WorkFARCE Development

Paul Ryan’s got a fancy new euphemism for the policy positions he’s held since doing keg stands in college; the Trump administration just got caught lying to the American public, and this time it could cost low-wage and tipped workers dearly; and Obama-era rules aimed at curbing disparities in special education are under attack. Subscribe to Off-Kilter on iTunes.

News broke this week that the Trump administration has been hiding evidence that’s of great importance to the public. No, we’re not talking about collusion with the Russians. We’re talking about the fact that we have now learned that the Trump administration lied to the public about evidence that a new policy the administration is pushing will cost low-wage and tipped workers billions of dollars in lost wages — which their employers will likely pocket. To get the scoop, Rebecca talks with Heidi Shierholz, senior economist at the Economic Policy Institute and former chief economist at the Dept. of Labor under President Obama. Next, black students are suspended and expelled at rates three times higher than white students, and students with disabilities are twice as likely to receive an out of school suspension compared with their nondisabled peers. Students of color with disabilities face the highest rates of school discipline of all. Yet the Trump administration is poised to roll back Obama-era rules aimed at curbing these and other disparities in education. Rebecca talks with Michael Yudin, former Assistant Secretary for Special Education and Rehabilitative Services in the Department of Education. But first, Rebecca and Jeremy are joined by Angela Hanks, CAP’s director of workforce policy, to unpack Speaker Paul Ryan’s latest attempt to rebrand his unpopular slash and burn agenda — this time, as “workforce development.”

This week’s guests:

• Angela Hanks, Director of Workforce Development Policy at the Center for American Progress
• Heidi Shierholz, Senior Economist at the Economic Policy Institute, former Chief Economist at the Dept. of Labor under President Obama
• Michael Yudin, former Assistant Secretary for Special Education and Rehabilitative Services in the Department of Education

For more on this week’s topics:

• Read more on Paul Ryan’s cynical attempt to rebrand cuts to Medicaid, nutrition assistance, and more as “workforce development”
• Check out Bloomberg’s scoop on how the Trump administration hid analysis showing that employers would pocket billions in workers’ tips under their new rule — and Heidi Shierholz and colleagues’ work finding that workers would lose a whopping $5.8 billion if Trump’s rule goes into effect, and tell Trump what you think by submitting a comment here.
• Get up to speed on what’s at stake if Obama-era regulations aimed at reducing disparities in special education are rolled back

This program aired on February 2nd, 2018

Transcript of show:

REBECCA VALLAS (HOST): Welcome to Off Kilter, the show about poverty, inequality and everything they intersect with powered by the Center for American Progress Action Fund. I’m your host, Rebecca Vallas. This week it came to light that the Trump administration has been hiding evidence that they knew a policy the administration is pushing would cost low-wage and tipped workers billions of dollars in lost wages that their employers are likely to pocket. I talk with Heidi Shierholz, former Chief Economist at the Dept. of Labor under President Obama. Meanwhile, Trump is poised to rollback important Obama era rules that protect students with disabilities from inappropriate discipline in the classroom and more. I talk with Michael Yudin, who served as Assistant Secretary for Special Education and Rehabilitative Services in the Department of Education. But first, all eyes were on Greenbrier, West Virginia this week as Republicans descended upon on that luxury resort to discuss how they wanted to take away food and housing and others things people need to live from people in this country. I’m only slightly exaggerating but I’m joined by Jeremy Slevin, the Slevinator, the man you know and love as well as special guest Angela Hanks, our director of workforce development at the Center for American Progress to talk a little bit about some of what went down there. Slevs, Angela, thanks for joining the show.

ANGELA HANKS: Thank you for having us.

JEREMY SLEVIN: Thank you for having us.

VALLAS: So, Angela we brought you into this conversation this morning because part of what happened at Greenbrier was, it’s now being reported that Speaker Paul Ryan gave a rousing speech probably over a huge steak dinner to his colleagues during the retreats at Greenbrier where Republicans have been decided what their agenda for 2018 will be. And in that speech he apparently started to float a new rebrand of the artists formerly known as welfare reform. I’m putting huge scare quotes around “welfare reform” of course as listeners I’m sure with know. And he started to use the phrase “workforce development.” What exactly did Ryan say and then I know what I want to say about it.

HANKS: Well I think in short Paul Ryan strikes again. We all know that Paul Ryan has dreamt since he was a college student doing keg stands that he could eventually take away food and healthcare from people in need and he’s at it again. So essentially what he would like to do is rebrand this effort to take away Medicaid and housing assistance from people who are struggling to meet basic needs is he would like to force those people to participate in workforce development, effectively what that will do is not make people in this country, will not increase the skills that people in this country, will not make people have access to better jobs, all it will do is make it harder for people to access basic services.

