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This School District Is Ground Zero for Harsh Discipline of Native Students in New Mexico

3 years ago

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

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One chilly March afternoon, dozens of Navajo children spilled out of their middle school to play in the snow before heading home. Students in jackets and parkas can be seen on grainy security camera footage chasing and pushing one another to the ground.

The next day, the principal called one of the children into her office. “She said I was expelled,” the child said in an interview, looking at his feet as he sat with his grandmother on their living room couch. “We were just playing around.”

His offense, according to school records, was “assault and battery” for pushing another student down.

The seventh grader, whose middle name is Matthew, said that was the culmination of months of being written up for “everything” — from being off-task in class to playing on the school elevator. (Out of concern that the boy will be stigmatized at school, his grandmother agreed to speak on the condition that she not be identified and that he be identified only by his middle name.)

In New Mexico, Native American students are expelled far more often than any other group and at least four times as often as white students.

Matthew’s school district, Gallup-McKinley County Schools, is responsible for most of that disparity, according to an analysis of state records by New Mexico In Depth and ProPublica. The district has a quarter of New Mexico’s Native students, but it accounted for at least three-quarters of Native student expulsions in the state during the four school years ending in 2020.

Gallup-McKinley is one of the largest school districts in the state by enrollment and geography, but even so, it has just 4% of the state’s students. Twice the size of Delaware, the district sits along the western edge of New Mexico and includes wide swaths of the Navajo Nation. The Chuska Mountains stretch northward, overlooking sandstone cliffs, mesas and canyons, in a landscape dotted with piñon pine, juniper and the fossilized remnants of long-gone oceans.

About three-quarters of Gallup-McKinley’s roughly 12,000 students are Native American, most of them Navajo. It has the largest Native enrollment of any public school district in the United States, according to federal figures.

Gallup and other towns that ring the Navajo Nation have a history of bias and exploitation. In a recent book, University of New Mexico professor David Correia wrote that Gallup’s businesses, including payday lenders, unscrupulous art dealers and liquor stores, have a history of exploiting Native people.

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Wendy Greyeyes, who is Navajo and an assistant professor of Native American Studies at the University of New Mexico in Albuquerque, said that history plays out today in a more subtle way: through school practices that lead to Native students being disciplined more harshly than others. School policies “are used to justify racist behavior,” she said.

In addition to analyzing statewide discipline data, New Mexico In Depth and ProPublica interviewed 80 people, including 47 parents, grandparents and current and former students, to understand discipline practices in Gallup-McKinley schools. District officials, including Superintendent Mike Hyatt and school board President Christopher Mortenson, did not respond to repeated interview requests.

The state education department requires school districts to report all disciplinary incidents. Those reports track the type of discipline, such as suspensions and expulsions, and note whether police were involved. Gallup-McKinley school officials sometimes called the police or juvenile probation officers over physical altercations, tobacco or drug possession and disorderly conduct, those records show.

Over the past decade or so, the number of expulsions and incidents involving law enforcement has dropped substantially in New Mexico. While Gallup-McKinley’s discipline rate has fluctuated over the past decade, it has remained far higher than the rest of the state.

Native Students Face Harsher Punishment Across New Mexico

Native students in New Mexico experience higher annual rates of expulsions and incidents involving police than white students. In Gallup-McKinley, students across the board are punished more harshly than those in the rest of the state, but the large Native student body is still disciplined at higher rates than white students.

(ProPublica analysis of New Mexico Public Education Department STARS data. Chart by Joel Jacobs.)

That has happened under the nose of the state.

Since 2018, New Mexico has been under a state district court order to remedy its failure to provide a sufficient education to Native Americans, students learning English as a second language and other underserved youth. The child of one of the lead plaintiffs in the case that led to the order attended school at Gallup-McKinley. Though most of the court order dealt with state funding and oversight, the judge did address school discipline, noting that high discipline rates are a signal students need more help in school.

The New Mexico Public Education Department uses school districts’ annual reports to track racial disparities among special education students, as required by federal law. Unlike some other states, it doesn’t otherwise track racial disparities in discipline.

The department declined to address the news outlets’ findings. Kelly Pearce, a department spokesperson, said the state could discuss only the “big picture” because school districts are in charge of discipline. If families have complaints about school discipline, she said, they should go to the federal Office for Civil Rights. No one has complained to that office regarding school discipline in Gallup-McKinley from the 2015-16 through the 2020-21 school years.

A spokesperson for New Mexico Attorney General-elect Raúl Torrez called the news outlets’ findings “alarming” but said the office doesn’t have authority to investigate civil rights abuses by school districts or other public bodies. Torrez will advocate for legislation to change that, spokesperson Taylor Bui said.

Daniel Losen, who studies racial disparities in school discipline as director of the Center for Civil Rights Remedies at the University of California, Los Angeles, said someone needs to investigate discipline rates in Gallup-McKinley.

School districts with higher concentrations of students of color often “have higher use of police and just more draconian discipline practices,” Losen said. “Why is what’s happening to kids in Gallup so much worse than what’s happening to kids in the rest of the state?”

Gallup-McKinley’s Discipline Rates Tower Above the Rest of New Mexico

Students in Gallup-McKinley County Schools were disciplined far more frequently and severely than those in the rest of the state in the 2016-17 to 2019-20 school years. The district especially stands out when it comes to expulsions and incidents in which students were referred to police or juvenile probation.

Gallup-McKinley reported at least 211 expulsions over the four school years, an annual rate of 4.6 per 1,000 students. That’s at least 10 times as high as the rest of the state. Students in Gallup-McKinley schools also faced 735 disciplinary incidents involving law enforcement, which amounts to a rate nearly four times as high as the rest of the state. The disparities persisted from elementary through high school.

Gallup-McKinley Students Face More Frequent Severe Punishment

From elementary through high school, kids in Gallup-McKinley schools were expelled and faced discipline involving law enforcement at annual rates far higher than their peers in the rest of the state.

(Source: ProPublica analysis of New Mexico Public Education Department STARS data. Chart by Joel Jacobs.)

Native students within the district are subjected to these punishments at roughly twice the rate of their white peers. The district’s Hispanic students face similarly high rates, but because Gallup-McKinley’s Hispanic student population is relatively small, these numbers don’t significantly drive up the state’s discipline rates for Hispanics overall.

Gallup-McKinley’s student behavior handbook states that the rules will be “enforced fairly in an age-appropriate manner” and that the district is committed to providing all students safe school environments “free of discrimination, violence, and bullying.”

Ben Chavez, who directed discipline in the district until earlier this year, told New Mexico In Depth and ProPublica he was not given permission to speak about the issue.

Rachel A. Rodriguez, a former Gallup-McKinley County Schools discipline administrator, attributed Native students’ higher disciplinary rates to problems among rural families, like poverty, trauma and substance abuse.

The belief that alcohol abuse is more frequent among Native Americans is widespread, but it’s not borne out by the facts. And neighboring districts with large numbers of Native students and similarly high rates of unemployment and poverty don’t dispense as much harsh discipline as Gallup-McKinley.

For example, Gallup-McKinley reported significantly higher rates of expulsions and incidents involving law enforcement than the Central Consolidated district in neighboring San Juan County. Central Consolidated has an even higher proportion of Native students than Gallup-McKinley and a similar “at-risk index,” which is used by the state to identify school districts that need additional money to educate high-needs kids.

One of the main drivers of Gallup-McKinley’s discipline rates is disorderly conduct — an infraction that until the current school year wasn’t even defined in its or state education department policies, rulebooks, parent handbooks or regulations. The 2022-23 Gallup-McKinley student handbook defines it simply as “action(s) which substantially disrupt(s) the orderly conduct of a school environment.”

(Gabriella Trujillo, special to ProPublica)

“Disorderly conduct,” said former Gallup-McKinley Assistant Principal Ron Triplehorn, “is going to be kind of your catchall, just kind of a generic term for general misbehavior.”

Statewide, Native students were expelled for disorderly conduct at least 76 times and law enforcement was involved in 193 such incidents from 2016-17 to 2019-20. About 90% of these incidents occurred in Gallup-McKinley schools.

Across the United States, students of color tend to be disciplined at higher rates for vaguely defined, catchall minor infractions like disorderly conduct, Losen said. “That’s where the largest racial disparities are usually found,” he said.

Gina Laura Gullo, assistant director of education services at the Pennsylvania State Education Association, did her Ph.D. dissertation on unconscious bias in school discipline. She found that school administrators who scored higher on measures of implicit racial bias assigned harsher discipline to students of color than white pupils.

“Infractions that are more subjective in nature,” she said, “such as disorderly conduct, insubordination, classroom disturbance and the like, are those that are specifically subject to more implicit bias.”

How Matthew Got Kicked Out of School

For 13-year-old Matthew, inattentiveness, playing on an elevator, not following instructions and pouring glue on a desk were all classified as disorderly conduct.

He said his discipline problems started after the principal caught him making fun of her in the hallway. Over the next two months, she suspended him four times and wrote him up four other times.

The first time, Matthew was suspended for a day because a teacher reported that he didn’t follow instructions and poured glue on his desk. Matthew told New Mexico In Depth and ProPublica that he was putting glue on his hand when some got on the desk, and that he peeled it off.

Matthew’s grandmother allowed the news outlets to review his school disciplinary records. The principal did not respond to interview requests.

In November, Matthew’s teacher wrote that he objected to Matthew’s “behavior towards learning.” He “is always off-task, disrespectful, and defiant,” his teacher wrote in a note to the principal.

When Matthew wore a blue shirt to school, a dress code violation, the principal wrote him up for “gang-related activity.”

She wrote him up for “bullying” after she used security camera footage to conclude he and another student banged on her office window and ran off. Matthew told the news outlets he didn’t do it; the only evidence in his file is two blurry images taken from the video.

The principal suspended Matthew for a day after confiscating a miniature toy butterfly knife. “Weapons possession,” she wrote. He said he had bought the plastic and tin toy from a vending machine.

Two weeks later, she suspended him for a week for allegedly cutting a classroom chair with the elastic band of his face mask. That, the principal wrote, was “vandalism.” Matthew told the news outlets he slipped the band into an existing cut in the back of the plastic chair, and the teacher saw him pulling it back and forth.

In December, the principal ordered a disciplinary hearing, citing his “multiple misbehaviors.” Matthew and his grandmother signed a behavior contract, agreeing he would stay out of trouble.

“It would have been nice if she had asked why he was acting like this,” Matthew’s grandmother said. She said she would’ve told the principal that Matthew has been diagnosed with attention deficit hyperactivity disorder. Though Matthew once took medication at school, he doesn’t have an individualized education plan, or IEP, which would afford him protections for discipline related to his diagnosis.

Matthew had reason to be distracted at school: His grandmother, who is raising him, was undergoing radiation treatment for breast cancer. A judge awarded her custody of Matthew when he was little, after his father died. He sees his mother only occasionally.

Then came the incident in March, when Matthew was kicked out of school for pushing the student to the ground. In a letter to his grandmother, the principal wrote that a security video showed Matthew “chasing and shoving” a “female student into the snow multiple times” and that when the girl was questioned the next morning, she reported back pain.

(Gabriella Trujillo, special to ProPublica)

Matthew’s grandmother said the principal refused to show her the video or allow her to hear the girl’s version of events. Instead, the principal provided a single picture. It “just showed a girl in the snow with two boys standing there,” the grandmother said. “I didn’t recognize him.”

New Mexico In Depth and ProPublica reviewed the video, which had no audio. It shows groups of children talking and roughhousing. The student identified in the report as Matthew pushed another student down, possibly twice. Earlier, another student had pushed the same student down but apparently was not disciplined, according to the district’s response to a public records request for other disciplinary reports from that afternoon. All three students appeared to interact afterward.

Matthew’s grandmother told the principal she wanted to appeal the decision to kick Matthew out of school. “She told me, ‘Good luck.’”

Normally the school district must hold a hearing before expelling or suspending a student for more than 10 days. But the behavior contract Matthew and his grandmother had signed said if he broke the rules again, he would be disciplined without a hearing.

Although Matthew said the principal told him he was expelled, her letter to the grandmother called it a long-term suspension. Under the district’s rules at the time, that meant Matthew could have returned to school after 90 days. But when Matthew’s grandmother later tried to enroll him in summer school, which fell outside that time, the principal refused, the grandmother said.

After Matthew was kicked out, his grandmother asked that he be allowed to take online classes or complete homework so he didn’t fall hopelessly behind. Schools allowed both when they were closed during the pandemic. The principal refused, the grandmother said.

Over the following weeks, Matthew became increasingly withdrawn, his grandmother said. “He stopped talking to me very much,” she said. “I worry.”

Delores Greyeyes, director of the Navajo Department of Corrections and mother of Wendy Greyeyes, said some parts of Matthew’s story sounded familiar. When she was a girl, she said, she and her friends poured glue on their hands.

“We let it dry and pulled it off to see our palm and fingerprints,” she said. “So when you tell me this student was disciplined for disorderly conduct because glue got on his desk, I have to wonder: Was that curiosity?”

Greyeyes, a former social worker, interviewed inmates at the state prison in Winslow for her dissertation research. They told her their first encounters with police happened in school. Trouble often started small — missed homework or sleeping in class. Teachers saw them as defiant rather than asking them what was wrong, she said, leading to escalating discipline.

“One of these young men said his school administrator told him he was a ‘no-good Indian’ and put it in his head his destiny would be to be in jail or dead,” she said.

The Unintended Consequences of Harsh Discipline

Karl Lohmann, a retired Gallup-McKinley elementary school teacher, remembers when the school district established a “zero tolerance” policy in the early 1990s. Many teachers welcomed it, he said, because they thought it would give them more support and more say in student suspensions.

Several years later, he sent a fifth grade Native American boy to the principal’s office for stealing a handheld electronic spelling game. “I expected the principal to call in the parents and get it back,” Lohmann said.

Instead, the boy was handcuffed and taken away in a patrol car. “That was part of my education about how policies can have unintended consequences,” Lohmann said.

Research has shown that “zero tolerance” or “no excuses” policies, adopted in many school districts around that time, can do more harm than good and even serve as a vehicle for bias. After calls for reform, many school districts have shifted away from zero tolerance in favor of prevention of misbehavior and a focus on students’ emotional needs.

Gallup-McKinley’s current discipline policy doesn’t mention zero tolerance. But neither does it embrace an approach gaining favor in the state: restorative justice practices such as talking circle mediation. The state has announced that it will conduct a pilot study of restorative justice practices to reduce expulsion and suspension rates. Twelve schools across the state will participate; none are in Gallup-McKinley.

Severe discipline practices criminalize student misbehavior, said Regis Pecos, a former governor of Cochiti Pueblo and a leader in efforts to reform education in New Mexico.

Harsh forms of discipline, coupled with a lack of emotional support or restorative justice practices, create a “hostile education environment,” Pecos said. Students become demoralized and come to see themselves as the problem. That fuels high dropout rates, underachievement, poverty, health disparities and high suicide rates, he said, “compounding the challenges for students, parents and communities.”

Gallup-McKinley’s three-year strategic plan, completed in February, says one desired outcome is a reduction in the number of disciplinary referrals that result in charges against students, but district officials did not answer questions about how that would be achieved. The plan was removed from the district’s website after New Mexico In Depth and ProPublica asked about it.

About a dozen students and parents told New Mexico In Depth and ProPublica they supported the district’s strict discipline measures. About twice as many said some students are singled out while others are handled lightly, and punishments can be arbitrary and counterproductive.

This spring, dozens of students, mostly Native, were suspended for a senior prank in which they threw streamers, toilet paper and glitter and sprayed shaving cream throughout the school.

(Gabriella Trujillo, special to ProPublica)

Some of the students’ parents said the district pressured them to waive their right to a hearing in exchange for allowing the students to graduate. Several parents instead sued after their children had been suspended for more than 10 days without a hearing — a violation of the school district’s policies.

A judge ordered Gallup-McKinley to allow the students to return to class. The school district held hearings and suspended the students a week before graduation, although they did graduate.

Students, parents and alumni protested what they saw as a strict response to an annual prank, which the district called “criminal activity.” District officials called police over the incident, although they told police they would handle student discipline and no one was charged.

Rodriguez, the former Gallup-McKinley discipline administrator, said school officials sometimes can’t avoid calling the police. She described one such incident involving a fifth grade boy.

“He was so angry,” she said. “We called the police and three officers had to put him down and put him in handcuffs. When I came home that night, I cried. I said, ‘I never want to see a fifth grade student put in handcuffs again.’ It was traumatizing to me. But we had to.”

Other times, she said, police were called to help retrieve children, including elementary students, who left campus. “They run — take off running from the school and we chase them, but they’re faster than us,” she said. “So we have to call the police to find them.”

McKinley County Sheriff-elect James Maiorano III said his office has been contacted a few times over the years for missing students. The Gallup Police Department didn’t respond to requests for comment.

Maiorano, who has been with the sheriff's office for 18 years, said the agency is increasing its presence in Gallup-McKinley schools to deal with fights and drug possession.

Discipline involving police can have profound consequences. Rhonda Goodenough, who once ran the state probation and parole office in Gallup, said even a sealed juvenile record of a minor offense sometimes stops a young person from joining the military. Recruiters would call, asking her to unseal or explain a minor’s criminal record, but she wasn’t allowed to say anything.

“There was nothing I could do,” Goodenough said. “They couldn’t get it off their record.”

By the end of the school year, Matthew had missed close to 100 days of class. In August, he learned he would be forced to repeat seventh grade.

“He’s really quiet. He used to talk with me, but now it’s just ‘yes,’ ‘no,’ ‘I dunno,’” his grandmother said in September. “Before, he used to talk to me about class and what they did, but since he started getting in trouble there, he’s just not interested in school anymore.”

Matthew said his favorite subjects are math and science. In elementary school, he participated in an after-school STEM club. Before his string of suspensions, his grandmother said, he had talked about going to college to become an engineer.

“If we can just get him through high school and into college,” she sighed, “I can die content.”

Josh Peck contributed reporting. Mariam Elba contributed research.

by Bryant Furlow, New Mexico In Depth, with additional reporting by Asia Fields, Maya Miller and Joel Jacobs, ProPublica

How We Found the School District Responsible for Much of New Mexico’s Outsized Discipline of Native Students

3 years ago

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

New Mexico In Depth and ProPublica used data from the New Mexico Public Education Department to analyze student discipline rates across the state. The news outlets found that one district, Gallup-McKinley County Schools, played an outsized role in the disproportionate discipline of Native American students in the state. That district enrolls more Native students than any other public school district in the United States and a quarter of Native students in the state.

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Through public records requests, the news organizations obtained a spreadsheet of all disciplinary incidents reported by school districts to the state Public Education Department. The data was extracted from the state’s public schools database, called the Student Teacher Accountability Reporting System, and covered the 2010-11 to 2021-22 school years.

We chose to analyze multiple recent years to account for fluctuations in discipline from year to year. Discipline data for the 2020-21 school year was not included in our analysis because of school closures during the pandemic. Data for 2021-22 was excluded as well because it was incomplete. Ultimately, our analysis focused on the 2016-17 to 2019-20 school years.

To calculate the annual discipline rate per 1,000 students, we used state enrollment figures covering the same years, also from STARS. To compare the district’s Native student population to other districts nationwide, we used data from the National Center for Education Statistics, which showed Gallup-McKinley enrolled more Native students than any other public school district in the 2021-22 school year, the most recent year for which national data is available.

Because of how race and ethnicity are reported in state enrollment and disciplinary data, any student who identifies as ethnically Hispanic, which includes some Native Americans, is counted only as Hispanic. Hispanic students make up about 18% of the Gallup-McKinley student body, while Native Americans make up about 73% as of the 2021-22 school year. Both groups were disciplined at similarly high rates compared with white students. However, because Gallup-McKinley accounts for a much smaller portion of the state’s Hispanic students, the district’s high discipline rates did not significantly impact statewide Hispanic discipline rates.

Our analysis included disciplinary incidents involving students from kindergarten through 12th grade. The enrollment data used for our rate calculations included pre-kindergarten students; the Public Education Department did not provide data that allowed us to remove those students from all of our rate calculations. Pre-kindergarten students make up a small percentage of overall enrollment; including them in our denominator slightly reduced calculated discipline rates.

We included charter schools that are part of traditional school districts as well as alternative learning environments such as home schools that are included in districts’ reports. Statewide, they account for roughly 5% of student enrollment and 1% of infractions. Our analysis excluded charter schools that are treated as their own school districts, which enroll about 5% of the state’s students.

Each record included a “Discipline Response” field, which noted the most severe punishment imposed for a given infraction. School district staff choose from a list of options to populate this field. The options include “Expulsion” and “Modified Expulsion,” in which expelled students receive some educational services. We included both when tallying expulsions.

Arrests and referrals to law enforcement are grouped in a single option in the “Discipline Response” field, called “Arrest/referral to justice system.” That meant we were unable to determine the precise number of arrests. Referrals mean calls to law enforcement agencies or to the state-run juvenile probation office.

The data included a separate “Criminal Charge Code” field, which is meant to indicate whether a police report had been filed, according to the STARS manual. A few districts contacted by New Mexico In Depth and ProPublica said they use this field to record when they call law enforcement, instead of selecting the “Arrest/referral to justice” system option in the “Discipline Response” field. (Gallup-McKinley officials did not respond to multiple requests over a period of months to discuss their discipline practices and data entry.) When referring to incidents involving law enforcement, we included any record marked with “Arrest/referral to justice system” or “Criminal Charge Code.”

During the time period we analyzed, if a student faced multiple types of discipline (such as an arrest and suspension), schools were instructed to record only the most severe punishment, according to the STARS manual. The most severe punishment in the system is “Arrest/referral to justice system,” and the second-most severe response is expulsion. As a result, if a student was arrested and expelled in response to an incident, it may appear only as an “Arrest/referral to justice system” in the data. State officials told us they don’t know how often that happened.

Not accounting for incidents marked as “Arrest/referral to justice system,” Native students had an expulsion rate roughly 13 times that of white students statewide from the 2016-17 to the 2019-20 school years. If all arrest/referral incidents of white students involved expulsions, and none of Native students did, this disparity was reduced to four times. We used the most conservative figure in our story, although the true disparity is likely larger. We used a similarly conservative method when comparing Gallup’s expulsion rate to the rest of the state.

Here are the details on how we reached our conservative estimates:

  • To compare Native and white expulsion rates, we divided the Native expulsion rate (1.53) by the sum of the white rates for expulsion and arrest/referral to the justice system (0.12 + 0.23).
  • To compare Gallup-McKinley and the rest of the state, we divided the district’s expulsion rate (4.58) by the sum of the rest of the state’s rates for expulsion and arrest/referral to the justice system (0.16 + 0.26)

When analyzing the data, we found about 20 cases in which a school district, including Gallup-McKinley, reported few or no disciplinary incidents for the first several months of a school year, despite reporting significant numbers in the rest of the year. We ran a separate analysis to account for those gaps, which produced similar findings.

Because of the limitations of the “Discipline Response” field and differences in how districts report law enforcement interactions, we compared rates across a variety of measures. For all measures of severe punishment, stark disparities persisted between Gallup-McKinley and the rest of the state and between Native American and white students statewide.

Gallup-McKinley Has Higher Rates of Severe Discipline Than the Rest of the State

We looked at annual rates of discipline per 1,000 students, averaged across the 2016-17 to 2019-20 school years, for several different measures of punishment.

Native Students Are Severely Disciplined More Than Their White Peers in New Mexico

We looked at annual rates of discipline per 1,000 students, averaged across the 2016-17 to 2019-20 school years, for several different measures of punishment.

by Joel Jacobs, ProPublica, and Bryant Furlow, New Mexico In Depth

A Texas Superintendent Ordered School Librarians to Remove LGBTQ Books. Now the Federal Government Is Investigating.

3 years ago

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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.

The story was also produced in partnership with NBC News.

The U.S. Education Department’s civil rights enforcement arm has launched an investigation into a North Texas school district whose superintendent was secretly recorded ordering librarians to remove LGBTQ-themed library books.

Education and legal experts say the federal probe of the Granbury Independent School District — which stemmed from a complaint by the American Civil Liberties Union of Texas and reporting by NBC News, ProPublica and The Texas Tribune — appears to be the first such investigation explicitly tied to the nationwide movement to ban school library books dealing with sexuality and gender.

The Education Department’s Office for Civil Rights notified Granbury school officials on Dec. 6 that it had opened the investigation following a July complaint by the ACLU, which accused the district of violating a federal law that prohibits discrimination based on sexual orientation and gender. The ACLU complaint was based largely on an investigation published in March by NBC News, ProPublica and the Tribune that revealed that Granbury’s superintendent, Jeremy Glenn, instructed librarians to remove books dealing with sexual orientation and people who are transgender.

“I acknowledge that there are men that think they’re women and there are women that think they’re men,” Glenn told librarians in January, according to a leaked recording of the meeting obtained, verified and published exclusively by the news outlets. “I don’t have any issues with what people want to believe, but there’s no place for it in our libraries.”

Later in the meeting, Glenn clarified that he was specifically focused on removing books geared toward queer students: “It’s the transgender, LGBTQ and the sex — sexuality — in books,” he said, according to the recording.

The comments, combined with the district’s subsequent decision to remove dozens of library books pending a review, fostered a “pervasively hostile” environment for LGBTQ students, the ACLU wrote in its complaint. Chloe Kempf, an ACLU attorney, said the Education Department’s decision to open the investigation into Granbury ISD signals that the agency is concerned about what she described as “a wave” of anti-LGBTQ policies and book removals nationally.

“In this case it was made very clear, because the superintendent kind of said the quiet part out loud,” Kempf said in an interview. “It’s pretty clear that that kind of motivation is animating a lot of these policies nationwide.”

An Education Department spokesperson confirmed the investigation and said it was related to Title IX of the Education Amendments of 1972, which prohibits schools from discriminating on the basis of sex, gender and sexual orientation. The Office for Civil Rights doesn’t comment on pending investigations, the spokesperson said.

If the investigation confirms violations of students’ rights in Granbury schools, the agency can require the district to make policy changes and submit to federal monitoring.

Neither Glenn nor the district responded to messages Monday. In an earlier statement following the news outlets’ reporting in March, the district said it was committed to supporting students of all backgrounds. And the district said that its primary focus is educating students but that “the values of our community will always be reflected in our schools.”

Granbury, a town 40 miles west of Fort Worth, has been embroiled in a heated debate over what types of books children should be allowed to read at school.

Last year, voters in Granbury elected a pair of school board members who campaigned against LGBTQ-affirming school curricula and library books. Afterward, Glenn began asking district administrators about several books that an unnamed school board member had found in the district’s online catalog, according to text messages reviewed by NBC News, ProPublica and The Tribune. The messages from the board member to Glenn included screenshots of eight titles, all of which dealt with LGBTQ topics, with the words “gay,” “trans” and “gender” highlighted in some of the book descriptions.

In January, when Glenn met with librarians, he told them that the new school board was “very, very conservative” and that any employee who holds different political views had “better hide it,” according to the recording of his comments. In the days that followed, the district embarked on one of the largest mass book removals in the state, pulling 130 titles, most of which featured LGBTQ characters or themes.

After a volunteer review committee voted to return all but a few of the titles, two disgruntled members of the committee filed a police report in May accusing district employees of providing “pornography” to children, triggering a monthslong criminal investigation by Hood County Constable Chad Jordan, which remained open as of August. Jordan didn’t respond to messages requesting an update on the investigation.

All of that — including the fact that Glenn has never apologized or walked back his comments — has created an unwelcoming environment for LGBTQ students in the Granbury district, the ACLU argued in its complaint.

“These comments, combined with the book removals, really send a message to LGBTQ students in the districts that: ‘You don’t belong here. Your existence is shameful. It should be censored,’” Kempf said.

In recent months, Granbury parents and voters have continued to pressure the district to remove books with LGBTQ themes or descriptions of sex. Last month, Karen Lowery, one of the women who sought criminal charges against Granbury librarians, won a seat on the school board; she has vowed to purge books that she has deemed inappropriate for children. Of the nearly 80 titles conservative activists want banned, 3 out of 5 feature LGBTQ characters or themes, according to an analysis of books posted on GranburyTexasBooks.org, a website where they have compiled parent reviews.

Lowery didn’t respond to messages requesting comment.

At her first meeting as a school board trustee on Dec. 12 — one week after the Office for Civil Rights notified the district it had opened an investigation — Lowery called for all “obscene” books to be pulled from shelves. In response, Glenn asked her to provide a list of titles so the board could discuss it at a future meeting.

"I think as a district, we do want to resolve this," Glenn said of the library book controversy. "Speaking on behalf of every administrator in the room, and probably community members because I know there are a few of you that are ready to have this behind you, too."

Education and legal experts said the Education Department’s decision to open an investigation in Granbury is significant because it sets up a test of a somewhat novel legal argument by the ACLU: the idea that book removals themselves can create a hostile environment for certain classes of students.

“It’s certainly the first investigation I’ve seen by the agency testing that argument in this way,” said W. Scott Lewis, a managing partner at TNG, a consulting firm that advises school districts on complying with federal civil rights laws.

The ACLU of Texas made similar legal arguments in another civil rights complaint filed last month against the Keller Independent School District in North Texas in response to a policy banning any books that mention “gender fluidity.” The Education Department has yet to decide whether to open an investigation in Keller, Kempf said.

Jonathan Friedman, the director of free expression and education at the nonprofit PEN America, which has tracked thousands of school book bans since last year, said the same legal argument could be made in districts across the country where parents, school board members and administrators have expressed anti-LGBTQ motivations.

“It’s not uncommon to see people explicitly saying that they want to remove LGBTQ books because they believe they are indoctrinating students,” said Friedman, who cited a case in Florida in which a teacher called for the removal of a children’s picture book about two male penguins because, she said, it promoted the “LGBTQ agenda.”

Granbury isn’t the only North Texas school district facing federal scrutiny.

The Office for Civil Rights over the past year has opened five investigations into allegations of discrimination at the Carroll Independent School District in Southlake, a wealthy Fort Worth suburb that has been at the center of the national political fight over the ways schools address racism, gender and sexuality. If the Education Department finds Carroll students’ rights have been violated, experts said, the federal agency could require the district to implement the same types of diversity and inclusion training programs that conservative activists have fought to block in Southlake.

Carroll Superintendent Lane Ledbetter has said the district has taken steps, including retraining staff members in how to handle bullying complaints, to ensure students from all backgrounds feel safe at school.

“If OCR determines that there are steps that we can take beyond what we have implemented, then we will absolutely comply,” Ledbetter said in a video address to the community after news of the federal civil rights investigation broke last year. “My priorities are kids, and we’re going to keep them safe.”

As in Southlake, some students and parents in Granbury say they’re counting on federal investigators to force changes.

Lou Whiting, 17, a nonbinary senior at Granbury High School, said Glenn’s recorded comments made them feel unsafe and unwelcome at school. Whiting, who helped organize student protests of the book removals, cried when they learned that the federal government had opened an investigation.

“It’s just really good to hear that there are people who are listening to us and actually doing something about it,” Whiting said. “It means a lot to hear that our efforts meant something.”

by Mike Hixenbaugh, NBC News, and Jeremy Schwartz, ProPublica and The Texas Tribune

The “Death Penalty” of Child Welfare: In Six Months or Less, Some Parents Lose Their Kids Forever

3 years ago

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CHARLESTON, W.Va. — In the months after a West Virginia court permanently took away their right to parent their daughters this past April, Jackie Snodgrass and her husband were left in a quiet house. The kids’ rooms remained untouched. The same dolls and stuffed animals were arranged on their younger daughter’s bed. The same clothes in the closets, becoming outgrown. The same photos on the walls, outdated.

The court had denied a final visit — despite the children continually saying they missed their mother — so the parents never got to say goodbye to them in person. Snodgrass worried about them constantly, especially her older daughter, who has diabetes. An app pinged her intermittently with updates on her child’s blood sugar. Occasionally, it would dip too low or spike too high.

“What if something happens to her?” Snodgrass said. “And if it does, I’m not going to be allowed to be there.”

Once considered a last resort reserved for parents who abandon their children, the involuntary and permanent termination of parental rights now hangs over every mother and father accused of any form of abuse or neglect — including allegations of nonviolent behavior like drug use or truancy, the two central parenting issues in the Snodgrasses’ case. Known in the legal world as the “death penalty” of child welfare, it can happen in a matter of months.

No state terminates parental rights more frequently or faster than West Virginia, according to a ProPublica and NBC News analysis. One in 50 children here experienced the severing of their relationships with both of their parents from 2015 to 2019, the last full year of federal child welfare data available before the pandemic. For most of them, it occurred within 11 months of being removed from their home for the first time.

In the Snodgrasses’ case, it took only five months.

Nationally, the parents of about 327,000 children lost their rights from 2015 to 2019, the analysis found. In one-fifth of those cases, it happened in less than a year.

Over the past 25 years, courts and child protective services agencies have increasingly turned to this ultimate consequence, partly in response to Clinton-era federal policies that support faster adoptions. According to a recent study, the risk that a child will experience the loss of their legal relationship with their parents roughly doubled from 2000 to 2016. One in 100 U.S. children — disproportionately Black and Native American — experience termination through the child welfare system before they turn 18, the study found.

Most of those families became entangled in the system because of allegations of neglect, a broad category closely linked to poverty and substance use. Just 15% of children whose parents’ rights were severed around the country from 2015 to 2019 had been removed from their homes because of concerns about physical or sexual abuse, according to the ProPublica and NBC News analysis. (The reasons ultimately cited for the terminations themselves weren’t provided in the data.)

“None of us believes banishing a child from a family of origin is a perfectly fine result,” said Marty Guggenheim, a retired New York University law professor and child welfare expert who has argued termination cases before the Supreme Court. “But that’s where we are today. We are off of our moral compass.”

West Virginia Terminates Parental Rights Faster Than Any Other State

States differ widely in how quickly they terminate parental rights after a child is first removed from a home.

Note: Dots represent the median time between a child’s first removal from the home and when both of their parents’ rights are terminated. Washington D.C. is included as a state. (Source: ProPublica analysis of National Data Archive on Child Abuse and Neglect records. Graphic by Lucas Waldron/ProPublica.)

The hurry to end families can be traced to the 1997 Adoption and Safe Families Act, passed with bipartisan support in Congress and signed by President Bill Clinton.

In a tough-on-crime era, the new law was supposed to keep fragile, abused children from languishing for too long in foster care. It created a rigid timeline — a ticking clock — for every child who entered state custody after having been removed from home because of an allegation of child maltreatment. After 15 months, barring specific exemptions, state and local agencies were required to file for termination of the birth parents’ rights or face losing federal funding. And states that increased adoptions were rewarded with bonuses for every additional child they placed.

Despite the law’s goal of getting more kids adopted, tens of thousands of such children have remained in foster care for months or years after being cut off from their parents. They are known as “legal orphans,” with no birth families anymore but no adoptive ones, either.

And research shows that many children who experience termination of their parents’ rights will suffer what is known as ambiguous loss, similar to grieving after a death but without the closure of knowing a loved one is gone forever.

To understand the impact of the child welfare system’s most extreme outcome, ProPublica and NBC News surveyed hundreds of families who experienced termination of parental rights and interviewed dozens of parents, children, caretakers, caseworkers and attorneys. Those we spoke to described a confusing legal system that at times seemed stacked against birth families trying to reunite and inured to the pain of long-term family separation.

“There was all this lost time when me and my dad had wanted to talk to each other but were being prevented by the state government,” said Reed Ridens, a graduate student in Albuquerque, New Mexico, who spent years in foster care as a legal orphan. “There was a lot of damage and a lot of repair that needed to be done between us, and a lot that had been taken away.”

Snodgrass’ kids’ rooms remain untouched. She and her husband, Wes, haven’t seen them in person for over a year.

Some of the 1997 law’s original supporters — and even some top child welfare officials — now warn that the timeline Congress prescribed is too rigid and that some states may have taken the reforms too far.

Maureen Flatley, a child welfare consultant who helped craft the law, said she now believes it urgently needs to be revamped, including the prescribed timeline for terminating parental rights. “We can’t pretend anymore that adoption is just some magic panacea,” she said in an interview.

The federal government also has voiced concerns about focusing too narrowly on termination time frames. In the final days of the Trump administration, the Department of Health and Human Services’ Administration for Children and Families issued a memo warning states against rushing to end rights.

Jerry Milner, a top official at the agency under President Donald Trump, said the Clinton-era law should be overhauled or repealed. Its timeline was the product of political negotiation, he said, not scientific research on how long parents should be given for recovery or redemption before they lose their rights to their children. “But it’s hanging over parents’ heads like a death sentence,” he said.

Yet the Biden administration has continued to defend the law. The statute allows states to make exceptions to the timeline if they believe termination would not be “in the best interest of the child” or if the state has failed to provide adequate reunification services, an ACF spokesperson said in response to written questions. Decisions are to be made on a case-by-case basis, the agency added.

And recent attempts by Congress to revise the timeline have failed to gain much traction.

Rep. Sheila Cherfilus-McCormick, D-Fla., believes it’s imperative for lawmakers to try once more: She plans to introduce a child welfare bill in the next Congress to allow states to extend the timeline for termination to 24 months, among other changes.

“The harsh timeline doesn’t allow people to be rehabilitated or give them a chance to be reunited with their children,” she said.

Five Months to End a Family

Jackie Snodgrass and her husband, Wes, attracted the attention of West Virginia’s Department of Health and Human Resources in February 2021 because their girls had missed too many days of school. It was a problem that the family and the child protective services agency had tussled over for years, according to court documents Snodgrass provided to ProPublica and NBC News, but it came to a head when their absences piled up amid virtual schooling during the pandemic. Both parents were placed under court-ordered supervision.

The family moved from their tiny town of 1,400 to Wes Snodgrass’ mother’s home in the capital city, Charleston, to be closer to school for the girls, whose attendance was improving. They started a tree-trimming business and were making ends meet.

By October 2021, Jackie Snodgrass was busy planning her older daughter’s dream 16th birthday party — with pink decorations and a DJ, like on MTV.

