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Carey Law and Contaminated Drinking Water: Confronting the Interests of Capital in the Fight for Equitable School Funding in Philadelphia

December 01, 2019

This article was written collectively by Jordan Konell and Madison Gray (University of Pennsylvania Law School students, and members of the Penn Law National Lawyers Guild (NLG) and the PILOTs Working Group) and the Philadelphia Power Research Collective.

The authors would also like to thank Lauren Davis, Sam Whillans, Gwyneth Harrick, Danuta Egle, and Rebecca Lynch for their comments and revisions.

Carey Law and Contaminated Drinking Water: Confronting the Interests of Capital in the Fight for Equitable School Funding in Philadelphia

      On November 9th 2019, the University of Pennsylvania Law School made headlines when it announced a record-setting $125 million donation – the largest ever in the history of legal education.[1] As part of the wealth transfer, the law school was renamed to the University of Pennsylvania Carey Law School or, controversially, “Carey Law” for short.[2] In the weeks following the transaction, the Penn Law community organized in opposition to the transaction, with the bulk of the organizing being centered around resistance to the school’s rebranding as “Carey Law.”[3] In petitions, op-eds, flyers in the school, meetings with administrators, and on social media, students, faculty members and alumni decried the decision to rebrand the institution.[4]

      The headline-grabbing wealth transfer to Penn Law came from the W.P. Carey Foundation, a private U.S. foundation founded by Penn alum William P. Carey, and financed by his multi-billion-dollar real estate investments. The university’s (secretive) decision to rename the institution reflects an ongoing legacy of institutional alignment with capital, and raises important questions about plutocratic control of universities – this is particularly true considering that the Carey Family’s accumulation of intergenerational wealth can be traced back to James K. Polk, the slave-owning 11th President of the United States, who was notorious for westward expansion of U.S. territory accompanied by the forced removal and genocide of millions of Native Americans during the mid-19th century. In particular, Penn’s near-total lack of transparency around the donation agreement could undermine the institution’s commitment to academic freedom and integrity. In the past, hefty corporate donations to educational institutions have come with strings attached. At George Mason University, for example, a naming gift agreement with the Charles Koch Foundation and the Federalist Society secured the donors dedicated professorships and the right to participate in faculty hiring decisions.[5] There, administrators repeatedly claimed that the gift came with “no strings attached” but were forced to backtrack when the agreement surfaced due to a student’s Freedom of Information Act Request – an option notably unavailable at private institutions like Penn. The risks of plutocratic control over institutional decision-making is particularly acute at Penn Law, since students over the past three years have been organizing to remove a notoriously and openly racist law professor. The student body’s efforts have thus far resulted in the removal of the professor from mandatory first-year curriculum courses – notably, the decision resulted in a major donor voicing their opposition by pulling funding from the school.[6] Taking account of the Carey Foundation’s racist historical underpinnings, students, faculty members, and alumni have serious reasons to be concerned about Penn’s decision to align itself with this infusion of wealth – after all, the Carey Foundation’s newfound foothold in Penn Law politics may enable them to derail student activist progress.

      While Penn Law students, alumni, and faculty members may well be justified in pushing back against the non-transparent deal between the law school and the Carey Foundation, they must also avoid the trap of viewing the transaction as a particularized issue affecting Penn Law. At the same time that Penn Law was grappling with their historic investment, the School District of Philadelphia grappled with the opposite problem – disinvestment. During that same week, over 80 young children at Pratt Head Start pre-kindergarten in North Philadelphia were displaced after dangerous asbestos was discovered in the boiling room.[7] Elsewhere in North Philadelphia, an investigative report revealed that at least three water foundations at Mastery Frederick Douglass Elementary, a charter school whose building is owned by the school district, had failed city-mandated lead tests and contained dangerous levels of lead in the students’ drinking water.[8] While the Penn Law students, fighting for control of their legal education and its associated brand, clearly occupy a vastly different material position than the Philadelphia School District students, fighting for their safety and wellbeing, both groups are reckoning with the implications of a neoliberal school funding system. Across the city, education is shaped by capital and patterns of (dis)investment. Thus, the outrage surrounding the plutocratic control of Penn Law by the Carey Foundation donation can be contextualized within the broader systemic inequalities in distribution of resources faced by academic institutions across the region.