VALLAS: And one of the quotes that I love that was in response to this rebrand. We sort of need to call this out for what it is; it’s lipstick on a pig, it’s the same proposals about taking away things that help families afford the basics as you’re describing in the name of what he used to call welfare reform and maybe he’s now realized that cutting these things is really unpopular and people on onto him, they know what he’s actually trying to do. And there’s a great quote that I think really shines a lot of light on what’s going on here, that came from the chair of the House Republican Study Committee which is a super, super kind of right wing entity within the House Republican caucus. His name is Mark Walker and he was asked at the Greenbrier resort what Paul Ryan was talking about and what this workforce development stuff was all about he actually said that a little remarketing might be in order. Quote, “When we talk about Medicaid reform, that’s not a great buzz-phrase.” Jeremy, you’re just chomping at the bit to get in here.

SLEVIN: Saying this last night, they tried when Trump first came into office in 2017 to repeal the Affordable Care Act and go further and basically dismantle Medicaid through what they called per-capita caps. But end the Medicaid guarantee permanently, and their lesson from that, at least these House Republicans is not hey, maybe we shouldn’t cut people’s Medicaid in an election year, it’s we need a good buzzword for taking away people’s Medicaid. [PHONE RINGING] I think we have a caller on line two.

[LAUGHTER]

VALLAS: I do actually wish we had callers on this show but it sounds like it was a wrong number so Jeremy do continue to wax eloquently.

SLEVIN: I think that that caller came at the perfect time. That’s it, their lesson is we are so committed to cut Medicaid which by the way helps people who are struggling with opioid misuse, helps people with disabilities, helps seniors afford nursing homes. This is not just some welfare program and their lesson is we can’t call it welfare, we can’t call it Medicaid, so we just need a buzzword. Maybe workforce development is it.

HANKS: And ultimately the actual underlying policies have not changed at all. It’s ultimately still a plan to cut benefits that they’re just calling something different and what they’re not doing and what they should be doing instead is really focusing on things that will actually make work better for people in this country. They’re doing nothing to raise wages, they’re doing nothing it improve access to collective bargaining, they’re doing nothing on paid leave, nothing on access to affordable child care so effectively what they’re saying is now you need to go out and get workforce development in order to get these basic services and P.S., we’re going to cut funding for workforce and we’re going to make it harder for you to get a good job.

VALLAS: And that’s part of what’s amazing here, right? We’ve watched them try to hide the ball on what they’re trying to do, we’ve also watched them totally show their hand and tell us exactly what they’re trying to do. It’s sort of fluctuated back and forth in a bizarre and somewhat disjointed past year that we’ve all been living through. But in this moment what’s almost unbelievable about this new rebrand, the new shade of lipstick that they’re trying to put on the same pig as you were describing, Angela, is that they’re calling it something that they actually are in the process of trying to cut.

HANKS: Last year Trump put out a budget that would have cut funding for workforce development programs by 43%. I mean effectively dismantling the programs that exist today so the idea that people are going to workforce development that at a greater rate is just totally unrealistic. Not to mention the fact that workforce development doesn’t make you healthier, it doesn’t make you access housing any more quickly, it doesn’t substitute for all of these basic needs that people need met before they can move into the labor force.

VALLAS: Workforce development is a great thing. Let’s be clear about that, helping people who want to get ahead in the labor market by giving them access to job training, skills development, credentialing, education, adult basic education –

SLEVIN: Taking away their health care, cutting their food, those all sound like workforce development!

[LAUGHTER]

VALLAS: Right.

SLEVIN: Job training, not having access to health care, non-sequitur.

VALLAS: You’ve being a little snarky here Jeremy, which I know is, it’s a new thing for you, it’s not a new thing at all. But in all seriousness, workforce development is obviously a hugely important, really positive thing. But it doesn’t mean that doing all the things Jeremy just described which are what Paul Ryan is actually using this as code for are anything that has anything to do with workforce development. There’s exasperation in my voice because it’s almost amazing how bonkers this attempt at pretending that what they’re trying to do by cutting programs that help people literally stay alive is somehow about helping people.

HANKS: Exactly, workforce development can be great but you really have to be prepared for it and if you’re experiencing housing insecurity or food insecurity, now isn’t the time to think about workforce. So I think that there’s one thing in terms of timing and the second is really one of my other concerns with what the administration has done and what congress is doing is that quality is really a big part of workforce too. So at the same time that they’re sort of threatening people with losing their benefits and forcing them into these program, they’re also working to make those programs worse not only by cutting the funding but also by relaxing the quality standards and I’ve written about how they’re doing this in apprenticeship programs but I think there’s a concern out there that what they’ll end up doing is pushing people into these programs that ultimately are low quality and either lead to no job or jobs that pay low wages.

VALLAS: And wages are a huge part of the story here, we’ve talked a lot about this on the show including last week Jeremy, you and I were talking about Trump said at Davos, at the World Economic Forum, the way out of poverty is a big, beautiful paycheck is actually the quote. And yet, Trump and Ryan and McConnell and all the Republicans in Congress and in Washington broadly are refusing the raise the poverty level minimum wage. So calling cuts workforce development first of all not at all something that makes the cuts helpful to people or anything that resembles workforce development but also even if this really were about helping people access workforce development, for all the reasons you just described and more it doesn’t mean that people are going to end up being able to find a job that pays enough for them to be able to afford safe and stable housing for their family, nutritious meals that their kids can end up going to school and learning on instead of an empty stomach, healthcare, all those things, right Jeremy?

