Ruth Kraut

The lawsuit argues that the Michigan Constitution requires a free public education for all Michigan students, and that charging for a seventh hour is unconstitutional. Kary Moss, ACLU of Michigan executive director, outlined the position in an ACLU press release: “Allowing this model to continue will open the floodgates for any district in the state to charge for every conceivable part of their students’ education creating a two-tiered system in which students who have money get ahead, while those who do not fall behind.”

In early June, I wrote my first column for The Chronicle, about three aspects of the AAPS budget proposal. ["Column: Disparate Impact of AAPS Cuts?"] One of the areas I wrote about was seventh hour, a term that refers to the option of taking a seventh class during a semester, rather than the more standard six classes.

I was concerned about issues of equity – about Skyline students being able to acquire 7.5 credits in a year without paying, while Pioneer and Huron students could only earn 6 credits in a year for free. I was concerned about students losing access to the arts. I was concerned about disparate impacts.

I assumed that – as with many other proposals – this idea was poorly conceived, but legal.

A couple of days after my column was published in The Chronicle, I talked with the ACLU’s Kary Moss. (Full disclosure: Kary is a friend of mine, and we frequently discuss education issues. And that first Ann Arbor Chronicle column ended up as “Exhibit 4” in the ACLU complaint.)

Kary suggested to me that she was concerned about seventh hour, too – because she believed the move to charge tuition was unconstitutional.

Unconstitutional?! That thought had not even occurred to me.

Background of Constitutional Challenges

In 1966, school desegregation was a major issue in Ann Arbor. So, too, was a decision by the Ann Arbor school board to charge students fees for registration, textbooks and other classroom necessities.

At the heart of the issue was a discussion about what it means to provide a public education. The first public school in the nation (before we were a nation) was Boston Latin, founded in 1635. And in 1827, Massachusetts passed a law making schools free to all children.

In Michigan, the idea that a commonly-funded public education should be free to students began in the 1800s. In 1850 our state Constitution stated [emphasis added]:

Sec. 4. The legislature shall, within five years from the adoption of this constitution, provide for and establish a system of primary schools, whereby a school shall be kept without charge for tuition, at least three months in each year, in every school district in the state; and all instruction in said school shall be conducted in the English language.

Different language was enshrined in the 1908 state constitution, Article 11, § 9:

The legislature shall continue a system of primary schools, whereby every school district in the state shall provide for the education of its pupils without charge for tuition; …

By 1963, the Constitution – and the language in it – had changed slightly, and included secondary schools, but the sentiment was the same. Article 8, § 2 states:

The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.

We are still governed by the 1963 Michigan Constitution.

Despite the clear words of the Constitution, the fact is that over the years, public schools have often found themselves “pinched” in tight budget times. That was true in the mid-1960s, when the Ann Arbor school board found itself hard-pressed and decided to charge students for books and school supplies. Parents were unhappy, and they challenged this decision in circuit court on Sept. 6, 1966.

By 1970, the case had made its way to the Michigan Supreme Court, and in Bond v. Ann Arbor School District, the Supreme Court ruled that “it is clear that books and school supplies are an essential part of a system of free public elementary and secondary schools.”

In other words, the Ann Arbor school district could not charge students for items that are necessary for school – and neither could any other Michigan school district.

Over the years, other questions have come up. Did school districts need to provide sneakers or clothing for a required gym class? What about fees for field trips or after school athletics? In many cases, the answer is that yes, fees can be charged. I’ve paid for my children’s “pay-to-play” athletics. I’ve paid after-school theater fees. I have enough money to pay for them, but at times, with three children in the schools? Those fees really added up to a lot of money.

In a 2011 memo, State Superintendent Michael Flanagan reminded school districts that: “In March of 1972, the State Board of Education developed a position statement regarding Free Textbooks, Materials, and the Charging of Fees. For your information, this position statement is available on the Department’s website.” [.pdf of Flanagan memo] [.pdf position statement regarding free textbooks, materials and the charging of fees]

Perhaps Flanagan was responding to an incident in the Birmingham Public Schools district. Recently, Birmingham Public Schools settled a class action lawsuit, brought – again – by parents, around the issue of – again – being charged for school supplies, registration, and locks. As a result of the recent settlement, parents will be able to get back the fees they were charged over the last three years. [.pdf of Birmingham Public Schools settlement]

In that 2011 memo, Flanagan also summarized the State Board of Education’s position on charging fees for courses, writing: “In short, the position clearly indicates that: School districts may not make charges for any required or elective course, such as for general or registration fees, course fees, and/or textbook and school supplies.”

