New York makes it hard for citizens to influence policy. They cannot put an issue on the state ballot no matter how many signatures they gather. And although the state Constitution has a home rule provision, cities and counties lack authority to undertake some of the most basic initiatives. Even mighty New York City, with over 8 million people, must go hat in hand to Albany to request permission to reduce city speed limits, install red light cameras, open their courts at night, or raise taxes other than those imposed on property.
Which makes it even more impressive that in the past few years initiatives from the bottom up have won two and a half significant victories in the face of vigorous opposition from giant corporations and ongoing hostility from state government. (I explain below why I list a partial victory.)
Minimum Wage
In 2012 New York’s minimum wage was identical to that of the federal government: $7.25 an hour.
That November workers at Wendy’s, McDonald’s and Burger King in Manhattan walked off the job to protest low pay and poor working conditions. With the assistance of the Service Employees International Union the Fight for $15 campaign was born and later spread across the nation.
In 2013 Governor Andrew Cuomo and the state legislature did agree to slowly raise the minimum wage to $9 an hour by December 2015. But there they drew the line. In January 2014, in his first State of the City address New York Mayor Bill de Blasio urged the legislature to let cities set their own minimum wage. Cuomo quickly rejected the proposal. Doing so, he explained, could lead to a “chaotic situation.”
In June 2014 two events occurred that moved the Fight for $15 to another level. Seattle became the first city to embrace that wage and Cuomo did what the New York Times called an “about-face on raising the minimum wage” by supporting a higher minimum wage for high cost cities like New York than lower cost cities in upstate New York.
The about-face, the Times noted, was an outcome of negotiations with New York’s Working Families Party (WFP). A little background might be helpful here. New York is one of the very few states with a fusion system of voting. In the vast majority of states an independent party must not only win a certain number of votes to get a line on the ballot but must nominate its own candidate. That often leads them to play a spoiler role: taking votes from a candidate the party’s members would have liked to endorse. Fusion states like New York allow a new political party to endorse another party’s candidate. Which in turn allows third (and fourth and fifth) parties to quantifiably demonstrate their clout and that affords them real political leverage.
In 2014 Governor Andrew Cuomo was seeking a lopsided victory in the upcoming election to boost his presidential ambitions. To achieve this he needed the endorsement and votes of the WFP. But most WFP members opposed Cuomo’s indifference to the power of big money on politics and the worsening plight of workers. They were ready to nominate Zephyr Teachout, a law professor who in 2004 had been on-line coordinator of Howard Dean’s Presidential campaign.
On the last day of May, the day before the WFP convention convened Cuomo finally agreed to support WFP’s program and by a close vote he gained its endorsement. That agreement included supporting a higher statewide minimum wage for NYC of $13.13 an hour.
To no one’s surprise Cuomo did not fully live up to his promises but in January 2015 he did ask the legislature to raise the minimum wage to $11.50 an hour in New York City and $10.50 an hour in the rest of the state. “We applaud Governor Cuomo’s proposed increase…”, Bill Lipton, the state director of the WFP said. “But $11.50 is almost $2 less than what he endorsed last spring.” The legislature rejected Cuomo’s proposal.
In May Cuomo convened the New York Wage Board, an agency established in 1933 with the power to raise wages for specific groups of workers without legislative approval, and asked it to recommend a minimum wage for the state’s 180,000 fast food workers. In July, after hearing testimony from scores of workers the Board recommended a wage of $15 an hour.
In September Cuomo signed the recommendation into law and announced his support for a statewide $15 minimum wage. “Cuomo Pivots Again as He Seeks a $15 Minimum Wage,” the Times reported. “Just six months ago he said $15 an hour, the minimum that fast-food workers demanded, was ‘too high’ and proposed $10.50 as an alternative.”
Fracking
In the late 1990s horizontal drilling combined with hydraulic fracking opened up vast new energy sources from shale. One of the richest deposits is in the Marcellus Shale formation underlying all of West Virginia, much of Pennsylvania and southwestern New York.