SLEVIN: It’s an non-sequitur to me. There are two different things. Yes, of course, we need, it would be great if they weren’t cutting workforce development by 43% and were instead investing in more job training and more apprenticeships and more help for people who need work and raising the minimum wage. That is not what they’re doing and instead they are taking away all of their supports and calling it workforce development. And the most shocking thing is that Ryan does not have it in him to give up on it. We now know that he is a true believer in taking away people’s healthcare because every poll, all Republicans themselves say this is political dynamite, this is political kryptonite in an election year. Mitch McConnell is saying do not touch this. Donald Trump said we shouldn’t do this in an election year, we’ll do it on a bipartisan basis and Paul Ryan is literally like, hey guys, heard about my new thing? It’s not called welfare reform, it’s called workforce development. He can’t give up.

HANKS: And let’s not forget this literally the ink is barely dry on their tax bill that would give away just billions and billions of dollars to the very wealthy and to corporations and Paul Ryan while he’s been pushing for workforce develop AKA cutting essential benefits, has also been touting these bonuses that some employees at some companies are getting that’s not a wage policy. Wages aren’t going up for workers and they’re doing nothing about it and in fact they’re actually working to make it worse in a whole host of wages.

VALLAS: Now of course this rebranding isn’t anything new. That’s the other thing that I think is important here to connect the dots. We’ve been watching for the past several months and now finally we’re actually watching it play out in the states the Trump administration tried to dismantle Medicaid by fiat, effectively because they were unable to do so through legislation because Medicaid’s really popular. So as Jeremy, I love the way you’ve put it, the takeaway was not oh maybe we should stop overriding the wishes of the American people, it was maybe we should find a way to do this over their wishes and objections and hope they don’t notice and here’s where the connection to workforce development comes in. They’ve been doing that with all of this puppies and rainbows language about helping people work, promoting work, community engagement, it’s actually good for people. Work makes people healthier, that was all of the press packaging that they did around Trump’s order to end Medicaid as we know it by allowing states to take away health insurance for the first time in the Medicaid program’s history from people who can’t find work. This is just that on steroids.

SLEVIN: And broader and more expansive in applying potentially to other programs like this is their vision for the country. You pass a giant deficit busting tax increase that will exacerbate inequality and then the way you pay for it is by taking away basic services and pretending that that somehow helps people and it’s actually when you boil it down it’s quite simple. They can dress it up in all their rhetoric but it’s very simple. You give more money to wealthy corporations and rich people and then you take away healthcare, food and housing from people who can’t afford this.

VALLAS: And Angela this also connects to the conversation around infrastructure. Trump has made a lot of promises including in his state of the union earlier this week that he’s going to produce some big beautiful infrastructure plan. He’s talking about somewhere upwards of a trillion dollars he’s claiming he wants to invest in job creating infrastructure projects. We know that’s not actually what this plan would do it would massively enrich Wall St. and private investors while pretending that it’s about creating jobs. But again, all wrapped up in this Orwellian paternalistic language about helping people.

HANKS: I think that one thing that Paul Ryan and even Trump too has been really good at is taking things that branding things are ultimately bad for workers as things that people generally think are positive. So I think they’re broad agreement that infrastructure investments are good, broad agreement that workforce development investments are good but ultimately the devil is in the details and certainly with the infrastructure plan it’s a lot of smoke and mirrors and ultimately the trillion dollars he’s promise is not that, it’s this massive transfer to Wall St. and the same thing is true with for workforce development. And the hard thing about that is it makes it really difficult to explain that no, we’re not actually getting a big infrastructure plan, no we’re not actually getting big investments in workforce development, this is all about ultimately making the wealthy wealthier and doing very little for working people.

VALLAS: We’re going to have to create a new segment of the show that’s all about decoding Paul Ryan and his colleagues in Congress because it’s almost giving me whiplash to keep track of what the new buzzword is but folks stay tuned, this week it’s workforce development, we’ll see what it is next week. Don’t go away more Off Kilter after the break and Angela and Jeremy thank you so much for joining the show.

HANKS: Thanks Rebecca.

[MUSIC]

VALLAS: You’re listening to Off Kilter, I’m Rebecca Vallas. News broke this week that the Trump administration has been hiding evidence that’s of great importance to the American public. No, I’m not taking about collusion with the Russians, that’s an entirely separate conversation. I’m talking about the fact that we have now learned that the Trump administration lied to the public about evidence in its possession, in fact evidence that it created through it’s own analysis that a new policy that the Trump administration is pushing will cost low-wage and tipped workers billions of dollars, billions with a ‘b’ in lost wages. With me to unpack what happened, what we’ve learned and what that policy is all about is Heidi Shierholz, she is Senior Economist at the Economic Policy Institute and former Chief Economist at the Dept. of Labor under President Obama. Heidi, thank you so much for joining the show.