      The Carey Foundation’s massive donation is indicative of broader inequalities in education funding in Philadelphia, and requires us all to consider how the interests of capital shape the conditions of schools and educational experiences for students in Philadelphia generally, whether they are Ivy League law students, or enrolled in the School District’s pre-K program. As a point of reference, consider this: the single $125 million Carey Foundation transaction is equal to 87% of the School District of Philadelphia’s average annual spending on building and renovating schools, and life-cycle replacements of building components from 1993 through 2019.[9] Over 150,000 students will attend school in District-owned buildings this school year, and the conditions of these buildings will undoubtedly shape the lives of the young people enrolled therein. Penn Law, on the other hand, will serve only approximately 750 students this school year.[10] Indeed, at its current enrollment size, it would take Penn Law nearly 200 years to meet the Philadelphia School District’s volume of students served in a single school year.

      Penn sits on a $14.7 billion endowment,[11] and has a $3.5 billion academic operating budget. Nevertheless, its law school has been seemingly handed $125 million overnight. Meanwhile, after years of activism and a teacher being diagnosed with an asbestos-caused cancer earlier this year, the School District has announced that it will allocate just $12 million for asbestos remediation.[12] Still, the School District desperately needs money for building improvements; for instance, earlier this year, over a thousand School District students were forced to relocate or adapt to hazardous conditions when dangerous airborne asbestos were discovered at Benjamin Franklin/Science Leadership Academy and T.M. Peirce Elementary School. Many School District buildings have experienced problems with flaking lead paint,[13] lead-contaminated water,[14] asbestos contamination,[15] mold, and/or pests in recent years.

      The toxic environmental exposures found within the School District are associated with many severe health consequences. Lead poisoning, for instance, can contribute to behavioral disorders, reduce attention span, anemia, hypertension, and infertility. Asbestos exposure can lead to various severe lung problems and cancers. Mold and mouse and cockroach droppings can trigger asthma, which is a leading cause of student absenteeism and emergency room visits nationwide.[16] Deteriorating school facilities are therefore both a public health and educational attainment issue, yet when the School District released a citywide assessment of school repair needs in 2017, three-quarters of city schools were considered to still be in poor repair.[17]

      Last spring, the Philadelphia Federation of Teachers Fund Our Facilities Coalition stated that $170 million would be needed to adequately remediate environmental hazards in order to ensure that everyschool is safe, healthy, and clean.[18] While funds necessary to provide for the health and safety of Philadelphia’s youth – mold removal, lead paint remediation, adequate cleaning, and the like – represent a drop in the bucket for a wealthy institution like Penn, the School District continues to be in need of sustainable, long-term funding sources to meet their goals. Notably, the School District funds its Capital Improvement Program by selling bonds, which it must eventually repay with interest. Debt service is projected to make up almost 9% of the School District’s FY20 budget ($291.8 million).[19] 

      In Pennsylvania, there are major funding disparities between school districts. According to the Public Interest Law Center, “the gap between low-wealth and high-wealth districts in Pennsylvania is the widest in the nation.”[20] Importantly, though the state government must be held accountable for these systemic funding inequalities, there are steps that could be taken locally to immediately increase the resources available to the School District.

      For instance, while nonprofit institutions like Penn are not required to pay property taxes to fund the school district,[21] they are entitled to make voluntary payments. In fact, all but one of Penn’s Ivy League peers make voluntary payments in lieu of taxes (PILOTs) to the cities they call home.[22] A 2018 analysis by Philly Power Research found that a PILOT program could generate $95-142 million in projected annual revenue for the School District.[23] The PILOT proposal would involve nonprofit institutions (i.e. Penn) that own at least $15 million in property, who are currently exempt from property taxes, to voluntarily pay 50% of the value of foregone taxes, with all revenue going to the School Districts.