ACLU Case Against AAPS

Shortly after I talked with Kary Moss in early June, the ACLU sent the Ann Arbor school board a letter, writing that seventh hour “provides students with an opportunity to obtain credits toward graduation” and “cannot be differentiated from any other period of the traditional school day.”

Further, the letter stated: “These classes are not like extracurricular activities, which an intermediate appellate court allowed, in Attorney General v. East Jackson Public School, to be subject to special fees. The activities discussed in that case were not ‘necessary elements of a high school career’ and students did not receive credit for participation” [.pdf of ACLU letter to AAPS].

[Slight digression: If you're interested, the ACLU also has a fascinating “Right to Read” case wending its way through the Michigan courts. You can find more information about that here.]

Despite the ACLU letter, I heard individual AAPS board members say that they hoped to try out the fee system this year at $100/seventh hour, and then charge more – a lot more, like $400/class – the following year. Realize that $400/class would likely be unaffordable for many people who could afford $100/class.

This is a scan of a summer 2013 Ann Arbor tax bill. While the state Constitution promises schools that are free to students, the schools in fact are commonly funded, by us – the public. I think it’s worth every penny.

School board members seemed unfazed by the idea that they could potentially be sued. They seemed unconcerned that the charges would only affect the students with semester-long classes (at Pioneer and Huron) and not the students with trimesters (at Skyline). They also seemed unmoved by a letter in late June from Huron and Pioneer school counselors, asking the board to reconsider its decision because of the inequity between schools and because it will be hard to help students who need to meet graduation requirements. [This letter is attached as Exhibit 13 in the ACLU complaint.]

In the ACLU’s complaint – submitted on Wednesday, Aug. 7, 2013 in the 22nd Circuit Court of Washtenaw County – there are affidavits from the plaintiffs, Paloma Paez-Coombe and Elliot Polot. (They are both minors, so their parents file as “next friends.”) I found their statements very moving. [.pdf of ACLU complaint]

Elliot, who will be a senior this year, wrote: “My first choice of college is University of Michigan. They offer you a specific program where they can certify you to be a K-12 band director while still allowing you to study your instrument. . . To make myself competitive for this college program, I needed to take four years of band. Without seven hours of classes, I never would have had the opportunity to take advantage of the band program the way that I did. . . Some families can afford to pay for seven hours and some cannot. It’s not fair for families who can’t afford to pay the fee and I think they deserve the same opportunities as everyone else.”

Paloma will be a junior and is planning on taking seven classes each semester next year, including multiple AP classes. She wrote: “Last year, the only classes I took that did not count as requirements toward graduation were Orchestra and Spanish. I still had to take one semester of seven hours to get in all of my requirements.” She also wrote that the arts are very important to her at school, saying: “Orchestra is a nice way to do something physical and out of feeling instead of regular academics. . . It’s a good way to let out stress.”

In addition to taking seven hours each semester, Paloma has also paid to take an entire year of English online, and has been charged $250 for each of those classes. I wonder: If charging for seventh hour is not legal, would charging for English online be legal? Under what circumstances?

I personally found it hard to understand why the Ann Arbor school board would ignore the ACLU’s mid-June letter. I found it hard to understand why the school board would ignore the State Board of Education, which had written that “School districts may not make charges for any required or elective course.” I found it hard to understand how the school board could ignore the inequity in number of credits that students would be able to earn in a year at Skyline versus Huron and Pioneer.

I found it even harder to understand why the school board would risk spending money on a lawsuit, when charging a fee would only bring in an estimated $100,000 – out of an almost $184 million budget. I found it hardest to understand why they would want to make it more difficult for students to take critical classes.

In case you’re wondering, I’m rooting for the ACLU to win. And I’m rooting for students to be able to take the classes they want to take, whether that means–for a given student–six hours or seven hours per semester. But even if the ACLU case is not successful, the idea of charging for seventh hour is still a terrible one. As the 1908 Michigan Constitution stated: “Schools and the means of education shall forever be encouraged.”