HEIDI SHIERHOLZ: Thanks for having me.

VALLAS: So just to take our audience off of tenterhooks what is it that we learned this week? What is this policy that the Trump administration is advancing and what are they hiding?

SHIERHOLZ: OK so backing up just a little bit in December the Trump administration released a proposed rule so they’re going through the rule making process to try to get to a place where it is legal for employers to take workers tips. And the meat of that is there were current regulations on the books that the regulations were from 2011 but it was just long standing practice at DOL to say that tips cannot be taken by employers. They have to remain with workers. So the Trump administration is trying to undo that rule, they want to rescind those regulations and one of the issue with that is that it’s really bad for workers. So the Department of Labor has bent over backwards in a bunch of different ways to try to make it seem like it’s not terrible for workers like they talk about it as if it’s about tip pooling because theoretically employers who take tips could share some of those tips with the back of the house workers or other untipped workers but there is nothing in this rule that says they are required to do so. So what’s going to happen is employers will end up just pocketing a lot of those tips that they confiscated from tipped workers. And the controversy that broke this morning is that in their proposed rule, DOL claimed that they could not do a quantitative analysis of how much in wages and tips would be transferred from workers to employers as a result of the rule. There was too much uncertainty, they lacked the data to do it and what was revealed today is that that was all untrue. They actually did the analysis, it showed billions of dollars being transferred from workers to employers as a result of this rule. They actually took it to the Secretary of Labor who said OK we can’t actually publish something that shows this because this will make us look terrible. Take this back to the drawing board and see if you can bring me back smaller numbers, they did that, they never got it down as small as was comfortable for Secretary Acosta and so they just got approval from the White House to remove the analysis entirely so this proposal was released without any quantitative economic analysis about the impact the proposed rule would have on workers on the public and this gets into a wonky piece but that, they are legally required to tell the public to quantify the economic impact to the extent possible.

VALLAS: So to summarize a high drama set of events that have now come to light which sound incredibly wonky but have really, really significant importance when it comes to how policies are made in this country when it’s not through legislation but it’s through this rule making process that they are using here. It has come to light this week that not only did they try to figure out a methodology to get the number down a number they were comfortable with in terms of how much employers were going to end up pocketing in the way of workers, tips and wages, but they decided because they couldn’t get the number down low enough that they were just going to pretend they’d never done it at all. Is that what we’ve learned?

SHIERHOLZ: Yep, that’s what we’ve learned. They said in their proposal we were and I quote, “Unable to quantify how customers would respond to the proposed regulatory change.” We are quote, “currently lack the data to quantify possible reallocation of tips.” So they just said in a bunch of different ways we can’t do this whereas we know they did do it, the numbers looked bad for them and so they buried it.

VALLAS: Now this is — go ahead, Heidi.

SHIERHOLZ: I was just going to say, this is real malpractice. The public deserves to have those numbers but they make the department look like it is not doing, not living up to it’s mission of actually protecting workers, in fact it’s just going to transfer a whole bunch of money from workers to employers and they wanted to hide that fact.

VALLAS: Now in a lot of ways what has come to light this week is basically that the Trump administration when they went to crunch the numbers on this policy it looks like they found something incredibly similar to what you guys had actually already been, you at the Economic Policy Institute, EPI, had already been telling people for a while since the administration announced that they wanted to move forward this so called tip stealing rule as a lot of folks are calling it. You guys had done some analysis finding that overall if this rule goes into effect workers will lose billions in lost tips and wages. Help us understand what this rule would do and who it is going to hurt?

SHIERHOLZ: So we don’t know exactly what the DOL estimate was. We know it’s in the billions but no one knows the actual number. No one, it’s not public. So but EPI and I was a huge part of that did an analysis, I worked at the Department of Labor. I worked on many, many analyses that they do like this. I have full confidence that the analysis that we did at EPI likely used the same data that DOL used for their analysis, it likely used a very similar methodological approach that DOL used in their analysis. And when we did it we came up with an estimate that $5.8 billion would be shifted from workers to employers as a result of the rule and that nearly 80% of that, or $4.6 billion would be taken from the pockets for women who work for tips and that’s primarily because women are much more likely in tipped jobs.

VALLAS: Now it’s not just tipped workers who are actually at risk of being hurt here, your analysis actually indicates that low wage workers in other minimum wage workers, whether that’s dishwashers or other folks who work in the back of the house as you put it before are actually harmed under this rule.

