent doesn’t look very impressive. Some consumers are willing to pay a premium for sustainability, so companies use a form of accounting called mass balance to inflate the recycled-ness of their products. It’s not unlike offset schemes I’ve uncovered that absolve refineries of their carbon emissions and enable mining companies to kill chimpanzees. Industry-affiliated groups like the International Sustainability and Carbon Certification write the rules. (ISCC didn’t respond to requests for comment.)

To see how this works, let’s take a look at what might happen to a batch of recycled naphtha. Let’s say the steam cracker splits the batch into 100 pounds of assorted ingredients.

You’ll get some colorless gasses that are used to make plastic: 13 pounds of propylene and 30 pounds of ethylene. You’ll also wind up with 57 pounds of other chemicals.

Propylene makes sturdy material such as butter tubs; ethylene makes flexible plastics like yogurt pouches. Many of the other chemicals aren’t used to make plastic — some get used to make rubber and paint or are used as fuel.

All of these outputs are technically 10% recycled, since they were made from 10% recycled naphtha. (I’m using this optimistic hypothetical to make the math easy.)

But companies can do a number shuffle to assign all of the recycled value from the butter tubs to the yogurt pouches.

Watch video ➜

That way they can market the yogurt pouches as 14% recycled (or “circular”), even though nothing has physically changed about the makeup of the pouches.

Watch video ➜

What’s more, through a method called free attribution, companies can assign the recycled value from other chemicals (even if they would never be turned into plastic) to the yogurt pouches.

Watch video ➜

Now, the yogurt pouches can be sold as 33% recycled.

Watch video ➜

There are many flavors of this kind of accounting. Another version of free attribution would allow the company to take that entire 30-pound batch of “33% recycled” pouches and split them even further:

A third of them, 10 pounds, could be labeled 100% recycled — shifting the value of the full batch onto them — so long as the remaining 20 pounds aren’t labeled as recycled at all.

As long as you avoid double counting, Jenkins told me, you can attribute the full value of recycled naphtha to the products that will make the most money. Companies need that financial incentive to recoup the costs of pyrolysis, he said.

But it’s hard to argue that this type of marketing is transparent. Consumers aren’t going to parse through the caveats of a 33% recycled claim or understand how the green technology they’re being sold perpetuates the fossil fuel industry. I posed the critiques to the industry, including environmentalists’ accusations that mass balance is just a fancy way of greenwashing.

The American Chemistry Council told me it’s impossible to know whether a particular ethylene molecule comes from pyrolysis naphtha or fossil fuel naphtha; the compounds produced are “fungible” and can be used for multiple products, like making rubber, solvents and paints that would reduce the amount of new fossil fuels needed. Its statement called mass balance a “well-known methodology” that’s been used by other industries including fair trade coffee, chocolate and renewable energy.

Legislation in the European Union already forbids free attribution, and leaders are debating whether to allow other forms of mass balance. U.S. regulation is far behind that, but as the Federal Trade Commission revises its general guidelines for green marketing, the industry is arguing that mass balance is crucial to the future of advanced recycling. “The science of advanced recycling simply does not support any other approach because the ability to track individual molecules does not readily exist,” said a comment from ExxonMobil.

If you think navigating the ins and outs of pyrolysis is hard, try getting your hands on actual plastic made through it.

It’s not as easy as going to the grocery store. Those water bottles you might see with 100% recycled claims are almost certainly made through traditional recycling. The biggest giveaway is that the labels don’t contain the asterisks or fine print typical of products made through pyrolysis, like “mass balance,” “circular” or “certified.”

When I asked about the fruit cup, ExxonMobil directed me to its partners. Printpack didn’t respond to my inquiries. Pacific Coast Producers told me it was “engaged in a small pilot pack of plastic bowls that contain post-consumer content with materials certified” by third parties, and that it “has made no label claims regarding these cups and is evaluating their use.”

I pressed the American Chemistry Council for other examples.

“Chemical recycling is a proven technology that is already manufacturing products, conserving natural resources, and offering the potential to dramatically improve recycling rates,” said Matthew Kastner, a media relations director. His colleague added that much of the plastic made via pyrolysis is “being used for food- and medical-grade packaging, oftentimes not branded.”

They provided links to products including a Chevron Phillips Chemical announcement about bringing recycled plastic food wrapping to retail stores.

“For competitive reasons,” a company spokesperson declined to discuss brand names, the product’s availability or the amount produced.

In another case, a grocery store chain sold chicken wrapped in plastic made by ExxonMobil’s pyrolysis process. The producers told me they were part of a small project that’s now discontinued.

In the end, I ran down half a dozen claims about products that came out of pyrolysis; each either existed in limited quantities or had its recycled-ness obscured with mass balance caveats.

Then this April, nearly eight months after I’d begun my pursuit, I could barely contain myself when I got my hands on an actual product.