To make that a reality, they need to be free.

Ruth Kraut is an Ann Arbor resident and parent of three children who have all attended the Ann Arbor Public Schools. She writes at Ann Arbor Schools Musings (a2schoolsmuse.blogspot.com) about education issues in Ann Arbor, Washtenaw County, and Michigan.

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AATA board members: Clockwise from left bottom: Roger Kerson, Sue Gott, David Nacht, Charles Griffith, Jesse Bernstein, Anya Dale, Eli Cooper. (Photo by the writer.)

After about two hours in closed session, the board emerged and voted unanimously to reject – for a second time – an advertisement that had been submitted by Ann Arbor resident Blaine Coleman for placement on the sides of AATA buses. The ad included the text “Boycott ‘Israel’ Boycott Apartheid” and a graphic that depicts a scorpion-like creature.

Both the text and the image figured into reasoning for the board’s decision to reject the ad – based on a new advertising policy that the AATA board adopted in November. [See Chronicle coverage: “AATA Adopts New Advertising Policy”]

The board’s resolution stressed that there were two reasons for rejecting the advertisement, either of which the board considered to be sufficient on its own to warrant rejection. First, the proposed ad violates the policy’s provision against political advertisements. Second, the advertisement is likely to hold up a group to scorn or ridicule, according to the board’s resolution – by dint of the enclosure of the word “Israel” in quotes, and the inclusion of the image. [.pdf of new ad policy, with changes indicated]

The AATA board reconsidered the advertisement using the new policy because of a court order issued on Dec. 17. [.pdf of Dec. 17, 2012 court order] That order came from judge Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan, who’s presiding over the case. The reconsideration of the ad is part of the injunctive relief that Goldsmith is proposing, having ruled in favor of Coleman on his request for a preliminary injunction. Granting the preliminary injunction was based on Goldsmith’s finding that the AATA’s old advertising policy was in part unconstitutional. Coleman’s requested relief, however, was for the AATA to run the advertisement. Goldsmith has not yet explicitly ruled on that request.

Under the court order, the AATA had until Jan. 4 to notify Coleman of its decision on the re-submitted advertisement.

A status conference scheduled for Jan. 9 will focus on whether the injunctive relief that’s been granted thus far is sufficient, and will allow the parties to talk to each other and the judge about how they’d like to move forward. The lawsuit, filed in late 2011, has not yet proceeded to trial. However, the legal standard of review for granting Coleman’s motion for a preliminary injunction is based in part on the likelihood that Coleman would prevail, if the case were to go to trial.

Public commentary at the Jan. 3 special meeting of the AATA board was focused on the possible conflict of interest that judge Goldsmith has, given his membership in various Jewish organizations. 

Public Commentary: NRA Analogy

Addressing the board during public commentary at the start of the meeting was Henry Herskovitz, who offered an analogy to board members that the board might use to understand what he contends is a conflict of interest on the part of Mark Goldsmith, the judge who is presiding over the advertising lawsuit case.

Herskovitz invited the board to consider a situation where an Ann Arbor citizen wanted to put an anti-handgun sign on the side of a bus as part of the local bus company’s advertising program, with text like “Guns are bad,” and possibly with a graphic image. The image might be drawn from the Sandy Hook tragedy, he suggested – not something grisly, but rather just painful. Or the image might be of a gun dripping blood, he said. Continuing the analogy, he described the board of the hypothetical bus company as one that included several members of the  National Rifle Association (NRA). In that scenario, there would be a conflict of interest, Herskovitz contended.

Herskovitz then added to the hypothetical situation he was describing by suggesting that a lawsuit was filed and it turned out that the presiding judge was also a member of the NRA, and perhaps a member of the local Michigan Coalition for Responsible Gun Owners. And he asked the AATA board members to imagine that the judge owned a lot of guns himself – as a collection, or for target shooting and hunting. How would that judge fairly decide a case that involves placement of a sign on a bus that calls into question handgun ownership? Herskovitz asked.

A federal judge would need to abide by the canons of judicial conduct, he said, which includes a requirement that: “A judge should avoid impropriety and the appearance of impropriety in all activities. …  A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.” In the hypothetical, Herskovitz said, it would be reasonable to question that judge’s ability to decide fairly the question of whether to allow an anti-handgun sign on a bus.