“I like their birthdays better than Christmas, because it’s just their day,” she said of her children.

But the stress of the move and the truancy case had taken a toll. Snodgrass’ husband said he had used methamphetamine during that time, and in November, on an impulse, she tried it too. When the court overseeing their case started mandating drug screens, both parents failed.

The child welfare agency’s response was immediate: Like many states, West Virginia considers failed drug tests to be proof that a child is in danger, which can lead to the child’s removal. Snodgrass said a caseworker told her and her husband over the phone that they had to immediately pack up and leave the children with her husband’s mother.

After just five months and a few hearings, as the Snodgrasses struggled to comply with court orders, the judge ruled that they were unfit to raise their girls ever again.

They haven’t seen them in person for over a year.

The property in the tiny town of Liberty, West Virginia, where the Snodgrasses lived before they moved their family to Charleston

Jackie Snodgrass’ parents now have custody of the children and plan to adopt them. Her mother said the girls have taken the separation hard, acting out and asking why they can’t see their mom and dad. Visiting is prohibited even though they live 5 miles apart.

In West Virginia, which has been ravaged by drug epidemics in recent decades, children are more likely to enter foster care than anywhere else in the country. Substance use was the most common reason cited for removing children from their homes in the state’s parental rights termination cases, according to the ProPublica and NBC News analysis.

Nearly every state acts more quickly when drugs are involved than when children are removed based on concerns about physical or sexual abuse. But West Virginia is particularly aggressive, giving parents the least amount of time to recover: More than a fifth of the state’s terminations involving parental drug use occurred less than six months after the children were first removed, the news organizations found.

In response to ProPublica and NBC News’ findings, state Del. Danielle Walker, a Democrat, expressed outrage at West Virginia’s haste in terminating parental rights and said the Legislature needed to conduct an intensive study to look at termination and related issues.

“There is no advocacy for the biological parents in this state. There’s none,” said Walker, who said her office would research the subject and compare West Virginia’s child welfare practices to those in other states. “Since when is six months enough to have proper recovery — any kind of recovery?”

Family attorneys and advocates say this posture toward addiction and recreational drug use punishes many parents whose children may not be in danger. Parents who are committed to seeking help to get their children back can be penalized if they relapse, even though drug treatment experts have long said such setbacks are a normal part of recovery.

“It’s a race against the clock for these families to oftentimes deal with a generational trauma,” said Jim McKay, director of Prevent Child Abuse West Virginia, an advocacy group. “We should be partnering with families and working alongside them rather than having it be a prisoner of an arbitrary date on the calendar.”

Ray Kendall, a former caseworker for the state’s Department of Health and Human Resources, said the agency’s “astronomical” workload caused many of his colleagues to become jaded toward substance use cases. West Virginia had 1 caseworker for every 167 children it investigated in 2019. That was among the nation’s highest caseloads, leaving less time for workers to help parents access services that can prevent termination.

“I don’t think six months is enough time to truly become completely sober and able to be in control of your life and take care of your kids, so it is a bit unrealistic,” said Kendall, who left the agency in 2019 in part because of frustrations that he couldn’t do more for families.

West Virginia has also been rewarded by the federal government for acting quickly to end families, having received $24 million in incentive payments under the 1997 law for increasing the number of adoptions it finalizes. (The program expanded in 2014 to include payments for guardianships, in which responsibility for children is transferred to other adults without completely severing parental rights.) Adjusted for child population, West Virginia has brought in 65% more in these incentives than the next highest state, Alaska.

The state’s Department of Health and Human Resources declined to make officials available for interviews. In response to written questions, the department didn’t dispute ProPublica and NBC News’ findings about the frequency and speed of termination in the state; it denied that the state’s statutes and policies fail to provide parents enough time for reunification.

Courts have the discretion “to make individualized decisions based upon the actions of the parents and the best interest of the child,” said Jessica Holstein, a spokesperson for the agency, who added that parents can also appeal the decisions.

Holstein said the agency has tried to reduce caseloads by adding staff members, increasing salaries and using temporary “crisis teams” to backfill vacancies.

“The culture at DHHR supports family connections,” she said, noting that the department prioritizes foster care placements with relatives when possible, as happened in the Snodgrasses’ case.

A trampoline that Snodgrass’ daughters used to play on at their Charleston home

Cindy Largent-Hill, director of the juvenile division of the West Virginia Administrative Office of the Courts, said the state’s termination schedule is meant to prevent cases from dragging on too long.

“They may look a bit unfair because three months doesn’t sound like a long time, or six months, or 12 months,” said Largent-Hill, who works with the state’s circuit court judges. But, she said, “you don’t want cases to languish in court for three, four or five years.”

Snodgrass said she still is shocked by how quickly her case devolved. After the judge’s decision, whenever she felt a glimmer of hope, she would reread the order: “Any and all parental, guardianship, and custodial rights of the respondent parents … are hereby permanently and forever TERMINATED.”

“There’s, like, anger or something behind it,” Snodgrass said. “It seemed way too fast, but it also feels like years since I’ve seen my kids.”

The Push for Permanency

For most of U.S. history, it was rare for courts to permanently cut parents’ legal ties to their children without consent, according to a forthcoming paper by Chris Gottlieb, director of the New York University School of Law Family Defense Clinic. Typically, child welfare cases would end in termination only when states could prove that parents had abandoned their kids or as part of voluntary adoptions.

After states began requiring teachers, doctors and other professionals to report suspected child abuse or neglect in the 1970s, the number of kids entering foster care rose dramatically. In many cases, children stayed for years in out-of-home placements.

By the 1990s, a substantial body of research showed that such long foster care stays could harm child development. At the same time, increased access to birth control and abortion had led to a sharp decline in the number of children available for prospective adoptive parents, according to Gottlieb’s research.

The 1997 federal law was meant to address both trends. Its prominent supporters pointed to high-profile cases in which children were brutally beaten or killed after having been returned to their parents from foster care. Many argued that it was far more important to move children quickly into permanent homes than to spend an indeterminate amount of time trying to “fix” birth families. That ultimately would make more kids available for adoption.

Adoptions out of foster care increased from 31,000 in 1997 to 66,200 by 2019, according to federal data, while the foster care population has declined.

All states now have statutes that meet the federal law’s timeline requiring them to pursue termination if a child has spent 15 of the previous 22 months in the foster system, according to a ProPublica and NBC News survey of all 50 states and Washington, D.C. The law allows states to move slower if a child is placed with relatives but also faster under certain circumstances, such as if a parent has committed a serious criminal offense.

More than 30 states have even tighter timelines, the news organizations found — in some cases when young children are involved, under the rationale that they are in greatest need of immediately stable homes where they can start bonding with permanent families.

In Texas — the only state other than West Virginia with a median time to termination of less than a year — most counties put the penalty on the table the moment children are temporarily removed from a home, in order to place “parents on notice from the beginning of the case,” according to the state child welfare agency’s policy handbook.

A sign points to the Department of Health and Human Resources, the agency that handles child welfare cases, in Romney, West Virginia.

Not every state moves so quickly: ProPublica and NBC News’ analysis found 16 states where the median time to termination is more than two years. Those longer cases, in some instances, can signal systems aren’t working as they should, reflecting bureaucratic dysfunction or what some child welfare officials describe as a pattern of giving parents “too many chances” that ultimately doesn’t help reduce termination rates, according to a 2021 report on state child welfare practices by the federal Department of Health and Human Services.

Still, longer timelines can also reflect a stronger focus on family reunification and a willingness to devote greater resources to meet that goal, child welfare experts say. New York and Illinois, for example, offer more robust social services, and they are also places with influential parent advocacy groups, said Christopher Wildeman, a child welfare expert and sociology professor at Duke University. (Wildeman is the director of the National Data Archive on Child Abuse and Neglect, which provided the data used in the ProPublica and NBC News analysis.)

In the wake of the opioid crisis, which has led to more kids being in foster care, Congress has tried to increase support for parents involved in the child welfare system. In 2018, it passed the Family First Prevention Services Act, approved with bipartisan support and signed by Trump. The law allows states to put federal funding previously restricted for foster care expenses toward mental health services, substance use treatment and parenting classes to help keep families together.

The Administration for Children and Families “is committed to focusing on prevention and early intervention so that families who come into contact with child welfare systems do not find themselves in the position of facing a termination of parental rights,” a spokesperson said.

But the legislation has strict requirements for which programs it will fund, and states have been slow to implement it. Eleven states are still waiting for their plans to be approved by the federal government, according to recent agency data, and six haven’t submitted plans at all. And some child welfare advocates have criticized the law’s focus on narrow initiatives like parenting classes, which they say fail to address poverty and the other root causes of neglect that prompt most child welfare cases.

“If I don’t have a house and I’m struggling, how are some parent education classes going to help?” said Christine James-Brown, the president and CEO of the Child Welfare League of America, a Washington, D.C.-based advocacy group.

West Virginia has drawn on the new federal funding but has spent only $125,000 since the summer of 2021, according to agency officials. The state is also trying to expand “family treatment courts,” designed to promote reunification rather than termination.

West Virginia’s senators, Joe Manchin, a Democrat, and Shelley Moore Capito, a Republican, told ProPublica and NBC News that they are committed to keeping families together when possible. Capito added that the news organizations’ findings are “concerning” and that her staff would look into those issues.

But when they were asked whether the state has adequate resources for family reunification — or whether the federal timeline for termination should be altered — neither senator responded directly.

Test Clean or Else

Some family advocates doubt that any new funding would have a significant impact on termination rates without a fundamental change in attitudes among local agencies and courts toward parents accused of child maltreatment, especially those struggling with substance use.

Judges have ultimate authority in such cases, but there is limited scrutiny of what happens in their courtrooms. In many states, including West Virginia, the public isn’t allowed to observe child welfare proceedings, and documents are typically kept under seal. Some judges order parents not to speak about their cases to anyone who isn’t involved, and if they disobey, it can be held against them.

What’s more, West Virginia judges often require parents to admit in court that they have a drug problem before they grant them an “improvement period,” said Joshua Edwards, a public defender in the state. If they refuse and the state proves to a judge that they used drugs, it becomes highly unlikely they will get their kids back, he said.

Jackie Snodgrass admitted in court to using drugs and neglecting her children’s education; she acknowledged in an interview that she regretted that her instances of meth use had put her family in jeopardy. But she never thought the mistake could lead to the end of her relationship with her daughters. After all, Snodgrass said, she had never hurt the girls, and according to court documents, they wanted to go home.

But the outcome hinged on whether the Snodgrasses complied with the services they were offered, including parenting classes and drug tests. And the government had little patience for mistakes or disagreements.

Snodgrass said she was required to call daily before 10 a.m. to find out whether she needed to be drug-screened. Once, around Thanksgiving, she said, she called a few minutes late, and the test was considered a failure.

Snodgrass goes through drawings left behind by her daughters.

From the start, Snodgrass and her husband were prohibited from seeing their daughters, even for supervised visits, because they couldn’t test clean consistently. She was testing positive for marijuana at the time, but she said she soon became so hopeless about the prospect of losing the girls forever that she used methamphetamine again to cope.

Snodgrass said she saw the phrase “termination of parental rights” in court papers for the first time early this year. Soon after, she said, a caseworker told her she would have to enter a long-term inpatient drug treatment program, probably for at least 45 days.

The family’s tree-trimming business didn’t have many clients yet, and Snodgrass, who was working as an assistant at a nursing home, was the primary earner. She said she feared they wouldn’t be able to pay their rent if she took an extended leave from work, and she told the caseworker that she was open to outpatient treatment, instead.

Her reluctance to enter an inpatient program proved critical, according to case documents. West Virginia is among 22 states with statutes saying that parents’ failure to comply with court-ordered rehabilitation or drug treatment plans, regardless of any evidence of harm to children, can itself be grounds for permanent termination of parental rights, according to a ProPublica and NBC News analysis of state laws.

Near the end of the case, Snodgrass said, her lawyer suggested that she divorce her husband because she was testing clean more often than he was. But the two were childhood sweethearts, and despite his drug use, he was a good father and her best friend, she said.

Still, she told the judge, “If I need to leave my husband, I’m willing to do that to bring my kids home.”

Her husband said in an interview that he was shocked to hear this in court but that he understood the position she was being put in. “I felt real low,” Wes Snodgrass said. “I felt like I didn’t have a family no more.”

It didn’t matter. In their case file, DHHR listed five general criteria for determining whether to recommend termination of parental rights to the court, including how long a child has been in foster care, whether a case involves serious abuse or abandonment by the parents or whether their rights have been severed before.

The couple met just one of the criteria: The agency concluded that there was “no reasonable likelihood” that the neglect allegations against them could be “substantially corrected in the near future,” citing their failure to comply with the court’s requirements within the previous five months.

Still denied any visits with the girls, they had no chance to hug them goodbye.

Rethinking the “Death Penalty” of Child Welfare

Fueled in part by the 2020 demonstrations for racial justice nationwide, family rights activists have made a renewed push to change the child welfare system — including the repeal of the Clinton law.

At the start of the new Congress, Cherfilus-McCormick, the representative from Florida, plans to introduce a bill to allow states to extend the timeline for termination and exempt parents who are actively participating in classes, treatment or other services; it would also encourage states to place more foster children with relatives instead of strangers. The bill was originally introduced last year by Rep. Karen Bass, D-Calif., but it failed to move forward, and Bass recently was sworn in as the new mayor of Los Angeles.

Cherfilus-McCormick and other Democratic lawmakers say they plan to make the issue a priority next year.

But that could be challenging given the changing balance of power in the House. Republicans, who will take the majority in January, have yet to co-sponsor any of the recent proposals to alter the federal timeline for termination.

Meanwhile, there has been growing support for alternative custody arrangements that don’t require termination of birth parents’ rights. In 2008, Congress passed a law allowing states to access federal funds to support guardianship by family members, and 40 states and the District of Columbia now have such programs.

And about half of states have laws that would allow parental rights to be reinstated or restored, although that is still rare and is often limited to cases in which the children lack permanent homes.

Support for such reforms varies widely among states, and the changes have yet to have a major impact on national adoption or reunification rates.

Washington, D.C.’s nonvoting delegate in the House of Representatives, Democrat Eleanor Holmes Norton, said the outsize impact of termination on low-income and Black families makes it especially urgent for Congress to fix the mistakes it made in the 1997 law. “It’s indefensible to have such short timelines,” said Norton, a longtime member of the Congressional Foster Care Caucus.

“The most important relationship in a family is the relationship between parents and children,” she said. “We should do everything we can to preserve that.”

Lost Time

“There’s, like, anger or something behind it,” Snodgrass said of the order that terminated her parental rights. “It seemed way too fast, but it also feels like years since I’ve seen my kids.”

Jackie Snodgrass said the gravity of what was happening in court didn’t hit her until the judge finally said the words: He was terminating her parental rights.

“My heart just fell to my knees,” she said. “It felt like I had just died. Like everything had been taken out of me.”

Snodgrass and her husband say they’ve been clean for several months, and they recently have had a new reason to hope. Her parents said state adoption officials told them that they will most likely be allowed to let the Snodgrasses see their children again, once the adoption is finalized.

But for now, they still aren’t supposed to have contact with their girls or even ask how they are doing. Since being separated, the older daughter has reached out to Snodgrass and they’ve talked by phone and instant messaging. Snodgrass is worried her daughters won’t think she cares about them if she keeps missing major life events like birthdays.

Still, she is more fortunate than many parents whose rights are terminated. When foster children are adopted by strangers, they can be cut off completely from their biological parents. Another mother in West Virginia who spoke with ProPublica and NBC News said she scours social media for photos of her daughters and stares at their adoptive home in a nearby town on Google Street View.

Snodgrass said that even if she is allowed back in her children’s lives, it still scares her that she has no control over their relationship, including any legal rights to make decisions about their medical treatment.

In between phone calls they’re not supposed to have, Snodgrass continues to get updates from her daughter’s blood sugar app. She said it provides a small comfort.

Hannah Rappleye, of NBC News, and Asia Fields, of ProPublica, contributed reporting. Alex Mierjeski and Mollie Simon, of ProPublica, contributed research.

by Agnel Philip and Eli Hager, ProPublica, and Suzy Khimm, NBC News, photography by Stephanie Mei-Ling, special to ProPublica and NBC News

He Defended the NYPD in Court. Then They Arrested Him.

3 years ago

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This story is a collaboration between New York magazine and ProPublica.

By the time Karl Ashanti neared his office in the New York City Law Department’s headquarters in March 2018, the police were shutting down Park Place. Ice had fallen from the buildings above, so an officer had cordoned off the area. Ashanti flashed his work ID and the cop let him through. Then, about two-thirds of the way down the block, he ran into a second officer. “Turn around now,” John Shapiro barked. “I said now.

Ashanti stiffened. The two men were about the same size, each around 6 feet tall and 240 pounds. Shapiro was in his blue New York Police Department uniform. Ashanti, a city lawyer, wasn’t due in court that day and had dressed casually in dark slacks, a button-down, an overcoat and a winter hat. The two had never met before, but there was something about Shapiro’s brusque demeanor that Ashanti recognized.

For 11 years, Ashanti had defended NYPD officers against lawsuits alleging civil-rights violations in federal court. He was a senior litigator in a little-known Law Department unit that exclusively handles such cases, the Special Federal Litigation Division, known simply as Special Fed. As a Black man who’d grown up in Jamaica, Queens, Ashanti thought he brought valuable perspective to the work. He’d seen how Black people, and Black men in particular, could, through no fault of their own, be targeted by prejudiced men in uniform. Still, Ashanti took pride in his legal skills and had come to embrace the combative approach that Special Fed typically took in fighting claims of police abuse, even in the face of compelling evidence that police behavior violated the constitutional rights of the people they had sworn to protect.

On Park Place, Ashanti told Shapiro, who is white, that he was trying to get to his office. Shapiro insisted he go back the way he came. Ashanti moved between two parked cars to cross the street and Shapiro hustled to cut off his path, repeating his order. The two men faced each other in the middle of the road. Shapiro tapped Ashanti on his shoulder. Ashanti backpedaled and asked to speak to a supervisor. Shapiro took out his handcuffs. Within 90 seconds of their first encounter, the officer arrested the attorney.

Shapiro claimed in criminal filings that Ashanti resisted arrest and shoved him twice, so forcefully that Shapiro had to step back to catch his balance. The New York Post splashed the allegations in its pages, calling Ashanti a “livid lawyer.” It wasn’t true. Security-camera footage showed no shoving during the incident. As it unfolded, nine other people freely walked up and down Park Place. Court records revealed it wasn’t the first time Shapiro had been accused of abusing his power. By the time he detained Ashanti, the officer had already been named in three false-arrest lawsuits. (Two were settled, and one was dismissed.) Ashanti’s own unit had handled those cases.

Within days of the incident, the Law Department gave Ashanti an ultimatum: resign or be fired. After more than a decade defending the police, Ashanti was finding out what it was like on the other side of the law.

Footage of the incident between Ashanti and officer John Shapiro (New York Supreme Court)

On Oct. 29, 1984, when Ashanti was 11 years old, police officers in Morris Heights entered Eleanor Bumpurs’ apartment and killed her with a shotgun. Bumpurs was 66 and mentally ill. Her family had instructed her not to let strangers into her home, and when the police showed up to assist in her eviction that day, she lunged at them with a kitchen knife. Her death inflamed the city. In Ashanti’s neighborhood — a predominantly Black community of working-class Caribbean immigrants and city employees — the shooting entered a canon of police killings that, over decades, have shaped attitudes on race and the police. Ashanti remembers that this was about the time when his mother first gave him the Talk. “It’s not like she didn’t have respect for authority,” Ashanti says. “It was not that I should dislike the police. It was more like, ‘There are some police officers who will abuse their power, and unless you capitulate, things might escalate.’ She was like, ‘I want my son alive.’ She said that more than once to me.”

Not long after, three Black men whose car had broken down in Howard Beach were chased by a pack of white teenagers with tire irons and baseball bats. One of the men fleeing the mob was struck by a car and killed. Another was savagely beaten. For Ashanti, the takeaway was clear: Don’t ever ride your bike into Howard Beach. “It’s the ironic thing about growing up in New York City, which is such a quote, unquote liberal city,” he says. “You have these incidents of not just police but private racial violence.” Police racism was real, he thought, but cops didn’t have a monopoly on prejudice; it was simply everywhere.

In sixth grade, Ashanti did well on an exam given by Prep for Prep, a nonprofit group that sends promising students of color to elite, mostly white private schools. He attended Buckley, the tony all-boys academy on the Upper East Side, where he was a few years ahead of Donald Trump Jr., then high school at St. Paul’s, the exclusive New Hampshire boarding school.

One Friday during sophomore year, it was his turn to choose a film for movie night. Students normally picked comedies, but Ashanti went with “Colors,” the 1988 drama about Los Angeles cops patrolling gangland beats. One of the older boys “rolled his eyes about the selection and shit,” Ashanti says. “And then maybe like one or two other people joined in. A What the fuck is this? kind of thing. Just, like, a complete rejection of anything that had to do with the ghetto, with Black and Latino culture.” With him. “I just remember looking at them like: You fucking privileged assholes. Everything has to be your way all the fucking time.

On several occasions, upperclassmen barged into his room in the middle of the night and pelted him with water balloons. He thought they were sending a message: “Here’s this motherfucker who won’t fall in line.” At 23, he legally changed his last name to Ashanti, shedding the birth name, Francis, that his enslaved African ancestors had been “branded” with. “I’m sure one of their goals was for one of their descendants to one day be free of that name,” he says. “I know that’s what it would be for me.”

Ashanti is impeccably credentialed — he went on to Stanford, where he was president of his all-Black fraternity, and then Georgetown Law — but when he returned to New York and entered the workforce, his trajectory slackened. At a succession of run-of-the-mill firms, Ashanti took cases involving businesses suing businesses, personal injury and insurance. The work could be challenging, but it didn’t satisfy his civic or lawyerly ambitions. A landlord and tenant arguing the terms of a 20-year lease? Boring. Cattle-call appearances in state courts before overworked judges? Uninspiring.

One morning on his way to the office, Ashanti says, an officer pulled him over for “erratic driving” and falsely cited him for having lapsed insurance. He was held for 12 hours. Another time, while applying to a new firm, his interviews seemed to be going well until he met with an elderly white partner. Ashanti later testified that the man said “something more malicious than ‘You’re articulate for a Negro.’” (The firm settled an Equal Employment Opportunity Commission complaint. Ashanti said he received an apology that implied the partner was “like the grandpa you don’t want to bring out to the party.”)

Nine years passed in the lower tiers of corporate law. Ashanti wanted autonomy, and he wanted to conduct trials — maybe even change lanes to civil-rights law. From an early age, he’d been inspired by Thurgood Marshall. But he didn’t have a civil-rights background, and the longer he spent doing corporate law, the less possible switching tracks felt. He started talking with a recruiter, and when an opportunity arose at Special Fed, Ashanti listened with great interest.

The cases would be in the federal courts, where the smartest jurists operate, and he’d be handling them soup to nuts, appearing before judges and juries. And the subject matter was appealingly complex. The main statute governing Special Fed’s work, Section 1983, traces its roots to a Reconstruction-era bill known as the Ku Klux Klan Act that lets individuals sue local government officials for violations of their civil rights. It’s an extremely technical platform to litigate, with a century and a half of accumulated case law. “That’s the heart of our legal system: the relationship between government and individuals,” Ashanti says.

He would have preferred to do civil-rights work on behalf of plaintiffs, but the firms that handled such cases weren’t offering him a job. Plus, for a native New Yorker, joining the Law Department had a special attraction. “Representing the City of New York did fill me with a sense of pride,” he says.

The idea that he’d be arguing the side of the police just wasn’t much of a factor in his decision to join the division, he says. “I didn’t feel any kind of way about representing police officers and correctional officers because I always knew — I always knew — it was all about the work and the cases,” he says. “It’s always a case-by-case situation.”

Special Fed was created in 1998 by the administration of Rudy Giuliani to deal with a surge in lawsuits against police officers, jail guards and prosecutors. Its dozens of attorneys investigate citizens’ allegations of beatings, false arrests and other civil-rights abuses and decide whether to mount a defense or settle. Generally, they fight.

Many Special Fed veterans say the unit prizes winning at all costs, even when there is merit to a plaintiff’s case. Victory can still be had in making the process as difficult as possible for citizens — getting suits thrown out, abandoned or negotiated down to the smallest possible payout. The lawyers tend to see themselves as guardians of the public fisc, pitted against those who would drain the coffers: criminals looking for a payday, greedy lawyers, bleeding-heart juries. They litigate aggressively, sometimes drawing rebukes from judges for violating court rules, blowing deadlines and pressing the boundaries of professional conduct. Earlier this year, a judge dressed down a senior Special Fed lawyer for failing to obey court orders. “If I order something and you can’t do it, you can’t just blow it off,” the judge said. One plaintiff’s attorney told the New York Daily News, “They get away with things that no other litigant would ever get away with.” (A spokesman for the Law Department says, “We take our ethical responsibilities very seriously and have zero tolerance for misconduct that undermines our mission.”)

Sometimes even a victory at trial isn’t enough for Special Fed. In 2020, after defeating a Bronx man in an excessive-force case, the division sought sanctions against him and his legal team for bringing the suit in the first place. A federal judge wrote scathingly that the effort to penalize the plaintiff was “wildly inappropriate” because the man had had a reasonable case. More troubling, the judge wrote, was the chilling message that the episode sent to the law firms that do pro bono work for low-income people “with facially valid claims against powerful defendants.”

Ashanti believed he could be a more nuanced operator at Special Fed. Shortly before he started, in November 2006, plainclothes officers shot 50 bullets at a car driven by a Black 23-year-old named Sean Bell in the early hours of his wedding day. It was the city’s most incendiary police killing in years, and Ashanti felt it personally — Bell was from his neighborhood. “Sean Bell was me,” he says. He decided that at his new job, the Bell case would serve as his moral barometer. The family would inevitably file a civil suit against the police; would Special Fed settle it judiciously, or would the unit reflexively fight to minimize the payout? “That was the biggest question to me: Are we going to defend the indefensible?” Ashanti says.

Joseph Guzman, who was wounded in the police shooting that killed Sean Bell, speaks outside the Queens Criminal Court in March 2007. (Michael Nagle/Getty Images)

He showed up to his first day of work in March 2007. The third floor of the New York City Law Department was like a relic of the drab municipal offices of the 1970s, with paralegals and claims specialists sitting in cubicles in the middle of the floor and attorneys occupying small windowless offices. Conference rooms had removable walls so they could double in size when teams of litigators fielded especially big cases. Armed NYPD officers — liaisons between Special Fed and its police clients — walked the halls.

Ashanti handled about 40 lawsuits a year, and he found that few fit his Sean Bell binary. Most presented as murky, with imperfect evidence and plaintiffs who might have been breaking the law, introducing questions of credibility and sympathy with juries. One of his first assignments involved a class-action suit alleging that Rikers Island jailers were unconstitutionally strip-searching female inmates and conducting nonconsensual gynecological exams. Ashanti was one of eight or so lawyers on the Special Fed team. Questions about constitutional violations and public accountability receded as the day-to-day work ground on with arguments over records, process and liability. (The suit was settled years later for $33 million.)

Like most in his profession, Ashanti believed in some core tenets about representation: Attorneys are not their clients, and our adversarial system demands that each side have zealous counsel. But at Special Fed, almost from the start, he struggled to moderate that zeal. In a performance review, a superior noted that “Karl’s passion for an issue many times comes across as temper and this detracts from his professional demeanor.” Another report in 2011 chided Ashanti for getting into two “public confrontations,” one with a colleague and another with opposing counsel. At the same time, his bosses — all but a few of whom were white — were thrilled with the results he was getting. They praised him for settling cases for even less money than they had authorized.

The lawyers who stood across the courtroom from Ashanti knew all about zealous advocacy, and they saw his behavior as needlessly hostile. Several felt he embodied what was wrong with Special Fed — a relentless sparring that obscured what was really at stake in the cases: civil rights and public accountability. Rose Weber, a longtime civil-rights lawyer who had worked at Special Fed in its early days, was especially disturbed by Ashanti’s tactics in a 2010 excessive-force case. Her client claimed to have been slammed to the ground by a plainclothes officer, rupturing discs in his back. In a motion, Ashanti wrote dismissively that the alleged abuse was “of minor importance.” The judge called the argument “as groundless as it is troubling.” Weber, who would go on to lose the case, spoke to other plaintiffs’ attorneys about Ashanti and collected a handful of confrontational anecdotes in a folder on her computer. Compared to that of other Special Fed lawyers, she says, Ashanti’s approach “wasn’t even beyond the realm. It was a realm of its own.”

Another frequent opponent, Robert Quackenbush, had a more civil relationship with Ashanti. In a case with video evidence showing that police had lied in sworn testimony, he got into a dispute with Ashanti about compensation for his client, who had been punched and pepper-sprayed. Quackenbush cited two precedents that he believed supported his reasoning. Ashanti wrote, “I’ve read those cases and disagree but if we agreed about everything we wouldn’t be adversaries. Be well.”

“The most charitable assessment is that he was extremely combative,” Quackenbush says. “People wanted to attribute his litigation style to his soul or something. I don’t personally do that. He was a Black man working for the City of New York on police cases at a time judges were finding the police were discriminating against Black people. That had to have been an impossible job and an impossible situation.”

Ashanti was one of just a handful of Black lawyers within Special Fed. He said in a 2020 deposition that he detected a racial dimension to the way he was perceived by some opposing counsel. “If I push back on any issue, they’re like: ‘You don’t have to get so worked up. You don’t have to get so upset.’ And I’m like, ‘What are you talking about?’” he said. “There’s no use of the N-word, but it was the underlying idea of an overly-aggressive-Black-man kind of thing.”

On a separate occasion, Ashanti took the testimony of a witness at an opposing attorney’s home office. It grew so contentious the other lawyer, Carmen Giordano, called 911. Giordano told a judge in the case that Ashanti “refused to stop yelling in a startling and menacing manner” and wouldn’t leave when asked. Ashanti denied that; he told the judge he had had a “momentary lapse in professionalism” that didn’t merit a “call for a police presence to put me back ‘in my place.’” He added that the idea that he was “threatening” was “predicated on an expectation of violence due to racist notions about Black men having an inherent propensity to commit violence, rather than the actual behavior of the individual.” His supervisor took his side.

Within Special Fed, Ashanti talked with Black colleagues about the difficulties of advancement. “It was kind of harder to build a career as a Black attorney than as a white attorney,” he said in the 2020 deposition. But he also put that observation in context: “It’s not specific to the Law Department,” he said. “It’s just society. The Law Department is a microcosm of society.”

When it came to his own cases, Ashanti says, he never felt angst. He could reconcile using his legal skills in defense of the police while at the same time recognizing that Black people were at greater risk of police maltreatment. Besides, the job provided him with a stable, middle-class life. He got married, and he and his wife, Jovanna, moved to Staten Island, where they would go on to raise two sons and be active in their church as born-again Christians.

Ashanti compartmentalized. “Professionals do professional shit,” he says. “Excuse my language. But, like, if you’re a basketball player, you fucking play basketball. You do what you do, and I am a lawyer, so I lawyered up. I did my work.”

Whom exactly does the city lawyer represent? The straightforward answer is the city, of course. But the issue gets more complicated if you consider whether New York is its citizens or its employees. When residents file lawsuits against the police, the text of the municipal charter turns into something of a paradox. It requires the Law Department to represent “the city and every agency thereof” but also says it should “maintain, defend and establish” the interests of “the people thereof.” Is it acting in anyone’s best interest to get a civil case against a police officer thrown out if it enables the officer to cross the line again?

For years, Special Fed took the narrow view — that its lawyers represented the police and that its chief obligation was to minimize payouts over officers’ misconduct. That was especially true at the end of the Bloomberg administration, which clamped down by designating more cases “No Pay” and forcing the Special Fed lawyers who fielded them to go to trial.

In 2014, however, Bill de Blasio was sworn in as mayor after campaigning on police reform, and it looked as though his administration would answer the question of representation in a dramatically more expansive way. De Blasio’s pick to lead the Law Department was Zachary Carter, an esteemed Black lawyer who had served as a U.S. attorney and federal judge. Carter began telling city lawyers that they represented, in some fashion, the names on both sides of the v. in a lawsuit’s title. And he unveiled a new doctrine, “Justice in Our Work,” that he hoped would change the culture inside the agency.

Curiously, Carter wanted the defense lawyers to act more like prosecutors — but only in the sense that they should exercise a degree of forbearance. Defense lawyers must argue every point in service of their clients, but the Supreme Court has held that prosecutors have an ethical obligation to deliver not just convictions but justice. They are meant to drop cases and withdraw charges when it seems like “the right thing” to do. In New York, that is the title of the District Attorneys Association’s ethics handbook, which opens by telling members there is a higher civic duty that goes beyond defeating the opposition. “Unlike other lawyers,” it reads, “the client we represent is the public, whose interests are not necessarily served by winning every case.”

Zachary Carter (Erik McGregor/LightRocket via Getty Images)

“Justice in Our Work” was a radical approach to city lawyering. It challenged Special Fed’s standard playbook: seeking dismissal, fighting disclosure, putting the screws to plaintiffs during depositions. In a memo to senior staff, Carter said he was not asking city attorneys to “turn a blind eye to clearly established law or fail to aggressively litigate when faced with sympathetic opposing parties.” Instead, he argued, they should use those analyses as starting points before settling on an outcome that would advance the “nebulous question” of what it means to act in the city’s best interest. “Failing to identify the just option among alternative legal positions is a failure to counsel the City in a way that allows it to fulfill one of its most fundamental obligations: to govern in a just manner,” he wrote.

For a while, the new doctrine had a big impact. In January 2014, the administration ended the city’s efforts to defend its stop-and-frisk program. Later that year, Carter directed Special Fed to settle its highest-profile civil-rights case — brought by five Black and Hispanic men wrongly convicted of raping and beating a woman in Central Park in 1989 — for $41 million. But “Justice in Our Work” was not to last.

That December, two police officers were assassinated while sitting in their patrol car, destroying what little remained of de Blasio’s relationship with the NYPD and its unions. Then Special Fed settled a case involving a Brooklyn man who was shot by police after he brandished a machete. The man had a weak claim, but city lawyers agreed to pay $5,000 to erase the chance that it could be heard by a sympathetic jury. The Post put it on the front page under the headline “Ax & You Shall Receive.” Then-Commissioner Bill Bratton condemned the settlement, saying it was “outrageous” that the agency “is continuing to not support the men and women in this department.” The blowback was so hot that even de  Blasio chimed in to say the payment was “wrong.”

In a memo to union leaders, one of the mayor’s top aides clarified the administration’s police litigation policy, writing that the Law Department would “enhance the representation of police officers” sued while on the job. The NYPD created a new legal team to augment the Law Department. And Carter appointed a new head of Special Fed, Patricia Miller, who championed the “No Pay” approach. She is still in charge. This past March, during an interview on John Catsimatidis’ talk-radio show, a host asked Miller how hard it was to combat the media’s demonization of “the men and women in blue.” She responded: “I think you hit on a good point. We provide a voice for police officers.”

Joel Berger, a civil-rights lawyer who served as a Law Department executive during the administration of David Dinkins, says there is a “buddy-buddy relationship between the NYPD and the Law Department that would’ve been unheard of in my day.” From the perspective of the civil-rights bar, Special Fed has for years put the interests of the police above those of its primary client: the city and the people who live there.

A few years after Ashanti joined Special Fed, the city resolved a lawsuit brought by Sean Bell’s fiancée and others for $7 million. Ashanti thought it showed that his employer had a limit — that it would pay up in egregious cases — and that the settlement represented something like justice. “The cop isn’t going to sit down in a room and apologize to you,” he says. “In our civil system, it is money.”

How much Special Fed agrees to pay plaintiffs is decided by a process known as “seeking authority.” In memos, lawyers present their bosses with the facts of their cases, including confidential details like internal NYPD disciplinary records, and request an amount they think will put the matter to rest. Ashanti says he came up with figures by weighing several factors: a fiscal responsibility to protect the Treasury, how likely he was to win and precedents, adding more money when “the actions of the police were egregious or there was more of an injustice.”

In general, Ashanti considered himself a force for good within a flawed system — an arbiter of civil-side justice, denying awards to those who would wrongly accuse good cops of bad deeds while working behind closed doors to get deserving clients justly compensated. But if that was true, it was well disguised from the New Yorkers who alleged their civil rights had been violated.

In 2015, Ashanti was assigned a lawsuit against four officers accused of false arrest, excessive force and other offenses. A 21-year-old man named Allen Brown had been a passenger in a car driven by a friend of a friend when police in an unmarked vehicle attempted to pull them over. To Brown’s shock, the driver sped off, then left the car and fled by foot. Brown, who is Black, panicked. He ran, too, hiding in the basement stairwell of a nearby house. A resident called 911. Brown later testified that even though he emerged with his hands raised, the cops beat him up, kicking him in the face multiple times while he was handcuffed.

The officers denied this, but it wasn’t the first time they had been accused of misconduct. Ashanti’s unit had represented each of the officers in at least one prior case. One had already been named in three. Collectively, the cases cost taxpayers $158,000.

Ashanti fought Brown vigorously. In the courtroom one day, he seemed to suggest that because Brown ran, he brought whatever happened upon himself. “Any force that was used was the product of the fact that not only did he flee from the vehicle but then trespassed on someone else’s property,” Ashanti said.

Taken aback, Judge Ramon Reyes Jr. told Ashanti he thought he’d just “made a misstatement.”

“Which is?” Ashanti asked.

“That the force used was related to the fact that he was trespassing,” Reyes said. Ashanti started to talk, but the judge cut him off: “You can’t use force. Period.”

Ashanti said he hadn’t meant to imply that. They went back and forth, and Reyes got exasperated. “Lower your voice,” he told Ashanti. “You think because you raise your voice, your arguments are more persuasive. They’re not.”