I was at a United Nations treaty negotiation in Ottawa, Ontario, and an industry group had set up a nearby showcase. On display was a case of Heinz baked beans, packaged in “39% recycled plastic*.” (The asterisk took me down an online rabbit hole about certification and circularity. Heinz didn’t respond to my questions.)

This, too, was part of an old trial. The beans were expired.

Pyrolysis is a “fairy tale,” I heard from Neil Tangri, the science and policy director at the environmental justice network Global Alliance for Incinerator Alternatives. He said he’s been hearing pyrolysis claims since the ’90s but has yet to see proof it works as promised.

“If anyone has cracked the code for a large-scale, efficient and profitable way to turn plastic into plastic,” he said, “every reporter in the world” would get a tour.

If I did get a tour, I wondered, would I even see all of that stubborn, dirty plastic they were supposedly recycling?

The industry’s marketing implied we could soon toss sandwich bags and string cheese wrappers into curbside recycling bins, where they would be diverted to pyrolysis plants. But I grew skeptical as I watched a webinar for ExxonMobil’s pyrolysis-based technology, the kind used to make the fruit cup. The company showed photos of plastic packaging and oil field equipment as examples of its starting material but then mentioned something that made me sit up straight: It was using pre-consumer plastic to “give consistency” to the waste stream.

Chemical plants need consistency, so it’s easier to use plastic that hasn’t been gunked up by consumer use, Jenkins explained.

But plastic waste that had never been touched by consumers, such as industrial scrap found at the edges of factory molds, could easily be recycled the old-fashioned way. Didn’t that negate the need for this more polluting, less efficient process?

I asked ExxonMobil how much post-consumer plastic it was actually using. Catie Tuley, a media relations adviser, said it depends on what’s available. “At the end of the day, advanced recycling allows us to divert plastic waste from landfills and give new life to plastic waste.”

I posed the same question to several other operators. A company in Europe told me it uses “mixed post-consumer, flexible plastic waste” and does not recycle pre-consumer waste.

But this spring at an environmental journalism conference, an American Chemistry Council executive confirmed the industry’s preference for clean plastic as he talked about an Atlanta-based company and its pyrolysis process. My colleague Sharon Lerner asked whether it was sourcing curbside-recycled plastic for pyrolysis.

If Nexus Circular had a “magic wand,” it would, he acknowledged, but right now that kind of waste “isn’t good enough.” He added, “It’s got tomatoes in it.”

(Nexus later confirmed that most of the plastic it used was pre-consumer and about a third was post-consumer, including motor oil containers sourced from car repair shops and bags dropped off at special recycling centers.)

Clean, well-sorted plastic is a valuable commodity. If the chemical recycling industry grows, experts told me, those companies could end up competing with the far more efficient traditional recycling.

To spur that growth, the American Chemistry Council is lobbying for mandates that would require more recycled plastic in packaging; it wants to make sure that chemically recycled plastic counts. “This would create market-driven demand signals,” Kastner told me, and ease the way for large-scale investment in new chemical recycling plants.

I asked Jenkins, the energy industry analyst, to play out this scenario on a larger scale.

Were all of these projects adding up? Could the industry conceivably make enough propylene and ethylene through pyrolysis to replace much of our demand for new plastic?

He looked three years into the future, using his company’s latest figures on global pyrolysis investment, and gave an optimistic assessment.

At best, the world could replace 0.2% of new plastic churned out in a year with products made through pyrolysis.

About the Math

Our article is focused on pyrolysis because it’s the most popular form of chemical recycling. Other types of chemical recycling technologies have their own strengths and weaknesses.

There are different variations of pyrolysis, and steam crackers produce a range of ethylene and propylene yields. Companies are secretive about their operations. To estimate the efficiencies of pyrolysis and mass balance, I read dozens of peer-reviewed studies, reports, industry presentations, advertisements and news stories. I also fact checked with a dozen experts who have different opinions on pyrolysis, mass balance and recycling. Some of them, including Jenkins and Anthony Schiavo, senior director at Lux Research, provided estimates of overall yields for companies trying to make plastic. All of that information coalesced around a 15% to 20% yield for conventional pyrolysis processes and 25% to 30% for more advanced technologies. We are showcasing the conventional process because it’s the most common scenario.

We took steps to simplify the math and jargon. For instance, we skipped over the fact that a small amount of the naphtha fed into the steam cracker is consumed as fuel. And we called the fraction of pyrolysis oil that’s suitable for a steam cracker “pyrolysis naphtha”; it is technically a naphtha-like product.

These processes may improve over time as new technologies are developed. But there are hard limits and tradeoffs associated with the nature of steam cracking, the contamination in the feedstock, the type of feedstock used and financial and energy costs.

Clarification, June 27, 2024: This story has been clarified to reflect that a denial to speak about recycled plastic food wrapping came from a spokesperson for Chevron Phillips Chemical.

Graphics and development by Lucas Waldron. Design and development by Anna Donlan. Visual editing by Alex Bandoni. Mollie Simon and Gabriel Sandoval contributed research.