SHIERHOLZ: My analysis, one of the interesting things that’s the backdrop to this is that DOL has been trying to sell this rule as something that will make restaurants more egalitarian, it will actually help things because now we’ll have this pooling better paid tipped workers and lower paid back of the house workers like dishwashers and cooks. As a side note one of the things that DOL ignores entirely is that about a quarter of tipped workers do not work in the restaurant industries. They are car wash attendants, they work in barber shops, etc., so where there is not this front of the house and back of the house dynamic but aside from that they have been trying to sell this as it will really help back of the house workers. And the thing is even though employers could theoretically give some of the tips that they confiscate from tipped workers to back of the house workers, actually if you look at it from the economics of it, it is very unlikely that they will do that. The rule does not require them to do it, they would be no more likely to share tips with back of the house workers than they would be to make any other choice about what to do with that shiny new revenue stream which is what being able to confiscate tips would mean to them so they could increase executive pay. They could just make capital improvements to their establishment. They could just line their own pockets. At basic economic logic, those back of the house workers are not going to get more pay.

And the way to think about it is there is no limit to what employers can pay those workers right now. So they are currently already paying those workers what they need to pay them to attract workers to those jobs. So in that sense they don’t need to quote, unquote, pay them more when they’re trying to what to do with a whole bunch of money that’s now in the back of their pockets they look and say we’re already paying those workers enough to get workers in those jobs. We don’t need to pay them more. We’ll do something else with it. And I think; we’ll do something else with the money. So I think there maybe as a result of this rule some pretense of employers sharing tips with back of the house workers but the economics suggest that that will very likely be offset with those back of the house workers actually getting lower base pay so their take-home pay is really unchanged by this rule.

VALLAS: Now this is hardly the first time that the Trump administration has been caught either lying, that’s a big bucket, we’ll just put lying aside, or hiding evidence or facts in ways that are inconvenient for the policies they’re looking to advance or the Obama era policies that they’re looking to roll back. A couple of examples, in September of last year the Wall Street Journal reported that the Treasury Department took down from its website evidence inconvenient evidence that trickle down tax cuts don’t actually help working families. Shocking right that that was evidence that would be inconvenient to the Trump administration. It’s also been widely reported that the Trump administration has removed all kinds of data from various federal websites. It stopped funding scientific inquiry on climate change, I could go on and on. But you made a point that I don’t want to lose given that this feels like the new normal that this is the way that the administration just behaves everyday and sometimes multiple times in a day. You mention before that because there are very specific rules governing how rule making is to happen in this country so policies being moved forward through the official rule making process, there are very specific rules that it appears that the Trump administration has explicit and very clear broken here by withholding evidence and lying about evidence in their possession about this rule during a comment period. Can you explain a little bit about how that works, wonky though it is because I think it’s important to understand and what you think might end up actually happening here because of this news coming to light?

SHIERHOLZ: The backdrop is what you said, it’s just more evidence that this administration is just extremely willing to dispose of inconvenient facts and that is a disturbing mode of operation of this administration. In this particular case, they are, even aside from the fact that they buried this analysis, they are simply required as part of the rule making process to quantify to the extent possible the economic impact so that the public has that information in hand in order to comment on the purposed rule. So that the rule making process in general just is really basic in some sense. The agency puts out a proposed rule, anyone can comment on it. The public, advocates, business groups, anyone has the right to tell that agency what they think about their rule. The agency is actually required to read it and to take it into account as they’re crafting their final rule. So in that proposed rule stage, it’s absolutely crucial the public is given all the information it can to understand the impact of the rule so they can comment on it with all that information in hand.

And so that’s why there’s all these really specific rules about you just have to quantify things to the extent possible. DOL claimed it wasn’t possible for them to do this quantification. It was always fishy, we went out, when they said they couldn’t do it, in less than two weeks we produced an estimate. It wasn’t rocket science. And the fact now that we know that they did do an analysis and then they just buried it because the numbers didn’t look right to them but then on top of that they claimed in their analysis that they couldn’t do it. They didn’t have the right data, there was too much uncertainty. Just nothing is adding up there. It is absolutely in my view given all that has happened, they really need to just withdraw this rule. There’s no, they need to withdraw this rule, re-do the economic analysis, republish it. If they want to keep doing it, if they want to keep on with this rulemaking process they need to withdraw this rule, publish their economic analysis and let the public comment on their analysis and then rule with all the information at hand.

VALLAS: EPI has called on the Department of Labor and the administration broadly to withdraw this rule, others in the field as well such as the National Employment Law Project and a whole range of advocacy groups have all called on the administration to withdraw the rule and to redo this analysis as you’ve described. Do you think that there is a realistic chance, even a snowball’s chance in you know what that they will actually withdraw the rule and if they do not do you believe that we’ll see litigation?

SHIERHOLZ: So, I don’t know what they’ll do. There is definitely a lot of people calling for it to be withdrawn, they absolutely should. If they don’t, I don’t actually, so this is where I get out of my wheelhouse because I’m an economist, not a lawyer so I’m very comfortable talking about the analysis and I’m not sure about the trajectory of litigation risk going forward. But here is what I do know. Them not following these rules, claiming they can’t do something that they were required to do and then having it be reveled that they did do it, it all opens them up to litigation risk. It opens them up to legal challenge. And so I don’t know what’s going to happen going forward but this certainly leaves them in a vulnerable position.