Ashanti offered Brown $20,000 to settle. But Brown’s lawyers soon discovered that Ashanti hadn’t provided them with a key Internal Affairs report. A judge sanctioned the city for the failure. Ashanti protested that an “inadvertent clerical error” was to blame, but another judge upheld the penalty. The case, which Brown once offered to resolve for $200,000, eventually settled for $325,000.

Brown is now 29. He says the purpose of his lawsuit was mostly to get some accountability for what had happened to him. He still feels particular resentment toward Ashanti, whose full-throated lawyering had made Brown seem like a liar. “It was the undermining — and the sort of sweeping under the rug — of what had happened to me,” Brown says. “I just feel it was very unfair.” He adds, “I don’t know if this is even the job to be empathetic, but he definitely lacked any sort of empathy or any level of understanding.”

When told how Brown feels, Ashanti is unmoved. “How can I put this?” he says. “Civil rights can be violated and that person can still be a knucklehead, you know what I’m saying?” He claims that back at Special Fed, he had tried to advocate for Brown. “He wasn’t there, wasn’t privy to the conversations where I was trying to get authority for the case because I thought his civil rights were violated.” Ashanti says. “Mature people know these things, right? I’m not going to say, ‘Yeah, you’re right — these cops really fucked him up badly. How much do you want, Allen?’ Like, come on. Come the fuck on — excuse my language. Like, that’s not how things are done.”

Ashanti sees the Brown case as an instance of his furthering the cause of justice, not the opposite. “It’s why you need people like me in those positions,” he says. “That’s what a fucking idiot like him is too stupid to see. You need someone like me in those positions versus a white guy who doesn’t give a fuck about you. Any intelligent person can see that, who’s actually mature enough to understand that two things can be true that are seemingly — seemingly — contradictory.”

Not everyone at Special Fed could handle the dissonance. At the same time that he was working the Brown case, Ashanti was asked to mentor a new hire named David Ferrari, who was 25 and fresh out of law school. Like Ashanti eight years earlier, he was immediately assigned complex litigation. Unlike Ashanti, he revolted.

Ferrari was besieged with cases, many of which were frivolous on their face. But he also found that in many of his assignments, officers accused of brutality or other civil-rights violations refused to tell him clearly what had happened. Interviewing cops in his third-floor office, he’d try and fail to get them to go beyond blanket statements like “I was forced to administer a blow.” Ferrari would tell his bosses that it was impossible for him to determine if the plaintiffs’ cases had merit. Ferrari recalls, “The response was: ‘What are you talking about? He told you everything you need to know to make the case.’”

Ferrari turned to Ashanti. Ferrari remembers him saying: “I hear you. I empathize. We’re all very stressed. We just have to keep our head down and keep pushing.” The job ate at Ferrari so much that his health suffered. “Doing the job well was different than doing the right thing,” he says. “Certainly, nobody encouraged me to do something unethical. The culture, the atmosphere, the need to not settle these cases lends itself to a toxic environment.” Ferrari quit after about two years, making sure the office knew he had nothing else lined up. “When I left, I had at least six different attorneys come to my office,” he says. “‘How did you escape this place? How do I get out of here?’ That’s when I felt really vindicated.”

Ferrari says that when he heard about Ashanti’s arrest on Park Place in March 2018, he felt nothing but sympathy. “The job was not easy on him either,” he says. “My intuition was that as overworked as I was, I know he was more overworked. I knew that whatever cases that had the gray area we were struggling with, those were chosen for me because a first-year could handle it. His were a lot more complex.”

Allen Brown’s reaction to Ashanti’s arrest is less generous. Ashanti, he says, is “getting a taste of his own medicine.”

After his altercation with Officer Shapiro on the icy street, Ashanti spent 14 hours in custody. The experience was surreal. “The main component of my job was defending police officers in similar situations who are sometimes guilty of falsely arresting people. And this was one of them,” he says. “That irony hit me immediately.”

His bosses suspended him while they investigated. Ashanti soon learned the breadth of Shapiro’s allegations — that not only had he supposedly shoved the officer but he’d also gone on a tirade, claiming that he’d be “contacting the media” and could no longer “work for this police department or this city anymore.” Ashanti denied saying those things. But then the Post published its “livid lawyer” article.

Ashanti’s superiors did not see his arrest as an isolated incident. A year earlier, he had been brought before top management for violating city rules. Ashanti had represented his wife in small-claims court in a dispute with her former employer, a nonprofit wholly owned by a city agency — a clear conflict of interest. (He was later fined $8,500.) To the Law Department, Ashanti’s use of his city ID to enter a roped-off block was further proof that he felt the rules didn’t apply to him.

With his job in the balance, Ashanti got on the phone with Muriel Goode-Trufant, the agency’s managing attorney. “I knew it was a done deal,” he later testified, “but I expressed my disappointment in her as a Black woman to basically take the racist actions of this police officer that led to my false arrest and then to compound the problem, in order to appease the NYPD, by making me, in essence, a sacrificial lamb. I don’t think I used that term, sacrificial lamb, but that was it in sum and substance. So she was putting the interest of appearances, or the relationship between the Law Department and the NYPD, over what’s right and what’s just.” It was the same argument that Ashanti’s opponents had been leveling against Special Fed for years.

The conversation didn’t help. Within a week of his arrest, Ashanti was told he could resign or be fired. “Despite our frustrations with Karl, it did not mean that we disliked him, so we gave him the opportunity to make the choice,” Goode-Trufant said in a deposition.

Over the next few months, prosecutors withdrew all the charges against Ashanti except for one count of harassment, which is punishable by up to 15 days in jail. That August, wearing a light-blue dress shirt and blue tie with white dots, Ashanti walked into a Manhattan courtroom for a bench trial. He sat at a table as his lawyer walked Shapiro through a crucial 12 seconds of surveillance footage, which doesn’t show any obvious shoves or step-backs.

The judge issued her decision: not guilty. “You know how we always complain we’re under surveillance everywhere?” says Ashanti’s wife, Jovanna. “Thank God for that. That’s what saved Karl.”

After his acquittal, Ashanti turned to reputation repair, hiring a company to scrub his Google results and enlisting members of his church to lobby the Post until the paper removed the story about his arrest from its website. He got a job at a firm representing plaintiffs in civil-rights litigation, advocating for them against the city. He was finally realizing his original ambitions of using the law to help others. “It just took a long, long time — a long, circuitous route to get here,” he says.

Ashanti also sued the city and Shapiro for damages. (The officer has since drawn yet another lawsuit, his fifth in less than a decade. A Canal Street vendor claims that Shapiro yanked her arm so forcefully while arresting her that he broke her shoulder bone, an injury that required a plate and screws to repair. The city denies that claim and is defending him in state court.) Shapiro declined to comment. In a statement, a police spokesperson also declined to comment and denied, generally, that the police have “undue influence on the Special Fed and its work,” saying any claim that it does “is outrageous and inaccurate.”

Ashanti v. The City of New York is ongoing. The city says it’s treating the case as it would any other. “While we work to vigorously protect the interests of the city in every case, we are always mindful that opposing parties are also citizens who should be treated with respect and whose claims should be evaluated fairly,” a spokesman says. “We have upheld all of these values in defending against the meritless case brought by Mr. Ashanti.”

As the case drags on, Ashanti sometimes sounds a bit like Brown. He complains that the city lawyer assigned to his lawsuit is treating it like a “No Pay” case and “fighting tooth and nail against me.” There is a deep sense of outrage, even hurt, in his voice. And yet when I asked him recently about the parallel to Brown, and whether his experience has made him rethink his own hardball tactics at Special Fed, he was unequivocal. “I did my job the right way,” he says.

Over a decade at Special Fed, Ashanti defended the police and jail guards in more than 300 cases accusing them of violating New Yorkers’ constitutional rights. “I didn’t become a Law Department counsel because I was afraid of how people would view me or I was afraid my liberal card would get snatched away, or my Black card,” he says. “I know who I  am. I know what I’ve been through. I know what I believe.”

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by Jake Pearson

Records Reveal Medical Response Further Delayed Care for Uvalde Victims

3 years ago

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This story includes graphic descriptions of injuries sustained in an elementary school shooting. Graphic videos reviewed by reporters are not included.

UVALDE, Texas — Bullets had pierced Eva Mireles’ chest as she tried to shield students from a gunman’s semiautomatic rifle. But the fourth grade teacher at Robb Elementary was still conscious when police carried her out of classroom 112 and through a hallway crowded with dead and dying victims.

“You’re fine. You’re fine,” said her husband, Uvalde school district police officer Ruben Ruiz, who had been frantically trying to rescue her since the attack began. Mireles looked at him but could not speak. She’d been losing blood for more than an hour.

Officers placed Mireles on the sidewalk just beyond one of the school’s exits and started treating her wounds. A medic later told investigators he did not see any ambulances, though video footage showed two parked just past the corner of the building, about 100 feet away.

The chaotic scene exemplified the flawed medical response — captured in video footage, investigative documents, interviews and radio traffic — that experts said undermined the chances of survival for some victims of the May 24 massacre. Two teachers and 19 students died.

Law enforcement’s well-documented failure to confront the shooter who terrorized the school for 77 minutes was the most serious problem in getting victims timely care, experts said. But previously unreleased records obtained by ProPublica, The Texas Tribune and The Washington Post for the first time show that communication lapses and muddled lines of authority among medical responders further hampered treatment.

Footage from body and dashboard cameras showed that two ambulances were outside the school when officers killed the gunman inside Robb Elementary on May 24 in Uvalde, Texas. (Graphics by Imogen Piper/The Washington Post)

Three victims who emerged from the school with a pulse later died. In the case of two of those victims, critical resources were not available when medics expected they would be, delaying hospital treatment for Mireles, 44, and student Xavier Lopez, 10, records show.

Another student, Jacklyn “Jackie” Cazares, 9, likely survived for more than an hour after being shot and was promptly placed in an ambulance after medics finally gained access to her classroom. She died in transport.

The disjointed medical response frustrated medics while delaying efforts to get ambulances, air transport and other emergency services to victims. Medical helicopters with critical supplies of blood tried to land at the school, but an unidentified fire department official told them to wait at an airport 3 miles away. Dozens of parked police vehicles blocked the paths of ambulances trying to reach victims.

Multiple cameras worn by officers and one on the dashboard of a police car showed two ambulances positioned outside the school when the shooter was killed. That was not nearly enough for the 10 or more gunshot victims then still alive, though additional ambulances began arriving 10 minutes later. Six students, including one who was seriously wounded, were taken to a hospital in a school bus with no trained medics on board, according to Texas EMS records.

Dozens of officers from federal, state and local agencies, as well as school buses, parked in the street leading to the school.

(Helicopter footage gathered by the Texas Rangers and obtained by The Texas Tribune, The Washington Post and ProPublica)

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Two ambulances were at the scene when police killed the gunman. But additional EMS responders struggled to get there.

Uvalde EMS radio traffic (12:58 p.m.) “10-4 we are [inaudible] at Grove Street and Grove Street is blocked off by law enforcement.”

One minute later, six students, including one who was seriously wounded, were taken to a hospital in a school bus with no trained medics on board, according to the Texas EMS records.

(Helicopter footage gathered by the Texas Rangers and obtained by The Texas Tribune, The Washington Post and ProPublica. Graphics by Imogen Piper/The Washington Post.)

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Some law enforcement cars were left locked and could not quickly be moved, forcing medics to frantically try various routes to the school, crisscrossing through residents’ yards.

Thirty-three minutes after police killed the gunman, an ambulance struggled to access the school via South Grove Street.

(Helicopter footage gathered by the Texas Rangers and obtained by The Texas Tribune, The Washington Post and ProPublica. Graphics by Imogen Piper/The Washington Post.)

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Although helicopters were available, none were used to carry victims directly from the school. At least four patients who survived were flown by helicopter to a more fully equipped trauma center in San Antonio after first being driven by ambulance to a nearby hospital or airport.

In public statements made since May, law enforcement officials have defended their officers’ actions as reasonable under difficult circumstances. Federal, state and local agencies that responded to the shooting have not directly addressed the medical response, nor did they answer detailed questions from the news organizations that worked jointly on this investigation.

Eric Epley, executive director of the Southwest Texas Regional Advisory Council, a nonprofit that helps coordinate trauma care in Southwest Texas during mass-casualty events, said medics encountered challenges, including a faulty radio system.

“These scenes are inherently confusing, challenging, and chaotic,” Epley said in an email. He later added, “We remain steadfast that the decisions by the on-scene medical leadership were sound and appropriate.”

The Texas Rangers, an arm of the state Department of Public Safety, are investigating what went wrong in Uvalde, including whether any victims might have survived if they had received prompt medical care. The local district attorney has said she will use that investigation to determine whether to charge anyone with a crime, including law enforcement officers.

Mireles, an avid hiker and CrossFit enthusiast who was fiercely proud of her college-graduate daughter, was shot within the first minutes of the attack, according to interviews students gave to investigators and a DPS analysis of gunfire obtained by the news organizations.

It’s difficult to know whether Mireles or anyone else who died that day might have survived their wounds, in part because local officials have refused to release autopsy reports. But footage shows that Mireles was conscious and responsive when she was pulled from the classroom, an indicator that she probably had survivable wounds, according to medical experts.

“Had medics gotten to her quickly, there’s a good chance she would’ve survived,” said Babak Sarani, director of critical care at George Washington University Hospital.

The flawed coordination among police and medical crews echoes missteps during other mass shootings, despite the development of recommended practices after the 1999 massacre at Columbine High School. In several of those cases, the communication problems resulted in delays in getting medical care for victims.

Medics on helicopters and in ambulances who responded to the Uvalde shooting told investigators they were confused about who was in charge, where they should be stationed and how many victims to expect. Some of them pleaded to be allowed closer to the scene. In the absence of clear guidance, experts said medics did the best they could while trying to save lives.

“They were told, essentially, to go to the airport and wait,” according to an interview the Texas Rangers conducted with Julie Lewis, the regional manager for AirLIFE, an air medical transport service that sent three helicopters from the greater San Antonio area. “They couldn’t figure out who was in command.”

Pleading for Help

The morning of May 24 was warm and sunny in Uvalde, the seat of a rural county of about 25,000 residents near the Texas border with Mexico. It was one of the last days of class, and teachers had planned a festive, celebratory day.

Mireles left her home wearing a flowery blouse and pair of black pants, feeling happy, her daughter said.

“My dad had just told her how beautiful she looked,” Adalynn Ruiz, 23, recalled in a text message to a reporter.

Eva Mireles, 44, was an educator for 17 years who taught fourth graders at Robb Elementary. (Courtesy of Lydia Martinez Delgado)

About two dozen fourth graders were in Rooms 111 and 112, adjoining classrooms, that day. They included Jackie, who relished cherry limeades with extra cherries, and Xavier, who loved art class and couldn’t wait to start middle school.

They’d just finished a student awards ceremony and settled into watching the Disney movie “Lilo & Stitch” when a teenage gunman dressed in black scaled the school’s fence and fired shots at 11:32 a.m.

Hearing the gunfire, Mireles quickly called her husband.

“There’s somebody shooting at the school,” she said, Ruben Ruiz recalled in an interview with investigators.

“We’re coming up,” he told her as he drove to the school with a state police officer, who later described the comment to investigators. “We’ll be there.”

The gunman got there first, entering Mireles’ classroom and firing his AR-15-style rifle. Officers rushed into the school minutes later and approached her classroom, but they retreated after the gunman fired through the door, grazing two of them.

Ruiz, who declined to comment for this report but spoke with state investigators, ran into the hallway at 11:36 a.m., according to video footage. But none of the officers tried to enter the classrooms, where the gunman continued to fire sporadically.

Desperate to reach his wife, Ruiz told the other officers what he knew.

Ruben Ruiz: ‘He’s in my wife’s classroom’ (Uvalde Police footage obtained by The Texas Tribune, The Washington Post and ProPublica)

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“He’s in my wife’s classroom,” he said, according to the footage. He later recalled to investigators that it felt “like my soul had left my body.”

About twenty minutes later, his wife called again.

At 11:56 a.m., he shouted, “She says she’s shot!”

That information was a key indication that officers were dealing with an active shooter, not a barricaded subject as school district police Chief Pete Arredondo incorrectly assumed, according to a legislative report on the shooting. But Ruiz’s comment did not change how law enforcement officers, following Arredondo’s lead, responded to the attack.

The school district’s active-shooter protocol designated the chief as the incident commander. Arredondo has repeatedly defended his role in the delay, telling Texas lawmakers investigating the massacre that he did not consider himself to be in charge. The Uvalde school board fired Arredondo in August, amid sharp public criticism of the police response to the shooting.

Trapped inside her classroom, Mireles tied a plastic bag around her arm to help slow the blood loss, one of her students told investigators. Another child in Room 112 told investigators that Mireles tried to protect him. The boy was hit in the back of his shoulder but survived.

At least two students used Mireles’ phone to call 911, begging officers to send help.

Officers confiscated Ruiz’s gun and forced him to wait outside the school, where he told “anybody that would get next to me” that his wife was in danger, according to his law enforcement interview. He tried to get back in, but fellow officers stopped him. They later told investigators they had seized his gun for his own safety.

Inside Rooms 111 and 112, students anxiously tried to get officers’ attention. They knew that for Mireles, there was little time to spare.

One girl later recalled to investigators that Mireles “was telling us she was going to die.”

“We as a Nation Are Not Ready”

More than two decades after the Columbine school shooting shocked the nation, key failures continue to repeat themselves.

After that shooting, officers across the country received training on what they should do first when a mass shooting is reported: Subdue the shooter and stop the killing. Next, trainers tell first responders, they must “stop the dying.”

Over time, that insistence on prompt, effective medical care became an established mantra, as did the idea that all first responders — police, fire and EMS — should work under a joint command overseeing and coordinating the response. An overall incident commander is supposed to coordinate with the head paramedic or lead fire department supervisor to organize the medical response, experts said.

“If you don’t have a system, the whole response goes awry,” said Bob Harrison, a former police chief and a homeland security researcher at the Rand Corp., a think tank based in California.

A Justice Department review of the response to the 2016 Pulse nightclub shooting in Orlando, Florida, that killed 49 people found that the police and fire departments’ decision to operate separate command posts for hours led to a lack of coordination.

A review by local authorities of the 2012 Aurora, Colorado, movie theater shooting that killed 12 people discovered that the delayed establishment of a unified command led to communication problems between police and fire responders, slowing medical care for victims.

“We as a nation are not ready,” said Sarani, the director of critical care at George Washington University Hospital. “The air assets and the ground assets do not talk to each other very well. The fire, the police do not talk to each other very well.”

Experts said that the Uvalde shooting response appeared to lack both an overall incident commander and someone clearly in charge of coordinating the emergency medical response.

The rural community’s emergency medical services are contracted out to private companies. On that day in May, Stephen Stephens, the director of Uvalde EMS, was in charge of organizing helicopters and ambulances responding to Robb Elementary, he later told investigators.

“My job was to manage assets,” he said, noting that Juan Martinez, his deputy, instructed medics arriving at the scene.

After police breached the classrooms where the shooter had been holed up, Stephens said he handed command over to the fire chief of neighboring Medina County. The Medina fire chief declined to comment to the news organizations.

It’s unclear what information Stephens had about how many victims first responders should expect to find. Multiple medics expressed confusion over who was in charge of the medical response and where to go.

“There was no EMS command and control,” said Julio Perez, a medic for AirLIFE, who told investigators he was pleading to help. “Nobody could tell me anything.”

His account was backed up by Lewis, the manager for the air transport service, who said several of her medics were upset. “They feel like the resources weren’t used as they should have been.”

The school district declined to release its active-shooter response plans or protocols and did not answer questions posed by ProPublica, the Tribune and The Post. Separately, the state has fought the release of the active-shooter plans it requires school districts to submit, with the backing of Texas Attorney General Ken Paxton, whose office determines whether government information is open to the public. The news organizations also have sued state and city officials for some records related to the shooting and its response.

The city of Uvalde did not respond to detailed questions about the communication between police and medics or about its training for mass shootings, citing ongoing litigation. But a spokesperson said in an email that the city’s police department has not conducted any formal training with Uvalde EMS, a nonprofit that provides emergency medical services for the city and county.

A document from a March active shooter training conducted by the school district, later published by San Antonio television station KSAT, provides only general guidance on how police and EMS should work together.

The plan states that EMS, fire and law enforcement need to know “the exact location of the injured, as well as the number and types of injuries to expect upon their arrival.” It does not detail a process for communicating that information.

Stephens, Martinez and representatives for Uvalde EMS did not respond to requests for comment, including queries sent by certified letter. Five other private ambulance companies seen responding to the shooting also did not answer written questions or phone calls seeking comment.

Confusion and Delays

Martinez told investigators that he directed other medics to park their ambulances nearby until they knew whether it was safe to move closer. Experts said it’s not unusual to keep ambulances at a short distance from crime scenes with active shooters.

He soon identified a pressing obstacle: As dozens of officers descended on the scene, they left their vehicles blocking the roads that ambulances needed to get to the school.

Martinez instructed the county’s two dispatchers to ask law enforcement to create a clear path.

“We were anticipating essentially just grabbing whatever patients we had and running out,” he later told investigators.

While outside, Martinez and a second medic treated a Uvalde police lieutenant who had been grazed in the head when the gunman shot through the classroom door. Then they waited, with no clear sense of the horror unfolding inside the school.

“We didn’t know the numbers of patients, number of injuries, number of fatalities,” Martinez recalled in interviews with investigators. “Nobody was relaying that.”

Other emergency crews were also struggling to get crucial information and figure out where to go.

The crew of an AirLIFE helicopter grounded in Uvalde for maintenance heard the unfolding chaos on the radio and offered to help. The crew later told investigators that the emergency responders they talked to had rejected their assistance repeatedly. They did not provide the names of those responders.

“Nobody knew what was really going on,” said Perez, one of the helicopter medics. He said the officials told his crew to “stand by, stay there — don’t come.”

With no one clearly in charge of the police or medical responses, an elite Border Patrol tactical team that began arriving at the school at 12:10 p.m. assumed both roles, according to a July report by a state House committee tasked with investigating the response.

Merino-Ruiz: ‘They’ve been bleeding for a while’ (Uvalde Police footage obtained by The Texas Tribune, The Washington Post and ProPublica)

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The team, which typically handles dangerous situations involving migrants at the border, devised a plan to breach the adjoining classrooms while its medics set up a triage station.

Medical triage area set up inside the school (Texas state trooper body-camera footage obtained by The Texas Tribune, The Washington Post and ProPublica)

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At 12:50 p.m., a Border Patrol-led unit that included local police breached the classrooms. The gunman sprung from a closet and fired. They shot back, killing him.

The team gave the all-clear.

Officers who had packed the hallway now filled the classrooms. Ruiz ran back into the school, looking for his wife. Children lay on the floor, many near or on top of each other, most of them dead.

“I Can Still Feel the Heart”

Officers quickly began taking victims to a triage area inside the school, carrying some by their limbs. With so many law enforcement officers and first responders at the scene, there was little space to move. Some children were placed in a line on each side of the hallway.

One local medic later complained to investigators that the response was so chaotic that emergency crews were stepping on victims.

Several medics expressed frustration to investigators that law enforcement officers brought them students who could not be saved.

“You’re doing this wrong,” Martinez, the Uvalde EMS deputy supervisor, recalled yelling to police after being handed a child with a significant head injury. “There’s nothing I can do for this patient.”

Within minutes, medics determined that several critically wounded patients with pulses needed to be urgently taken to a hospital where surgeons could provide advanced care.

A girl matching the description of Jackie — wearing the same red shirt and black shorts she’d had on earlier in the day — was placed in one of the two ambulances at the school. The 9-year-old, described by her family as a “firecracker” for being so full of life, died on the way to the hospital.

Andrew Aviles, a regional trainer for the Border Patrol’s medic team, began treating a young boy, doing everything he could to revive him.

“I can still feel the heart,” Aviles yelled, as he later recounted to investigators in an interview punctuated with sobs. “I need a fucking plane. I need a helicopter down. I need to get a kid inside there!”

The boy needed to be taken to San Antonio’s University Hospital, the nearest Level 1 trauma center, which is equipped to handle the most serious cases. It was about 45 minutes away by helicopter, 90 minutes in an ambulance.

Uvalde is more than 80 miles from the nearest Level 1 trauma centers, which provide the most advanced care for seriously injured patients. (Graphic by Imogen Piper/The Washington Post)

The child seen in the police body-camera footage fits the description of Xavier. A law enforcement document listing what students were wearing indicates that Xavier had on a black shirt, blue jeans and black-and-white shoes. That is similar to the clothing worn by the boy Aviles was treating, the officer video shows.

Xavier Lopez, 10, was a fourth grader at Robb Elementary School. (Courtesy of Felicha Martinez)

Aviles had heard that the wounded were being airlifted from a field on the west side of the school, so he and other medics put the boy on a stretcher and began rushing him out to the dusty patch of grass at 12:56 p.m.

There was no helicopter.

Although at least five medical helicopters responded to the shooting, not one picked up anyone from Rooms 111 and 112 at the school, according to a review of flight data, satellite imagery and photographs, as well as interviews with air crew members by Texas Rangers.

Epley, the executive director of the regional coordinating agency for trauma care, said it was not safe to have medical helicopters at a scene with an active shooter. But Uvalde police could be heard on radio transmissions asking where medical helicopters were 10 minutes after the gunman was killed. It took 15 minutes more for the first to land near the school.

Spokespeople for the ambulance helicopter companies, Air Methods, which includes AirLIFE, and Air Evac Lifeteam, both of which responded to the shooting, said they rely on local medics to decide who should be airlifted. They declined to respond to detailed questions.

Each passing second dimmed the odds for the boy who appeared to be Xavier.

Dread set in when Aviles felt softness on the back of the child’s head, indicating a significant injury. The wounds were consistent with those detailed in the autopsy report shared with Xavier’s family, which revealed that the boy had been shot five times.

“I was like, ‘Guys, he’s …,’” Aviles said, pausing for a moment to take a breath as he spoke with investigators. “That took the wind out of my sails.”

First responders waited 11 minutes for a helicopter but decided to drive to San Antonio when it didn’t arrive. At that point, the boy had already gone into cardiac arrest. Overwhelmed medics enlisted state Trooper Matthew Neese to help with CPR in the ambulance.

Once a gunshot victim’s heart stops beating, the likelihood of survival diminishes sharply, experts said. A patient in that condition should immediately be brought to an operating room, where a surgeon can attempt to stop internal bleeding.

State records show that Neese did not have an EMT or paramedic license in Texas, but he performed CPR on Xavier for more than 30 minutes while a medic tried to treat the boy’s wounds. The ambulance diverted to Medina Regional Hospital in Hondo, about 40 miles from Uvalde, where doctors declared the child dead shortly after 2 p.m., according to his family.

A helicopter arrived near Robb Elementary at 1:15 p.m., eight minutes after the ambulance departed.

Hospital officials did not respond to a request for comment and neither did Neese. The trooper later attended Xavier’s funeral, according to the boy’s family.

Reached on his cellphone, Aviles declined to comment, referring questions to his supervisors at U.S. Customs and Border Protection. In a statement, a CBP spokesperson said the agency is investigating the role of its officers in the response and could not comment while that was ongoing.

Xavier’s mother, Felicha Martinez, said an awful premonition hit her as she stood outside the school waiting for news. Her body went limp and she collapsed. His father, Abel Lopez, searched for any sign of his son, peering between the buses blocking the view of the school.

They have since learned bits and pieces about what happened to their son but are left with questions, including why Xavier wasn’t taken to a hospital by helicopter.

“If the cops had done their job, the medics might’ve had a chance,” Lopez said.

Martinez added: “I’m so full of anger. I don’t know how to put into words how much I am hurting.”

“Don’t Give Up”

On the day of the shooting, emergency responders frantically tried to keep Mireles alive on the sidewalk outside Robb Elementary. She was deteriorating quickly. Within minutes, her heart had stopped and first responders began to administer CPR.

More ambulances arrived at the school, but it wasn’t until 16 minutes after the breach that medics put her inside one.

Eva Mireles was carried out of her classroom, Room 112, and through the school hallway by four police officers, her husband following behind.

A Border Patrol medic said in an interview with investigators: “I asked the guys, ‘Hey let’s not work on her here.’ But we look to the right and there’s no ambulances. So we had to work on her there.”

But there were two ambulances parked about 100 feet away.

(Graphics by Imogen Piper/The Washington Post)

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Medics laid Mireles on the ground and performed chest compressions.

She lay on the ground for more than 10 minutes, during which six ambulances arrived and two left. It’s unclear why Mireles was not immediately put into one of these ambulances.

(Graphics by Imogen Piper/The Washington Post)

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Ultimately, medics moved Mireles off the ground and into an ambulance.

(Graphics by Imogen Piper/The Washington Post)

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“Come on, ma’am, don’t give up,” a voice can be heard saying in a state trooper’s body-camera footage.

By then, the teacher’s chances of survival had sunk.

In the ambulance, medics began a blood transfusion and used an automatic compression device to try to get the teacher’s heart pumping again. They gave her fluids and intubated her.

But they did not take her to a hospital, a decision some experts described as a mistake and others said could indicate that medics thought Mireles had no chance of survival.

First responders continued CPR in the ambulance for about 40 minutes before the chief medic for Uvalde EMS declared her dead.

The ambulance that Mireles was inside never left the school curb.

by Zach Despart, The Texas Tribune, Lomi Kriel, ProPublica and The Texas Tribune, Alejandro Serrano, The Texas Tribune, Joyce Sohyun Lee, Arelis R. Hernández, Sarah Cahlan and Imogen Piper, The Washington Post, and Uriel J. García, The Texas Tribune

Congress and Industry Leaders Call for Crackdown on Hospice Fraud

3 years ago

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Less than three weeks after ProPublica and the New Yorker published an exposé of hospice fraud, members of Congress have called on the Department of Health and Human Services to “immediately investigate this situation.”

In a letter sent Friday to the Centers for Medicare and Medicaid Services and the Office of Inspector General, the bipartisan leaders of the Comprehensive Care Caucus wrote that “Medicare fraud cannot be tolerated, especially when it is being perpetrated on our nation’s most vulnerable patients.”

The ProPublica-New Yorker investigation described how the lucrative design of the Medicare benefit incentivizes many profit-seeking hospices to cut corners on care and target patients who are not actually dying. It chronicled the lack of regulation and the frustrated efforts of whistleblowers to hold end-of-life care conglomerates accountable. And it drew on state and federal data to reveal how, in the absence of oversight, the number of for-profit hospice providers in California, Texas, Arizona and Nevada has lately exploded.

The letter’s signatories — Sen. John Barrasso, R-Wyo., Sen. Jacky Rosen, D-Nev., Sen. Deb Fischer, R-Neb., and Sen. Tammy Baldwin, D-Wis. — decried the “troubling trend” spotlighted by the reporting and requested a briefing from the agencies within two weeks about plans to “address the proliferation of fraudulent hospice providers.”

The story’s findings are also being cited by lawmakers and lobbyists in New York, where Gov. Kathy Hochul is considering signing legislation to outlaw the creation of new for-profit hospice providers in the state. At the moment, all but two of New York’s 41 hospices are nonprofit. Assemblyman Richard Gottfried introduced a bill, which passed this summer, to keep things that way. “We can close the barn door before the horses have gotten out,” he said. “The article raised the level of awareness around issues with for-profit care.”

Published last month, the investigation provoked what industry leaders have called a “much-needed” conversation on how Americans die — along with demands to improve those deaths. “The abuses detailed in the article call for a reform of the Medicare hospice benefit that can reduce the opportunities for fraud and abuse,” the National Partnership for Healthcare and Hospice Innovation, a group for nonprofits, said in a statement. In public letters, LeadingAge, another association for nonprofit providers, and the American Academy of Hospice and Palliative Medicine, an organization for hospice professionals, separately emphasized that “change is needed.”

Lobbying groups whose members include for-profit providers — the National Hospice and Palliative Care Organization and the National Association for Home Care & Hospice — took issue with the investigation’s focus on “bad actors” but said in a joint statement that its members look forward to working with lawmakers “to implement solutions to address the isolated problems highlighted by the article without jeopardizing access to the Medicare hospice benefit.”

Dr. Ira Byock, a palliative care physician, author and former president of the American Academy of Hospice and Palliative Medicine, echoed the calls for greater monitoring of the hospice system in the wake of the investigation. “Hospice in America is gravely ill,” Dr. Byock wrote in an op-ed published last week by STAT, the health care news site. “I am hopeful that the article will spark a long-overdue internal reckoning by the field — my field — and the industry we gave rise to.”

Hospice began more than 60 years ago as a countercultural charity movement to help patients die with comfort, support and as little pain as possible. After the 1980s, when President Ronald Reagan authorized Medicare to cover the service, dying became a big business. In 2000, less than a third of all hospices were for-profit. Today, more than 70% are. Between 2011 and 2019, the number of hospices owned by private equity firms tripled. For profit-seeking providers, hospice is lucrative: Medicare pays a fixed rate per patient a day, regardless of how much help is offered. The aggregate Medicare margins of for-profit providers hover around 20% compared with just 5% for nonprofits.

Studies have found that for-profit hospices are more likely than their nonprofit counterparts to have less skilled staff, reduced clinical services and fewer home visits in the last days of life. Their patients have longer stays and leave hospice alive at higher rates. Last year, citing the research, three members of the Senate Finance Committee requested information on the quality of hospice services provided by Kindred at Home, the country’s largest home care chain. (Kindred’s hospice subsidiary was recently spun-off and sold to a private equity firm.) “We are concerned that when applied to hospice care, the private equity model of generating profit on a rapid turnaround can occur at the expense of dying patients and their families,” they wrote. Analysis of the data is ongoing, senate staffers said.

Assemblyman Gottfried said that the pending legislation in New York is an attempt to prevent the profiteering that’s unfolded elsewhere from seizing his home state. Jeanne Chirico, who heads the Hospice and Palliative Care Association of New York State, said that her group regularly fields calls from venture capitalists looking to break into the market. So do her members. Mary Crosby, the CEO of East End Hospice, a nonprofit located on Long Island, said that once or twice a month investors make offers. “We’re a particularly attractive acquisition target because we struggle financially and we’re not linked to a larger health care system,” Crosby told me. “But if you’re actually providing the kind of interdisciplinary care that is based on the original hospice mission, as we are right now, you’re not going to be making a lot of money.” Her hospice covers around 20% of its operating costs from donations, she said.

New York would not be the first state to bear down on its hospice sector. California has enacted a temporary ban on new hospice licenses, after the Los Angeles Times uncovered a dramatic increase in hospices that far outpaced the demand for services. In a report released this spring, state auditors found that since 2015 the Department of Public Health had never suspended a hospice license and had revoked a license only once. “The state’s weak controls have created the opportunity for large-scale fraud and abuse,” they said.

ProPublica and the New Yorker’s reporting outlined how California’s pattern of disproportionate growth is spreading to other states. In Arizona, Nevada and Texas, the rise in new Medicare-approved hospices since 2018 now accounts for around half of all hospices in each state. Unlike New York, these states don’t have “certificate of need” requirements for hospices, which means there’s no strict limit to the number of providers that can open in a given area.

The simplest way to understand the recent hospice boom is to see it.

Rapid Rise in Hospices Concentrated in West and Southwest

A ProPublica analysis of Medicare data reveals a sharp uptick in providers since 2018.

(Source: <a href="https://data.cms.gov/provider-data/topics/hospice-care">CMS data set of Medicare-certified hospices.</a> Chart by Lena Groeger.)

This chart represents Medicare hospices — it does not include the dizzying rise in state licenses — and therefore undercounts the total explosion in end-of-life care providers. (Hospices must first obtain a state license before they can be certified to bill Medicare for their services.) Federal data, for instance, shows just 22 Medicare-certified hospices packed into a building on Friar Street in Los Angeles, but California’s data reveals an additional 107 state hospice licenses registered at the same address. (Although California’s moratorium bars new providers, it does not stop the thousand-plus owners already in possession of state licenses from obtaining Medicare certification and billing the government.)

Industry leaders have expressed alarm about the loopholes in the state and federal certification process that enable sudden clusters of for-profit providers to materialize. A ProPublica review of hospice data in Phoenix showed that a raft of new entities shared the same addresses and network of owners. Some of the Arizona entrepreneurs already operate several hospices in Los Angeles, including out of the building on Friar Street. “These small entities aren’t required to publicly report quality of care data, are often not audited and, because of how the per diem is set up, it’s a gold mine,” said Larry Atkins, the chief policy officer of the National Partnership for Healthcare and Hospice Innovation. “You could very quickly figure out whether a hospice is a real place or a mill that’s simply signing up and burning through patients to bill Medicare. But no one is really doing that.”

Eric Rubenstein, who worked as a special agent at the Department of Health and Human Services’ Office of Inspector General until 2019, said that the Centers for Medicare and Medicaid Services and its contractors are often focused on auditing bigger billers. For the “smaller circuses and clowns,” the government’s lax payment system can be easy to exploit. “The demand for these licenses is predicated on the fact that there’s a huge amount of money to be made quickly in hospice fraud,” he said.

CMS said in a statement to ProPublica that the agency “is aware of the increase in the number of new hospices” requesting Medicare certification, and is “working to ensure they meet all applicable requirements for participation in the Medicare program.”

Last month, four national hospice associations banded together to ask CMS to enact targeted moratoriums in high-growth regions. “In addition to action at the state level, increased federal oversight is needed to protect hospice patients and their families,” they wrote. The groups are currently scheduling a meeting with CMS to discuss their concerns.

by Ava Kofman

Some Talk but Little Action on Private Policing in St. Louis

3 years ago

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Three months after a St. Louis public safety official said the city planned to review how off-duty police officers are used by private companies to patrol some neighborhoods, city officials said they had identified a consultant to do the work but were still looking for a way to pay for it.

The pledge to review police moonlighting came in September, after ProPublica revealed how the use of private police forces in St. Louis exacerbates disparities in how the city is protected. Deputy Public Safety Director Heather Taylor, responding to ProPublica’s findings, said the city would hire a consultant to study the issue.