Encouraged to wrap up his comments by board chair Charles Griffith, noting that Herskovitz was at the two-minute time limit, Herskovitz allowed that he didn’t know if Goldsmith was a member of the NRA. But he did know that Goldsmith was a member of many pro-Israel groups, including the Anti-Defamation League, and has other strong ties to the state of Israel. Goldsmith sends his daughter to Israel to study, Herskovitz said, and is a cantor at the synagogue. Using the analogy of the anti-handgun advertisement, he said, allows the bias to be understood more clearly. He said that the Goldsmith’s bias was obvious in his mind – but Herskovitz allowed that he had his own point of view.

Rejection of Ad

When the board finished its closed session, the open session portion of the meeting was brief. Jesse Bernstein read aloud the board’s resolution, outlining the board’s conclusion that the ad was to be rejected and its reasoning in doing so. The only commentary on it was from Roger Kerson.

Kerson said the board had discussed the issue “quite a bit” and had wrestled with it. He did not think that anyone joined the AATA board for an opportunity to increase their expertise in dealing with “knotty constitutional matters,” but he indicated this was simply part of being a public body. The board had tried as best it could to observe and comply with all the relevant court decisions. The language the AATA had adopted for its new policy, Kerson continued, was specifically approved in the AFDI v. SMART decision from the 6th Circuit Court of Appeals late last year. The advertisement, he said, is not in conformance with the new policy – based on the political issue and the defamation issue.

Rejection of Ad: Defamation Issue

The scorn-and-ridicule provision was part of the AATA’s original policy, under which Coleman’s ad was initially rejected over a year ago. Included among the kind of ads that can be disallowed under the policy is any advertisement that:

B5: Defames or is likely to hold up to scorn or ridicule a person or group of persons.

In support of the conclusion that Coleman’s ad violates B5, the AATA board’s resolution states:

The placement of quotation marks around the word “Israel” implies that Israel does not exist. Further, the graphic combined with the text of the proposed advertisement hold a group of people up to scorn and ridicule.

The board’s resolution highlights the fact that it views the violation of B5 to be a sufficient basis for disallowing the proposed ad. The basis for the original rejection of the ad a year ago was the subject of some of the lawsuit’s discovery process – as AATA staff members and Jesse Bernstein, who was board chair at the time, were deposed and asked specifically about their reasons for rejecting the ad under the advertising policy current at the time.

In granting the preliminary injunction to Coleman, Goldsmith had found that the AATA rejected the ad at least in part based on a provision he found to be unconstitutionally vague – the “good taste” provision – which is not a part of the AATA’s new policy. From the ruling: “… the Court concludes that it is likely that Plaintiff’s ad was rejected under both the ‘good taste’ provision and the ‘scorn or ridicule’ provision. ”

The “good taste” provision, which has since been stricken from the AATA’s advertising policy, read as follows:

All advertising must be considered in good taste and shall uphold the aesthetic standards as determined by AATA.

Rejection of Ad: Political Issue

Also considered by the AATA board to be a sufficient and independent reason for rejection is the portion of the policy that disallows an ad that:

B7: Contains political or political campaign advertising.

The version of this clause that was included in the AATA’s original advertising policy was more specific and does not appear to provide an adequate basis for rejecting Coleman’s ad:

B7 (old version): Supports or opposes the election of any person to office or supports or opposed any ballot proposition.

Bus advertisements for 2008 judicial candidates Joan Lowenstein and Margaret Connors were accepted by the AATA in error, according to court documents. Lowenstein and Connors were running for the 15th District judgeship eventually won by Chris Easthope.

Outcome: The board voted unanimously to reject the ad as submitted by Coleman, evaluated against the criteria of the new advertising policy. 

Present: Charles Griffith, David Nacht, Jesse Bernstein, Eli Cooper, Sue Gott, Roger Kerson, Anya Dale.

Next regular meeting: Thursday, Jan. 17, 2013 at 6:30 p.m. at the Ann Arbor District Library, 343 S. Fifth Ave., Ann Arbor [Check Chronicle listings to confirm date]

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Left to right: AATA board members Sue Gott, Roger Kerson and Anya Dale. (Photo by the writer.)