VALLAS: I have to say it makes me, as the recovering lawyer talking to the economist want to email my administrative law professors from law school to say hey do you think there is a challenge here, because I’m currently nerding out. But definitely something for us to watch. In the meantime the comment period is actually still open although that window is rapidly closing. For folks who are listening and want to know what is it that they can do in this moment, what can people do, what action steps would you suggest people take?

SHIERHOLZ: This is actually a really fun one. If you go to regulations.gov and you can just search “tips” then it comes up and you can see the rule. There is lots of stuff on the page but there’s a really bring green button that just says “submit comments.” And it’s really user friendly, you can just click on that “submit comments’ and you enter your name and information and then there is a space where you can write how you feel about this rule if you don’t want to use that space you can also upload a document but it’s a time where you can actually participate. There are already something like 300,000 comments have been submitted so it’s something that the public can and should do right now the vast majority of those comments I think unsurprisingly given the nature of this rule are opposed to this rule. So people should get out there, it’s so easy if you go to regulations.gov, search “tips” press the submit a comment button, you can do it really quickly and it’s a great way to participate.

VALLAS: And we’ll make sure that a link to that comment page is also available on the Off Kilter show page on Medium. Heidi Shierholz is senior economist at the Economic Policy Institute one of the groups that’s been leading the charge, especially in light of this news that the Trump administration has been hiding evidence about what it’s tip stealing rule would do to workers. She is also former chief economists at the Department of Labor under President Obama. Heidi thanks so much for joining the show and for everything that you are doing to stop this rule.

SHIERHOLZ: Thank you it has been my pleasure.

VALLAS: Don’t go away, more Off Kilter after the break, I’m Rebecca Vallas.

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You’re listening to Off Kilter, I’m Rebecca Vallas. Black students in the United States are suspended and expelled at rates three times higher than white students and students with disabilities are twice as likely to receive an out of school suspension compared with their non-disabled peers. Students of color with disabilities face the highest rates of school discipline of all, yet the Trump administration is poised to roll back Obama era rules aimed at curbing these and other disparities in education. With me to discuss is Michael Yudin, he’s served as Assistant Secretary for Special Education and Rehabilitative Services in the Department of Education under President Obama where he designed policies to ensure equal opportunity in access to education and employment for individuals with disabilities. Michael, thanks so much for joining the show.

MICHAEL YUDIN: Sure, it’s my pleasure to be here.

VALLAS: So where to begin? So just to kick off there’s a term, a buzzword that often gets used in the education space. That word is “disproportionality” and I hit a little bit of that in my intro talking about some of the disparities in school discipline rates depending on whether you’re a student of color, a student with a disability, both. Help us understand what is disproportionality and how does it come about in the education context?

YUDIN: There are a couple of things to talk about here. One is in particular which I want to spend a little bit of time talking about is around significant disproportionality, that is a specific term that is used in the statute, in the federal law around special education so I want to make sure we spend some time talking about that but we talk about disproportionality and disparities and there are very significant disparities in a number of areas of education, particularly around children of color. And as you mentioned particularly around the discipline, we know that kids of color are more likely to be suspended or removed from the classroom for the same types of behaviors as white children. Suspensions overall, removing a child from a classroom is not an intervention, it doesn’t address behavior. We have great research that shows that when you remove a kid from a classroom actually it doesn’t address the behavior it doesn’t improve classroom management and has very significant outcomes and impact on children that are removed. They do more poorly in school, they are more likely to be retained, they are less likely to graduate, more likely to drop out and actually we know they are more likely to enter the criminal justice system. So it’s wrong on so many levels. But we know, unfortunately, that kids of color are in fact disproportionately removed from the classroom.

VALLAS: You mentioned what people often refer to and understand as the school to prison pipeline as one of those pieces that might be an entry point to this conversation that some of our listeners are familiar with. But on particularly the disability side, what are the causes, what the pathways to this significant disproportionality that we see playing out in the classroom?

YUDIN: That’s a great question and honesty I think the answer depends on the particular school district and the state and the demographics and the politics and the policies and the resources that are available. That being said, Congress has long recognized that children of color are significantly more likely to be identified as needing special education, as being placed in special education than would be thought of their percentage of population in the overall student population. So for a long time they’ve recognized this is a problem and in fact they put provisions in the law that require states to collect data from their school districts and make determinations that if a school district has significant disproportionality that means if they are disproportionately identifying children based on race or ethnicity as needing special education in a particular category, a disability category and we can talk a little bit about that, but it’s also in placement and where kids with disabilities are educated and in discipline as well. So congress put in place a set of provisions that said look, this is a long standing problem. We could talk a little bit about what that looks like but this is a long standing problem, we’ve known for decades that kids of color are more likely to be identified as needing special ed, they’re more likely to be educated in segregated, self contained settings. We know separate but equal is inherently unequal. And there are a lot of, there are consequences and impacts that result from that and then of course in the discipline space.