Between 2005 and 2010 the country’s shale-gas industry grew by 45 percent a year. As drilling sites proliferated people discovered their mostly rural communities were being turned into industrial free fire zones. In 2009, 13 water wells in Dimock, a Pennsylvania town near the New York border were contaminated with methane. One exploded. The incident received national publicity.
People living on the other side of the border took note and launched a huge, decentralized, region-wide teach-in. Discussion groups met in basements and living rooms and city halls. And as they learned, they expanded their educational network. In Dryden, Judy Pierpont recalls, “We started out with about eight of us but then friends, and friends of friends, and friends of friends of friends joined.” Kelly Branigan, an activist in Middlefield told Ellen Cantarow, “In Middlefield, we’re nothing special. We’re just regular people who got together and learned, and reached in our pockets to go to work on this. It’s inspiring, it’s awesome and it’s America—its own little revolution.”
Within two years the little revolution had become a big revolution. To Jack Ossont, a former helicopter pilot fracking had become “the tsunami issue of New York. It washes across the entire landscape.” Sandra Steingraber, a biologist at Ithaca College described the movement as “the biggest since abolition and women’s rights in New York.”
To be successful activists had to overcome a key obstacle. A 1981 state law encouraged drilling and specifically declared, “The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas, and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”
Enter Helen and David Slottje, two corporate lawyers who had moved from Boston to Ithaca a few years before. Helen remembers attending a forum in 2009 and being “horrified” by what she saw. She and her husband looked for a solution. “With a corporate law background, you don’t ever tell a client that they can’t do what they want to do. You find any number of ingenious ways to get it done,” she said.
And find a way they did. The Slottjes concluded that the state law preempted cities’ right to regulate gas and oil drilling but not their right to impose an outright ban. “While you couldn’t regulate the industry, you could just say no.” she said. They later counseled more than 50 municipalities around the state pro bono. In 2014 Ms. Slottje received the Goldman Environmental Prize for her work.
In late 2009 the state Department of Conservation (DEC) issued fracking guidelines. After blistering public criticism they were withdrawn and Governor David Paterson imposed a moratorium pending DEC revisions. That moratorium gave activists some breathing room to organize.
Relying on the Slottjes’ activists began organizing to convince their local governments to ban fracking. In Ulysses people went door to door, ultimately persuading 1500 of the town’s 3000 registered voters to sign petitions against fracking. Ulysses imposed a ban as did Dryden, a city 20 miles east of Ulysses, and Middlefield, 120 miles east of Ulysses.
Almost immediately both Middlefield and Dryden were sued by energy corporations that argued bans violated the law and their property rights.
In November 2011 scores of anti-fracking candidates displaced pro gas incumbents as town councilors town supervisors and county legislators. By January 2012 about 80 towns and counties had outlawed fracking.
At the end of 2011 the DEC issued new guidelines. By that time the anti-fracking movement was in full roar. In early 2012 a DEC spokesperson told reporters she expected total comments “to be more than 40,000” No other issue had ever received even 1000 comments. The guidelines were again withdrawn. The moratorium continued.
In February activists received a huge boost when 2012 two court decisions validated the Slottje’s legal strategy by upholding Dryden and Middlefield’s bans.
Governor Andrew Cuomo took office in January 2011. He supported fracking but continued the moratorium pending still more new studies. In early 2013 he proposed a pilot program. A few dozen “test” wells would be drilled and large portions of the state would be off-limits. James Smith, a spokesman for the Independent Oil and Gas Association of New York told the Times, “We view it as a positive step.” In February 2013 Cuomo bowed to environmentalist pressure and the growing number of towns who were banning fracking and withdrew his proposal until the completion of another study.
The Washington Post summed up Cuomo’s stance in June 2014, “Cuomo, widely believed to have national political ambitions, has avoided taking sides…”
In December 2014 New York’s Court of Appeals by a 5-2 vote upheld the lower court decisions regarding bans imposed by Dryden and Middlefield. By then over 170 communities had enacted bans.