Mayor Tishaura O. Jones said more recently that she intends to make changes to the private policing system to eliminate the disparities. “The well-heeled few, or those who pay extra taxes, shouldn’t get extra protection,” Jones said in a St. Louis Public Radio interview this month. “We all pay taxes in order to make sure that we get equal protection from our police department.”

The police department could be set for an overhaul with Jones’ appointment last week of its first chief from outside the agency in its 214-year history. Robert Tracy, the chief in Wilmington, Delaware, will start Jan. 9.

Tracy could not be reached; Jones and Taylor did not respond to requests for comment. But Monte Chambers, a program manager for the Public Safety Department, said the city planned to hire a consultant who is already working on another project for the city to review other policing issues, including the city’s private policing system.

The review would begin “once I have found a funding source,” Chambers said in an email last week.

Chambers did not respond to additional questions seeking details about the review.

While the publicly funded St. Louis Metropolitan Police Department struggles to deploy officers in visible roles across the city, ProPublica found that about 200 of them work part time for the city’s biggest private policing firm in some of the wealthier and predominantly white neighborhoods.

Unlike in other places where officers moonlight in security roles, St. Louis officers wear their city police uniforms and can investigate crimes, stop pedestrians or vehicles, and make arrests while working for private policing companies.

The investigation found that city employees working as private police officers were sometimes offered monetary rewards for working on specific cases and that St. Louis’ largest policing firm, The City’s Finest, employs many of the department’s highest ranking officers, including four of the six district commanders.

Some of those commanders sometimes work on trivial matters for their private clients while the police department struggles to deploy officers to parts of the city grappling with violent crime.

Jones, elected in 2021, has criticized policing in St. Louis as “inefficient and ineffective” and, in the radio interview, lamented that private policing makes the city stand out for its disparities. She has talked about restructuring the department and shifting funding to programs that try to prevent crime, such as mental health services and job training initiatives.

Megan Green, who in November was elected president of the city’s Board of Aldermen and is the city’s second-highest ranking official, said private policing was an issue that the new chief “needs to take up pretty quickly.” She also said the Board of Aldermen should examine the source of funding for private policing: the neighborhood taxing districts that raise millions of dollars a year.

Many affluent city neighborhoods have created taxing districts, the latest formed this summer in south-side Holly Hills. The districts are authorized by state law, but they periodically need to be renewed by property owners and the city. Green said the board could try to determine if “there are some taxing districts that need to be dissolved.”

“I think that the special taxing districts definitely create inequities in our city,” Green said. She said the city should “be more strategic about where special taxing districts are created. We historically have not had a lot of strategies around that as a city, which I think has created even greater inequities.”

The Board of Aldermen’s Public Safety Committee had planned to talk about private policing during a meeting last week, but officials from the city’s Public Safety Department did not show up and the discussion wasn’t held.

Eliminating private policing could potentially roil the city. Luke Reynolds, chair of a taxing district in the city’s Soulard neighborhood that raises about $300,000 a year for private policing, said that if city police officers were barred from working for the private company that patrols his area, the neighborhood would look at other ways to enhance public safety. “I have no idea what that would look like,” he said.

“I have said all along that I don’t necessarily think the system is really necessarily fair. But then again, there is a lot of inequity in the world, unfortunately,” said Reynolds, who owns a bar in Soulard. “We’re going to try to make our neighborhood as safe as we can within the system that exists.”

Don Bellon, who owns a wrecking and salvage business and serves on a board that hires private police in the Grove entertainment district near the city’s central corridor, said paying for policing was necessary “because the city can’t provide it.”

But he said he was frustrated with a lack of accountability for private officers. At a recent Grove board meeting, he questioned what the private officers were doing on a night when several crimes were committed.

“There’s really no oversight on them,” he said. “They’re freelancing. They just decide where to go.”

Charles “Rob” Betts, who owns The City’s Finest, did not respond to a request for comment. Betts has called his company “essentially an extension of the police department” for neighborhoods who want to hire more police. And he has defended giving officers rewards for working on specific cases as not unlike an officer being recognized for good police work at a luncheon.

In reporting on policing in St. Louis this year, ProPublica showed that police and neighborhood advocates have sought court orders to banish individuals from large sections of the city and officers have enforced those mandates through arrests — a practice legal experts said few cities have taken to such extremes. Representatives for the mayor did not respond to requests for comment.

In a partnership with APM Reports this year, ProPublica also found St. Louis had massaged its murder totals in a way that may have violated FBI crime reporting guidelines and created false optimism about police performance. The city quietly lowered its murder counts for 2020 and 2021 by classifying more than three dozen killings as justifiable homicides — deaths not included in the city’s murder count. Neither the department nor representatives for Jones responded to requests for comment for the story.

by Jeremy Kohler

Pregnant? Here’s What You Need to Know About NIPTs

3 years ago

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Expecting parents want to do the right thing. When the doctor suggests a prenatal screening test, many say yes. Learning more about the baby-to-be seems like it has no downside.

But they often don’t realize these popular tests aren’t regulated by the U.S. Food and Drug Administration. This means that no federal agency makes sure that marketing claims are backed up by evidence before the tests reach patients. Even many health care providers find it hard to understand their nuances.

Testing companies told ProPublica that, even without the FDA, there is significant oversight over the screening tests. They said health care providers, who order them, should make sure patients understand what they can and cannot do.

That’s not always how it plays out. We published an investigation about this: “They Trusted Their Prenatal Test. They Didn’t Know the Industry is an Unregulated ‘Wild West’.” During our reporting, we heard from more than a thousand people in six countries, 47 states and Washington, D.C., about their experiences with noninvasive prenatal screening tests — often called NIPTs, or NIPS. Several reached out after reading our story.

We heard from a lot of people who were grateful for the screenings. They gave them peace of mind. But others told us they were left confused, frustrated and sometimes even shattered. We also heard that it can be difficult to find independent information about NIPTs.

This guide is meant to help fill the information gap. It includes basics on what the tests are, how to understand the results and even a glossary for the many confusing terms test-makers toss around. Our information is based on hundreds of conversations with parents, health care providers, researchers, genetic counselors and other experts. If you or your family is considering an NIPT, or you’re trying to understand your results, we hope this will help. We also encourage you to do your own research and consult with doctors or genetic counselors you trust.

Table of Contents

What is noninvasive prenatal genetic testing?

What are NIPTs?

Noninvasive prenatal tests, or NIPTs, screen for an array of rare genetic conditions. In most cases, the results will say that a genetic condition is unlikely. In some cases, they will flag a possible issue.

Here’s how it works: A health care provider takes a blood sample. They send it to a lab for analysis. The lab looks for cells from the placenta that float in your bloodstream. They can give a picture of the fetus’s development. The cells don’t come directly from the fetus — that’s why this is a screening test, not one that gives a more definitive diagnosis. The lab then lets you and/or your doctor know what the screening found.

You can get a screening as early as nine weeks into pregnancy.

Are NIPTs the same as NIPS?

Yes. Many health care organizations call them NIPS (noninvasive prenatal screening) instead of NIPT (noninvasive prenatal test).

There has long been concern about the name. Some experts say that calling it a “test” implies the results are more certain than they really are. In the industry’s early days, some even called it noninvasive prenatal diagnosis, or NIPD.

They’re also sometimes known as cell-free DNA screening tests, or cfDNA tests.

What do NIPTs test for?

NIPTs check for genetic conditions that can affect the health of the fetus. This includes trisomies, or extra chromosomes. The standard bundle of tests usually checks for these conditions:

It may also check for unexpected numbers of X or Y chromosomes — one or three, for example, instead of the usual two. These are called sex chromosome aneuploidies. They may be associated with certain health and developmental issues.

Companies may offer extra tests, too, which they often describe as “premium,” “plus” or “advanced” options. These tests screen for even more genetic conditions. But the American College of Obstetricians and Gynecologists, the leading professional society for OB-GYNs, doesn’t recommend that doctors offer them to patients. Also, as the New York Times reported, when the extra tests have a positive result, they are “usually wrong.”

NIPTs don’t screen for nongenetic conditions, such as heart defects. For younger people, nongenetic conditions may be more likely to affect their pregnancies.

Are NIPTs regulated?

NIPTs are not regulated by the FDA. No federal agency checks to make sure they work the way they claim before they’re sold to health care providers. The FDA doesn’t make sure that marketing claims are backed up by evidence before screenings reach patients. And companies aren’t required to publicly report instances of when the tests get it wrong.

Testing companies said that, even without the FDA, there is still significant oversight. Labs must abide by state regulations, and another federal agency, the Centers for Medicare and Medicaid Services, monitors quality standards. It does not, however, check whether the tests the labs perform are clinically valid.

You can read more about this in our investigation about the prenatal testing industry.

Are NIPTs the “gender reveal” test?

Yes. Hundreds of women told us that this early chance to learn the likely fetal sex was the main reason they got screenings.

Experts emphasize that NIPTs should be treated primarily as a genetic screening test, rather than as a way to learn the likely sex early.

It’s rare, but there is a small possibility that the tests will predict the sex incorrectly.

What if I want an NIPT, but don’t want to learn the sex?

Let your doctor know. Testing companies can deliver results in a way that doesn’t disclose the sex. Know that if the screening is positive for some conditions, such as Turner syndrome, it may reveal the sex by default.

Are there other prenatal screening options besides NIPT?

Yes. ACOG and the Society for Maternal-Fetal Medicine, the leading professional societies for doctors who handle pregnancies, wrote about the different prenatal screening options in their guidance on NIPTs. Each test has benefits and limitations. It said that health care providers should discuss NIPTs, along with other screening and testing options, with expectant parents. Counseling can help you decide what to choose.

ACOG also has a FAQ about screening options.

How are NIPTs different from carrier screenings?

Carrier screenings calculate the chances that a person could pass an inherited condition on to their future child. They analyze a blood or tissue sample from one or both prospective parents to learn about their genetic makeup.

NIPTs, on the other hand, use a blood sample from the pregnant parent to analyze cells from the placenta and learn more about the possible genetic condition of the fetus.

I’m not sure if I should get an NIPT. How do I decide?

Deciding whether to get an NIPT depends on your personal situation. Your age, your health and how far along you are in pregnancy are all important considerations, as are your concerns, values and questions.

Your health care providers and, ideally, a genetic counselor can help you decide if an NIPT is a good choice for you. To think through the benefits and limits, you might want to check out these resources:

Also, in the next section of this guide, you’ll see more information on factors that affect the performance of the screenings.

Katie Stoll, executive director of the nonprofit Genetic Support Foundation, said it’s important to weigh what information from a screening will mean for you. She suggested reflecting on the following questions:

  • How would you feel if results indicated a higher chance for a genetic condition or birth defect?
  • Would you consider a diagnostic test, such as amniocentesis, if the NIPT indicated an increased chance for a genetic condition? -- If not, would you be okay waiting until the baby is born to know for sure if the condition is present?
  • Do you think this information would help you feel more prepared?
  • Does more information that comes with the possibility of uncertainty make you anxious?

Rachel Ray, 36, of Binghamton, New York, said it’s also important to have honest conversations with your partner or loved ones.

“No one expects the results to come back positive, or worse, false positive,” said Ray, who had the test in 2019. For those who haven’t had these conversations ahead of time, she said, “this kind of result could cause a huge ripple effect on a relationship.”

We heard from many people who were happy they got these tests. They said that it was helpful for making decisions about pregnancy and future parenting.

Others said their experience of the tests was traumatic. Alexis Reprogle, 28, from Fort Wayne, Indiana, had an NIPT that came back with inconclusive results. When she got a second screening, she said, it was positive for trisomy 18. But further testing showed that it was a false positive. Her daughter, now 2, has no unusual genetic conditions. “I wish I never would have taken the test,” said Reprogle. “It caused so much stress and the need to go back and forth with the insurance company over costs.”

Still others said their decision about the screenings is affected by state laws that ban abortions or restrict them to early in pregnancy.

In many states, abortion bans start before you will be able to confirm the screening results with a diagnostic test. In some places, they become restricted before you can even get the screening.

To stay up to date on the policies affecting you, The New York Times is tracking the current legal status of abortion in all 50 states and Washington, D.C.

What happens if I say no to the NIPT?

You have a right to say no to testing, said Mary-Nevaire Marsh, 34, of Atlanta. In 2020, she had a false positive for trisomy 18.

“It is meant to be a conversation,” Marsh said. Doctors “are an expert in their field, and you should be going to them for advice and counsel, but ultimately, the decision is completely in your hands and yours alone.”

If you’re anxious about this conversation, Marsh suggested bringing someone you trust with you.

“Bring a buddy or a partner with you if you feel like you’re going to need someone to help back you up,” she said. If doctors aren’t accepting your decision, she said, “say, ‘Let’s table it. We’ll talk about it next time.’”

“Another really good question to ask is ‘If we don’t do this, what other options are there?’” Marsh added.

Understanding your NIPT results

How accurate are NIPTs?

It depends. NIPTs are often quite good at identifying Down syndrome (trisomy 21) and Edwards syndrome (trisomy 18), especially for older parents who are more likely to have pregnancies affected by these conditions. They are less likely to correctly predict Patau syndrome (trisomy 13).

Test performance drops with the optional extra screenings that look for rarer conditions. The New York Times wrote about this: “When They Warn of Rare Disorders, These Prenatal Tests Are Usually Wrong.”

What other factors affect the NIPT results?

A number of factors can affect the performance of NIPTs, though companies sometimes sidestep this in their promotional materials. Readers and experts told us that health care providers, too, may not be clear about it.

These factors may include:

  • Your age
  • Your body mass index (BMI)
  • Gestational age (how far along you are in the pregnancy)
  • Your race and ethnicity
  • Pregnancy by in vitro fertilization
  • Twin pregnancies or vanishing twins
  • If you have been the recipient of an organ transplant

Rachel Ray said her providers failed to mention that her weight could affect the performance of her screening. In 2019, she had a false positive for trisomy 18.

“If I had been informed that higher BMIs have a significant impact on the reliability of the NIPT, I would have still taken the test, but I would not have experienced nearly the amount of stress I did,” said Ray.

She’s opting to skip an NIPT for her current pregnancy in favor of other screening tests. “I have declined because I do not want to experience what I experienced the first time, as I am still obese,” Ray said. “So far this pregnancy has been healthy and uneventful.”

How do I read my NIPT results?

After you have an NIPT done, it can take a week or two to get your results. Companies report results differently. Some describe conditions as "positive" or "negative.” At least one company describes them as "high-risk" or "low-risk,” which, it said, is meant to reinforce that NIPT is screening and not diagnostic.

A positive or high-risk NIPT result means there may be a higher possibility that the fetus has a genetic condition. This can affect its health and development. A negative or low-risk result means a genetic condition may be less likely.

To confirm your results — or if you simply want to go straight for a more comprehensive testing option — you may want an amniocentesis or chorionic villus sampling, or CVS, test.

In some cases, there will not be enough information in the blood sample from your NIPT to report results. It may read as “inconclusive,” “no call” or “no result.” In general, inconclusive results suggest a heightened risk of the fetus being affected by a genetic condition.

If this happens, you can consult with your doctor about doing the screening again, or getting a diagnostic test.

I got a positive result! What should I do?

While you’re probably feeling a lot of fear, please remember the information is not definitive.

“It is important to remember that NIPT results, just like other screening results, do not give a ‘yes’ or ‘no’ answer to whether a pregnancy has a chromosome condition,” said Stoll of the Genetic Support Foundation.

Your health care providers should talk to you about diagnostic options for confirming or refuting the results. They may also refer you to a maternal-fetal medicine specialist. Your second trimester scans, instructions from your doctors and further testing can all help you learn more about your pregnancy.

You also may want to talk with a genetic counselor who can help you understand your NIPT results and think through their implications.

In some cases, a positive result may have implications for your own health. “This, too, can be discussed with your provider,” Stoll said.

Also, know you are not alone. The people we talked to say the weeks or months in between the screening and finding out for sure if it’s a true positive can be filled with anxiety.

“Find somebody who you can talk to who can just listen,” said Daniela Weiss-Bronstein, 43, of Westhampton Beach, New York. She appreciated how one friend put it to her: “Tell me all the things that are in your head that you can’t say.”

In 2015, Weiss-Bronstein was expecting her fourth child when an NIPT came back positive for Down syndrome. For her, dear friends and the Down Syndrome Diagnosis Network were the most supportive outlets as she struggled with her feelings about the result.

Mary-Nevaire Marsh recommends taking time to process, even when some decisions need to be made soon.“You do have time,” she said. It’s important to think through your options and “decide what really feels like the right thing for you and your baby and your family.”

If follow-up testing shows it to be a true positive, this will likely affect your birthing plans. Some people told us they decided to end their pregnancies after a diagnosis. Others adjusted their medical care and parenting expectations.

Weiss-Bronstein chose not to get a diagnostic test after her positive NIPT. She supports abortion rights, but she knew she wouldn’t end her pregnancy even if an amnio confirmed the presence of Down syndrome. To her, it seemed like an unnecessary risk to add to an already complicated pregnancy. It wasn’t until the day her son was born that she and her husband found out it was a true positive, an experience she and a friend chronicled in a comic.

For those who receive a positive test for Down syndrome, Weiss-Bronstein said she wishes there was more awareness about how modern interventions and support systems have improved life outcomes for people who have the condition.

I got a negative result! What should I do?

Many people said that a negative NIPT result is a huge relief. They told us that it gave them peace of mind during their pregnancies. True negatives are the most common outcome of the screening tests.

False negatives are extremely rare — far more rare than false positives or inconclusive results — but they do happen, as we reported in our investigation.

Second trimester scans and diagnostic testing can provide additional information about nongenetic conditions that may affect your pregnancy. Reader V.G. had a negative NIPT in 2019 and declined a CVS test. But she decided to have an amniocentesis to confirm the screening. Between the amnio and the NIPT, she felt reassured that all was well. (For privacy, she asked not to be identified with her full name.). For her, it was a very positive experience.

I got an inconclusive, or “no-call” result! What does this mean?

This happens when a lab is unable to provide information about the conditions it screened. There are many possible explanations for this, Stoll said, “and sometimes we are never really able to determine the reason.” It may be that the blood sample contained too low a percentage of DNA from the placenta. This is called “low fetal fraction.” Or it could be a problem with the shipping of the sample, Stoll said.

In general, an inconclusive result can signal a higher likelihood of a chromosomal condition. But it may not. Your health care provider may recommend a redraw of the blood sample for another NIPT, or a diagnostic test.

Alexis Reprogle in Indiana, who had a second NIPT after her first was inconclusive, said it’s sometimes helpful to wait to do further testing.

“Most of the time you will have your blood drawn again for a second test,” she said. “If you are feeling overwhelmed with anxiety over the entire process, you can always back out of the second test. You may have the option to wait a few more weeks, as this could provide a more accurate reading.”

How can I confirm my NIPT results?

Diagnostic tests, such as amniocentesis and CVS, offer the most definitive and comprehensive information about the health of the fetus. An “amnio” is a test that analyzes a small amount of amniotic fluid from the area around the fetus. CVS analyzes a small piece of tissue from the placenta.

Both are considered invasive tests, with a small risk to the pregnancy, though experts say it is extremely low.

I want more advice and guidance. Where can I find genetic counseling?

Genetic counselors are trained professionals who can help you understand the tests, think through their results and, potentially, prepare for a pregnancy affected by a genetic condition. ACOG’s guidance on prenatal screening recommends both pre-test and post-test counseling.

​​Some testing companies offer patients genetic counseling services with their on-staff experts. They typically offer these at no additional charge and some people said they received helpful guidance. But several experts we spoke to emphasized the value of genetic counselors who aren’t employed by labs. That way, you can be confident there are no conflicts of interest. Independent counseling may be more expensive, though.

A good place to start is talking with your health care provider about a referral to a genetic counselor in your area. The Genetic Support Foundation in Olympia, Washington, is one source for independent guidance on a range of genetic health decisions, including pregnancy. It offers telehealth appointments. (Stoll, GSF’s executive director, was a source for this guide.)

The National Society of Genetic Counselors offers a directory of in-person and telehealth options in Canada and in the United States.

Adriana Ludé, 36, of Oakland, California, enlisted a geneticist after she received an inconclusive result. She said it’s important to find a good communicator, not just someone with technical qualifications.

“Having someone who is able to explain it in simple words our overwrought and emotional brains could understand was huge,” Ludé said.

Weiss-Bronstein said those with positive results might also want to consult with a developmental pediatrician’s office. There can be waitlists, she said, but if you can get in the office, it gives you a chance to talk to someone who works with kids with these genetic conditions in real life. It’s a chance to ask, as she put it: “Not pie in the sky, and not doom and gloom, what does this actually look like?”

Speech and physical therapists who work with kids with these conditions can be helpful too, she said.

Paying for an NIPT

How much do NIPTs cost?

In our reporting, we heard about bills that ranged from a few hundred to many thousands of dollars, even for people who said they had good health insurance. We also heard from people who had the test covered completely by their insurance, or paid low-cost rates offered by the NIPT companies.

Stoll suggested asking your doctor for details about:

  • Which lab your testing will be sent to
  • Which conditions the test screens for
  • Which CPT codes will be used to bill for this test

Then, she said, you can follow up directly with your insurance company “to learn about coverage for the specific lab and codes being used.”

Patients give this advice:

  • Let your doctor know if you have limited funds. The practice may be able to budget for your care, or your doctor may be able to share information about financial assistance options.
  • Keep detailed records of your communication with the testing companies, your doctor and insurance company. Arbitrary billing was among the most common complaints we heard. Confusing pricing often led patients to make multiple phone calls to the labs and their insurers to get clarity on their responsibility for the cost.

NIPT Glossary

Aneuploidy: Broad term for conditions that involve an unusual number of chromosomes. (Most people have 46.)

Chromosomes: Thread-like structures in our cells that are made of our DNA. Together, they make a blueprint for our unique physical characteristics.

Fetal fraction: Percentage of DNA in the sample of the maternal blood that is from the placenta. If the fetal fraction is too low, it can result in an inconclusive, or “no call,” result.

False negative: When a screening shows a negative or low-risk result for a certain condition, but it turns out the condition is actually present.

False positive: When a screening shows a positive or high-risk result for a certain condition, but it turns out the condition is actually not present.

Karyotype: An individual’s complete set of chromosomes.

Prevalence: How common, or “prevalent,” a condition is in a certain group of people.

Positive Predictive Value, or PPV: The likelihood that a positive or high-risk screening result will prove to be true. If you get a positive result for a certain condition, this is an important indicator of how likely it is that the fetus actually has it.

Different genetic conditions have different PPVs. You can use an online calculator to estimate more personalized PPVs for certain conditions.

Microdeletion: A missing fragment of a chromosome, which can cause a number of rare genetic conditions, such as DiGeorge syndrome or Prader-Willi syndrome. Many testing companies offer optional extra screenings for microdeletions, as well as additional trisomies. But ACOG does not recommend them.

Monosomy: Term for having only one chromosome (“mono”) where there would usually be a pair.

Mosaic, or Mosaicism: When different cells have different numbers of chromosomes in them. Some cells might have the usual 46 chromosomes, but other cells might have 47 chromosomes. This can result in health issues. Mosaicism may also mean there’s a difference between the cells in the placenta — which is what an NIPT analyzes — and the cells in the fetus. This can lead to false positives or false negatives.

Negative Predictive Value, or NPV: The likelihood that a negative or low-risk screening result will prove to be true. If you get a negative result for a certain condition, this is an important indicator of how likely it is that the fetus is actually unaffected by it.

Different genetic conditions have different NPVs. You can use an online calculator to estimate more personalized NPVs for certain conditions.

Sensitivity: The proportion of those who have the condition who are correctly identified by the test. It is the “detection rate.”

Specificity: The proportion of those who do not have the condition who are correctly identified by the test.

Soft markers: Features detected in the fetus that aren’t necessarily related to a genetic condition but can be correlated with one. For example, shortened long bones in the arm and leg may be associated with Down syndrome.

Trisomy: Term for conditions with an extra third (“tri”) chromosome alongside one of the usual pairs of chromosomes. Down syndrome, for example, is known as trisomy 21 because it’s a condition involving three copies of the 21st chromosome.

True Negative: When a screening has a negative or low-risk result for a certain condition and it turns out the condition is indeed not present.

True Positive: When a screening has a positive or high-risk result for a certain condition and it turns out the condition is indeed present.

Have You Had an Experience With Prenatal Genetic Testing? We’d Like to Hear About It — and See the Bill.

Sophia Kovatch contributed research.

by Adriana Gallardo, Anna Clark and Mariam Elba

The School That Calls the Police on Students Every Other Day

3 years ago

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On the last street before leaving Jacksonville, there’s a dark brick one-story building that the locals know as the school for “bad” kids. It’s actually a tiny public school for children with disabilities. It sits across the street from farmland and is 2 miles from the Illinois city’s police department, which makes for a short trip when the school calls 911.

Administrators at the Garrison School call the police to report student misbehavior every other school day, on average. And because staff members regularly press charges against the children — some as young as 9 — officers have arrested students more than 100 times in the last five school years, an investigation by the Chicago Tribune and ProPublica found. That is an astounding number given that Garrison, the only school that is part of the Four Rivers Special Education District, has fewer than 65 students in most years.

No other school district — not just in Illinois, but in the entire country — had a higher student arrest rate than Four Rivers the last time data was collected nationwide. That school year, 2017-18, more than half of all Garrison students were arrested.

Officers typically handcuff students and take them to the police station, where they are fingerprinted, photographed and placed in a holding room. For at least a decade, the local newspaper has included the arrests in its daily police blotter for all to see.

((Jacksonville Journal-Courier))

The students enrolled each year at Garrison have severe emotional or behavioral disabilities that kept them from succeeding at previous schools. Some also have been diagnosed with autism, ADHD or other disorders. Many have experienced horrifying trauma, including sexual abuse, the death of parents and incarceration of family members, according to interviews with families and school employees.

Getting arrested for behavior at school is not inevitable for students with such challenges. There are about 60 similar public special education schools across Illinois, but none comes anywhere close to Garrison in their number of student arrests, the investigation found.

The ProPublica-Tribune investigation — built on hundreds of school reports and police records, as well as dozens of interviews with employees, students and parents — reveals how a public school intended to be a therapeutic option for students with severe emotional disabilities has instead subjected many of them to the justice system.

It is “just backwards if you are sending kids to a therapeutic day school and then locking them up. That is not what therapeutic day schools are for,” said Jessica Gingold, an attorney in the special education clinic at Equip for Equality, the state’s federally appointed watchdog for people with disabilities.

Doors lead to classrooms at the Garrison School, a public special education school for students with severe emotional or behavioral disabilities. (Armando L. Sanchez/Chicago Tribune)

“If the school exists for young people who need support, to think of them as delinquents is basically the worst you could do. It’s counter to what should be happening,” Gingold said.

Because of the difficulties the students face in regulating their emotions, these specialized schools are tasked with recognizing what triggers their behavior, teaching calming strategies and reinforcing good behavior. But Garrison doesn’t even offer students the type of help many traditional schools have: a curriculum known as social emotional learning that is aimed at teaching students how to develop social skills, manage their emotions and show empathy toward others.

Tracey Fair, director of the Four Rivers Special Education District, said it is the only public school in this part of west central Illinois for students with severe behavioral disabilities, and there are few options for private placement. School workers deal with challenging behavior from Garrison students every day, she said.

Tracey Fair, director of the Four Rivers Special Education District, which runs the Garrison School, speaks at a November meeting of the district’s board. (Armando L. Sanchez/Chicago Tribune)

“There are consequences to their behavior and this behavior would not be tolerated anywhere else in the community,” Fair said in written answers to reporters’ questions.

Fair, who has overseen Four Rivers since July 2020, said Garrison administrators call police only when students are being physically aggressive or in response to “ongoing” misbehavior. But records detail multiple instances when staff called police because students were being disobedient: spraying water, punching a desk or damaging a filing cabinet, for example.

“The students were still not calming down, so police arrested them,” wrote Fair, speaking on behalf of the district and the school.

This year, the Tribune and ProPublica have been exposing the consequences for students when their schools use police as disciplinarians. The investigation “The Price Kids Pay” uncovered the practice of Illinois schools working with local law enforcement to ticket students for minor misbehavior. Reporters documented nearly 12,000 tickets in dozens of school districts, and state officials moved quickly to denounce the practice.

This latest investigation further reveals the harm to children when schools abdicate student discipline to police. Arrested students miss time in the classroom and get entangled in the justice system. They come to view adults as hostile and school as prison-like, a place where they regularly are confined to classrooms when the school is “on restriction” because of police presence.

A “Police Incident Report” form used by the Garrison School details a student’s behavior and arrest. (Obtained by ProPublica and Chicago Tribune; identifying information removed by the school.)

U.S. Department of Education and Illinois officials have reminded educators in recent months that if school officials fail to consider whether a student’s behavior is related to their disability, they risk running afoul of federal law.

But unlike some other states, Illinois does not require schools to report student arrest data to the state or direct its education department to monitor police involvement in school incidents. Legislative efforts to do so have stalled over the past few years.

In response to questions from reporters about Garrison, Illinois Superintendent of Education Carmen Ayala said the frequent arrests there were “concerning.” An Illinois State Board of Education spokesperson said a state team visited the school this month to examine “potential violations” raised through ProPublica and Tribune reporting.

The team confirmed an overreliance on police and, as a result, the state will provide training and other professional development, spokesperson Jackie Matthews said.

“It is not illegal to call the police, but there are tactics and strategies to use to keep it from getting to that point,” Matthews said.

Ayala said educators cannot ignore their responsibility to help students work through behavioral issues.

“Involving the police in any student issue can escalate the situation and lead to criminal justice involvement, so calling the police should be a last resort,” she said in a written statement.

In 2018, Jacksonville police arrested a student named Christian just a few weeks into his first year at Garrison, when he was 12 years old. His “disruptive” behavior earlier in the day — he had knocked on doors and bounced a ball in the hallway — had led to a warning: “One more thing” and he would be arrested, a school report said. He then removed items from an aide’s desk and was “being disrespectful,” so police were summoned. They took him into custody for disorderly conduct.

Christian has attention-deficit/hyperactivity disorder, post-traumatic stress disorder and oppositional defiant disorder. Now 16, he has been arrested at Garrison several more times and was sent to a detention center after at least one of the arrests, he and his mother said.

He stopped going to school in October; his mother said it’s heartbreaking that he’s not in class, but at Garrison, “it’s more hectic than productive. He’s more in trouble than learning anything.”

“If they call the police on you, you are going to jail,” Christian told reporters. “It is not just one coming to get you. It will be two or three of them. They handcuff you and walk you out, right out the door.”

Handcuffs and Holding Rooms

Just over an hour into the school day on Nov. 15, two police cars rushed into the Garrison school parking lot and stopped outside the front doors. Three more squad cars pulled in behind them but quickly moved on.

Principal Denise Waggener had called the Jacksonville police to report that a 14-year-old student had been spitting at staff members. When police arrived, one of the officers recognized the boy, because he had driven him to school that morning. The student had missed the bus and called police for help, according to a police report and 911 call.

School staff had placed the boy in one of Garrison’s small cinder-block seclusion rooms for “misbehavior,” police records show. A school worker told the officer she had been standing in the doorway of the seclusion room when the boy spit and it landed on her face, glasses and shirt.

“He Spit in the Staff’s Face” Denise Waggener, the Garrison School principal, called Jacksonville police in November after a student spit on an employee. The student was arrested for aggravated battery. (Audio obtained by the Tribune and ProPublica from the Jacksonville Police Department. Audio was condensed for clarity.)

The child “initially stated he did not spit at anyone, but then said he did spit,” according to the police report, “but instantly regretted doing so.” The report said the child “stated he knew right from wrong, but often had violent outbursts.”

The worker asked to press charges, and the officer arrested the boy for aggravated battery.

((Jacksonville Journal-Courier))

One officer told the child he was under arrest while another searched and handcuffed him. They put him in the back seat of a squad car, drove him to the police station, read him his rights and booked him. Officers told the boy the county’s probation department would contact him later, and then they dropped him off with a guardian, records show.

The Tribune and ProPublica documented and analyzed 415 of Garrison’s “police incident reports” dating to 2015 and found the school has called police, on average, once every two school days.

The reports, written by school staff and obtained through public records requests, describe in detail what happened up until the moment police were called. These narratives, along with recordings of 911 calls, show that school workers often summon police not amid an emergency but because someone at the school wants police to hold the child responsible for their behavior.

Jacksonville police respond in November to a call from a Garrison School administrator about a student’s misbehavior. Officers arrested the student. (Armando L. Sanchez/Chicago Tribune)

About half the calls were made for safety reasons because students had fled the school. Those students rarely were arrested. Students whom police did arrest were most often accused of aggravated battery and had been involved in physical interactions such as spitting or pushing; by state law, any physical interaction with a school employee elevates what would otherwise be a battery charge to aggravated battery. The next most common arrest reasons were disorderly conduct, resisting arrest and property damage.

The school once called police after a student was told he couldn’t use the restroom because he “had done nothing all morning,” records show. The boy got upset, left the classroom anyway and broke a desk in the hallway.

The school called police on a 12-year-old who was “running the halls, cussing staff.”

And the school called the police when a 15-year-old boy who was made to eat lunch inside one of the school’s seclusion rooms threw his applesauce and milk against the wall.

Police arrested them all.

“These students, I would imagine, feel like potential criminals under threat,” said Aaron Kupchik, a sociologist at the University of Delaware who studies punishment and policing in schools.

“We are taking the actions of young people, and, rather than trying to invest in solving real behavioral problems that are very difficult, we are just exposing them to the legal system and legal system consequences.”

Jacksonville Chief of Police Adam Mefford said officers respond to every 911 call from Garrison on the assumption it’s an emergency, and as many as five squad cars can respond. Police often find a child in a seclusion room, Mefford said.

Adam Mefford, Jacksonville police chief. (Armando L. Sanchez/Chicago Tribune)

Officers determine whether a law has been broken but leave the decision whether to press charges to the school staff, he said. Police sometimes issue tickets to Garrison students for violating local ordinances, though arrests are far more common.

“The school errs on the side of pressing charges,” Mefford said. “They typically have the student arrested.”

He wondered whether school administrators call police so frequently because it’s become a habit that’s difficult to stop. “The school has gotten used to us handling some of these problems,” Mefford said.

Once arrested, the students are taken to the police station until parents pick them up or an officer takes them home. One mother told reporters that her 10-year-old son, who has autism and ADHD, was “bawling, freaking out,” when she picked him up after he was booked at the jail.

Mefford said he tried to make the experience less traumatic by moving the booking process from the county detention facility to the police station in 2021. He also said police refer students and their families to services in the community, such as counseling or substance abuse help.

After they are booked, students are screened to determine if they should be sent to a juvenile detention facility. Most are assigned to an informal alternative to juvenile court that Morgan County court officials regularly use, said Tod Dillard, director of the county’s probation department.

Jacksonville police bring the Garrison School students they arrest to this booking area at the police station to be fingerprinted and photographed. Students often wait in the room for a guardian to pick them up. (Armando L. Sanchez/Chicago Tribune)

These young people avoid going to juvenile court, but the “probation adjustment” process also requires them to admit guilt and denies them a public defender. Students must periodically report to a probation officer, typically for a year.

Violating the probation terms, such as by skipping school or getting arrested again, could lead to juvenile delinquency charges. In a juvenile court case, a student’s record of previous informal probation can be used when considering bail or sentencing.

Garrison has some students who are 18 and older, and they can be charged as adults. In 2020, an 18-year-old Garrison student was arrested for disorderly conduct after he “caused a disturbance” when he threw a cup of water and punched a pencil sharpener, court records show. That student spent four days in jail and was held on $3,000 bail. He pleaded guilty and was ordered to pay $439 in court costs and $10 a month in probation fees.

An 18-year-old student was charged with disorderly conduct after an incident at the Garrison School. (Obtained from the Morgan County Circuit Court. Redacted by ProPublica.)

Even for younger students, juvenile charges related to Garrison can later have consequences in adult court. If they are arrested again after they turn 18, prior cases can be used to illustrate that they have a police record.

The boy who spit in anger this fall at Garrison now has an aggravated battery arrest on his record. Even Fair, the school’s director, found the decision to arrest the child troubling.

The day after the boy was taken into custody, Fair told reporters she knew the child had been arrested but said she did not know why school administrators had called police. Reporters told her it had been for spitting on one of her employees.

“That’s not arrestworthy. That is not what we should be about,” Fair said. In a later interview, after learning more about the incident, Fair said staff considered the student aggressive and said, “I guess they did what they thought was right.”

From Empathy to “Coercive Babysitting”

Bev Johns, a local educator, founded Garrison in 1981 with just two students — and a belief that with a caring staff and the right support, they could be successful.

The children had exhibited such disruptive behavior that staffers at their home schools felt ill-equipped to teach them. Her solution: Open a school designed to teach students not just academic subjects but how to manage their behavior. It became part of the Four Rivers Special Education District, a regional cooperative that today provides services to students in school districts across eight mostly rural counties.

The school was considered groundbreaking, and many of the techniques that Johns implemented at Garrison are still widely considered best practice for managing challenging behavior: giving students space when they’re upset, teaching them ways to manage their emotions and giving them choices rather than shouting demands.

Those techniques often involve trying to understand what’s driving a student’s behavior. A student shoving papers off their desk may feel overwhelmed and need assignments in smaller increments. A student struggling to sit still may need classwork that involves them moving around the room.

Taking the students’ disabilities into account when they misbehave is now a firmly entrenched concept in education. In fact, it’s federal law.

“There’s a requirement both in the law — and just morally — that kids with disabilities are not supposed to be punished for behaviors that are related to their disability, or caused by it, or caused by the school’s failure to meet their needs,” said Dan Losen, director of the Center for Civil Rights Remedies at the University of California, Los Angeles.

Johns, who led Garrison until 2003, has dedicated her career to these ideas. She published research about “the Garrison method” to help other educators, taught at a nearby college and continues to speak regularly at conferences.

“Choice is such a powerful strategy. It’s such an easy intervention,” Johns recently told a standing-room-only crowd at an Illinois special education convention in Naperville. And schools should look welcoming too, she said. “I see some schools that look like prisons. Why would a child want to go there?”