So congress put in place these provisions, let’s identify school districts with significant disproportionality and then there are a set of remedies that these districts must put in place to address it. So they have to set aside resources that get to the problem, that get to the root cause of why they have this disproportionate representation of kids of color in special ed. They have to review their policies and procedures and practices. So there are in fact, look you have to collect this data, make this identification as having significant disproportionality and you have to address it. Congress put this rule into law in 2004.

VALLAS: So now help me understand what’s at risk here. You’ve outlined what was put in place and a little bit about the problem. You were at the Department of Education at the time that some very important regulations were moved forward that is all about addressing the problems you’ve been describing. What is it that we’re fearing that the Trump administration is poised to do?

YUDIN: So like I said the congress put this provision into law in 2004 and during the Obama administration we were looking at the data, we were looking at the data, how are kids of color doing in special ed? Is this issue being address? The rule has been in place now for a number of years, what does it look like? And we knew from 2012 and 13 and 14 we had data that showed that Black students are still, despite this change of the law, this requirement in law, Black students are still 40% more like to be identified as a student with a disability. They are twice as likely to be identified as having an intellectual disability or having an emotional disturbance. We know that Hispanic children are 40% more likely to be identified as having a learning disability, we know that American-Indian and Alaskan Native children are 60% more likely to be identified as having an intellectual disability. So we have this data, we know in the discipline space we know for example that 6% of all kids experience it. At least one out of school suspension that number then doubles to 12% among children with disabilities, and then it doubles again to a quarter of children for Black, Hispanic, multi-racial and American Indian Alaskan native children, boys with disabilities.

So we have these great disparities and we have this provision of law that was put in place to address it. We saw the data, we still saw that these numbers were nowhere near acceptable. And what happened as the Government Accountability Office did a study. They said alright how are states implementing this law because we know that this is still a problem and then found that states were not implementing the law in any meaningful way and in fact, they found that only 2% of all school districts in the country, there are over 15,000 school districts, that’s about 350 out of 15,000 were identified as having significant disproportionality despite the fact that our data showed much, much higher percentages and rates of significant disproportionality. So one of the reasons why was because the statute did not define significant disproportionality and the guidances at the time of the statute left it up to the states to decide. You figure it out, you just make your determination what is significant disproportionality and in fact states were gaming it and weren’t doing it properly. We can’t really begin to address this problem unless we’re having meaningful, honest conversations about the data.

And so the Obama administration moved forward and issued a set of regulations that said alright, we’re going to do a couple things. We need to make sure that children with disabilities, particularly children of color are in fact properly identified for services. If they’re not we know that there are inequities. We know that kids of color if they are more likely to be segregated and educated in self contained settings so they’re less likely to interact with their peers, less likely to have access to rigorous coursework, effective teachers and the like, enrichment activities. We know separate but equal isn’t inherently unequal. So one thing to note, it’s not just these opportunities that are lost. We look at the outcomes and I want to just, I keep talking about data but that’s what this is about. We got to have meaningful honest conversations about what the data is.

VALLAS: I’m not going to sit here and throw stones from a glass house and tell you not to talk about data, Michael, you’re well within your right.

YUDIN: One keep point here is to note that when we talk about how are kids with disabilities doing? How are kids of color in reading and math and we look at certain pieces of data, I can tell you, this is astonishing and it’s important to note that for the vast majority of kids in special ed do not have significant cognitive impairments that inhibit their ability to access the content. So they have speech impairments or physical impairments or attention deficit disorder, reading disabilities, emotional disturbances. The vast majority of kids don’t have cognitive impairments that inhibit their ability to access the content. They just need to learn a little bit different. They need interventions and special designed instruction or maybe some accommodations or supports. But again, the vast majority don’t have cognitive impairments that prohibit them from accessing the content. With that in mind, we look at the data, the data shows us unacceptable and horribly that only 3% of black fourth graders with disabilities are proficient in reading. 3, 3, 3!

VALLAS: I’m taking that number.

YUDIN: Only three percent are proficient. So all of this has an impact on outcomes. It’s not just oh, are you educated in a segregated setting or are you more likely to be disciplined. Kids can’t reading, they’re not reading. So we know this has very serious impact.

VALLAS: You started to go where my next question was going to take us. To back up, a lot of folks may be listening and thinking, wait a second, I’m familiar with the challenges in special education being that people have trouble accessing it and maybe people themselves are parents with children with disabilities or with some type of special needs in the classroom and who might have met with trouble or resistance from a school in actually going through what’s called the IEP process which is about sitting down and saying on an individualized basis what is it that this child needs to thrive in the classroom? And lot of folks face those kinds of barriers. I’m really glad that you’re helping tell the other side that it isn’t all positives when someone gets referred to special education because it isn’t always appropriate.