Right after the court decision Cuomo finally imposed a permanent moratorium. The New York Times observed, “For Mr. Cuomo, the decision on fracking seemed likely to help repair his ties to his party’s left wing. It came after a surprisingly contentious re-election campaign in which Zephyr Teachout, a primary challenger who opposed fracking, won about a third of the vote.”
School Testing
The 2003 No Child Left Behind Law dramatically increased the emphasis on school testing but it was President Obama’s 2009 Race to the Top that made testing the centerpiece for education reform.
To be eligible for a share of the $4.35 billion in grants, states had to adopt rigorous Common Core standards for math and English and use the test results not only to evaluate students but teachers and schools. Forty-five states and the District of Columbia signed on even though only a score or so actually received any money.
Opposition to testing finally erupted in Seattle in January 2013 when teachers refused to administer standardized tests. With the introduction of state mandated Common Core tests opposition intensified. In April 2013 New York became the second state to administer tests aligned to Common Core State Standards (Kentucky was the first). In New York some 10,000 students refused to take the tests. Mark Naison, a professor at Fordham University in New York City called it, “the largest test revolt in modern American history,”
In June 2013 an estimated 10,000-plus educators and parents from all over New York converged at the state capitol in Albany to demonstrate their opposition to high stakes testing.
Opt outs worried state officials but the results of the tests shocked them. The proficiency rate for English dropped from 55.1 percent to 31.1 percent from 2012 to 2013 while in math it plunged from 64.8 percent to 31 percent.
In 2014 state legislators partially responded to growing protests by prohibiting districts from making promotion or placement decisions “solely or primarily on student performance” on standardized test.
Nevertheless that year between 55,000 and 60,000 students opted out.
In late March 2015 Governor Cuomo and the legislature raised the stakes still higher by requiring that student test scores comprise 50 percent of teacher and principal evaluations. Any teacher rated ineffective two years in a row could be fired. Depending on how long a school has been struggling, local districts would have one or two years to make “demonstrable improvement”. If a school failed to improve, it would be placed in receivership.
Carol Burris, New York’s 2013 High School Principal of the Year worried about the impact of high stakes testing on students. “(W)hat will be the likely effects on students when their performance on tests determines half of their teacher’s evaluation?…every high-school teacher will be incentivized to push weaker students out of challenging classes like Advanced Algebra, Physics and Chemistry….Narrow teaching to the 3-8 Common Core tests and test prep will be further incentivized
In 2015 some 20 percent of all students, over 200,000 opted out. “The governor and legislature spoke on April 1 with their plan for our children’s education,” said Lisa Rudley, a parent with children in the Ossining Union Free School District. “Parents are responding in force, ‘We do not consent!’
A group called The Concerned Teachers of New York State wrote an open letter to Governor Cuomo asserting, “We are hard-pressed to find any reference literature that supports staking such a large portion of a teacher’s overall evaluation rating on how his/her students perform on a standardized exam.” They noted that most studies found that teachers account for only 1-14 percent of the variability in test scores,
Cuomo still backed standardized tests but in the face of massive opposition he conceded, “We must have standards for New York’s students, but those standards will only work if people — especially parents — have faith in them and in their ability to educate our children. The current Common Core program does not do that. It must.” He convened a task force to review the state’s Common Core program.
The state also delayed by two years the date that the results of the Common Core exams will be counted in student assessments. It did not delay the implementation of test scores to evaluate teachers and schools. Nevertheless a majority of the more than 700 school districts in New York will probably be exempted from implementing the new system at least until March 2016. In late October the Board of Regents convened a panel to “consider improvements” to the teacher evaluation system.
All three examples prove that where there’s a will—and good steady organizing—there’s a way. Fast food workers took to the streets and, combined with strong support by organized labor and an increasingly influential independent political party, gained a victory. Opponents to fracking discovered a novel legal theory that allowed cities to ban fracking and then convinced hundreds of cities to do so.
Here’s where the half victory comes in. Whether ultra high stakes testing will continue is still undecided. But in the last two years grassroots opposition by parents and teachers and widespread civil disobedience by students clearly has changed the conversation and the dynamic.