      As the Penn Law community grapples with the Carey Foundation donation, they are urged to also consider how they might hold the Penn Law administration accountable not only to its student body, but to the broader Philadelphia community, and especially to the young people who live in Philadelphia. The University of Pennsylvania and its law school, no matter its name, is deeply indebted to Philadelphia and its community. Penn Law is rooted to the city and community which feeds it, supports it, and which offers it its history and many of its community members. The Carey Foundation’s donation, bearing with it a name of intergenerational wealth, should therefore spark a movement to reconsider Penn Law, and the University of Pennsylvania’s commitment to its neighbors and community.

      As a call to action, Penn Law students should consider what it means to attend an institution with such an immense concentration of wealth in the nation’s poorest largest city. Likewise, they should begin to consider how they, as law students, can join the struggle to redistribute some of those resources to the surrounding community. Notably, Penn Law’s National Lawyer Guilds PILOTs committee is working alongside students, parents, and teachers of the School District of Philadelphia in calling on Penn to pay its fair share. Penn law students are asked to consider joining their efforts by emailing Madison Gray at graymad@pennlaw.upenn.edu. Non-Penn Law members interested in getting involved should follow @OurCityOurSchoolsPhilly on Facebook.

 End Notes

[1] https://penntoday.upenn.edu/news/w-p-carey-foundation-makes-historic-125-million-gift-name-penns-law-school

[2] https://www.thedp.com/article/2019/11/penn-law-carey-ruger-rename-town-hall

[3] https://www.thedp.com/article/2019/11/penn-carey-law-school-ruger-donation-renaming

[4] https://www.inquirer.com/business/law/penn-law-carey-name-change-125-million-donation-20191113.html

[5] http://www.unkochmycampus.org/charles-koch-foundation-george-mason-mercatus-donor-influence-exposed

[6] https://www.thedp.com/article/2018/04/amy-wax-board-of-trustees-paul-levy-penn-law-upenn-pennsylvania-upenn-gutmann-resignation. (Previous incidents related to this professor also indicate the significance of ensuring that this funding is committed to supporting students of color at Penn Law.)

[7] https://6abc.com/education/philly-parents-outraged-after-asbestos-discovered-in-another-school/5707479/

[8] https://whyy.org/articles/philly-school-knew-about-toxic-lead-in-drinking-water-but-kept-parents-in-the-dark/

[9] From 1993 through 2019, the School District’s average annual capital expenditures was $143.2 million. See, The School District of Philadelphia FY2019-20 Consolidated Budget, pg. 25 https://cdn.philasd.org/offices/budget/FY20%20Consolidated%20Budget%20Book_Web.pdf

[10] https://www.law.upenn.edu/admissions/jd/

[11] http://www.investments.upenn.edu/about-us

[12]  https://www.witf.org/2019/11/20/amid-parent-backlash-philly-schools-unveil-12-million-asbestos-plan/

[13] https://www.inquirer.com/news/inq/lead-paint-poison-children-asbestos-mold-schools-philadelphia-toxic-city-20180503.html

[14] https://whyy.org/articles/philly-school-knew-about-toxic-lead-in-drinking-water-but-kept-parents-in-the-dark/

[15] https://www.inquirer.com/news/inq/asbestos-testing-mesothelioma-cancer-philadelphia-schools-toxic-city-20180510.html

[16] https://www.inquirer.com/news/inq/lead-paint-poison-children-asbestos-mold-schools-philadelphia-toxic-city-20180503.html

[17] https://www.inquirer.com/philly/education/Phila-school-buildings-need-almost-5b-in-repairs.html

[18] https://pft.org/fund-our-facilities/

[19] The School District of Philadelphia FY2019-20 Consolidated Budget, pg. 28 https://cdn.philasd.org/offices/budget/FY20%20Consolidated%20Budget%20Book_Web.pdf

[20] https://thenotebook.org/articles/2018/12/06/new-president-olympic-medalists-fair-funding-trial-date-set-for-summer-2020/

[21] The authors would like to acknowledge that it is not clear that Penn is indeed a non-profit under the Pennsylvania Constitution.

[22] https://www.thedp.com/article/2019/10/pilots-taxes-gentrification-ivy-league-upenn-philadelphia

[23]https://static1.squarespace.com/static/5a6787742278e7a5cbdd2ab3/t/5af39e6a8a922d34b06ffa30/1525915243854/FINALOCOS+Funding+Report+May+2018.pdf