YUDIN: It’s not always appropriate. In and of itself, if you get an IEP, any child to get an Individualized Edcuation Program, let’s look at what the kids’ needs are, their strengths, their talents, their needs and develop an individualized education plan to meet those needs. That in and of itself is a great thing. But what we know happens particularly for kids of color is there are great disparities in how this actual plays out. We talked about kids of color are again, with disabilities are more likely to be educated in self contained and segregated setting so they don’t have access to their peers or the effective teachers or the coursework. So in and of itself being identified special ed is certainly not the problem, it’s making sure, are we getting the right services to the right kids. It doesn’t do a kid or a school or a parent or a teacher any good if you’re providing the wrong services to a kid.

VALLAS: So what the school perspective here? Is there a, I’m assuming there are schools out there who might be saying look we’re trying to do the best that we can but we’re under resourced and we’ve got all these kids who have all different kinds of needs and we’re doing what we can. Is there some legitimacy there? Is there a way there’s also a piece of this that’s about trying to help schools do better and is that part of what is at risk of being rolled back?

YUDIN: Yeah that’s a great question. There’s no question about it; special ed is challenging, it’s difficult, it’s under resourced for sure. I could sit here all day and talk about how much we need to invest in education and particularly in special ed and the federal government has utterly failed to do that and to live up to their commitment and promises that they’ve made around special education. That being said, it’s incumbent upon us to address inequities when we know that they’re there and in fact that the law requires it. So yes it’s hard but what this regulation did that we put in place is it said alright states, use this standard approach there was an enormous amount of flexibility. They had a lot of time, a lot of resources, the department of ed put a lot of technical assistance and support behind this. And use a standard approach to identifying significant disproportionality. And then when you do that, that’s when the law kicks in. so yes, it’s hard because school districts that are in fact identified have to set aside resources but they are resources that are there for special ed, these are special ed dollars, they have to set aside those money to provide comprehensive coordinated early intervening services. So take a portion of your special ed dollars and figure out how to address it, right. And take a look at your policies and your practices and procedures and address the root causes. Why do you have these disparities? Why is this disproportionality happening? So yes it’s hard but 3% of black children with disabilities are proficient in reading, that can’t, hard doesn’t matter. It just doesn’t matter. This law has been in place, this rule has been in place for years now and these regs that we issued a couple years ago gave states a lot of time, a lot of flexibility to figure out how to do this right with stakeholder involvement. This isn’t about, it was never about identifying bad actors. This was never about casting blame, oh you’re racist, this was just like let’s just look at the data. Let’s have an honest, transparent conversation about what the data says.

VALLAS: So in the couples minutes that we have left, we’ve mentioned that these regulations are at risk of now being rolled back. That’s actually something that the Trump administration is in the process of taking steps to do as we speak. It’s kind of an arcane process but would love for you to describe what to be watching in the weeks and months ahead and our listeners love to get engaged and get involved and so for folks who are listening right now and going wow I really want to do something to raise my voice and tell Trump no on rolling back these kinds of protections, what should we be watching in the weeks ahead and what can listeners do?

YUDIN: Yeah, Rebecca, that’s a great question. It is happening as we speak, there were reports a number of months back that this administration, Secretary DeVos and the Trump administration were going to roll back these rules. We don’t know exactly what’s going to happen but we do know for a fact now that it is in the review process, it is official in the process. We’re not sure if it’s going to delay them or rescind them but the trush of the matter is is that kids of color in special ed have been facing these inequities and these disparities for decades. this is systemic and long standing and the fact that the Trump administration wants to actually, is attempting to roll them back is unacceptable. This is just, kids can’t wait for any longer, we’re losing an entire generation of children that aren’t getting the services that they need to get so this proposed rule is with the Office of Management and Budget, it’s in the process of review. It is very likely to be rolled out and published soon as a notice of proposed rule making. And what that means is that the public will have an opportunity to look at this proposed rule that either rescinds or delays or something and comment on it. There is by law the opportunity to provide comment and that is a critical, critical part of the rulemaking process. So as we pay attention to this and the rule becomes public that’s the opportunity for folks to weigh in. The Department of Education is in fact required by law to address those comments so it’s really critical that folks weigh in.

VALLAS: So this is that moment, comment is the magic word and we’ll make sure that we have a link on the syllabus page so that folks can figure out where to raise their voices. Michael Yudin is a former Assistant Secretary for Special Education and Rehabilitative Services in the Department of Education under President Obama where he designed policies like the ones we’ve been talking about to ensure equal opportunity and access to education for individuals with disabilities. Michael, thanks so much for taking the time and for what you’re doing to fight on these issues.

YUDIN: Thank you so much Rebecca, and thanks for calling attention to this really important issue.

VALLAS: And that does it for this week’s episode of Off Kilter, powered by the Center for American Progress Action Fund. I’m your host, Rebecca Vallas, the show is produced each week by Will Urquhart. Find us on Facebook and Twitter @offkiltershow and you can find us on the airwaves on the Progressive Voices Network and the WeAct Radio Network or anytime as a podcast on iTunes. See you next week.