Buses from school districts throughout an eight-county region of rural Illinois bring students to the Garrison School on a morning in November. (Armando L. Sanchez/Chicago Tribune)

The Garrison of today isn’t a prison, but it relies on rules and methods meant to manage students.

In recent years, staffers sometimes took away students’ shoes to discourage them from fleeing, though Fair said that has not happened under her watch. Before a recent Illinois law banned locked seclusion in schools, Garrison workers used to shut students inside one of the school’s several seclusion rooms — staff members would stand outside and press a button to engage a magnetic lock. The doors have since been removed, but the “crisis rooms” are still used. The Four Rivers district reported to ISBE that workers had restrained or secluded students 155 times in the 2021-2022 school year — three times as many incidents as students.

One of the seclusion rooms at the Garrison School, called “crisis rooms,” shown in 2019. (Obtained by ProPublica and the Tribune)

“They would lock me in a concrete room and then close the door on me and lock it. I would freak out even worse,” said an 18-year-old named Max, who left the school in 2020.

Some of the school’s aides are assigned to one of two “crisis teams” of four employees each that respond to classrooms and can remove students who are upset, disobedient or aggressive.

Employees’ handwritten records describe several incidents where they confined a child to a small area inside the classroom. In one case, the crisis team made a “human wall” around a 14-year-old student who was wandering in the classroom, swearing and being disruptive. A 16-year-old student told reporters that school employees drew a box around his desk in chalk and told him not to leave the area or there would be consequences.

Charles Cropp, who has worked as part of crisis teams at Garrison on and off since 2009, said he and his colleagues try to help students learn how to calm down when they are upset. He said teams aim to help students learn how to manage their emotions but that sometimes the young people also need to be held “accountable” when they are physical or disruptive.

“I was one that never really cared to watch kids get escorted out in handcuffs,” said Cropp, who returned to the school full time in late November. “I never liked it but in the same sense, they have to learn when you graduate and you are an adult in the public, you can't do those things.”

Garrison workers were recently trained in the Ukeru method, a crisis intervention system that uses blue shields to block students' physical aggression in place of physical restraint. (Armando L. Sanchez/Chicago Tribune)

Jen Frakes, a board-certified behavior analyst who worked at Garrison in 2015-16, described the culture at Garrison as “coercive babysitting.” She said she never saw a situation that warranted arresting a student.

“It seemed more of a power dynamic of ‘You’ll either follow my rules or I will show you who’s in charge,’” said Frakes, who runs a Springfield business that helps schools and families learn to work through challenging behavior. “When I saw a kid get arrested, he was sitting underneath his desk calm and quiet, and they came in and arrested him.”

This isn’t how other schools similar to Garrison are handling difficult student behavior.

Reporters identified 57 other public schools throughout Illinois that also exclusively serve students with severe behavioral disabilities. To determine how often police were involved at those schools and why, reporters made public records requests to all of the schools and to the police or sheriff’s departments that serve each one. Reporters were able to examine police records for 50 schools.

The two schools with the most arrests during the last four school years had 16 and 18, respectively. At 23 of the schools, no students were arrested in that period; six schools had only one arrest.

By comparison, five students were arrested at Garrison by mid-November of this school year alone, according to school and police records.

John McKenna, an assistant professor specializing in special education at the University of Massachusetts Lowell, said arresting students not only criminalizes them but also takes them out of the classroom.

“Kids are supposed to be receiving instruction and support and not opportunities to enter the school-to-prison pipeline,” he said.

“If you don’t provide kids with academic instruction, particularly those with behavior and emotional needs, the gaps between their performance and the peers who don’t have disabilities grows exponentially and sets them up for failure,” McKenna said.

The fact that Garrison students have disabilities that may explain some of their behavior appears to be lost on many of the officials who encounter them in the justice system; some described Garrison as a school for delinquents, not disabled children. A public defender tasked with representing students in juvenile court described the children as having been “kicked out” of their regular schools. An assistant state’s attorney thought students at Garrison had been “expelled” from traditional schools. Neither of those descriptions is accurate.

Rhea Welch, who worked under Johns and retired in 2016, said that during her 26 years as a teacher at Garrison it was not a place that relied heavily on police. “You don’t want your kids arrested, for heaven’s sake. You want to be able to work with them so that doesn’t happen, so they’re more in control,” she said.

For Johns, Garrison is no longer the school she remembers. Students need positive feedback, she said, not constant reprimands from and clashes with the adults they are supposed to trust.

“I always say when you’re having trouble with a child, the first place you look is yourself,” she said.

Johns read some of the school’s recent police incident reports and said she found them “bothersome,” adding, “It’s obviously hard for me to watch what’s happened.”

“I Did Everything I Could to Get Him Out”

Gabe, a 12-year-old boy with autism, likes to share with anyone who will listen all the details of his Pokemon collection and has gotten good at using online translators to read the cards with Japanese lettering on them. His stepmother, Lena, said that over the years Gabe has learned to ask for what he needs. When he gets overstimulated at home, he asks for space by saying: “I need you to back up.”

(When using the last name of a parent would identify the student —– and in doing so, create a publicly available record of the student’s arrest —– ProPublica and the Tribune are referring to the parent by first name only.)

After an incident at the Garrison School, Gabe and his family decided he couldn’t go back. Shown with his father, Billy, and stepmother Lena, Gabe, who is 12 and has autism, now goes to a school 90 minutes away. (Armando L. Sanchez/Chicago Tribune)

Gabe ended up at Garrison in 2019 after having difficulty in traditional schools. He will sometimes yell and lash out when frustrated.

Lena said school officials asked her to pick up Gabe if he got upset. “I would hear Gabe screaming, and then heard them screaming back at him,” she said. “He’d say, ‘Leave me alone! Leave me alone!’ And they’d still get up in his face.”

And then one day, Gabe and Lena said, school workers barricaded him at his desk by pushing filing cabinets around it. He pushed over one of the cabinets while trying to get away, and the school called the police, Lena said.

“We had to pick up our 10-year-old at the police station,” Lena said. “I would freak out if I got boxed in with filing cabinets.”

It got so that Gabe would wake up angry and not want to go to school.

“That school is at the bottom of the food chain. If you got all the schools in the world, they would be at the bottom of the food chain. The workers there are mean,” said Gabe.

Other parents described their children becoming angrier, more withdrawn; the students dreaded going to school at Garrison. Some families begged their home districts to find another school for them.

“It was like hell,” said one mother, who said her son was miserable while he was a student there. “I did everything I could to get him out.” Her son attended Garrison for about five years before she got him returned to his home school. He is in his first year of college now.

Michelle Prather, whose daughter Destiny attended Garrison from fifth grade until she graduated in 2021, said school employees threatened to call police over minor missteps: throwing a piece of paper, or pushing a desk.

“She would walk out of a room and they’d say, ‘We’re going to call police,’” Prather said. Destiny was arrested at least once after she shoved an aide while trying to leave a classroom.

Prather and other caregivers said watching their children be arrested over and over was troubling, but it was also upsetting to realize that the school wasn’t providing the support services the students needed.

Destiny has intellectual disabilities and ADHD as well as acute spina bifida, a defect of the spine. Because of her medical condition, Destiny had difficulty sensing when she needed to use the restroom. She would sometimes get up from her desk and tell staff that she urgently needed to go.

“They would say, ‘No you don’t,’” said her mother. “She would have accidents. I would have to bring her clothes.”

Destiny, 19, who graduated from Garrison in 2021, plays with her family’s dog inside their home. (Armando L. Sanchez/Chicago Tribune)

Madisen Hohimer, who is now 22 and working as a bartender, said she transferred to Garrison in sixth grade when her home school recommended it. She remembers Garrison as a place that failed to help her. Hohimer said she frequently ran away from the school and employees took her shoes to try to keep her from fleeing.

“I was never involved with the police before Garrison. I started mostly acting out when I got sent over there because I felt like I had nobody,” she said. One time, she said, she swung and kicked at staff after they cornered her in a seclusion room. She wound up being arrested for aggravated battery.

Just weeks before Hohimer was set to graduate, she left for good. “I wish they would have found a way to help me,” she said.

After Gabe’s filing cabinet incident, his parents kept him home until he could be placed at a private therapeutic school three counties away. He’s been going there since last year.

“It’s an hour and a half ride and he’d rather do that than go to Garrison,” said Lena, a nursing student. He’s thriving there, she said, and noted that the school has never called police about Gabe’s behavior.

At their home in Jacksonville, Gabe shows his mother, Lena, a record player he made at school out of a cup and paper clip. (Armando L. Sanchez/Chicago Tribune)

But one of Lena’s other children, Nathan, remained at Garrison.

Then one morning in late September, she got a text from her son:

“I’M AT THE POLICE STATION THERE GOING TO GET MY FINGERPRINTS AND TAKE A PICTURE OF ME AND BRING ME BACK TO THE HOUSE.”

“A Staff Member Will Probably Press Charges” A 14-year-old student pushed an aide and then left the school. A school employee called police to request help finding the student and having a school worker press charges. (Audio obtained by the Tribune and ProPublica from the Jacksonville Police Department. Audio was condensed for clarity.)

Nathan, who was 14 at the time, had been arrested after he hit a classmate and then shoved an aide who was trying to physically keep him in the classroom, according to a school report. He then left the school. In a 911 call, a school administrator asked police to find Nathan and also to come to the school “because a staff member will probably press charges.”

Nathan’s family decided not to send him back to Garrison. He’s taking classes online instead.

“That was my worst mistake, putting either of my kids in Garrison,” Lena said. “If I could take it back, I would.”

((Jacksonville Journal-Courier)) No One Watching

Warning signs that Garrison was punishing students with policing have been there for years, waiting for someone to take notice.

Since as far back as 2011, the federal government has published data online about police involvement and arrests at schools. That year, the data showed, Garrison called police on 54% of its students and 14% were arrested. Three subsequent publications of similar data show the arrest rate climbing each time — until, in 2017-18, more than half of Garrison’s students were arrested.

Though the federal data could have raised red flags, Illinois does not collect data on police involvement in schools and does not require that the state education board monitor it. The state does monitor other punitive practices in schools, such as their numbers of suspensions and expulsions, and requires schools to make improvements when the data shows excessive use.

Illinois legislation that would have required ISBE to collect data annually on school-related arrests and other discipline stalled last year.

The state board, however, has issued guidance about involving police in school discipline. Earlier this year, ISBE and the state attorney general’s office told school districts across the state to use social workers, mental health professionals and counselors — not police — to create a “positive and safe school climate.”

Before last week, no one from ISBE had been to Garrison for at least the last seven school years. There had been no complaints that would have triggered a monitoring visit, said Matthews, the state board spokesperson.

Garrison has its own school board, and it — not the state board — is responsible for monitoring the school, including police activity, ISBE officials said. The school board is made up of representatives from some of the 18 school districts that rely on Four Rivers for special education staffing and placements at Garrison.

The board president, Linda Eades, said after a November board meeting that she couldn’t answer questions about the police involvement at Garrison and described the board as hands-off. “We don’t get down in the trenches,” she said.

Fair, the district’s director, said she is trying to understand the scope of police involvement at Garrison and is “digging into” school reports. “I’m trying so hard. It’s a lot of stuff to change,” she said in an interview. “There are a lot of things that need to improve.”

Earlier this year, Garrison was awarded a $635,000 “Community Partnership Grant” through ISBE for training to help students with their behavioral and mental health needs and help schools reduce their reliance on punitive discipline. ​

Some of the grant money has been used to pay for training in Ukeru, a method of addressing physical aggression that doesn’t involve physically restraining a child.

The Ukeru method focuses on training workers in how to prevent challenging behavior from becoming a crisis and uses soft blue pads to block kicks and punches if necessary. Garrison workers were trained in the method in October; blue pads are now propped up in the hallways in the building.

Starting two weeks ago, Fair said, the school began using its two social workers and a social work intern in a new way. One of the social workers is now available to go into a classroom when a student needs help, providing a way to intervene before behavior escalates into a crisis. Fair said she also plans to incorporate social emotional learning into the curriculum.

School administrators mentioned the Ukeru training and some of Garrison’s latest efforts at the November board meeting, which lasted about 20 minutes. Fair said the school had begun to monitor police involvement and arrests and said she is trying to “boost up some of the supports for the kids.”

Her priority now, she assured them, is to “really help make it a therapeutic place for the kids.”

That’s what it was always supposed to be.

Lynn Dombek contributed research.

by Jennifer Smith Richards, Chicago Tribune, and Jodi S. Cohen, ProPublica

Congress Passes Bill to Rein in Conflicts of Interest for Consultants Such as McKinsey

3 years ago

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Congress this week passed a bill that takes aim at the risk of improper influence when government contractors work for both federal agencies and private-sector clients. President Joe Biden is expected to sign the bill.

The bill, which the House passed on Wednesday after the Senate approved it in August, orders several changes to federal contracting rules. They include provisions requiring contractors to disclose information about potential conflicts of interest and clarifying when a contractor’s work for outside clients may create such a conflict.

In a press release announcing the results of the vote this week, the bipartisan group of senators who sponsored the bill cited ProPublica’s reporting on the consulting giant McKinsey & Company’s work for the Food and Drug Administration. McKinsey earned tens of millions of dollars providing a wide range of advice to the FDA division responsible for regulating drugs, much of it directly affecting the pharmaceutical industry. Among the subjects of McKinsey’s input: an overhaul of drug-approval processes and an assessment tool for monitoring drug safety.

At the same time, McKinsey was working for some of the country’s largest pharmaceutical companies. Its clients included Purdue Pharma and Johnson & Johnson, which were responsible for producing and distributing opioids that have gutted communities nationwide and contributed to many thousands of deaths. Yet the consultancy, which jealously guards its client roster, never disclosed those corporate projects to the FDA.

A report released in April by the House Committee on Oversight and Reform revealed just how deeply entwined the two streams of work were. Committee investigators found that at least 22 McKinsey consultants, including senior partners, worked for both the FDA and opioid makers on overlapping topics, with some advising both simultaneously. McKinsey consultants sought to leverage their FDA work to solicit pharmaceutical industry business, according to the committee’s report, and consultants with ties to Purdue influenced statements made by top public health officials about the opioid epidemic.

McKinsey has denied that its work for the FDA posed a conflict of interest and has insisted it was under no obligation to disclose its work for drug companies to its government clients. The firm has characterized its FDA work as focused on administration and operations, not decisions about when and how to regulate specific drugs. Still, McKinsey acknowledged in response to the house report that “this work, while lawful, fell short of the high standards we set for ourselves.” More broadly, the firm has sworn off any further opioid-related projects and stated that it “did not adequately acknowledge the epidemic unfolding in our communities or the terrible impact of opioid misuse and addiction on millions of families across the country.” (The firm has been a sponsor of ProPublica events.)

Existing federal rulescall for government contractors to disclose actual and potential conflicts of interest, information necessary for agencies to decide whether the situation can be mitigated or whether conflicts merit disqualifying a would-be contractor. But experts in federal contracting say that, until recently, little attention has been paid to how those rules apply to a company’s work for corporate clients — an oversight that the bill sent to the president’s desk this week seeks to remedy.

“The federal government should not have been hiring the same McKinsey employees who were simultaneously working for opioid manufacturers,” Sen. Maggie Hassan, D-N.H., one of the bill’s sponsors, said in a statement after the House voted to pass the legislation. “It is imperative that we make sure that this type of conflict of interest does not happen again.”

The bill, which is titled the Preventing Organizational Conflicts of Interest in Federal Acquisition Act, was co-sponsored by Sens. Joni Ernst, R-Iowa, Chuck Grassley, R-Iowa, and Gary Peters, D-Mich. It passed by unanimous consent in the Senate, but the House vote fell roughly along partisan lines, with three Republicans joining their Democratic colleagues in voting for passage.

The extent of McKinsey’s consulting for opioid makers began to become clear in 2019, when ProPublica first reported on it. The firm helped Purdue Pharma “turbocharge,” as its consultants put it, sales of OxyContin, the company’s highly addictive flagship painkiller. Last year, McKinsey settled legal claims brought by the governments of 47 states, the District of Columbia and five U.S. territories. Related litigation over McKinsey’s opioid work — a consolidated set of lawsuits brought by individuals, city governments, Native American tribes and school districts — remains pending before a federal judge in San Francisco.

A top FDA official told a Senate committee earlier this year that the agency would not sign new contracts with McKinsey while congressional investigations into the firm’s possible conflicts remain ongoing.

by Ian MacDougall

Chicago Claims Its 22-Year “Transformation” Plan Revitalized 25,000 Homes. The Math Doesn't Add Up.

3 years ago

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It was called the Plan for Transformation, the most ambitious public housing makeover in U.S. history.

Under the plan, launched in 2000, the Chicago Housing Authority would demolish most of the city’s public housing developments, displacing thousands of families. Then, over the next 10 years, the agency would replace or repair 25,000 units of housing while bringing new investment to low-income communities.

More than two decades later, the CHA used just a few sentences in an obscure report to declare that the “revitalization” of 25,000 housing units — the plan’s central promise — was complete.

“CHA has achieved the goal of this activity,” the agency informed the U.S. Department of Housing and Urban Development in March.

But the agency’s claim hides a fundamental failure to meet its original commitments.

The agency padded its unit count by including types of housing and assistance that weren’t in the original plan, an analysis by ProPublica found. The questionable units add up to more than a fifth of the 25,000 total.

At the same time, the CHA has fallen short of providing the family housing it promised, leaving it with less than half the family units it once had.

In claiming to meet its overall unit goal, the CHA also sidesteps the fact that it is nowhere close to fulfilling its obligations to build homes and redevelop communities where its high-rises once stood. Agency officials told ProPublica they remain committed to those goals but can’t provide a timetable on when they’ll achieve them.

Community leaders, local politicians and families seeking homes have been frustrated by the CHA’s delays and unfulfilled promises. The criticism grew in recent months after ProPublica reported on the agency’s plans to turn over prime vacant land to a soccer team owned by a billionaire supporter of Chicago Mayor Lori Lightfoot. ProPublica also revealed how HUD has allowed CHA to sell, lease and give away parcels of land it says it no longer needs, even though its redevelopment work is far from done.

David Moore, a former agency official who is now alderman of the 17th Ward on the South Side, said HUD needs to pressure the CHA to finish redeveloping its former public housing communities. He said the growing number of homeless encampments around the city is tied to the agency’s slow pace of housing construction.

“We should be building more public housing units so people have options,” Moore said.

In a written statement, a CHA spokesperson said the agency remains committed to its mission of providing housing and “building strong communities.” The statement did not mention the Plan for Transformation.

“CHA’s investments today go beyond replacing the failed public housing model of the past,” the statement said. By partnering with developers, nonprofits and other government entities, “CHA will continue to leverage all available tools to accelerate the pace of new mixed-use, mixed-income development projects to ensure that more subsidized and affordable homes are available to people in need.”

The CHA’s claim to have revitalized 25,000 units is misleading in several ways, ProPublica’s analysis found.

For starters, the math doesn’t add up, the analysis found. The agency boosted the numbers by including apartments that aren’t finished yet or had no direct connection to the public housing communities the CHA promised to redevelop.

For example, the CHA has counted more than 5,000 privately owned units that it subsidizes through what are called project-based vouchers. But unlike public housing, these vouchers aren’t necessarily permanent: They keep the units affordable for a set amount of time, usually five to 30 years. The Plan for Transformation made no mention of replacing permanent public housing with project-based vouchers.

And more than a third of these same voucher units were designated as affordable housing years before the plan was launched or before the CHA subsidized them.

That’s true of the Major Jenkins Apartments, a privately owned, 156-unit building in the Uptown neighborhood on the North Side. Built in the 1920s, the building was fixed up to provide apartments for homeless and other low-income people in 1995, five years before the Plan for Transformation. That’s also when the CHA began subsidizing half the units with project-based vouchers.

The Major Jenkins Apartments in Chicago’s Uptown neighborhood were fixed up to provide housing for homeless and other low-income people in 1995. (Carlos Javier Ortiz, special to ProPublica)

Yet in 2010, the agency began counting those apartments toward its 25,000-unit goal. That happened after the CHA argued to HUD that it should be allowed to count project-based vouchers toward its Plan for Transformation total. The vouchers offered “more opportunity to provide affordable units” and options in neighborhoods long resistant to affordable housing, the CHA told HUD. Agreeing that the vouchers would be “beneficial,” a HUD official signed off.

None of the project-based vouchers should be included in the Plan for Transformation tally, Moore said.

“It’s a skirt around,” he said. “If they’re claiming those, they need to build more units. And HUD should be holding them accountable.”

The CHA’s claim also ignores the sites where the city’s major public housing complexes once stood. Most of the locations still have stretches of empty land.

Two decades ago, while displacing thousands of residents and razing most of its large developments, the agency promised to rebuild the sites with new homes for people with a range of incomes. At least a third of these would be sold at market value. But the agency also agreed in court to reserve thousands of units as public housing, and former residents were guaranteed a right to return.

Since then, the CHA has been slow to build the new homes. It’s now sitting on blocks of vacant, undeveloped land on every side of the city.

The CHA’s largest development, the Robert Taylor Homes, once stretched along 2 miles of South State Street. Under the Plan for Transformation, all 28 Taylor high-rises were razed — a loss of more than 4,400 apartments altogether.

The Robert Taylor Homes in 1988 (Archival photo by Camilo Vergara)

Eventually the CHA proposed replacing them with a new development, Legends South, that included about 2,400 total units, a quarter of them reserved for CHA residents. So far the agency has finished 335 of the public housing units, while more than 25 acres at the Taylor site remain vacant and “not prioritized” for redevelopment, according to a city planning document.

The CHA is also required to build hundreds of additional public housing units at the Lathrop Homes, on the North Side; the Ickes Homes, now renamed Southbridge, on the South Side; and the ABLA Homes, now known as Roosevelt Square, on the West Side. The CHA has offered to lease 23 acres at the ABLA site to the Chicago Fire soccer team, which is owned by billionaire Joe Mansueto, an ally of the mayor’s.

“You have not done your work at bringing back all of the units under the Plan for Transformation,” said Etta Davis, a housing activist and vice president of the residents’ group at the Dearborn Homes on the South Side.

She noted that more than 44,000 people are on the CHA’s public housing waiting list: “So you’re way behind in the market in what’s needed.”

CHA officials said they remain committed to redeveloping Lathrop, Ickes, ABLA and other sites. More than 500 new homes are under construction, including 83 public housing units and 238 supported by project-based vouchers, and others are on the way, they said.

There’s another way the CHA’s 25,000-unit count fails to deliver what the Plan for Transformation promised: It includes far less housing designated for families.

The Past 20 Years Have Seen a Drop in CHA Units, Especially Apartments for Families (Sources: Plan for Transformation, CHA records. Note: “Supportive” includes housing for people who are disabled or homeless, veterans, and others.)

At the time the plan was launched, the CHA had about 29,000 units for families. The plan pledged to replace or rehab 15,000 of them.

But even if project-based voucher units are included, the CHA now has about 13,000 units for families — 2,000 fewer than the plan envisioned. That means the CHA lost 16,000 homes for families over the last 22 years.

Adella Bass, a mother of three who’s been on the agency’s waiting list for 13 years, sees the CHA falling short.

“Everybody deserves a place to live — a clean place to live, a suitable place to live,” Bass said. But apartments have grown so expensive that many families are concluding “there’s just no hope for housing in Chicago.”

Bass serves as a home-aide caretaker for her mother while working on her college degree. Several years ago, after struggling to pay bills, she moved into a North Side homeless shelter with her kids and her boyfriend, now her husband.

Eventually they were able to find a subsidized apartment on the South Side, which she’s grateful for. But she said it’s infested with mice and mold, and she would like something better. Bass is still hoping the CHA will call, and her long-term goal is to get into a program that leads to homeownership.

Adella Bass said she’s been on a waiting list for housing for 13 years. (Carlos Javier Ortiz, special to ProPublica)

Bass noted that the CHA is sitting on empty land and unoccupied apartments — more than 1,200 as of earlier this year, records show. “All of their steps, protocols, procedures, just their way of doing things needs a complete and total transformation,” she said.

The Plan for Transformation was not intended to replace all of the city’s public housing.

At its peak, the CHA had more than 42,000 units. But in 1995, citing mismanagement, HUD took direct control over the CHA. The agency then began emptying and tearing down thousands of its apartments, leaving it with just under 39,000 citywide. About a third of those units were vacant or occupied by people without a lease, which would have a significant impact on the Plan for Transformation.

In the mid-1990s, for instance, the Robert Taylor Homes included more than 4,400 units stretching over 2 miles on the South Side. By 1999, the development was down to 3,800 units, only 1,600 of them occupied by leaseholders.

Theresa Boler lived at the Taylor Homes in the late 1990s and recalled the CHA picking up the pace of evictions. “They were putting people out for any little reason,” she said.

When the word spread that the CHA planned to tear the high-rises down, many residents were scared and angry. “They’d never lived outside the projects,” she said. “They really had no place to go.”

Theresa Boler, a former resident of the Robert Taylor Homes, now lives in a Chicago Housing Authority senior building. (Carlos Javier Ortiz, special to ProPublica)

In 1999, HUD agreed to return control of the CHA to a board and leaders selected by Chicago’s mayor, Richard M. Daley. As part of the deal, federal and local officials worked together on a new set of goals for the agency. Decades of inadequate funding and poor maintenance had left many of the CHA’s buildings so rundown that they would cost billions of dollars to fix up. The Plan for Transformation mapped out how the CHA would dismantle most of its aging developments and replace them with mixed-income communities.

The plan’s goal of 25,000 units was based on the number that were leased to tenants at the end of 1999, after the agency had already emptied thousands of apartments.

The plan acknowledged that thousands of family units would be lost in the transition. “There is no alternative,” the plan stated.

The CHA can claim some successes over the last two decades. The agency has used project-based vouchers and other partnerships to help provide almost 1,800 apartments to disabled people, veterans and others struggling with homelessness or mental illness. Many of these residents live in the units with their families, the agency says. The CHA has also expanded its options for seniors.

Over the last 20 years, the Chicago Housing Authority has subsidized apartments around the city for veterans, disabled people and low-income families, including 30 units in this building on the Northwest Side. (Carlos Javier Ortiz, special to ProPublica)

The CHA said it serves more total households than it did 20 years ago, largely through the expanded use of vouchers to subsidize rent in privately owned apartments. But rents continue to climb, and the city is struggling with a shortage of affordable housing. In addition to the list for public housing units, 35,000 people are waiting for a voucher. The number would be even higher if the CHA hadn’t closed the list.

Boler now lives in the Lincoln Perry Annex, a CHA senior building. She’s also a member of the Kenwood-Oakland Community Organization, a neighborhood group that has pressed the CHA to build more replacement housing. She said the need is greater than ever.

“We’re not stopping,” she said. “You can’t just take things from us.”

Do You Have a Tip for ProPublica? Help Us Do Journalism.

by Mick Dumke

Developers Found Graves in the Virginia Woods. Authorities Then Helped Erase the Historic Black Cemetery.

3 years ago

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Nobody working to bring a $346 million Microsoft project to rural Virginia expected to find graves in the woods. But in a cluster of yucca plants and cedar that needed to be cleared, surveyors happened upon a cemetery. The largest of the stones bore the name Stephen Moseley, “died December 3, 1930,” in a layer of cracking plaster. Another stone, in near perfect condition and engraved with a branch on the top, belonged to Stephen’s toddler son, Fred, who died in 1906.

“This is not as bad as it sounds,” an engineering consultant wrote in March 2014 to Microsoft and to an official in Mecklenburg County, Virginia, who was helping clear hurdles for the project — an expansion of a massive data center. “We should be able to relocate these graves.”

Mecklenburg County, along with Microsoft and a pair of consulting firms, immediately began a campaign to downplay the cemetery’s significance. Their most urgent task was to make sure the cemetery wouldn’t be deemed eligible for the National Register of Historic Places, the federal government’s list of sites worthy of protection. That designation would likely trigger an archaeological investigation overseen by the state and could force the developers to steer clear of the graves. Without such a designation, the graveyard could be moved with relative ease.

After the discovery of the cemetery, the county and its consultants turned to archaeologists, which federal law required they retain. But that didn’t go as they hoped. In a detailed report, the archaeologists determined that the cemetery “is eligible for inclusion” on the historic registry. The report stressed the cemetery’s significance to African American life and death in Southside Virginia, citing the fact that Stephen Moseley and his relatives were Black. “It is recommended that the area be avoided,” the report said.

To the county and its consultants, whose costs Microsoft covered, this was unacceptable. “We will challenge his recommendation,” wrote Alexis Jones, a consultant with a firm called Enviro-Utilities.

The firm and the county pressed the archaeologists to reverse their conclusion that the cemetery belongs on the National Register. And they asked the team to cast doubt on the central finding that made the cemetery historically significant: that all the people buried there — members of a community of landowners who farmed tobacco in the wake of the Civil War and Reconstruction — were Black.

The archaeologists would only comply with the latter request. They edited their report to say, “It cannot be ruled out that the burials are associated with white tenant farmers.” But when they sent Jones and her boss the revised report, they acknowledged that the new assertion was dubious: “All the evidence available at this stage suggests” the cemetery was the final resting place of an African American community, they wrote.

Asked about the addition of the white tenant farmer claim, one of the archaeologists, David Dutton, told ProPublica: “We hadn’t exhumed any bodies. We hadn’t done any DNA. We hadn’t done any analysis. So could we say 100%? I mean, look, this is archaeology, you don’t know until you actually know.”

Jones and her colleagues still wanted the eligibility for the historic registry designation nixed, so they sent the report to another archaeologist, seeking a second opinion. But the archaeologist didn’t go along, and in fact he rejected the notion that some of the people buried there might be white. “Jim Crow would not have had whites and blacks buried that closely together,” he wrote.

He suggested that the original firm conduct additional historical research. “More work needs to be done on Moseley family members to identify who’s in the graves,” he wrote in an email to Jones’ boss, who forwarded it to the county.

The county and its consultants ignored the advice.

What the county had to do, because Virginia law requires it, was run a legal notice tucked among the ads and classifieds in several weekly print editions of The Mecklenburg Sun. Even that, Jones had warned in an email to Microsoft and the county, would “risk” the “chance of a local family member coming forward.”

The second week the notice ran, in November of 2014, the paper published a front-page story about a controversy over new helmets for the high school football team following the death of a player from blunt force trauma. It appeared under the byline Mike Moseley. Moseley is a staff writer. He is also Stephen Moseley’s great-grandson.

“The Moseleys have been here a long time,” Mike Moseley said of his family’s roots in that part of Virginia.

When asked if he’d seen the notice in the pages of his own newspaper, he responded: “Do you read the classifieds and the ads? I do not.”

Mike Moseley would not have been hard to locate, had the county actually tried to find Stephen Moseley’s descendants. The tall, lanky 60-year-old went to high school in Mecklenburg County and played basketball on the school team. After high school, he moved away for a time — he wasn’t interested in following his father into the funeral home business — but he returned to Mecklenburg more than two decades ago. Since then, he’s worked a series of jobs at local papers, including at the Sun, where he is still a reporter.

“Everyone who works for the county knows me,” he said. “They know who we are. It’s hard to understand how they didn’t come talk to us.”

Mike and David Moseley (Christopher Smith, special to ProPublica)

Mecklenburg County did not reply to detailed questions about the handling of the cemetery and the contents of the emails, which were obtained through state open records requests. But in a phone interview, County Administrator Wayne Carter said that the newspaper notice was sufficient to comply with the law. He added that he asked some people who hunted on the land if they’d noticed anyone visiting the cemetery. “They had not seen anyone down there,” Carter said.

Jones, the consultant, declined to answer questions, referring them to Microsoft. Enviro-Utilities did not respond to emailed questions and multiple calls and text messages. In response to questions, a Microsoft spokesperson said, “the County followed all applicable federal, state and local laws.”

Like his nephew, David Moseley heard nothing from the county about the threat to the cemetery. The soft-spoken retired schoolteacher and administrator, who is now 85, grew up on the land adjacent to where Microsoft was building its data center and currently lives outside of Lynchburg, Virginia. “Yes,” he said, when asked in August about his relatives’ resting place, “there’s a cemetery there.” He did not at first believe that the remains of his grandfather, Stephen Moseley, were somewhere else. “Somebody would have called me if they moved the cemetery,” he said.

Plaques and a handle found during the archaeological excavation of the Moseley family cemetery (Obtained by ProPublica through a public records request)

In the months after the notice that ran in The Mecklenburg Sun, workers kept finding graves, ultimately 37 of them. Some of the plots were marked with pieces of quartz or with yucca plants, which were used by many Southern Black families who could not afford stones. Each burial site added days to the excavation, to the frustration of the county and its consultants. A crew dug up each of the graves, collecting bones, casket fragments, metal handles and hinges, etched epitaph plaques, a pair of eyeglasses, an ivory comb. The remains and other items were packed in plastic crates and stored in an office. Months later, all of it was reburied in four tightly packed, $500 cemetery plots one town to the north.

David Moseley’s grandparents, Stephen and Lucy Moseley, and great-grandparents, James and Ellen Walker, in 1899 purchased 169 acres in a fertile region near the North Carolina border. His father, Douglas Moseley, inherited the Moseley homestead, and as a teenager, David woke in the early mornings to work with an uncle harvesting their tobacco crop. As far back as David knew, his ancestors had been buried on that land. In one of his earliest memories, from when he was about 4, he joined his parents in the graveyard to bury his stillborn sibling. “I remember being out there and the open grave,” he said.

David, along with his last living sister, Christine Moseley, and their children, nieces and nephews, still own the eastern 83 acres of the property, which they call “the farm.” The family sold the adjacent tract, which Microsoft now owns, generations ago; David said his family entered a handshake agreement with the white people who bought the other half of the property that allowed the Moseleys to continue to visit the graves. Today, the farm is surrounded on nearly every side by land zoned for industrial use, including three of the 17 parcels that Microsoft has acquired in Mecklenburg County for the ongoing expansion of its data center there. Every so often, David Moseley or his niece who lives outside Washington, D.C., gets an offer to buy their remaining land. Sometimes the correspondence is signed by Wayne Carter, the county administrator who oversaw the permitting process for the Microsoft data center.

“If they can find us to buy the land,” David said, as he sat at his dining room table, beside a stack of papers about the family property, “why couldn’t they find us for the cemetery?”

The relocated gravestone of Fred D. Moseley, who died in 1906 at the age of 2 (Christopher Smith, special to ProPublica)

The cemetery’s disappearance proceeded despite layers of federal and state regulations nominally intended to protect places like it and to facilitate consultation with people who might have an interest in what happens to historic sites.

But in Virginia, as in most of the country, the power over what ultimately happens to these sites often belongs to whoever owns the land. And the labor of investigating what could make the site historic is often outsourced to for-profit archaeological firms working for property owners who have a financial stake in finding as little as possible.

“We are among the only developed countries in the world that considers archaeological sites on private property to be private property themselves rather than cultural heritage,” said Fred McGhee, Ph.D., an African American archaeologist in an overwhelmingly white field.

“Black historic places are some of the first to get maligned,” he said.

African American cemeteries that are deemed abandoned or untended have routinely been treated as little more than a nuisance in the path to development. Historic preservation laws and regulations rarely protect them.

On the campus of the University of Georgia, builders discovered a cemetery of enslaved people, and in 2017 the remains were reportedly loaded onto a moving truck and reburied “in secret,” according to a faculty review. In Texas in 2018, the graveyard of dozens of men held as convict laborers, a site whose significance was long known to community members, was found by construction workers, and the remains were exhumed. In each case, the developers have said they treated the burials with dignity.

Earlier this year, an agricultural company called Greenfield LLC applied for a federal permit to build a Statue of Liberty-sized grain transfer facility on 248 acres along the Mississippi River in Louisiana. An archaeological firm had initially concluded that the development put several notable Black historic sites, including a restored plantation that serves as a memorial to enslaved people, in harm’s way. But in May, ProPublica revealed that the firm changed its report to back away from that conclusion after facing pressure from its client. The firm told ProPublica at the time that no one had forced it to make the revisions and that the report itself was a draft, noting that drafts often change “after clients review them.”

Without first consulting the communities that live beside the development site and trace their ancestry to the people enslaved on the same land, the Army Corps of Engineers, the agency considering the permit, allowed Greenfield to drive enormous metal beams into a sugar cane field — even before the Corps signed off on the project. That field, researchers and community members say, likely holds unmarked graves of people who were held as slaves. Greenfield has said that it considers the protection of historic sites a priority and that it would stop construction if any such sites were discovered.

For decades, the Army Corps has been criticized by other federal agencies, advocates and community and tribal organizations for failing to engage with affected groups about potential damage to cultural sites, as the 1966 National Historic Preservation Act requires.

“The way this is supposed to work is that the Army Corps, or whatever federal agency is issuing a permit, should have told the developers that the descendant community needs to be identified and interviewed and that their perspectives need to be taken into account,” said J.W. Joseph, an archaeologist with New South Associates, a cultural resources firm in Georgia that has done archaeological work in dozens of cemeteries, often as part of projects regulated by the federal law. “Far too often, that doesn’t really happen.”

In Mecklenburg County, before Microsoft took possession of the land — for free, with significant tax breaks, along with state development dollars earmarked for struggling tobacco farming regions — the Army Corps raised no concerns about the development’s compliance with the Preservation Act. Nor did the Virginia Department of Historic Resources, the agency tasked with enforcing state and federal preservation laws, make any effort to step in and protect the site. (The department said it has never denied a landowner application for a reburial permit and preservation experts said Virginia judges almost never do either.)

The Army Corps and the Department of Historic Resources facilitated the cemetery’s legal erasure. The graves were dug up in near silence.

“Although the Department’s position is that those laid to rest should be left undisturbed,” a Department of Historic Resources spokesperson said, “we also understand that this is not always possible.”

Once they had permission from the state Department of Historic Resources to excavate the remains, Microsoft, Mecklenburg County and its consultants showed little concern for anything other than speed and cost. It was a rainy spring in 2015, and the ground was soaked. The graves that an excavation crew dug open would sometimes fill with water. According to one crew member, Eric Mai, who had recently started a master’s program in archaeology, the already-fragile remains were further degraded — exposed, sometimes for days, to the wet muck.

Everyone knew it was the wrong time for the work. “The conditions on site are about as bad as they can be for exhumation,” Jones, the consultant, wrote to Microsoft and the county, explaining why the dig was taking longer than expected. “It’s a nasty sticky wet clay,” she said of the soil that had primed the land decades ago for prolific tobacco yields. But Jones pressed the gas. “THEY need [to] find additional help and work 7 days a week until it is done.”

The “remains were saturated and in very poor condition,” according to a report by the firm hired to do the excavation, Circa-Cultural Resource Management LLC. The Department of Historic Resources agreed with Circa that there wasn’t enough physical matter left to justify sending the bones to the Radford University forensic anthropologist they’d planned to hire to study markers of age, race and sex. It “would probably not add any new information to the record,” a Circa report said.

“WAYNE, this is a GOOD thing!” Jones, the consultant, wrote to Carter, the county administrator. “This would be a huge money and time savings for us.” (This year, Jones took a job with Microsoft, as an environmental permitting program manager, according to her LinkedIn profile.)

Mai said in an interview that he worried that in the rush to dig up the Moseley cemetery, the Circa team may have missed important artifacts and grave offerings. “I think it would probably be concerning for descendants to learn that the people out there doing the work, me included, did not really know what we were looking at,” said Mai. “Nobody on the team knew anything about African American burials.”

Circa CEO Carol Tyrer wrote in response to questions that the team members did have “knowledge of African American cemeteries and burial practices.” Tyrer referred other questions about the Moseley cemetery excavation to Microsoft.

In part because of his ethical concerns, Mai left the field of for-profit archaeological and historic survey work. “There is a disrespect in this process,” Mai said recently. “The people, the descendants, are not really part of what we do.”

Had the county or any of its consultants made more of an effort to determine who they were digging up, they might have learned from public death certificates and census records that in one of the graves lay the remains of Ellen Walker and likely her husband, James Walker, the parents of Lucy Walker, who married Stephen Moseley, a preacher’s son from one county away. They might also have found living relatives like Mary Taylor, who is now 83 and is one of Stephen and Lucy Moseley’s many great-grandchildren. She lives in Norfolk and keeps a worn folder full of records showing that one of her mother’s brothers was buried in the Moseley cemetery. They might have come upon the records of other cousins and aunts and uncles by marriage, who formed their own branches of the family tree, whose descendants still own other plots of land in Mecklenburg County, and who appear to have been laid to rest there, too.

In the final weeks of the dig, Microsoft began pushing harder, flying a drone over the Circa workers to monitor their progress. “There will be no hiding place!” a Microsoft project manager wrote in an email as crews prepared to cut down the trees still standing in a ring around the cemetery.

Microsoft flew a drone over the grave excavation site and took photos of its location in the middle of a ring of trees. (Obtained by ProPublica through a public records request)

Once the dig was complete, the Army Corps told Mecklenburg County that it had met its obligations under federal law. Construction crews leveled the ground where the cemetery had been. Ownership of the land was transferred from the county to Microsoft.

In response to questions, the Corps wrote that it had consulted with the Department of Historic Resources and with Mecklenburg County before issuing the permit. A spokesperson also stated that the Corps had posted a notice on its own website around the same time the county ran its notice in the Sun “soliciting comments on the project.” Nobody responded.

Aerial photos of Mecklenburg County going back to the 1990s show rows of evergreen trees that wind across both of the old Moseley plots like the whorls and arches of a thumbprint. Then, in a 2016 satellite image of the terrain, the contours of trees and their center point have disappeared. A row of rectangles, the backfilled graves, appear in the tan earth. By 2020, an aerial view shows only an undeveloped dirt patch on the far eastern edge of the Microsoft site, just over the line from the land the Moseleys still own.

“Because the cemetery has been relocated from its original location,” the final archaeological record on file with the state said, “it is no longer eligible for listing on the National Register of Historic Places.”

The portion of the Microsoft data center that was built where the Moseley cemetery used to be (Christopher Smith, special to ProPublica)

In 2019, four years after the Moseley cemetery was dug up, Mecklenburg County began building a sorely needed new middle and high school. On the uncleared land, surveyors discovered a cluster of headstones inscribed with the last name Tunstall, a white family with a long history in the region. The graves would need to be moved for construction to proceed as planned, and the school board put a notice in the newspaper, like the one that had been placed about the Moseley cemetery. But in this case, the relocation was also discussed in open school board meetings. A construction firm that worked on the project trumpeted its effort to help find relatives.

A Mecklenburg County sheriff’s deputy named Dustyne Lett saw the news of the cemetery on Facebook. She is a descendant of the Tunstalls.

“By us being involved, we could have a say about where they would be moved,” Lett said recently.

A county judge issued an order giving the school board permission to disinter the remains. They were reburied in a family cemetery several towns away.

“Family members need to be buried with family members,” Lett said. “It’s not like they get together to have dinner. But for us living people, we want to have one spot where we can visit them, talk to them.”

David and Mike Moseley do not imagine that they would have won a fight against Microsoft or the county to keep the cemetery where it was, though they would have wanted the chance to wage one. They also were denied the chance to decide where their ancestors would be reburied.

“We would have wanted them to be moved here, where the rest of the family is,” David Moseley told me when we met in the Jerusalem Temple United Holy Church Cemetery, where the Moseleys have buried their relatives since the 1960s, after they moved off the farm. David’s sister Dorothy Tolbert, who passed away in New Jersey in May, is buried there, not far from Lucy Moseley’s grave — a grave that had been publicly logged online three years before the Microsoft project. “That would have been respectful, that would have allowed them to be together,” David said. In 1967, when Lucy Moseley died at the age of 96, relatives figured moving her husband’s grave to the Jerusalem Temple cemetery would have been too expensive. They would let their ancestors rest in peace.

At least, David Moseley said, Microsoft or the county could have placed a sign or historical marker on the land where the cemetery had been, noting the names of everyone who’d been buried in the old graveyard.

Mike and David Moseley visit the cemetery where the family chose to bury many of its members in recent decades. If they’d known that the old family cemetery was being relocated, they would have asked to rebury the remains at this church, they said. (Christopher Smith, special to ProPublica)

State and local officials have actively worked to honor and preserve white cemeteries in Mecklenburg County. In a 2003 book about the successful effort to have several historic town centers listed on the National Register of Historic Places, the view from a white cemetery is described as “bucolic.” That view has been protected by a Virginia historic preservation easement. Another cemetery, with only three visible stones, is noted for its impressive gateposts, which are inscribed with the words “Love Makes Memorial Eternal” and which were donated in 1941 by the United Daughters of the Confederacy.

In August, I met David and Mike Moseley to look for their relatives’ reburied graves in a cemetery in Chase City, 15 minutes north of the Microsoft data center. The final excavation report had said there would be a marker placed “indicating how many remains, where they were removed from, date, and known family names.”

We drove slowly through the cemetery, looking for a sign. We did not find one. Over lunch at a local restaurant, we called the Chase City municipal office. A clerk told us that she thought she knew what we were talking about; in the new section of the town cemetery, past the mausoleum, we’d find “the graves the county sent.”

“There are no names. It just says ‘assorted bones,’” she said, reading off a paper on file in the town office. She gave us directions, listing the names on several other stones in the vicinity of the reburial plots.

Past the mausoleum, we spotted a grave with one of those names and stopped the car. David peered out the window. “I know that stone,” he said quietly. “It’s been a long time since I’ve seen it.”

Stephen Moseley’s gravestone had been set in the ground. Six feet to the right stood the stone of his toddler son, Fred D. Moseley. There is nothing noting the existence of any other remains, just an unmarked stretch of grass.

David and Mike Moseley placed their hands on the top of Stephen’s gravestone. “I would not have known where he was buried,” Mike Moseley said, repeatedly, and then sat down in front of the stone, his hand still resting on the top, and cried. Being here with them now, he said, “this connects us.”

(Christopher Smith, special to ProPublica)

Mollie Simon contributed research.

by Seth Freed Wessler

ProPublica Launches Investigative Editor Training Program

3 years ago

In an effort to address the critical need to diversify the ranks of investigative editors in newsrooms across the country, ProPublica announced Thursday the Investigative Editor Training Program. Funded by the Jonathan Logan Family Foundation, this one-year training program will support talented news editors in learning the craft of investigative editing from ProPublica’s prizewinning editors and staff.

Studies in recent years have shown that leadership in newsrooms around the country does not represent the diversity of the communities that they cover. That’s particularly acute in investigative news. Part of the reason for those low numbers is that journalists from diverse backgrounds have historically been passed over for opportunities to do investigative reporting and editing, which lessens their ability to pursue this specialty later in their careers. This program is aimed at bolstering that pipeline.

“ProPublica was founded to create journalism that spurs real-world change,” said Stephen Engelberg, ProPublica’s editor in chief. “We are incredibly excited to play a role in training the new, diverse generation of newsroom leaders. Behind almost every great story, there’s a great editor whose passion, patience and craft made all the difference. We look forward to expanding the pipeline of people who do that essential work.”

The program will launch in summer 2023 with a weeklong, all-expenses-paid boot camp in New York that will coach editors how to conceive of, produce and edit investigative projects that expose harm and create impact. The editors will learn how to guide reporters through complicated accountability stories, including challenges related to deciphering data, obtaining documents and engaging sources who have suffered trauma. Attendees will also learn how to work collaboratively with research, data and multimedia teams to elevate an investigative project and maximize impact potential.

After the boot camp, participants will gather virtually every two months until summer 2024 for seminars and career development discussions with their cohort and ProPublica journalists. Each participant will be assigned a ProPublica senior editor as a mentor for one-on-one consultation about ongoing stories, management challenges and how to most effectively pursue their own professional aspirations.

The program is open to all, but we especially encourage people from traditionally underrepresented communities to apply, including women, people of color, LGBTQ people and people with disabilities.

The ideal participants will have:

  • A minimum of five years of journalism experience, either as an editor or as a reporter primarily doing work with an investigative or accountability focus.
  • A strong grasp of the basics of editing, storytelling, structure and framing.
  • Experience managing a team of journalists or a complicated multipronged reporting project.
  • An accountability mindset and an eye for watchdog reporting and editing.

The application period will open on Wednesday, Feb. 1, 2023, and close on Monday, March 13, 2023. The cohort will be announced in April 2023. Here are more details for those interested in applying.

This program is funded through the generous support of the Jonathan Logan Family Foundation, which supports organizations advancing social justice by empowering world-changing work in investigative journalism, documentary film and arts and culture.

by ProPublica

ProPublica Launches Investigative Editor Training Program

3 years ago

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

Beginning this summer, ProPublica will invite up to 10 news editors from media companies across the country to participate in a yearlong investigative editing training program, led by the newsroom’s award-winning staff.

As the nation’s premier nonprofit investigative newsroom, ProPublica is dedicated to journalism that changes laws and lives and to advancing the careers of the people who produce it. The goal of this program is to address our industry’s critical need to diversify the ranks of investigative editors. Building a pipeline of talent is a priority that serves us and our industry.

“ProPublica was founded to create journalism that spurs real-world change,” said Stephen Engelberg, ProPublica’s editor in chief. “We are incredibly excited to play a role in training the new, diverse generation of newsroom leaders. Behind almost every great story, there’s a great editor whose passion, patience and craft made all the difference. We look forward to expanding the pipeline of people who do that essential work.”

The program will begin in June 2023 with a weeklong boot camp in New York that will include courses and panel discussions on how to conceive of and produce investigative projects that expose harm and have impact. The editors will also get training in how to manage reporters who are working with data, documents and sensitive sources, including whistleblowers, agency insiders and people who have suffered trauma.

This program is funded through the generous support of the Jonathan Logan Family Foundation, which supports organizations — whether in journalism, film and the arts — whose work is dedicated to social justice and strengthening democracy.

Frequently Asked Questions

What is this?

The ProPublica Investigative Editor Training Program is designed to help expand the ranks of editors with investigative experience in more newsrooms across the country, with a focus on people from underrepresented backgrounds.

What kind of experience can you expect?

The program kicks off with a five-day intensive editing boot camp in New York, with courses and panel discussions led by ProPublica’s senior editors, veteran reporters and other newsroom leaders. The boot camp will include hands-on editing exercises and opportunities for participants to workshop projects underway in their own newsrooms.

Afterward, participants will gather virtually every two months for seminars and career development discussions with their cohort and ProPublica journalists. Each of the participants will also be assigned a ProPublica senior editor as a mentor for advice on story and management challenges or on how to most effectively pursue their own professional aspirations.

What skills should I expect to learn?
  • How to evaluate story ideas and determine the right scope, length and time for getting it done.
  • How to manage a reporter through a complicated accountability story and communicate feedback in ways that build trust and confidence.
  • How to edit investigative drafts, spot holes in reporting logic, organize a narrative and guide the reporter through the fact-checking process.
  • How to work collaboratively with research, data and multimedia teams to elevate an investigative project.

When is the boot camp?

The five-day, all-expenses-paid boot camp will be held June 2023 in New York, with remote sessions via Zoom throughout the year.

Is there a virtual option for the boot camp?

We are planning for the boot camp to be held in person. If a participant cannot attend, we will consider remote alternatives.

Will I be responsible for my expenses in New York?

ProPublica will cover participants’ expenses for meals, travel and lodging during the boot camp.

How many participants will be selected each year?

Up to 10 journalists.

What if I can’t make it this year?

ProPublica plans to offer this training in 2024 and 2025 as well.

Who is eligible?

The program is open to all, but we especially encourage people from traditionally underrepresented communities to apply, including women, people of color, LGBTQ people and people with disabilities.

The ideal participants will have:

  • A minimum of five years of journalism experience, either as an editor or as a reporter primarily doing work with an investigative or accountability focus.
  • A strong grasp of the basics of editing, storytelling, structure and framing.
  • Experience managing a team of journalists or a complicated multipronged reporting project.
  • An accountability mindset: You don’t have to have been on an investigative team, but we are looking for people with an eye for watchdog reporting and editing.

What is the Logan Family Foundation?

The Jonathan Logan Family Foundation is a philanthropic foundation that supports organizations — whether in journalism, film and the arts — whose work is dedicated to social justice and strengthening democracy.

How do I apply?

The application period will open on Feb. 1, 2023. You can sign up for our Jobs newsletter to be notified when this opportunity becomes available.

What if I have other questions?

Send an email to Talent Director Talia Buford at talent@propublica.org.

by Talia Buford

The Night Raids

3 years ago
1. Prologue

March 2019 • Rodat District, Nangarhar Province

This story contains graphic descriptions and images of war casualties.

On a December night in 2018, Mahzala was jolted awake by a shuddering wave of noise that rattled her family’s small mud house. A trio of helicopters, so unfamiliar that she had no word for them, rapidly descended, kicking up clouds of dust that shimmered in their blinding lights. Men wearing desert camouflage and black masks flooded into the house, corralling her two sons and forcing them out the door.

Mahzala watched as the gunmen questioned Safiullah, 28, and 20-year-old Sabir, before roughly pinning them against a courtyard wall. Then, ignoring their frantic protests of innocence, the masked men put guns to the back of her sons’ heads. One shot. Two. Then a third. Her youngest, “the quiet, gentle one,” was still alive after the first bullet, Mahzala told me, so they shot him again.

Her story finished, Mahzala stared at me intently as if I could somehow explain the loss of her only family. We were in the dim confines of her home, a sliver of light leaking in from the lone window above her. She rubbed at the corner of her eyes; her forehead creased by a pulsing vein. The voices of her sons used to fill their home, she told me. She had no photos of them. No money. And there was no one who would tell her, a widow in her 50s, why these men dropped out of the sky and killed her family or acknowledge what she insisted was a terrible mistake.

But now there was me. I had ended up in Rodat in the heart of Nangarhar province while researching my own family’s story of loss in this desolate rural region in eastern Afghanistan.

Mahzala’s neighbors had pressed me to meet her; I was a foreigner, I must be able to help. Three months had passed since the raid. The neighbors believed it was the work of the feared Zero Units — squadrons of U.S.-trained Afghan special forces soldiers. Two more homes in the area were targeted that night, they said, though no one else was killed. Everyone acknowledged the Taliban had been in the area before; they were everywhere in Nangarhar province. But Mahzala’s sons? They were just farmers, the neighbors told me.

Dusk in Nangarhar province (Lynzy Billing for ProPublica)

That trip was the first time I’d heard of the secretive units, which I’d soon learn were funded, trained and armed by the CIA to go after targets believed to be a threat to the United States. There was something else: The Afghan soldiers weren’t alone on the raids; U.S. special operations forces soldiers working with the CIA often joined them. It was a “classified” war, I’d later discover, with the lines of accountability so obscured that no one had to answer publicly for operations that went wrong.

Back in Kabul, I tried to continue my personal hunt, but Mahzala’s story had changed the trajectory of my journey. Her words and her face, with its deep-set wrinkles that mirrored the unforgiving landscape, lingered in my thoughts. Who were these soldiers? And what were they doing in remote farming villages in Afghanistan executing young men under the cover of night? Did anyone know why they were being killed?

As a journalist, I knew that Afghanistan’s story was most often told by outsiders, by reporters with little cause to explore barren corners like Rodat. Far from the world’s eyes, this story felt like it was being buried in real time. It was clear no one would be coming to question what happened that night or to relieve Mahzala’s torment.

Mahzala’s sons’ lives, it seemed, were being shrugged away, without acknowledgement or investigation, disappearing into the United States’ long war in Afghanistan. I began to focus on a basic question: How many more Mahzalas were there?

As I write this today, America’s war in Afghanistan is already being consigned to history, pushed from the world’s consciousness by humanity’s latest round of inhumanity. But there are lessons to be learned from the West’s failures in Afghanistan. Other reporters, notably at The New York Times, have documented the cover-up of casualties from aerial bombardment and the drone war in Iraq, Syria and Afghanistan. This story is a deep look inside what happened after America embraced the strategy of night raids — quick, brutal operations that went wrong far more often than the U.S. has acknowledged.

As one U.S. Army Ranger ruefully told me after the Taliban’s triumph last year: “You go on night raids, make more enemies, then you gotta go on more night raids for the more enemies you now have to kill.”

2. Getting Started

May 2019 • Kabul

Although I hadn’t revealed it to Mahzala, I’d come to Afghanistan hoping to answer questions similar to her own.

Like Mahzala, I’m from Afghanistan. People call me “lucky” because I was adopted by a British family running a school across the border in Pakistan. At age 12, I moved with them to Israel and then on to England, where I attended university and later became a journalist. I had a few traces of my Afghan and Pakistani origins: a couple photographs of my biological mother — a Pakistani, young and lovely with hands like my own — a newspaper clipping advertising me, an orphan girl, for adoption and a few other scraps of information. But really, I had nothing.

I’d returned to Afghanistan as an adult, and with plans to also go to Pakistan, to investigate my past: Who were my birth parents? And what had happened to them? I was spurred by a mix of emotions from curiosity to a desire for closure.

Thirty years earlier, when I was 2, my mother, a refugee to Afghanistan, and younger sister were killed in a nighttime raid in the very same district as Mahzala’s sons — long before the Americans arrived. Like her, I also had no answers. A distant relative told me that my Afghan father was likely the intended target of the attack. He would be killed two years later during the increasingly violent civil conflict, but the people who murdered my mother and sister would never be held to account. One war bled into the next, and one family’s story of loss was replaced by another’s.

Lynzy Billing’s biological mother (Courtesy of Lynzy Billing)

Trauma, I’ve learned, creates a rippling pool; its ravages spread to unseen edges. After I was adopted, I underwent numerous medical and psychological assessments. One declared that I’d had a “neurological insult” likely from an incident of trauma to the brain. I have no idea when or with what I was hit. The doctors observed that I had an “abnormal gait” that stymied my ability to run and a string of learning disabilities that affected my speech and my ability to interact with others. Doctors suggested that my adoptive father slowly push me on a swing to introduce me to movement. But I’d shut down and go rigid or, with white knuckles gripping the swing, scream.

My adoptive father recalls some friends suggesting that I “had demons and wouldn’t be at rest until they were cast out.”

Even as my physical and psychological ailments faded, questions of my origins taunted me. My personality and interests didn’t match those of my adoptive sisters. I was hardheaded, self-contained and struggled to show affection toward the people I loved. I had difficulty expressing my thoughts and feelings. Friends would ask me why I made things so difficult for myself. I didn’t have an answer.

I was middle of the road in most things in school and struggled to find my place among sisters who excelled academically and athletically. Although I did indeed feel “lucky,” I also felt an overwhelming pressure to make the most of the opportunities I’d been given.

In truth, I never felt British, Afghan or Pakistani. I tried to hire private investigators to find my birth parents. A slick businessman in a dodgy one-room London office above a bakery laughed off my request. A beefy man in hobnail cowboy boots met me at a swanky hotel in Dubai, then said he was reluctant to take on such a small but difficult job. No one was interested in digging around in a country at war.

And so I set out to Jalalabad to do it myself.

Billing traveling through Nangarhar province in eastern Afghanistan, first image. Achin district, Nangarhar province. (Kern Hendricks for ProPublica)

I learned from my conversation with Mahzala that the violence that tore apart my family had continued as Afghanistan lurched from civil war to a grinding conflict between the U.S. and the Taliban, al-Qaida and later ISKP (Islamic State Khorasan Province, the Afghan offshoot of the Islamic State). As I made calls and sifted through local news reports, my focus shifted from exploring my personal story to something else.

Over the next three and a half years, I did what it appeared that no one else was doing — nor will be able to do again — I tracked what the U.S.-trained and sponsored squads were doing on the ground, concealed from most of the world.

I cataloged hundreds of night raids by one of the four Zero Unit squads, which was known in Afghanistan as 02 unit, eventually identifying at least 452 civilians killed in its raids over four years. I crisscrossed hundreds of miles of Nangarhar interviewing survivors, eyewitnesses, doctors and elders in villages seldom, if ever, visited by reporters. The circumstances of the civilian deaths were rarely clear. But the grieving families I spoke to in these remote communities were united in their rage at the Americans and the U.S.-backed Kabul government.

My pursuit would take me from the palatial Kabul home of the former head of Afghanistan’s spy agency to clandestine meetings with two Zero Unit soldiers who were ambivalent about their role in America’s war. It would lead me back to the United States, where I met an Army Ranger in a diner in a bland middle American city. Over breakfast, he casually described how American analysts calculated “slants” for each operation — how many women/children/noncombatants were at risk if the raid went awry. Those forecasts were often wildly off, he acknowledged, yet no one seemed to really care.

My reporting showed that even the raids that did end in the capture or killing of known militants frequently also involved civilian casualties. Far too often, I found the Zero Unit soldiers acted on flawed intelligence and mowed down men, women and children, some as young as 2, who had no discernible connection to terrorist groups.

And the U.S. responsibility for the Zero Unit operations is quietly muddied because of a legal carve-out that allows the CIA — and any U.S. soldiers lent to the agency for the operations — to act without the same oversight as the American military.

The CIA declined to answer my questions about the Zero Units on the record. In a statement, CIA spokesperson Tammy Thorp said, “As a rule, the U.S. takes extraordinary measures — beyond those mandated by law — to reduce civilian casualties in armed conflict, and treats any claim of human rights abuses with the utmost seriousness.”

She said any allegations of human rights abuses by a “foreign partner” are reviewed and, if valid, the CIA and “other elements of the U.S. government take concrete steps, including providing training on applicable law and best practices, or if necessary terminating assistance or the relationship.” Thorp said the Zero Units had been the target of a systematic propaganda campaign designed to discredit them because “of the threat they posed to Taliban rule.”

Forward Operating Base Fenty in Jalalabad, Nangarhar province, in 2019, when it was the headquarters for the 02 unit (Kern Hendricks for ProPublica)

My reporting, based on interviews with scores of eyewitnesses and with the Afghan soldiers who carried out the raids, shows that the American government has scant basis for believing it has a full picture of the Zero Units’ performance. Again and again, I spoke with Afghans who had never shared their stories with anyone. Congressional officials concerned about the CIA’s operations in Afghanistan said they were startled by the civilian death toll I documented.

As my notebooks filled, I came to realize that I was compiling an eyewitness account of a particularly ignominious chapter in the United States’ fraught record of overseas interventions.

Without a true reckoning of what happened in Afghanistan, it became clear the U.S. could easily deploy the same failed tactics in some new country against some new threat.

3. Visiting the Raids

May - October 2019 • Nangarhar Province

When I conceived this investigation, I knew if I was going to track the dead, I’d need some help. I met Muhammad Rehman Shirzad, a 34-year-old forensic pathologist from Nangarhar.

As a government employee, Shirzad had access to official records to verify the identities of those killed. But helping me was a risk. Nevertheless, he was keen to join. “We have to share the truth,” he told me. We began building a database of alleged civilian casualties and hit the road.

Muhammad Rehman Shirzad, a forensic pathologist from Nangarhar, helped build a database of alleged civilian casualties. (Lynzy Billing for ProPublica)

In the late spring of 2019, the trail led to the basement office of Lutfur Rahman, 28, former university professor who’d found himself unexpectedly chronicling the stories of Zero Unit survivors. He’d taught literature but had also acted as a counselor to young men with no one else to talk to.

“Nangarhar is the most restless province,” Rahman said. “They witness these raids every day.” He handed me a beat-up notebook. Inside were 14 stories of deadly Zero Unit raids that his students had described to him over two years.

We’d just started talking when Rahman got a call from a professor at the University of Nangarhar who said one of his students had missed classes for several days and then returned distracted and distressed, saying there’d been “an incident.”

A few days later, I found Batour, 22, in the university’s science lab, sitting sandwiched between plastic models of dissected human bodies. Slight, disheveled and with wild eyes, he looked lost. I suggested that we move to the privacy of the roof. He didn’t have to talk to me, I said. “It’s OK,” he said, then took a deep breath and cocked his chin, as if bracing for a blow.

They came a week earlier, on April 26. “It was a normal Thursday,” Batour said. He and his brothers prayed at the mosque and then returned to their home in Qelegho in Khogyani district. As Batour spoke, his skinny ankles swayed back and forth, not quite reaching the ground.

Around 9 p.m., he said, the 02 soldiers descended from helicopters and he knew a raid had started. They hit four houses before reaching his home hours later and “blew up the door.”

A soldier with a megaphone announced: “Your house is surrounded. Come out.” Inside, soldiers were asking everyone: “What is your name? What do you do?”

Batour and his father were led out of the house while his two brothers remained inside.

Two soldiers were speaking in English, he said, but there was a man with them translating their words into Pashto. Batour told them he was a student at the university and gave them his university ID. The soldiers checked his name against a list, he said, then ordered him to sit under a tree. As long as the planes are circling above, they told him, do not move.

Batour, 22, witnessed the raid in which two of his brothers were killed. (Kern Hendricks for ProPublica)

Batour paused and stared at his hand, flexing his fingers.

“My back was to the house and I don’t know how long I was sitting there,” he said quietly, but that’s when he heard the sound of firing. “It was just like pop-pops, so it was silenced guns.” Batour heard the helicopters take off. “Immediately my father ran to the house screaming, but I couldn’t hear him. I ran after him. My father said: ‘Come on. They are finished.’”

They found his two brothers dead. They’d been shot many times.

That night, 11 people were killed including Batour’s brothers: Sehatullah, 28, a teacher at a secondary school in Khogyani district, left behind a wife and three young sons, and Khalid Hemat, 26, who went to university with Batour, had married just four months earlier.

Khalid, first image, and Sehatullah, Batour’s brothers, were killed in a night raid. (Photographs courtesy of Batour)

The following day, Batour heard the local radio station announce that teachers from a government school were killed in the raid by the 02 unit. There was no mention that insurgents had been successfully eliminated.

“While my brothers were alive, I was free to study. But now they are gone; no one is here to support me. My lessons are left half-completed.” He told me he can’t concentrate and has nightmares about the night of the raid, but his family can’t afford to move from the village. “We still don’t know the reason my brothers were slaughtered.”

Batour believes the Zero Unit strategy had actually made enemies of families like his. He said his brothers had both supported the government and he did, too, vowing never to join the Taliban. Now, he said, he’s not so sure. As Batour spoke, something round and black dropped onto the roof by his feet. He briefly cowered, before realizing it was a taped-up black cricket ball that soared up from the ground floor. After a moment he exhaled. It’s as if he’d forgotten to breathe the whole time we were talking.

As Batour told me his story, I heard echoes of the other witnesses I had spoken to about the psychological toll of the raids. As long as most of them could remember, the country had been racked by violence. The hum of drones, the whirr of helicopters and the deafening blasts of suicide bombings and missile strikes had scarred the land and seeped into daily life.

Kurdish-German psychologist Jan Ilhan Kizilhan trains psychologists who specialize in trauma to work with war victims in Iraq and Syria. He told me that in Afghanistan trauma has become an inescapable legacy. “They experience past trauma again and again as if it is immediate,” he said. “The repetition reinforces these experiences many times over, keeping them alive for numerous future generations.”

A raid in Qala Sheikh village in Chaparhar district left five teachers dead and a trail of destruction. (Photograph courtesy of Abdul Rahim)

At the more than 30 raid sites Shirzad and I visited, we were often greeted with surprise, particularly by women, who had seldom been asked about what they’d seen and, if they were victims, sometimes not mentioned. One 60-year-old woman told me that after her three sons and son-in-law were killed in a July 2019 night raid, she simply washed, shrouded and buried them. At the provincial governor’s office, she was told that the 02 conducted the operation and “it was a mistake.”

“Not once did I think I had any other options, that any Afghan official, court or anyone would believe me,” she said.

In Qala Sheikh village in Chaparhar district, more than a dozen people witnessed Zero Unit soldiers shoot five teachers in their homes, leaving behind the blackened shell of one home with two burned bodies inside.

The 02 unit later said it carried out the raid in a statement, announcing that the men were ISKP members — a claim Abdul Rahim, who saw his brother and nephews burning in the fire, denied. “If they were ISIS, why didn’t they arrest them in the city where they teach at government schools?” Rahim said that October. “It’s the obligation of the Afghan government to ask this unit why they are killing civilians.”

Rahim told me that a presidential delegation had traveled to Jalalabad, ostensibly to investigate the raid, but it never came to Qala Sheikh or spoke to witnesses or the doctors who treated his brother’s injuries before he died.

4. A Failed Strategy

1967 - Present Day

U.S. military and intelligence agencies have long used night raids by forces like the 02 to fight insurgencies and since the Vietnam War have defended the tactic, arguing that the raids are less likely to cause civilian casualties than aerial bombing.

But even a cursory review of U.S. military history raises serious questions about the operations, especially in places like Afghanistan, which is defined by deep tribal loyalties and where the high civilian death toll has, time and again, turned people against the United States and the local government it supported.

In 1967, the CIA’s Phoenix Program famously used kill-capture raids against the Viet Cong insurgency in south Vietnam, creating an intense public blowback. William Colby, then-CIA executive director and former chief of the Saigon station, conceded to Congress in 1971 that it wasn’t possible to differentiate with certainty between enemy insurgents or people who were neutral or even allies.

Despite the program’s ignominious reputation — a 1971 Pentagon study found only 3% of those killed or captured were full or probationary Viet Cong members above the district level — it appears to have served as a blueprint for future night raid operations.

The U.S. used night raids against al-Qaida in Iraq, under Gen. David Petraeus and Gen. Stanley McChrystal. Military officials said many of the operations killed or captured their targets. But it’s impossible to determine how often the intelligence was wrong, or misguided, and civilians paid the price. As in Afghanistan, complete casualty data has remained either classified, unavailable or untracked.

Gen. Stanley McChrystal, at right in first image, and Gen. David Petraeus, second image (First image: Manan Vatsyayana/Stringer/Getty Images. Second image: Chris Hondros/Getty Images.)

When McChrystal took over operations in Afghanistan in June 2009, he declared that Afghan officials would now take part in the planning and execution of the raids, but he also accelerated them. As in Iraq, the raids were met with protests, and former President Hamid Karzai repeatedly called for them to be banned.

The raids, along with drone strikes, were part of America’s vast counterterrorism apparatus known as the “kill-capture program.” When Petraeus replaced McChrystal in Afghanistan, he expanded the program and in 2010 released figures to the media claiming spectacular success — thousands of al-Qaida and Taliban leaders captured or killed.

In a subsequent press conference, a U.S. admiral revealed that more than 80% of those captured “terrorists” were released within weeks because there wasn’t supportable evidence that they were insurgents. And the raids seemed counterproductive: as they ramped up, so did the insurgent attacks.

Petraeus and McChrystal declined to answer questions for this story.

Meanwhile, the CIA was separately funding, training and equipping its own series of paramilitary forces in Afghanistan. The Zero Units were officially established around 2008, according to Afghan officials and soldiers, and modeled on U.S. special operations forces like the Navy SEALs. Regionally based and staffed by local soldiers, the units were sometimes accompanied by CIA advisers, transported by American helicopters and aided by armed support aircraft.

Afghan forces conducted nighttime operations in 2019. (Kern Hendricks for ProPublica)

Sandwiched between bomb blasts and attacks on government institutions by insurgents, the Zero Units, whose members are estimated to be in the thousands, received scant scrutiny until 2013. Under the Trump administration, CIA Director Mike Pompeo announced that the agency was ramping up its approach in Afghanistan: “The CIA, to be successful, must be aggressive, vicious, unforgiving, relentless — you pick the word.”

The following year, in 2018, The New York Times published a report about the 02 unit using brutal tactics to terrorize Afghans. In October 2019, Human Rights Watch documented 14 cases — some amounting to war crimes — involving the 02 unit and other CIA-backed strike forces. In 2020, The Intercept reported on 10 night raids by another Zero Unit, 01, that targeted religious schools.

While the stories described deadly raids, not much was said about why the intelligence guiding them was often flawed. It appeared to be a pattern that went hand in hand with the night raid strategy. I spoke with two self-proclaimed “geeks” who helped build or operate spy technology during the peak years of war. They said failure was predictable, despite the huge advances in technical intelligence. The most cutting-edge equipment in the world, they said, didn’t make up for the deficits in understanding “the enemy” by the Americans processing the intelligence.

Lisa Ling spent 20 years in the military and built technology that was ultimately used to process intelligence that targeted Afghans. “I understand very viscerally how this tech works and how people are using it,” she said. The counterterrorism mission is essentially: “Who am I fighting, and where will I find them,” she said. But the U.S. struggled to differentiate combatants from civilians, she said, because it never understood Afghanistan.

Her thoughts echoed what I’d heard from Afghan intelligence officials. “Every gun-wielding guy in this country is not a Talib because people in rural Afghanistan carry guns,” said Tamim Asey, former deputy minister of defense and Afghan National Security Council director general.

In Afghanistan, Air Force technician Cian Westmoreland built and maintained the communications relays that underpinned America’s drone program. His grandfather’s distant cousin was Gen. William Westmoreland, a key architect of the night raid operations in Vietnam. His father was a technical sergeant and, Cian said, “ordered the missile parts for the initial bombing of Afghanistan.”

It became clear to Westmoreland that civilian casualty reports from the drone strikes sent up the chain of command were inaccurate. “Unless there are operators physically checking body parts on the ground, they have no idea how many civilians were killed,” he said. “And they have no idea how many ‘enemies’ they actually got.”

Achin district in Nangarhar province (Kern Hendricks for ProPublica)

When he finished his deployment in 2010, Westmoreland says he was handed his evaluation, stating that he’d assisted on 200-plus enemy kills in five months. He ran to the bathroom, he said, and threw up. “How many is the plus? Who is counting? And who knows who was killed?”

A source familiar with the Zero Unit program said it “stayed in close contact with a network of tribal elders,” who alerted program officials when civilians were killed. Any such deaths, the source said, were “unintended.”

At times, Westmoreland said, bystanders paid the price simply because they were near a suspected target’s cellphone.

Speaking with them, it became clear that the language of the intelligence world itself could hide its weaknesses. Ling said that when intelligence officers cite “multiple sources” of intelligence to justify an operation, it doesn’t necessarily mean they have confirmatory information. It could simply mean that they have an overhead image of a house and an informant telling them who’s inside.

5. The Zero Unit Soldiers

October 2019 • Kabul

For six months, I pursued the most elusive perspective on the U.S. night raid strategy — the Zero Unit soldiers themselves; the men killing their own compatriots on U.S. orders.

In October 2019, two men whom I’ll call Baseer and Hadi finally agreed to meet me. Both in their mid-30s, they were friends, fathers and comrades-in-arms. Hardened by violence and the isolation of the Zero Units, they were initially baffled by my interest, not just because they feared discovery. Why would I want to talk to killers? They decided to speak, they said, because of their unease with missions gone awry — and their distrust of the motives of those directing the attacks. I agreed to protect their identities.

Baseer and Hadi describe their work in one of the Zero Units in a scene from a ProPublica documentary coming in 2023. (Illustration and animation by Mauricio Rodríguez Pons/ProPublica. Field production by Lynzy Billing, Muhammad Rehman Shirzad and Kern Hendricks for ProPublica. Music by Milad Yousufi for ProPublica.)

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“They are Americans killing Afghans, and we are Afghans killing Afghans,” Baseer told me. “But I know the Americans do not lie awake at night with the guilt I have.”

Clouds of cigarette smoke swirled through shafts of sunlight in the dimly lit backroom of a quiet fish restaurant on the outskirts of Kabul where we finally met. Outside, the day’s first light paled into a gray glare glinting off gridlocked cars waiting to pass through fortified checkpoints into the capital.

Baseer sat cross-legged on the well-worn carpet, balancing a cellphone on each knee and grasping a cup of green tea between his jeweled fingers. His neat mustache caught a bead of sweat as it dripped from his brow. His impeccable grooming was at odds with the mismatched socks peeking from beneath his shalwar kameez.

He took a long drag on his cigarette, and I noticed finger-sized bruises stretching around his neck. Although he caught me looking at the bruises, he made no effort to explain them. He rolled his neck from side to side to loosen kinks and rubbed his hands together. He was eager to talk.

Baseer during one of his first interviews with Billing in Kabul in 2019. He and a friend decided to speak about serving in a Zero Unit, they said, because of their unease with missions gone awry. (Kern Hendricks for ProPublica)

Sitting off to one side, Hadi wore a leather bomber jacket (“like Top Gun”) that dwarfs his wiry frame. It was 80 degrees, but Hadi only removed his beanie briefly, to absently rub a long, silvery scar that stretched across the top of his head. He was wary and toyed nervously with the gold watch that hung from his skinny wrist. His eyes darted to the door at every hint of movement.

According to Baseer, Hadi is the joker of the two. He squeezed his friend’s shoulder reassuringly, grinning at him. “Don’t worry, she’s not American,” he said in Pashto. In an attempt to reassure them, I tell them I am English, not American, and of Afghan and Pakistani descent. Hadi smiled weakly, but it was clear he was unconvinced.

Both soldiers had obtained leave passes under false pretenses to meet me. The relationship between journalist and soldier seemed to offer them a space where they could discuss their actions — even boast about them when marveling at their superior training and autonomy — because I think they knew I wasn’t going to turn them in or use their stories as leverage.

Baseer’s family had left Afghanistan when he was 3, during the same fractious conflict that killed my own family. Eventually, his family settled in a refugee camp in Peshawar in Pakistan. Growing up, he considered both the Americans and the Soviets infidels, but he later came to realize that the Taliban have their own cruelties.

When he returned to Afghanistan at age 16, he lived in yet another refugee camp. “I wanted to be a politician, but there were no jobs.” Baseer eventually became a bodyguard for his father, a police officer, before signing on with the police as well. The poor pay pushed him to join the military and then the 02 unit in late 2016, where he said he was paid about $700 per month in American currency — more than three times what regular soldiers made. He also received eight months of training from Turkish and American soldiers at several locations in Afghanistan. “The 02 had the weapons and power, and I liked the idea of duty related to operations and fighting,” he said.

Hadi transferred to the 02 from the Afghan commandos in 2017. “It was my dream to join ‘the Infamous Zero Unit,’” he said. “I thought I would be part of building and securing a new Afghanistan, and as the Americans say,” Hadi briefly switched to English, with an American twang: “‘blast them out of their holes’ and ‘send them to hell.’ I wanted to get the bad guys.” He paused. “At first, the thrill was intense. But the job wasn’t this clear in the end. You know, I became the bad guy, or maybe I wanted to be the bad guy all along.” He looked away, fingering a frayed edge of the carpet.

Once in the units, the men said, it often seemed like they weren’t fighting Afghanistan’s battle at all. The CIA, with the aid of American soldiers on the ground, they said, ran the show. “They point out the targets and we hit them,” Baseer said, adding that about 80 soldiers go on a raid and “10 Americans, sometimes 12, join every operation.”

“After we return to base, we count how many soldiers were lost,” he said. Many Afghan soldiers have been killed, but not Americans: “They are out of the war.”

6. The Raid

December 2019 • Kamal Khel, Logar Province

Over the weeks, Baseer, Hadi and a third Zero Unit soldier, Qadeer, updated me on their raids. They showed me chaotic videos they’d kept on their phones. Baseer had been keeping a diary, and he began sharing extracts with me.

At first, he gave me simple reflections: the time he stole the car keys for a joy ride or when they played volleyball and watched Bollywood movies with the Americans at their base. But over time, he began to share stark excerpts that showed he was keeping a count of those killed. One noted that a dead boy reminded him of his own son.

At an abandoned office one morning, Baseer and Hadi told me about a raid that seemed to haunt them. Hadi took a deep breath. It happened in July 2019 in the remote village of Kamal Khel in Pul-e-Alam district of Logar province, in eastern Afghanistan.

That night, he said, word had come that a handful of suspected Taliban militants were holed up in Kamal Khel. Thunder from a coming storm rumbled in the distance as he, Baseer and their 70-strong battalion scrambled aboard a fleet of camouflaged, heavily armed Toyota Hilux trucks. Tucked in “the cradle” in the middle, protected, were a dozen men he described as American special forces soldiers.

An Afghan army checkpoint (Kern Hendricks for ProPublica)

At 2 a.m. they roared out of the pitted concrete walls of Forward Operating Base Shank, a former U.S. stronghold famed for the sheer volume of Taliban rockets that had battered it. En route, their Afghan commander relayed details about the night’s four targets. As the city’s lights faded, the convoy split, driving into the storm to approach the village from opposite directions. Half a mile outside of Kamal Khel, they left the trucks to approach on foot over the rocky terrain and dry riverbeds.

As they grew close, their night vision goggles illuminated in fluorescent green hues a handful of family homes. Moving swiftly, they trained their weapons and laser sights on the houses ahead.

Suddenly, a rocket-propelled grenade shrieked out of the blackness behind them, exploding against one of the trucks. Even under his noise-canceling headset, Baseer said, the blast deafened him. Ears ringing, he and the other soldiers scrambled for cover. As bullets snapped overhead and muzzle flashes erupted from the surrounding darkness, one of the American soldiers gave the order to open fire.

“Smoke ’em,” an American voice ordered over the radio.

Baseer said he flattened himself against the mud wall of a nearby home. To his left, a soldier relayed updates to the base. To his right, Hadi squeezed off shot after shot.

It was 4 a.m. when the echo of gunfire finally subsided. As the first hints of dawn crept over the nearby mountains, the soldiers moved door to door searching for the raid’s targets. The suspected Taliban militants were nowhere to be found. But in a nearby doorway, four bodies lay on the ground — a man, a teenage girl and two children.

Baseer says he crouched by the bodies, his helmet camera capturing the carnage. The children were so covered in blood that it was difficult to guess their ages. The teenager’s body was twisted at an unnatural angle. “Don’t touch them,” Baseer said his commander ordered, calling the soldiers back to the trucks.

Baseer and Hadi looked at me angrily. “The militants were not in the target house,” Baseer said. “They were not even inside the village. They had changed location and started firing on us from behind,” he said. He paused and locked eyes with Hadi.

“I can’t say who killed them, the Americans or us … all of us were shooting,” he said, and there were no Taliban members residing in the compound they targeted. “The intelligence was incorrect. Or the Taliban had better intelligence than us.”

The raid, though it was like so many others, felt like a tipping point. They returned to the base that night with questions and anger. It was the responsibility of their commander to write the after-action report and send it up the chain of command, and they didn’t know if it included the four dead. After the raid, they asked him if anything would be done about those killed, but they said they never got an answer.

Instead, they said, all the soldiers on the raid were required to sign a battle damage assessment, prewritten by their superior, along with a nondisclosure agreement. The assessment, Baseer said, noted no civilian casualties.

“These deaths happened at our hands. I have participated in many raids,” Hadi said, his voice thin and raspy, “and there have been hundreds of raids where someone is killed and they are not Taliban or ISIS, and where no militants are present at all.”

7. The Former Spy Boss

September 2020 • Kabul

The person I really needed to talk to, prominent Afghan officials said, was Rahmatulah Nabil. The former director of the National Directorate of Security had overseen the units during a critical transition period that began in 2012, when the CIA gave the Afghan intelligence agency nominal control. Although Nabil was no longer at NDS, I’d come to learn his ears, and his hands, are everywhere.

For months, Nabil avoided me, but in September I received a message around 1:30 a.m. telling me to meet him at his Kabul home later that day. I was granted 30 minutes. After navigating a maze of towering, pockmarked blast walls, a taxi dumped me by a nondescript gate in the east of the capital. Nabil was a compromised man, so when I saw six men guarding a gate, I knew I was in the right spot.

I was buzzed through a series of armored doors and guided into a large basement room by two burly bodyguards. The room was adorned with backlit murals of turquoise lakes under snow-capped mountains. Dozens of velvet chairs lined the walls and a few men milled around at the door. Nabil strode in and took a seat in a chair at the end of the room, larger than the others and with gold trim. He crossed his legs, lit a cigarette and asked if he could use my tea saucer as his ashtray. Before I could answer, he reached over and took it.

The conversation started easily enough. The CIA, he said, provided the logistics, intelligence and money in cash, and the Zero Units “conduct” the raids and “deliver” the target, with U.S. special operations forces soldiers joining in. If there was an area where the Americans didn’t have a presence, they had the Zero Units to go there for them, he said. “They needed us and we needed them.” Nabil oversaw the units from 2010 — around two years after their founding — until December 2015, except for a short stint as deputy national security adviser.

Local residents sort through the debris left behind by an 02 unit raid that killed five people. (Photograph courtesy of the families)

In 2014, with local anger growing over the raids, Nabil said, the U.S. and Afghan governments signed a security agreement that all American operations must be approved by the Afghan government, a protocol that was “followed for a while.” The agreement also gave the units more autonomy to conduct raids of their own.

Under such an arrangement, I asked, who’s responsible when the Zero Units get it wrong? The U.S., Nabil said matter-of-factly. “If they provided the intelligence, and the intelligence turns out to be false.”

But he also said that if the system was working, the Afghan government “should take responsibility” because all intelligence is supposed to go through it as well.

He switched the subject to how he professionalized the Zero Units, instituting a code of conduct after “something really horrible happened” and the government asked him what the rules of engagement were. Soldiers, he explained, killed the wrong target, perhaps because of what he called “personal” problems with local people.

“Before me,” he said, “they were basically without any laws. The U.S. was under pressure before because these units were misusing their power.” Nabil said the United States’ plan to staff the units with local Afghans who were “cheaper” and knew the area had backfired. The U.S., he said, failed to understand that tribal ties might cause the Afghan soldiers to provide false intelligence or have conflicted allegiances.

Nabil said he also oversaw the creation of the Afghan National Threat Intelligence Center in 2015. Known as Nasrat, it unified Afghan intelligence used in combat operations with the help of Resolute Support, the NATO-led multinational mission in Afghanistan. “It was because some of these operations went wrong that we put this center together,” he said.

A home that was raided on the outskirts of Jalalabad (Kern Hendricks for ProPublica)

I interrupted this mild boasting to tell him that I’d been tracking all the operations that the 02 unit had recently gotten wrong, killing civilians. He turned to face me. Despite some problems, he said firmly, the majority of the operations were correct.

I told him that I’d seen videos of civilians killed by the 02 unit. Even though he’d left the agency, had he seen those videos?

Nabil paused and the conversation took a startling shift. “Yeah, but the problem is, nobody takes it seriously.” When these accidents increase, you become used to these deaths, he said, “and then you lose the sense of seriousness. Like when you see blood for the first time, you feel something. Tenth time, nothing.”

In 2019, I said, I found more deaths due to incorrect targeting or crossfire than any other year, pulling my crumpled notes from my pocket to show him just how many I had found.

“Yes, I agree,” Nabil interrupted, without looking at my notes, then offered a startling admission: He was aware that the units had been going on operations based on botched intelligence and that the soldiers, the commanders and higher-ups had faced no consequences if civilian deaths resulted. Nabil said he didn’t know how many civilians had been killed. He believed, in the end, that the units were used as tools by both sides, and that their targets were not always legitimate.

“One of the operations went wrong in Bagrami District and I went to the family myself and said: ‘We are sorry. … We want to be different from the Taliban.’ And I mean we did, we wanted to be different from the Taliban,” he said, trailing off.

8. No Investigations

October 2020 • Jalalabad, Nangarhar Province

After months of searching, the only night raid I could find that the Afghan government said it investigated was one so audacious that it captured the attention of both the current and former Afghan president. The raid killed four brothers, including one who was a legal adviser to the Afghan Senate and another who was a lawyer.

The night of the September 2019 raid, the family was at their home in Jalalabad, celebrating the recent return of one of the brothers from a religious pilgrimage. Qadir Seddiqi, the eldest brother who worked in the Senate, was in his room sleeping with his 10-day-old son in the crook of his arm. His father was joking with the youngest brother, while the other two drank tea with their mother.

After the raid, the 02 unit posted pictures on the NDS Facebook page of the brothers with weapons laid across their bodies, declaring that four ISKP militants had been killed. But when Shirzad and I visited in October 2020, family members told us that the photos were staged after the fact.

The 02 unit posted photographs on the NDS Facebook page of four brothers with weapons on their bodies and their faces redacted.

Mohammad Ibrahim, who found his nephews that night, believed the staging was to make them look like they had been killed because they had guns. As he talks, Ibrahim is jittery and keeps his head tilted, preoccupied by a helicopter circling above us in the fading light. Accounts of weapons being planted have emerged in several eyewitness reports about controversial operations led by British and Australian troops.

That night, the Zero Unit soldiers bound the brothers’ hands and wrote their names on pieces of tape they stuck to each man before shooting them, said their cousin Wasiullah. “That was the last time I saw my cousins, with labels on them.”

Wasiullah said a hood was placed over his head and he and eight others were taken to Forward Operating Base Fenty, the home of the 02, to gather biometrics, including facial images, iris scans and fingerprints. They were then left in a cell overnight, he said.

A day later, on President Ashraf Ghani’s orders, an investigative team arrived from Kabul. It was joined by prosecutors, the governor and the NDS director. “We gave them evidence,” Ibrahim said, including a bullet that had gone straight through one of the brother’s feet and into the mattress beneath him. One of the brothers was shot in the head and stabbed; another was “shot in the hands and feet and then twice in his head,” Ibrahim said. “His wedding ceremony was only two weeks away. My heart broke.”

Two of the four brothers killed in the 02 unit raid on their home in Jalalabad (Photographs courtesy of Mohammad Ibrahim, who found his nephews bodies that night)

A press release issued by the NDS initially claimed that the 02 soldiers targeted alleged members of the Islamic State. Afghan government officials later backtracked and admitted that the brothers were innocent. The provincial government said in a statement that the 02 had conducted the raid.

After the family protested, Mohammad Masoom Stanekzai, the director of the NDS at the time, resigned. Ghani tweeted that the raid happened despite “previous assurances and changes in guidelines” for operations and declared that there was “zero tolerance for civilian casualties.” He ordered the attorney general to investigate the incident immediately “and to bring the perpetrators to justice.”

Family members said they were assured that an investigation would be carried out into the incident but told me they were never contacted again.

9. Counting the Dead

November - February 2021 • Kabul

As my tally of the dead and injured grew, tracking civilian deaths through official American channels was proving nearly impossible. Afghan officials told me they lacked the resources to investigate and reiterated that these were CIA operations. Researchers and experts questioned whether “collateral” deaths could even be tracked, arguing that such a count would be classified.

Michel Paradis, a national security expert at Columbia Law School and a senior attorney with the Department of Defense, said that civilian deaths during U.S.-Afghan operations can fall into a bureaucratic gray area, with no one interested in claiming casualties they don’t have to.

Under the international Law of Armed Conflict, the military must differentiate between civilian and combatant, but in Afghanistan civilians and fighters often live in the same villages. I found that civilian casualties could easily be shifted to categories that allow them to be labeled as legitimate kills. In Afghanistan, there are many reasons one would need to protect themself. If a woman picks up a gun because masked men with weapons have invaded her home in the middle of the night, she could be labeled a combatant, involved in “direct participation in hostilities,” despite any other evidence.

The law specifies that “in case of doubt whether a person is a civilian, that person shall be considered to be a civilian,” and it’s up to the military to establish “combatant status.” In reality, I found the families of those targeted in Zero Unit raids had no way to prove otherwise. And it was impossible to find out how, or if, the CIA recorded their deaths. And then there were those whose deaths were written off as “collateral.”

Wasiullah, first image, was detained at the 02 base in Jalalabad after he witnessed the raid on the four brothers. Soahiba, second image, watched as her three sons and son-in-law were shot and killed in an 02 unit raid. Ghulam Rasul, third image, was an eyewitness to the airstrike and night raid that followed in Kamal Khel, Logar province, which killed four members of his family. (First image: Kern Hendricks for ProPublica. Second image: Lynzy Billing for ProPublica. Third image: Kern Hendricks for ProPublica.)

Two lawyers working for years with whistleblowers on Afghanistan war crimes told me they’d experienced similar roadblocks. “There is not any real desire from the Pentagon or the executive branch to track civilian casualties accurately,” said Jesselyn Radack, a national security and human rights attorney who represented Daniel Hale, a former U.S. Air Force intelligence analyst, among others. Hale was convicted for disclosing classified information that nearly 90% of the people killed by U.S airstrikes in Afghanistan were not the intended targets. Radack said Afghans who were killed because of faulty intelligence or botched raids were often classified as if they were caught in legitimate crossfire or were part of a terrorist group.

Radack said she’d seen official accounts from operations in Afghanistan in which children killed by mistake were called “TITS,” or terrorists in training. Or, she said, a child “had the wrong father, so he was adjacent to terrorist activities. The ages of children had been changed to make them appear older than they were. … The pressure to make civilian casualties not civilian casualties is pretty intense.”

By the time the reports get to the congressional oversight committees, she said, they’re “undercounting deaths and overstating accuracy.”

She and others I spoke to said they believe U.S. officials create the impression that the night raid strategy is effective by “sanitizing,” or removing relevant details from, the reports before they are shared with Congress.

A CIA official denied this: “When reports — which can be lengthy — are provided to the Hill, they are not ‘sanitized,’ but simply summarized as is regular practice.”

Congressional aides and former intelligence committee staffers said they don’t believe they’re getting an accurate picture of the CIA’s overseas operations. They added that intelligence committee members who theoretically monitor such operations lack the capacity, and sometimes the willpower, to get information about the programs — or even understand which questions to ask.

A congressional source on the House Foreign Affairs Committee told me that Congress had also abdicated its authority over the CIA’s operations. “It is really clear that we have backed a lot of groups that did pretty horrific things,” he said. “It benefits people up here to not have to actually deal with these sort of things.”

Over the years, the task of publicly counting the dead had fallen to human rights organizations, which have produced a series of strongly worded, but largely ineffectual, reports detailing some incidental deaths, summary executions, torture and disappearances resulting from the Zero Units’ night raids. Even so, more than a dozen human rights groups I spoke to conceded it’s nearly impossible to track such incidents, especially those involving civilians.

The only organization I found that appeared to be consistently attempting to document those killed during raids was the United Nations Assistance Mission in Afghanistan. It reported on one raid in which NDS special forces supported by international soldiers entered a medical clinic in 2019 and “shot and killed three civilian males, two of whom worked at the clinic and one of whom was accompanying a patient.” The organization said deaths of civilians during the operations in 2019 were at their highest level since 2009. They found that the 02 unit alone killed 80 civilians and injured 17.

In trying to count the civilian dead from 02 raids from June 2017 through July 2021, Shirzad and I used news reports, nongovernmental sources and eyewitness reports. We mapped the raids using geographical coordinates and satellite imagery, then used medical records, birth and death certificates, in-person witness interviews and a forensic database to identify the dead.

An X-ray shows a fatal bullet injury to one of the Zero Units’ victims. (Lynzy Billing for ProPublica)

At medical facilities, doctors told us they’d never been contacted by Afghan or U.S. investigators or human rights groups about the fate of those injured in the raids. Some of them later died, quietly boosting the casualty count.

One coroner in Jalalabad described how, at times, 02 soldiers had brought bodies to the morgue themselves, dismissing the staff and using the facilities before leaving with the dead. These deaths were not allowed to be recorded by him or other staff.

After years of searching, we realized that our resulting tally of at least 452 civilians killed during 107 raids was almost certainly an undercount. In some of these raids, authorities claimed to have killed or captured insurgents, an assertion that is difficult to independently substantiate. There were hundreds of additional operations in which we couldn’t determine if the dead were civilians or militants.

And this count also does not capture another cost of the raids: all of those who were injured, sometimes suffering permanent disabilities. Among those I met was a young man who’d been struck in the cheek by shrapnel. Unable to afford surgery to remove it, the metal shard migrated to his eye, leaving him partially blind.

Shirzad and I were overwhelmed. We kept thinking: If this count was from just one of the four units for just four years, what was the full tally?

10. The Family

April 2021 • Kabul

In the spring of 2021, I squeezed into the backseat of a beat-up Toyota Corolla off the highway between Kabul and Jalalabad to tell Baseer and Hadi that I’d finally tracked down what happened in the raid that they had told me about back in October 2019.

It had taken me a year and a half to find any record corroborating the raid at Kamal Khel despite the four civilians killed. Then I discovered a radio reporter who had gone to the site the following day.

In Kamal Khel, the relatives of the dead met me and described what happened: That July day, a drone had dropped a missile just outside their mosque, killing 13 people, including Nasibullah, 11, and injuring his cousin Sebghatullah, 18, who died in his brother’s arms on the way to the hospital. Such airstrikes often came in tandem with the ground operations.

Later that night — when Baseer and Hadi and the Zero Unit descended on their home — the family was still awake, in shock, and mourning their deaths. Nasibullah’s body was cradled in the arms of his grandfather, Ghulam Rasul.

Chaos ensued in the blaze of explosions and gunfire. Masked soldiers stormed into the house, forcing the men outside to face the courtyard wall until the soldiers had left.

A scene from a ProPublica documentary coming in 2023 shows the raid from the family’s perspective. (Illustration and animation by Mauricio Rodríguez Pons/ProPublica. Field production by Lynzy Billing, Muhammad Rehman Shirzad and Kern Hendricks for ProPublica. Music by Milad Yousufi for ProPublica.)

Watch video ➜

Only then did Rasul find his 16-year-old granddaughter, badly injured in the hand and abdomen, lying on the ground by the bodies of Nasibullah and Sebghatullah. She later died. Her uncle had also been shot in the raid and died from his injuries. Rasul’s wife and a grandson were injured.

Rasul, who was forced to drop his dead grandson and flee when the shooting started, said that when he protested the killings, the provincial governor told him, “They have their own intelligence and they do their own operation.”

At the end of the meeting, Rasul told me bitterly, “the provincial governor gave us a parcel of rice, a can of oil and some sugar” as compensation for their loss. But no one ever told the family members why they were targeted or if the Zero Unit had simply got it wrong.

Baseer said it didn’t make a difference who had killed the family, a drone strike or the unit. “They were just children.” He paused, “I don’t know how in any meaningful way I can say I am sorry to that family. How do I even express it? I can’t.”

“I have had the feeling many times, you know, when you feel like you’re trapped in a corner, with no way out ... but I made the choice, I joined the unit, and there’s nothing I can do to undo it now,” he said.

Nasibullah, 11, and Sebghatullah, 18, were killed in airstrike and night raid by the 02 unit in Kamal Khel. (Photographs supplied by their grandfather, Ghulam Rasul)

In the three years I’d spent interviewing Baseer and Hadi, I’d come to see them as flawed soldiers who, in their way, were trying to pull some good out of their lot by sharing what they know, even if it meant exposing their role in killing innocents.

Hadi said that Afghans lived in fear. “They get killed by all — if it’s 02, if it’s Taliban, ISIS, criminals and others. It’s the same for them. Everyone kills these civilian Afghans.”

Hadi whispered to himself: “In war, nobody wins. I have caused unforgivable pain on my people. We can’t ignore these deaths. Our minds are damaged, too. So are the Americans’.”

But neither Baseer or Hadi believed that there would be a day of reckoning for the Zero Units. As our conversation ended, they climbed out of the car and disappeared into the night.

11. The American

September 2021 • The Midwest, America

Early in my reporting, a former U.S. special operations forces member told me that “no one would give a shit” about the killing of Afghan civilians. But it “would be more of a story” if I had American soldiers coming forward. Since then, I’d been searching for an American willing to speak candidly about his time with a Zero Unit.

It shouldn’t be that hard, I reasoned. The CIA had been pointing Army Rangers and other special operations forces at targets in Afghanistan for more than a decade.

My conversations with a Ranger I call Jason, who agreed to talk as long as I withheld identifying details about him, started over the phone after he’d left Afghanistan and finished several months later when I traveled to meet him in the United States just two weeks after the final U.S. planes left Kabul. I confirmed his service with one of the units and corroborated his impressions with other Rangers.

When we first began talking, Jason had recently left a stint with a Zero Unit after six years with two unrelated Afghan special forces units who joined the Rangers on night raids throughout the country. Now he was sitting in a booth in a diner in the heart of the Great Plains watching the Taliban set up their new government more than 7,000 miles away.

The Department of Defense did not respond to questions about the Zero Unit operations.

The view from an Afghan army outpost in 2019, first image. Afghan security forces conducting nighttime operations in 2019. (Kern Hendricks for ProPublica)

He was stocky and trying to sit tall, perhaps to appear taller than he was, even though he wore flip-flops.

Initially, he was focused, puffing his chest out as he talked. He wanted me to know that he understood Afghanistan. His reasons for joining the fight echoed those of Hadi’s, “to catch the bad guys,” but like his Afghan counterpart, he now wondered if the units’ mission had been squandered. His rage is not over the civilians killed — those, he said, are the cost of war — but for the terrorists left alive.

I asked him to lead me through how the raids worked and how intelligence could go wrong. “That just happens. If you do enough operations, there’s gonna be some times where it’s not the right person. The intelligence isn’t perfect.”

As the conversation went on, he began waffling: They didn’t kill civilians. They never botched operations. They just shot back. OK, they did kill them, but they were just collateral.

I was startled to learn that military planners baked potential “collateral damage” into the pre-raid calculus they prepared from overhead photography and other intelligence. “Ninety percent of the casualties are because you just can’t see them,” Jason said. “We have something we call a slant, which predicts the number of people in the compound. So 3/6/8 is 3 men, 6 women and 8 children. But because the women and children are hidden inside, that slant in reality will end up being 3/14/36, and a lot of times it’s the kids and women who get caught in the crossfire.”

In other cases, he said, civilians just happened to be in the wrong place at the wrong time. “There’s a time we threw a grenade into a hole where an ISIS guy was,” he said. “But there were a bunch of women and kids and in the crossfire a pregnant woman got shot. She was fine, but obviously the kids’ eardrums exploded and everything like that.”

During his four months with the Zero Units, Jason said, Americans were often present at every stage of the operation. The questioning of suspects at the scene was done by the Afghan soldiers, and the “verification” of terrorists was typically done by the American soldiers through biometrics “or people at the site of the raid saying they are terrorists.”

“While the unit did get some known bad guys,” he said, it was also sent after the wrong people or just low-level Taliban to boost their count.

He initially tells me that every death was accounted for in after-action reports and sent up the chain of command, and that any raid gone wrong was investigated. The reports included “what went well and what went bad and how to fix it,” he said, and were written by senior commanders.

When I told him that his account conflicts with what I discovered, that the injured often died later or in hospitals and that the dead were sometimes misidentified as insurgents, he paused, then conceded that only those at the scene would know if they counted the dead and if they double-checked who they had killed.

“I don’t know how many times we said we killed this one Taliban commander before we actually killed him,” he said. “But the U.S. just claimed they got the right guy.”

12. A Legacy of Terror

March 2022 • Kabul

I was working to put the final touches on my reporting when I began to see alarming reports from Afghanistan. City after city had surrendered to the Taliban. U.S. authorities were scrambling to evacuate tens of thousands of Afghans with ties to the American forces from the Kabul airport. The Zero Units had been deployed as a last line of resistance against the Taliban. In the end, they stood arms’ reach from one another securing the airport. Only some Zero Unit members made it out of the country.

Months later, I returned to see what was left of America’s secret war. Government offices were now inhabited by the Taliban, who targeted enemies much as the Zero Units did. The news archives I’d scoured had been deleted and the statistical records burned. The families of some victims had left the homes that bore the Zero Units’ bullet holes. The Afghan government officials who once brushed me off were now texting me to help them leave the country. And those heavily armed, widely feared Zero Unit trucks? They were now being used by the Taliban, who rode around the streets aimlessly with brand-new, American-made M4 rifles on their laps.

Children drew helicopters on the wall of a home that was raided by the 02 unit. (Lynzy Billing for ProPublica)

Baseer is one of those left behind. Our final meeting was at the fish restaurant where we’d first talked three years earlier. He and others who had served with the 02 were living off the grid. The Americans’ promises that they would never abandon their Afghan allies had proven empty.

After sending me months of desperate texts from different hiding spots, Baseer told me he no longer wants to leave his homeland. He said he realized he fought a messy, failed war for a country that he now believes never cared about Afghanistan. Angry, bitter and disappointed, he wants no part of America.

His feelings are the same reason that the Taliban grew, he said. “The U.S. and our NDS made a lot of enemies,” he said. “Look at me now. I will never support an American war in Afghanistan again.” (After months on the run, Baseer would later be detained by the Taliban. No one has been able to contact Hadi since the Taliban takeover. He is presumed to have been killed.)

After the fall of Kabul, my reporting partner and now friend, Shirzad, was airlifted with, ironically, thousands of Zero Unit soldiers and their families to Fort Dix in New Jersey. He was deeply troubled by the units’ killing of Afghans. But amid the foreignness of America, the soldiers were just Afghans like him, lost and frightened. He sounded almost confused by this realization. In December, he was finally allowed to leave Fort Dix to study for a doctorate at an American university.

Soldiers of the 82nd Airborne at the Kabul airport on Aug. 22, 2021, first image. A destroyed Afghan police truck in 2022, second image. (First image: Kern Hendricks for ProPublica. Second image: Lynzy Billing for ProPublica.)

I tried to find out what the U.S. was going to do with all the men it had trained to kill with precision. Would it just dump them into America? Or would it find a new use for them?

Only one of the 02 unit commanders picked up my call. He’d just arrived in Sacramento, California, after five months at a U.S. base and 20 days in a hotel in Los Angeles. There is no plan yet for him or his men. They’d been dispersed across the country, “but our skills and abilities are not being utilized and we are jobless.”

As for me, the trauma of compiling a body count had taken a toll. As I processed the grief of family after family and the photographs of blood-soaked bodies, I started waking up with bruises on my arms and legs. “It’s a psychosomatic disorder,” a psychologist friend told me. The splotches had started appearing, I realized, when I started sharing my personal story for the first time. It made me wonder what kind of bruises the Zero Units, and America, had left on Afghanistan.

I was devastated to find out that Mahzala died quietly in her home in December, just days from the anniversary of her sons’ deaths. She never got her answers.

Neither did I. The path to Pakistan to uncover my mother’s roots still taunts me, as do the questions about what happened the night of the attack that killed her. For now, the answers remain buried under so many other tragedies.

In the end, I got closure for my own personal story from the unlikeliest source: Baseer. He was not the one who killed my mother and sister, but he was a perpetrator nonetheless. Seeing his remorse, his torment over the hideous things he’d done to his country and his compatriots for someone else’s agenda loosened something in me.

“It will be good if you leave Afghanistan as soon as possible,” he said, warning of escalating violence. “At first I was thinking: ‘Everyone wants to get a visa to go out. Why do you want to come in?’” As he got up to leave, he turned to me. “I understand it now; I understand you now. You came for your story, not mine.”

13. Epilogue

July 2022 • Jalalabad

In the summer of 2022, I was in Afghanistan on another story when I was approached by a skinny teenager named Spin Ghar who wanted my help reading a letter from the U.S. military. Six years earlier, he told me, he’d been shot by 02 soldiers next to his home outside their base in Jalalabad. He was 12 when it happened, pulling up his shirt to show me scars from three bullet wounds. He still lives next to the once heavily fortified base, which is now empty, except for a lone Talib on his phone.

After the shooting, he received surgery at two U.S. bases, he said. The 02 soldiers gave his family the commander’s name and number. “They said they would give assistance.”

He showed me the claim form, which had been filled out in English by the Americans at the base. His age had been bumped up to 14.

In 2020, they finally received the letter, written in English. I told him the letter said the U.S. military had rejected his claim: “I understand that you suffered a serious injury in the incident, and sympathize with your situation,” wrote Capt. Andrew R. Dieselman, the U.S. foreign claims commissioner at the Jalalabad air base. “Unfortunately, because our investigation determined U.S. Forces were not involved in the incident, I am unable to compensate you.”

Spin Ghar says he was shot three times when he was 12 by 02 soldiers outside their base in Jalalabad. (Lynzy Billing for ProPublica)

Spin Ghar looked straight ahead in silence and finally seemed to gather some strength, turning to me and saying, “What should I do now?"

Resolute Support, which is named on the letterhead, told me my questions are best directed to the CIA.

As I left Spin Ghar’s home that day, feeling helpless yet again, a woman, his neighbor, rushed toward me, waving a piece of paper. It was a claims card from a U.S. task force. Her sister, she said, “lost her mind” in 2019 after an American drone crashed into their house right next to the base, killing all three of her young children.

She asked me to take the claims card to the Americans. I told her the Americans have left Afghanistan.

She looked at me stunned. She had no idea. “When are they coming back?”

How We Reported This Story

Sources

To understand the Zero Units’ operations and their consequences, as well as the CIA’s role in training, funding and directing them, Lynzy Billing traveled hundreds of miles across Nangarhar province, one of the most volatile regions of Afghanistan. She visited the sites of more than 30 night raids of the 02, one of four known Zero Units. She was joined by a forensic pathologist, who used a variety of government records to help verify the identities of the dead.

She conducted more than 350 interviews with current and former Afghan and U.S. government officials, Afghan and U.S. defense and security officials and former CIA intelligence officers. She spoke with U.S. congressional oversight committee members, counterterrorism and policy officers, civilian-casualty assessment experts, military lawyers, intelligence analysts and representatives of human rights organizations. To unravel what happened at the sites of raids, she interviewed doctors, hospital directors, coroners, forensic examiners, eyewitnesses, family members and village elders. She spoke at length with two active Zero Unit soldiers, an American Ranger who had participated in Zero Unit operations and the former head of Afghanistan’s intelligence agency.

Billing also reviewed leaked security incident reports from the country’s intelligence agency, police and nongovernmental organizations, and hundreds of local news articles, copies of emails, phone conversations and declassified intelligence files.

Methodology

Counting civilian casualties that resulted from CIA-backed operations during the war in Afghanistan proved to be incredibly challenging. It was chaotic. Raid sites were often remote and in dangerous areas, left inaccessible by the fighting. The victims sometimes died later in hospitals from their wounds or were quickly buried without anyone going back to investigate. No one organization was able to keep complete tallies. We set out to catalog the civilians killed during raids by the 02 unit over a four-year-period: June 2017 to July 2021.

In records and reports, the 02 unit appeared under different names and the raids were at times recorded as “search operations,” but 02 was the only such strike force — identifiable by its tactics, equipment, vehicles and ability to call in U.S. air power — operating in Nangarhar during this time period. In some cases eyewitnesses say the 02 announced themselves to those at the scene.

We obtained a comprehensive list of the 02 unit operations from a reputable international organization, including dates the raids were conducted, their locations and the number of casualties. We then collected additional alleged civilian casualties from lists kept by human rights organizations, as well as from local news and radio reports and government and police files. We sought corroborating records and eyewitness testimony for each raid.

Using satellite imagery and geolocation, we were able to verify the locations of many of those raids, especially those accompanied by airstrikes, by searching for evidence of damaged homes and structures. We mapped these against what we found during site visits, such as blown-open doors, burned homes and walls marked by bullet holes, as well as videos of the raids and their destruction obtained from eyewitnesses.

We traveled to the scenes of more than 30 raids to speak with survivors, eyewitnesses and family members of those killed. To determine who the dead were, we used government statistical department records, IDs and hospital records, which included such details as name, gender, estimated age and tribal affiliation. In some cases, we also found death certificates and coroner reports at the federal forensics department in Kabul.

ProPublica research reporters reviewed the list of hundreds of raids that Billing brought back from her years of reporting, cross-checking her list against the evidence she’d compiled and publicly available descriptions of the events including news accounts and NGO reports. From there we produced a list of raids and civilian casualties that, while certainly an undercount, was supported by the evidence available to us.

During the process of visiting villages to corroborate the unit’s night raids, we were continually told about other raids and other deaths. Almost every witness to a raid seemed to know another witness to another raid. We do not believe by any stretch that this is a full accounting of the 02 raids casualties. It is a tally that will now remain unreported and uninvestigated.

Contributors to this story include: design and development by Anna Donlan, ProPublica; research by Mariam Elba, ProPublica; and fact-checking by Hannah Murphy Winter for ProPublica.

Contributors to the videos include: illustration and animation by Mauricio Rodríguez Pons, ProPublica; field production by Lynzy Billing, Muhammad Rehman Shirzad and Kern Hendricks for ProPublica; and music by Milad Yousufi for ProPublica.

by Lynzy Billing, video by Mauricio Rodríguez Pons

Why Congress Can’t Stop the CIA From Working With Forces That Commit Abuses

3 years ago

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For more than two decades, the U.S. military has been barred from providing training and equipment to foreign security forces that commit “gross violations of internationally recognized human rights.”

The law, named for its author, Vermont Sen. Patrick Leahy, applies to military assistance for foreign units funded through the Defense or State departments. Lawmakers including Leahy, a Democrat, acknowledged that it does not cover commando outfits like Afghanistan’s Zero Units.

In an email, Leahy said he believes that the law’s human rights requirements need to be expanded to “cover certain counter-terrorism operations involving U.S. special forces and foreign partners.

“U.S. support for foreign security forces, whether through the Department of Defense, Department of State, CIA or other agencies,” Leahy wrote, “must be subject to effective congressional oversight so when mistakes are made or crimes committed, those responsible are held accountable.”

Leahy called on the Biden administration to apply the law “as a matter of policy” to all overseas military forces that work with any U.S. government agencies.

Tim Rieser, an aide to Leahy, acknowledged that the Leahy Law “is not all-encompassing, as much as we wish it were.” The Leahy Law, he said, applies only to congressional appropriations that fund the State and Defense departments.

“Sen. Leahy’s position has always been that the policy should be consistent, that we should not support units of foreign security forces that commit gross violations of human rights regardless of the source of the funds, but that is not what the law says.”

A source familiar with the Zero Unit program said the CIA’s officers in the field, and special forces soldiers working under their direction, are required to follow the same rules of combat as American service members. The agency does not fall under the Leahy Law.

U.S. military operations fall under the jurisdiction of the Senate and House Armed Services committees. Congressional oversight of the CIA and other intelligence agencies is handled by separate committees in the House and Senate that hold most of their meetings and hearings in secret. By law, the agencies are required to keep Congress “fully and currently informed” of all covert operations. Intelligence committee staffers have the authority to ask the CIA for documents and testimony about classified missions like the support for the Zero Units under the broad national security law known as Title 50.

Congressional officials said the two oversight committees are ill-equipped to monitor the complexities of paramilitary operations in foreign countries. The Pentagon and State Department have created entire bureaucracies to make sure foreign units meet the requirements of the Leahy Law. The intelligence oversight committees, with their relatively small staffs, are not set up to track what’s happening on the ground when U.S. military officers on loan to the CIA work with elite units in the hinterlands of Afghanistan, Somalia or Syria.

“The sense I get from former operators is they don’t give a shit,” said one congressional source. “Their attitude is, the world’s dangerous and you partner with bad people, that’s why we have Title 50.”

Congressional staffers said they believed the failure of Congress to extend the Leahy Law to intelligence agencies was no coincidence.

“I mean, it’s a huge and intentional gap,” one said. “It’s designed to not have oversight; it is meant to not be under the public view.”

In his email, Leahy said an amendment to the Leahy Law, which would expand the scope to certain counter-terrorism operations, is now in the works.

The lack of consequences for blatant human rights violations, he said, “foments anger and resentment toward the U.S., undermines our mission in these countries where we need the support of the local population, and weakens our credibility as a country that supports the rule of law and accountability.”

Stephen Engelberg contributed reporting.

by Lynzy Billing

As Workers Battle Cancer, The Government Admits Its Limit for a Deadly Chemical Is Too High

3 years ago

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Before his shift at the Goodyear Tire and Rubber plant in Niagara Falls in May 2021, a worker peed in a cup.

Before he clocked out, he did it again.

Goodyear shipped both specimens to a lab to measure the amount of a chemical called ortho-toluidine. The results, reviewed by ProPublica, showed that the worker had enough of it in his body to put him at an increased risk for bladder cancer — and that was before his shift. After, his levels were nearly five times as high.

It’s no secret that the plant’s workers are being exposed to poison. Government scientists began testing their urine more than 30 years ago. And Goodyear, which uses ortho-toluidine to make its tires pliable, has been monitoring the air for traces of the chemical since 1976. A major expose even revealed, almost a decade ago, that dozens of the plant’s workers had developed bladder cancer since 1974.

What is perhaps most stunning about the trail of sick Goodyear workers is that they have been exposed to levels of the chemical that the United States government says are perfectly safe.

The permissible exposure limit for ortho-toluidine is 5 parts per million in air, a threshold based on research conducted in the 1940s and ’50s without any consideration of the chemical’s ability to cause cancer. Despite ample evidence that far lower levels can dramatically increase a person’s cancer risk, the legal limit has remained the same.

Paralyzed by industry lawsuits from decades ago, the Occupational Safety and Health Administration has all but given up on trying to set a truly protective threshold for ortho-toluidine and thousands of other chemicals. The agency has only updated standards for three chemicals in the past 25 years; each took more than a decade to complete.

David Michaels, OSHA’s director throughout the Obama administration, told ProPublica that legal challenges had so tied his hands that he decided to put a disclaimer on the agency’s website saying the government’s limits were essentially useless: “OSHA recognizes that many of its permissible exposure limits (PELs) are outdated and inadequate for ensuring protection of worker health.” This remarkable admission of defeat remains on the official site of the U.S. agency devoted to protecting worker health.

“To me, it was obvious,” Michaels said. “You can’t lie and say you’re offering protection when you’re not. It seemed much more effective to say, ‘Don’t follow our standards.’”

David Michaels, then-director of the Occupational Safety and Health Administration, attends a hearing on Capitol Hill in 2010. (Astrid Riecken/Getty Images)

The agency has also allowed chemical manufacturers to create their own safety data sheets, which are supposed to provide workers with the exposure limits and other critical information. OSHA does not require the sheets to be accurate or routinely fact-check them. As a result, many fail to mention the risk of cancer and other serious health hazards.

In a statement, Doug Parker, the assistant secretary of labor for occupational safety and health, acknowledged the agency’s impotence. “The requirements of the rulemaking process, including limitations placed by prior judicial decisions, have limited our ability to have more up to date standards,” he said. “Chemical exposure, including to o-toluidine, is a major health hazard for workers, and we have to do more to protect their health.”

Agency officials did not reply to a follow-up question asking what more they will do.

Goodyear, in a statement, said it “remains committed to actions to address ortho-toluidine exposure inside our Niagara Falls facility.” The company said it requires workers to wear protective equipment, invests in upgrades like ventilation and offers regular bladder cancer screenings “at no cost” to workers. It pointed out that ortho-toluidine levels at Goodyear’s Niagara Falls plant had plummeted over the past decades and that the levels have “consistently been far below the permissible exposure limits as set by government regulators,” meaning 5 parts per million.

James Briggs worked for 20 years in the Niagara Falls plant before taking a job with the United Steelworkers union, which represents dozens of Goodyear employees there. While pushing for changes that would reduce its members’ exposure to ortho-toluidine at the plant, the union has essentially given up on eliminating the risk.

“If I could have my way, would I like to be able to wave a magic wand and take the risk away? Yes, I would,” he said. “Everybody that works in that plant realizes there’s some risk that comes with it. They all get it. We tell them. It’s part of the orientation for new employees.”

Former Goodyear plant worker James Briggs at the Niagara-Orleans AFL-CIO central labor council workers’ memorial at Reservoir Park in Niagara Falls (Matt Burkhartt for ProPublica)

Gary Casten never got such a talk when he started at the plant in 1965, he alleged in court testimony. A devoted union leader, bowler and Yankees fan, he let the government test his urine in 1990; he, too, had a chemical level five times as high after his shift than before it. More than once in his 39 years at Goodyear, Casten’s lips and fingernails turned blue, a well-known sign of ortho-toluidine poisoning.

Still, it came as a shock to Casten when he was diagnosed with bladder cancer in 2020. “If you looked up ‘nice’ in the dictionary, you’d see a picture of Gary,” said Harry Weist, one of his former co-workers. Casten underwent surgery and chemotherapy and lost his strength and his appetite. It soon became clear that the cancer had spread.

Along with dozens of other Goodyear employees, he sued the chemical companies that manufactured the ortho-toluidine used at the plant; workers’ compensation law prevented them from suing their employer. When asked at a legal proceeding in April 2021 whether anyone had warned him about the risks, he said, “If I had been told that from the first day I walked through the gates, I wouldn’t have worked there.”

He died four months later.

Last year, the grim tally of Goodyear plant workers’ bladder cancer diagnoses reached 78.

The recent test results suggest it is likely to keep climbing.

“The System Is Broken”

Created in 1970 in response to mounting injuries, illnesses and deaths from workplace hazards, OSHA was supposed to issue regulations based on scientific research conducted by its sibling agency, the National Institute for Occupational Safety and Health.

At first, the pair got off to a somewhat promising start, with OSHA using NIOSH research to issue more protective standards for lead, arsenic, benzene, asbestos and several other carcinogens. “The goal of the early administrators was to set lower and lower and lower standards so that industries could adapt and ultimately eliminate the use of these materials,” said David Rosner, a historian of public health at Columbia University.

But within a few years, asbestos, which was already well established as a carcinogen, presented a political challenge. “For asbestos, NIOSH said nothing other than a number approaching zero can be considered safe,” said Rosner. “But then they sent that science over to OSHA, and OSHA realized if you do that you’re going to have to shut plants everywhere.”

Chemical companies pounced, warning that OSHA’s standards would lead to job losses amid a recession; they turned the agency into “a whipping boy for why American industry was in chaos,” as Rosner put it. By 1973, the Asbestos Information Association/North America suggested that health-based regulation of its members’ product might be a “nefarious conspiracy afoot to destroy the asbestos industry.”

Two years later, the director of NIOSH declared that there was “virtually no doubt that asbestos is carcinogenic to man” and proposed lowering the safety threshold. But OSHA hedged. It acknowledged that no detectable level of asbestos was safe, but put off changing its standard due to a legal requirement to take “technical and economic factors” into consideration.

While OSHA eventually updated its asbestos standard more than a decade later, lawsuits helped chill — and ultimately all but freeze — progress on setting limits for most chemicals by requiring the agency to do more and increasingly complex analyses.

One such suit, brought by the American Petroleum Institute and decided by the Supreme Court in 1980, challenged OSHA’s limit for benzene. Although there was no scientific question that benzene causes leukemia, the court decided that, before setting a new standard, OSHA would have to first establish that the old one put workers at “significant risk” of harm. Another lawsuit, filed by the lead industry, left OSHA responsible for not just calculating the costs of complying with its standards but also demonstrating “a reasonable likelihood” that they would not threaten “the existence or competitive structure of an industry.”

Faced with massive requirements for updating a single limit, in 1989 OSHA tried another tack: lowering and setting safety thresholds for 428 chemicals at once. The move could have prevented more than 55,000 lost workdays due to illness and an average of 683 fatalities from hazardous chemicals each year, according to the agency’s estimates.

But that attempt was stymied, too. The American Iron and Steel Institute, the American Mining Congress, the American Paper Institute, the American Petroleum Institute and the Society of the Plastics Industry were among the dozens of trade associations that joined to sue OSHA, criticizing the agency’s decision to lump the chemicals together and claiming that they had inadequate time to respond to the proposed changes. While most unions supported the agency’s effort, some sued OSHA as well, arguing that some of the updated standards were not protective enough.

In 1992, the court of appeals vacated all of the safety limits that OSHA had set and updated three years earlier, finding that the agency had failed to prove that exposure to the chemicals posed a significant risk of health impairments and that the proposed changes were not economically and technologically feasible for the companies that used the chemicals.

By the time he was appointed to run OSHA in 2009, Michaels was well aware of the risks of the chemical used at Goodyear. Just before he took the helm of the agency, he devoted a chapter of his book about industry influence over science to ortho-toluidine, chronicling the cancers at the Niagara Falls plant and the fact that manufacturers had evidence of the chemical’s carcinogenicity as far back as the 1940s.

Outside the Goodyear plant in Niagara Falls (Matt Burkhartt for ProPublica)

But given how onerous the limit-setting process had become — and how many other chemicals were in even more desperate need of accurate limits, in part because greater numbers of workers were exposed to them — he decided not to attempt to update the ortho-toluidine standard.

In the past 25 years, OSHA has updated just three standards.

Forced by a lawsuit, in 2006 the agency issued a standard for chromium, the carcinogen featured in the movie “Erin Brockovich,” which was also causing cancer at exposure levels far below its outdated limit. In 2016, OSHA issued a protective standard for silica, a cancer-causing dust that millions of workers are exposed to each year. And, in 2021, OSHA put the finishing touches on a rule for beryllium, an element that can scar the lungs and cause cancer and that thousands of shipyard and construction workers are exposed to every year. The prior limit was nearly 70 years old when OSHA revised it in January 2017, then tweaked the rule over the next four years. Each update took more than a decade to complete as the agency amassed the voluminous data it needed to justify the changes.

While the 1972 standard for asbestos was just five pages long, the one for silica stretched across 600 pages. “And that’s mostly because of the requirements that followed all these lawsuits,” said Michaels, who worked on the silica standard throughout his time as administrator and is now a professor at the George Washington University School of Public Health.

Michaels argues the problem isn’t the agency itself as much as its small budget and the court-imposed burdens resulting from the lawsuits.

“Don’t blame OSHA,” said Michaels. “The system is broken.”

“A Form of Self Regulation”

Tucked in a binder in the foreman’s office at the Goodyear plant is another tool that might have helped workers. Since 1983, OSHA has required chemical manufacturers to create safety data sheets: documents that present clear information about a chemical’s hazards. Workers and employers consult these to make decisions on what kinds of precautions to take.

The Goodyear plant in Niagara Falls (Matt Burkhartt for ProPublica)

OSHA does not routinely check to see whether the data sheets contain inaccuracies or even require them to be accurate. Companies must note carcinogens as cancer-causing only if they are on OSHA’s own very truncated list, which notably omits ortho-toluidine. OSHA specifies that companies “may” rather than “must” rely on the National Toxicology Program or the International Agency for Research on Cancer for determinations on whether a chemical causes cancer.

In comments submitted to OSHA in 2016, the advocacy groups Earthjustice, the Natural Resources Defense Council and the BlueGreen Alliance said the agency’s hands-off approach ignored the inherent conflicts of interest.

“Allowing manufacturers to disregard hazard assessments by two authoritative bodies and to conduct their own hazard assessment of products in which they have significant financial investment is a form of self-regulation that will undoubtedly compromise transparency, accurate and timely disclosure of information, and ultimately workplace health and safety,” the environmental organizations wrote.

The groups suggested the agency should take the job of evaluating chemicals away from the companies that make them. But OSHA again failed to act. As a result, experts say, the safety data sheets for hazardous chemicals are still riddled with errors.

Almost one-third of more than 650 sheets for dangerous chemicals contain inaccurate warnings, according to a study, published today, that was conducted by the BlueGreen Alliance, an organization that focuses on the intersection of labor and environmental issues, and Clearya, a company that alerts consumers to the presence of toxic chemicals in products. Of 512 sheets for carcinogenic chemicals the groups reviewed, 15% did not mention cancer in the hazards identification section, and 21% of 372 safety data sheets for chemicals that pose a risk to fertility and fetal development omitted that fact.

Even sheets for well-known carcinogens like benzene and vinyl chloride often don’t include warnings that they cause cancer. One for asbestos, for example, fails to say in its hazard section that the mineral causes lung cancer and mesothelioma, instead warning only of skin irritation, serious eye irritation and the possibility of respiratory irritation.

While the inaccuracy of safety data sheets is a global problem, companies in the U.S. are among the worst offenders, according to the analysis by the BlueGreen Alliance and Clearya. Safety data sheets in the U.S. are far more likely to be missing information about health hazards than those in Europe, their analysis showed. In part, that’s because of differing approaches to regulating chemicals.

“In other jurisdictions like Europe, Australia and Japan, they say, ‘There’s a list of chemicals we’re concerned about, and here’s how we’re classifying them.’ So they can’t play around with the truth,” said Dorothy Wigmore, an industrial hygienist based in Canada.

By law, OSHA can fine companies no more than $14,502 for each violation of its hazard communication standard, which amounts to a slap on the wrist for most companies, according to experts. The agency most recently responded to a complaint at the Goodyear plant in 2015, when it issued a citation for violation of its Respiratory Protection Standard but did not issue a fine.

Of the regulatory approach to safety data sheets in the United States, Wigmore said, “It’s a series of situations that are just designed to let all kinds of hazards get out into the marketplace.”

“Impermissible Secrecy”

The primary law governing the regulation of chemicals in the United States, called the Toxic Substances Control Act, contains a provision designed to keep chemical makers honest and the public informed.

If companies that manufacture, import, process or distribute chemicals find any evidence that their products might present a substantial risk to human health or the environment, they must immediately share that information with the Environmental Protection Agency.

DuPont, which had supplied ortho-toluidine to the Goodyear plant since 1957, had just that kind of information back in 1993. An industrial hygienist named Tom Nelson who worked at DuPont calculated that the permissible exposure level was at least 37 times too high to protect workers.

Almost three decades later, an attorney named Steven Wodka stumbled upon Nelson’s calculations while reviewing thousands of documents he had obtained from the company through discovery, in cases his clients — Goodyear plant workers, including Casten — brought against DuPont. The information should have been public. Yet, when Wodka checked Chemview, an EPA database that contains such information supplied by companies known as 8(e) reports, he found no mention of Nelson’s bombshell discovery. The agency did make public five reports that DuPont submitted about the chemical, but none disclose the calculations showing just how ineffective the permissible exposure level is.

In January 2021, Wodka wrote to the agency to report that DuPont was violating the 8(e) provision of the chemicals law by withholding information about just how dangerous ortho-toluidine is.

“There is a direct connection between DuPont’s failure to abide by this statute and the continuing cases of bladder cancer in the Goodyear workers in Niagara Falls, New York,” the letter stated, before urging the EPA administrator to “enforce this statute to its full extent against DuPont.”

After months of silence, Wodka received a response from the EPA this September. “We did not take further enforcement action because we had a document that demonstrated that they met their 8e obligations,” Gloria Odusote, a program manager in the agency’s waste and chemical enforcement division, wrote to Wodka. She said the document contained “confidential business information” and was exempt from public disclosure.

The kind of exemption she cited was designed to allow companies to keep secret information that could give their competitors a window into their business practices, such as manufacturing processes and chemical formulas whose disclosure could “cause substantial business injury.” But companies routinely use the exemption to shield all kinds of information, including the names of chemicals, the amounts produced and the location of plants that make them. The chemicals law forbids companies from claiming health and safety studies as confidential business information.

“EPA can’t keep this information secret,” said Eve Gartner, an attorney who directs the Toxic Exposure & Health Program at Earthjustice. The agency’s failure to list the document on Chemview and make it available to the public upon request, she said, “adds an additional layer of impermissible secrecy.”

DuPont declined to comment, noting in an email that ortho-toluidine was produced by “E.I. du Pont de Nemours & Co., not DuPont de Nemours,” as the company now calls itself after relaunching in 2019. It has settled all 28 lawsuits in which Wodka represented Goodyear workers with bladder or urothelial cancer.

EPA officials said they are looking into the matter.

“Shouldn’t Have to Struggle Like This”

On a snowy November morning in western New York, Harry Weist awaited his next cystoscopy. A 66-year-old retired Goodyear worker with a graying buzz cut and a horseshoe mustache, Weist has already undergone dozens of these tests, in which a tiny camera is inserted through his urethra and into his bladder. On three occasions, in 2004, 2019 and 2020, the images revealed cancerous tumors that had to be surgically removed.

Harry Weist (Matt Burkhartt for ProPublica)

It can take days and sometimes weeks for the pain and discomfort from the surgery to ease. What never goes away, though, is the dread about the cancer that future probes will find. “My doctor said it’s not if it will return, but when,” Weist said.

During his 34 years working at the Goodyear plant, Weist ran the Super Bowl pool, served in the union and became “thick as thieves” with a few of his co-workers. He also breathed in fumes so stinging and strong that he was left gasping for air. But on that November day, he preferred to think about the lifelong friends he made at the plant.

One, a close relative who has also had three bouts of bladder cancer and undergone chemotherapy, radiation and surgery to treat it, has gotten a job delivering car parts at age 84 to cover some of his medical costs. According to Weist, the family member (who declined to be interviewed) is so loyal to the company that “if you cut him, he would bleed Goodyear blue.” Weist makes the joke affectionately; the men remain close, even as they sharply disagree about their former employer.

“He says we made these bills so we’re going to pay them,” Weist said. It is difficult to definitively prove the cause of any individual cancer. But Weist feels sure his and that of his relative were due to decades of extreme exposure to a chemical known to cause bladder cancer. “I tell him, ‘Goodyear gave us cancer. We worked at their factory and wound up getting bladder cancer. You shouldn’t have to struggle like this.’”

Weist thinks often of Casten, who died at 74, leaving behind a daughter and grandkids who called him Popcorn. Like his old friend, Weist would have made a different choice had he been warned about the risks of working around ortho-toluidine. “Of course I wouldn’t have taken the job if I knew I was going to go through this,” he said.

Last year, NIOSH scientists published a risk assessment of ortho-toluidine that put the finest point yet on exactly how dangerous the chemical is — and how egregiously wrong the permissible exposure limit remains. OSHA says it strives to keep worker risk under one in 1,000, meaning one in every thousand people being harmed, after the Supreme Court suggested this threshold more than four decades ago. To bring the risk at the Goodyear plant to that range, the safety threshold for ortho-toluidine in the air should be about one three-thousandth that level, the assessment concluded.

The current permissible limit, 5 parts per million, is the same as 5,000 parts per billion. Yet even just 10 parts per billion in the air would cause each 1,000 exposed workers to contract between 12 and 68 “excess” cases of bladder cancer, meaning the number they’d likely develop above the number expected in the general population, according to the study.

The average amount of ortho-toluidine in the air at the plant is even higher: 11.3 parts per billion, according to testing completed by Goodyear in 2019. The company said that it has continued to measure air concentrations of the chemical in the plant since then, but declined to share results of that testing with ProPublica.

That measurement along with pre- and post-shift urine samples from workers at the plant “provide conclusive evidence that the Niagara Falls workers are still absorbing ortho-toluidine into their bodies during the workshift,” Wodka wrote to OSHA in March in a petition co-authored by a physician and a toxicologist who have served as expert witnesses in Goodyear worker cases, as well as an epidemiologist who previously worked for the American Cancer Society and the U.S. Public Health Service.

The occupational health experts asked OSHA to update the standard. Specifically, they asked that the permissible exposure limit in air for eight hours be reduced from5,000 parts perbillion to 1 part per billion and that the agency require companies to clearly inform their workers that the chemical causes bladder cancer.

OSHA has not responded to their petition.

Clarification, Dec. 15, 2022: This story has been updated to clarify that OSHA revised the beryllium limit in 2017 and, after some making changes, finalized the rule in 2021.

by Sharon Lerner

Medical Care and Politics Go Hand in Hand at a Chicago Safety Net Hospital

3 years ago

This story was co-published with WTTW/Chicago PBS. 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.

In 2013, Roseland Community Hospital was looking for a new leader. Its former chief executive had alienated the Illinois governor and other lawmakers amid a messy fight over the hospital’s funding.

The small nonprofit facility on Chicago’s South Side turned to Tim Egan, a longtime hospital executive who had begun to make a name for himself as a political operative and fundraiser with an ability to navigate the insular circles of state and local government.

Egan ran for alderman of the North Side’s 43rd Ward in 2007 and 2011, and he has served as the leader of the Cook County Democratic Party’s 2nd Ward committee since 2016, during his time as head of the hospital.

In his close to nine years as Roseland’s president and chief executive, Egan’s political activities and the hospital’s operations have become increasingly entwined: hospital business awarded to friends and associates, employees and contractors making donations to Egan’s campaign funds, at least one fundraiser using the hospital’s name on invitations.

In the runup to the November elections, Egan appeared in a commercial for Illinois Comptroller Susana Mendoza’s reelection campaign that, according to experts in nonprofit governance, blurred the lines even further between Egan’s stewardship of Roseland and his efforts in state and local politics.

“Susana is a giant for saving the New Roseland Community Hospital,” Egan declared in the commercial for Mendoza, a Democrat and longtime ally who last month won a second full term. As the state’s chief financial officer, Mendoza pays the state’s bills, including reimbursing hospitals like Roseland for patients on Medicare and Medicaid.

Egan this year also co-hosted a Mendoza fundraiser at which tickets cost as much as $5,000.

Tim Egan, president and CEO of Roseland Community Hospital (Courtesy of WTTW/Chicago PBS)

Samuel Brunson, a professor and associate dean at Loyola University Chicago, said Egan’s appearance in the commercial crossed a line. IRS rules bar nonprofits from participating in political campaigns.

“That looks to me like a pretty flagrant violation of this rule,” said Brunson, who specializes in nonprofits and the tax code and viewed the Mendoza commercial at the request of WTTW/Chicago PBS and ProPublica.

In the commercial, Egan is identified as Roseland’s president and CEO and stands in what appears to be a hospital setting in front of two people dressed in lab coats.

“It’s not him saying the hospital endorses her, but it’s him saying, ‘I am the CEO of the hospital, I’m speaking in my capacity as CEO … about what she did for the hospital itself,’” Brunson said.

A spokesperson for Egan and the hospital said in a statement that Egan’s political work is not a secret to Roseland’s leadership, and it has only helped the hospital achieve its goals in the community. The spokesperson did not address the question of whether Egan’s appearance violated federal nonprofit rules.

“Mr. Egan has an excellent relationship with his board and keeps board members fully apprised of all of Roseland’s major contracts and business developments, often times to seek their advice and approval,” said the spokesperson, Dennis Culloton. “Similarly, the board members are updated on his efforts to establish strong government contacts to support the mission of Roseland Community Hospital.”

Rupert Evans, a health care consultant and the chair of Roseland’s board of directors, said in a statement that Egan has done a “tremendous job” in his role leading Roseland and that the hospital board is “fully aware” of his political activities.

“None of his activities outside of his primary duties cause any conflict of interest for the hospital and have been fully disclosed,” said Evans, a former chair of the health administration program at Governors State University.

The most serious penalty for violating rules barring political activity by nonprofits is termination of an organization’s nonprofit status — though that sanction is rarely levied for this kind of activity.

The Treasury Department, which oversees the IRS, declined to comment on the commercial.

A spokesperson for the Mendoza campaign said the commercial refers to the comptroller’s work getting Medicare and Medicaid reimbursements to cash-strapped hospitals, including to Roseland.

“Roseland Hospital plays a critical role in providing healthcare to the underserved communities on Chicago’s South Side, so we asked Tim Egan to attest to the Comptroller’s work in our video spot which ran this fall,” campaign manager Jack Londrigan said in a statement. “We would have never asked Tim to do anything we thought would pose a problem for him or the hospital as we believe his efforts to save and protect the lives of Roseland residents are of the utmost importance.”

Longtime hospital consultant James Orlikoff, a Chicago-based adviser on governance and leadership issues for the American Hospital Association, said Egan’s appearance in the campaign commercial “probably pushed the boundary, if not crossed it.” But he also says given the “unprecedented financial pressure” hospitals are facing, having an experienced political operator at the helm could be beneficial.

Egan’s appearance in the commercial follows a trying period for Roseland. ProPublica and WTTW/Chicago PBS reported in October that federal inspectors found that, since January 2020, errors or neglect had contributed to the deaths of at least seven Roseland patients, including one who was pregnant.

Those incidents prompted federal watchdogs to admonish the hospital and threaten sanctions unless the facility took corrective measures. Federal records indicate that Roseland leaders fixed those immediate safety violations. A spokesperson for the hospital and a top official there have said that the COVID-19 pandemic contributed to many of Roseland’s challenges.

A 2021 federal whistleblower lawsuit alleges other problems at Roseland. Unsealed this month in federal district court in Chicago, the complaint claims that Roseland was complicit in a scheme by a physician who worked at the hospital to bill for millions of dollars in unnecessary or fraudulent COVID-19-related medical care.

Culloton, the spokesperson for Roseland and Egan, said neither Egan nor the hospital had been involved in any improper conduct. The lawsuit is pending.

The campaign commercial for Mendoza wasn’t the first time Egan has used his position as part of Mendoza’s campaign. An invitation to a $250-to-$5,000-a-ticket fundraiser in May at the swanky 95th-floor Signature Room of what was once the John Hancock Center was billed as an opportunity to join “Roseland Community Hospital President Tim Egan for a healthcare heroes reception in support of Susana Mendoza.”

“That looks a whole lot like an endorsement, and it looks like an impermissible endorsement,” Brunson said.

Neither Culloton nor Mendoza’s campaign responded to questions about the campaign event.

For a hospital executive like Egan, such a move into politics may have pitfalls, especially if their preferred candidate loses an election. “Now,” said Brunson, “they’re on the outs with whoever got the office.”

The board has signed off on at least one move Egan has made that tied the hospital to a friend and political associate. In October 2020, the board’s executive committee voted unanimously to transfer the management of Roseland’s emergency department from the medical group that had long held the contract to a wholly owned subsidiary company.

That December, that subsidiary of Roseland signed a three-year, $10,000-a-month consulting contract with P2C Healthcare Consulting, a company that had registered with the state just a month earlier. P2C’s manager, Leonard Cannata, has no apparent experience in health care management.

Cannata is a lawyer and political consultant who has worked for at least one of Egan’s political campaigns. Several photos posted to the Roseland CEO’s personal social media accounts show the two smiling as Cannata displays holiday gifts given by Egan. In a 2011 endorsement of Cannata’s skills on LinkedIn, Egan described him as a “detail oriented and determined” professional. “Len is destined to succeed in life,” he added.

Watch the WTTW/Chicago PBS Report

Egan’s spokesperson didn’t answer questions about the political relationship between Cannata and Egan, but said the contract with P2C “significantly lowered the costs to Roseland, including lower insurance costs. This arrangement was arrived at in collaboration with and with the approval of the Roseland Community Hospital Board.”

P2C, according to its contract, is charged with physician recruitment, performance metrics, and business plan implementation. In an internal hospital email obtained by WTTW/Chicago PBS and ProPublica, a hospital executive said P2C was the management group for the emergency department.

Cannata did not respond to requests for comment. Evans, the board chair, did not respond to questions about the contract.

In another instance, Roseland signed a contract with the company American Medical Lab to run the hospital’s in-house lab for five years at an annual cost of $1.5 million. That deal was signed in February 2021. That fall, the company donated $5,000 to one of Egan’s political funds.

The president of the lab company did not respond to a request for comment.

Culloton also did not respond to questions about the American Medical Lab contract.

Roseland serves a majority-Black community on Chicago’s far South Side that has long faced segregation and disinvestment. According to the hospital, 86% of the people living in its service area are Black. In 2020, nearly 92% of the people receiving care at the hospital relied on Medicare or Medicaid.

But on at least two occasions during the fall of 2020, while the hospital provided on-site coronavirus testing, it also offered clinics in mostly white Chicago neighborhoods where residents had average incomes far higher than those of the residents that Roseland is supposed to serve. In September and December of 2020, Roseland offered COVID-19 testing in the North Side’s 2nd Ward, where Egan works as the Democratic committeeperson. One of the testing events was held in the city’s upscale Gold Coast neighborhood. It’s not clear how many such events Roseland provided.

The Roseland and Egan spokesperson said the testing clinics served a need in the community.

“Roseland Community Hospital,” the spokesperson said in the statement, “makes no apologies for its effort to assist the City of Chicago Department of Public Health and other public health authorities in making COVID-19 testing available to as many people as possible.”

Meanwhile, Egan’s political activities have received contributions from people and businesses associated with both Roseland and his former employer Norwegian American Hospital, which is now known as Humboldt Park Health.

Between Egan’s first run for alderman in 2007 and this year, political funds that he chairs have received nearly $100,000 in donations, loans and in-kind contributions from hospital staff and leadership, board members for both hospitals and their respective charitable foundations, and people and businesses who have done work for the hospitals.

Among those donors is Dr. Tunji Ladipo, former director of Roseland’s emergency department. Ladipo, who was listed as a member of Roseland’s board of directors in its most recent available tax filing, donated $14,000 to Egan’s political committees between 2016 and July 2022.

Ladipo did not respond to requests for comment.

Enrique Lopez, another of Egan’s donors and political allies, has prepared hospital tax returns and has audited its financial statements. Lopez and his accounting firm have given more than $7,000 in donations and in-kind contributions to Egan’s various political funds; Lopez is treasurer of one of those funds.

Angel Chatterton, a senior accounting instructor at the University of Illinois Urbana-Champaign, said those kinds of political and financial ties could make outside observers question whether the audits conducted by Lopez’s firm were swayed by “undue influence” from hospital leadership.

“Auditors not only need to be objective, they need to be perceived as objective as well,” Chatterton said. “That’s at the heart of the credibility of our profession.”

She added that while the arrangement may be entirely aboveboard, “when you’re dealing with any type of political situation like this, I would say additional safeguards need to be put into play.”

Culloton, the Egan spokesperson, defended the use of Lopez’s firm, saying the firm was brought in after the hospital had not performed an audit or filed some key documents for close to 20 years.

Egan “is grateful for the excellent work of the hospital’s auditor Mr. Enrique Lopez who holds his firm up to the highest standards of professionalism,” Culloton said. “Mr. Egan complies with Roseland Community Hospital Board policies and procedures including those addressing disclosure and potential conflicts of interest.”

Lopez did not respond to a request for comment.

by Nick Blumberg, WTTW/Chicago PBS, and Vernal Coleman, ProPublica

Toxic Salmon Reporting “Deeply Troubling,” Lawmaker Says, Demanding Changes to Protect Pacific Northwest Tribal Health

3 years ago

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.

Update: Dec. 15, 2022: This story was updated to include comments from U.S. Sen. Jeff Merkley, D-Ore.

State and federal lawmakers in the Pacific Northwest, as well as the region’s tribal leaders, are calling for environmental policy changes and increased funding to address toxic contamination in salmon following an investigation by Oregon Public Broadcasting and ProPublica. Salmon is a pillar of tribal diets and culture, often served at ceremonies and largely considered a medicine.

Although tribal members and researchers have been raising concerns about this contamination for decades, federal and state governments have failed to consistently monitor the waters of the Columbia River Basin for pollution in fish. Given the gaps in testing, ProPublica and Oregon Public Broadcasting did their own, revealing levels of contaminants in Columbia River salmon that, when consumed at average tribal rates, would be high enough to put many of the 68,000 tribal members living in the basin at risk of adverse health impacts.

“These deeply troubling results directly endanger people’s health and must lead to change,” Sen. Ron Wyden, D-Ore., wrote in an emailed statement in which he also referenced recent Congressional funding for the Columbia River Basin Restoration Program. “I intend to continue to fight for funding for this and other programs, as well as policy changes, to end this toxic threat to Tribal members from the salmon they count on.”

When pressed for specifics, many of the lawmakers did not offer any. A spokesperson for Wyden said the longtime elected official will be working on the issue with his counterpart Sen. Jeff Merkley, D-Ore.

“Our rivers and waterways are the lifeblood of our communities, and if they are filled with toxic chemicals, everyone and everything suffers — these results showing their devastating impact on our salmon confirms that,” Merkley said in an emailed statement. “I will keep pushing to expand and protect the Columbia River Basin Restoration Program I created, and support other changes and funding that will help tackle toxic pollutants.”

Washington’s Democratic Gov. Jay Inslee wrote in an emailed statement that the state “must carry on our work to identify and clean up contaminated sites, find safer alternatives to keep toxics out of products in the first place, and use our regulatory and enforcement authorities to limit the amount of toxics going into the water.”

Tribal members and researchers say the problem requires multiple approaches. They say lawmakers must make sure companies are legally and financially responsible for the pollution they emit, and regulators must enforce stricter water quality standards while fast-tracking industrial cleanups. Right now, when health agencies issue advisories warning people against eating fish from contaminated waters, environmental agencies are not required to act, which can allow the contamination to fester.

“We have fish advisories just about everywhere,” said Laura Klasner Shira, an environmental engineer for Yakama Nation Fisheries. “I can’t think of one that has been lifted.”

Staff with the Columbia River Inter-Tribal Fish Commission, a coordination and management agency representing area tribes, said that Wyden and Merkley have been responsive to tribal leaders’ calls for action in the past, conducting listening sessions with tribal members and incorporating tribes’ proposed solutions into legislation. If the lawmakers fail to institute changes that would protect tribal health going forward, the commission plans to quote their own statements to them in response. “I’m looking forward to publishing a letter back to them the next time” a rule or regulation falls short, said Dianne Barton, the group’s water quality coordinator.

Rep. Earl Blumenauer, D-Ore., also said that failing to take action in response to the findings could open up the government to legal liability. In the mid-1850s, the United States government signed binding treaties to preserve tribes’ right to fish for salmon as the country overtook millions of acres of tribal land. “This is the federal government’s obligation,” Blumenauer said.

For its investigation, ProPublica and Oregon Public Broadcasting purchased 50 salmon from Native fishers along the Columbia River and paid to have a certified lab test them for 13 metals and two classes of chemicals known to be present in the river. The testing showed concentrations of two chemicals — mercury and polychlorinated biphenyls (PCBs) — that the U.S. Environmental Protection Agency, as well as Oregon’s and Washington’s health agencies, deem unsafe at the levels consumed by many of the tribal members of tribes living in the basin today.

A spokesperson for Rep. Suzanne Bonamici, D-Ore., said she is considering introducing legislation to address this toxic contamination impacting salmon and other fish in the Columbia.

Additional members of the congressional delegations in Oregon and Washington did not respond to requests for comment.

The federal government has taken modest steps this year to clean up the region. In August, the EPA received $79 million over five years to reduce pollution in the Columbia River after Congress passed the Bipartisan Infrastructure Law. While this is the most money ever dedicated to cleaning up the Columbia, tribal leaders, local legislators and environmental advocates say it is just a fraction of what is needed to truly address pollution in the river.

At the White House Tribal Nations Summit two weeks ago, the federal agency announced proposed revisions to the Clean Water Act that would require tribal health and culture to be incorporated into federal water quality standards. These standards are used to sustain environmental objectives like clean drinking water and fish healthy enough for people to eat.

“The ability to exercise treaty rights to fish is completely dependent upon clean water and healthy ecosystems,” Aja DeCoteau, the executive director of the Columbia River Inter-Tribal Fish Commission wrote in a letter to the EPA last September, when the agency first began engaging with tribes on this potential revision. “EPA must consider their treaty-based obligations.”

Staff with the Columbia River Inter-Tribal Fish Commission said that while the Clean Water Act revisions would be a major step in the right direction, there are still gaps in the regulatory system that enable toxic pollution to continue to be dumped into and spread throughout the river.

For one, reports have found that the Clean Water Act does not sufficiently regulate materials like pesticides and fertilizers that end up on the ground then flow into waterways. This type of pollution, generated by large-scale farming, timber harvesting and other industries, is responsible for a significant share of contamination reaching the Columbia River today.

There are also new chemicals constantly entering the market and ending up in waterways like the Columbia, courtesy of what Barton describes as the reactive nature of the Toxic Substances Control Act. Historically, the law has not required companies to disclose the health impacts of new chemicals.

The general public, as well as tribal members, will have more opportunities to weigh in on the proposed revisions to the Clean Water Act during public meetings in January. Anyone interested in submitting written feedback to the EPA can do so until March 6.

As these processes play out, the results from the testing effort will be front of mind for many, especially those who continue to consume Columbia River salmon. “It’s definitely concerning,” said Jarred-Michael Erickson, chairman of the Confederated Tribes of the Colville Reservation, a group of tribes whose land abuts a section of the Columbia River in northern Washington. “It gives me more fuel to work on these issues.”

by Maya Miller, ProPublica, and Tony Schick, Oregon Public Broadcasting