Among other clarifying changes, a key clause that’s been deleted from the policy is one that previously allowed the AATA to disqualify an ad based on “good taste.”  That clause was crucial in the court’s analysis – as part of an initial ruling in the case – that the AATA’s advertising policy was unconstitutional.

The revised policy is meant still to exclude the ad that the AATA rejected, prompting the lawsuit. The change to the AATA advertising policy was characterized at the meeting as bringing the policy into compliance with a ruling from late October of this year made by the 6th Circuit of the U.S. Court of Appeals – involving a different transit advertising case. The AATA, in a recent brief filed with the court in the current lawsuit, has argued that the 6th Circuit ruling provides support for the AATA ad policy’s “scorn and ridicule” clause.

At the Nov. 29 meeting, board chair Charles Griffith also indicated that the AATA hopes the changes to the ad policy would resolve the issues that had been brought against the AATA in connection with the lawsuit. The suit was filed a year ago by Ann Arbor resident Blaine Coleman, who’s being represented by the ACLU.

The case has not yet proceeded to trial, but the court made an initial ruling on Sept. 28 on a motion for a preliminary injunction, finding in favor of Coleman. What the court is currently weighing is the determination of appropriate relief in connection with the preliminary injunction. The court has indicated it’s willing to consider a range of possibilities – from forcing the AATA to place the ad on its buses to allowing the AATA to revise its advertising policy.

A status conference among the parties in the lawsuit is scheduled for Dec. 6. The next regularly scheduled AATA board meeting had been for Dec. 20 – which prompted the special meeting before the status conference. The AATA has argued to the court that the form of injunctive relief that’s appropriate in the case is to allow the AATA to revise its advertising policy. The status conference will now take place in the context of the AATA having already taken the step it’s argued would be appropriate.

The AATA anticipates a net of $120,000 from its advertising program for FY 2013, in a total revenue budget of roughly $32 million.

A second piece of business transacted by the board at the Nov. 29 special meeting was a resolution that acknowledged the Title VI requirements related to the AATA’s planned service improvements on Route #5, which runs down Packard toward Ypsilanti, and that set Jan. 27, 2013 as a start date for the more frequent service. Two weeks earlier – at the board’s Nov. 15, 2012 meeting – a re-programming of funds necessary to pay for the increased Route #5 service had been authorized by the board. Title VI is the civil rights legislation that in the context of public transportation requires proof that a service change has no adverse effect on disadvantaged populations.

Route #5 has two branches – between downtown Ann Arbor and downtown Ypsilanti, and between downtown Ann Arbor and the Carpenter Road Meijer. The current service level runs buses every 15 minutes on the main trunk of the two branches. It’s on the branch that is primarily within the city of Ann Arbor where frequency will be increased – with the result that service on the main trunk will be every 10 minutes.

The Route #5 item was added to the agenda the same day as the Nov. 29 meeting, in an effort to eliminate the need for the board’s regular December meeting – on Dec. 20. The Route #5 service had been the only voting item anticipated for that regular meeting, so the Dec. 20 meeting has now been cancelled. 

AATA Ad Policy

The board decision to revise the AATA’s advertising policy comes in the context of a still-pending lawsuit filed against the AATA for refusing to allow an anti-Israel advertisement to appear on the sides of AATA buses. The proposed ad includes the text, “Boycott ‘Israel’ Boycott Apartheid,” and an image depicting a scorpion-like creature with a skull for a head. The court made an initial ruling on Sept. 28, 2012 that determined the plaintiff Blaine Coleman, represented by the ACLU, should be granted injunctive relief.

But the court stopped short of deciding the nature of that relief. One option currently being weighed by the court is for the AATA to craft a new advertising policy that does not have the constitutional problems the court has identified. The board’s action at the special meeting on Nov. 29 anticipates a ruling on injunctive relief along those lines; however, the court could still find it appropriate to compel the AATA to immediately place Colelman’s proposed ad on its buses. [See Chronicle coverage of the Sept. 28, 2012 ruling on the lawsuit: "AATA Ad Case: Court Grants ACLU Motion"]

AATA Ad Policy: Preliminary Injunction

The case stemmed from Coleman’s attempt to purchase an advertisement for the sides of AATA buses. The AATA refused to run the ad. [.pdf of image and text of proposed ad] The image appears to stem from an original by Mexican artist José Guadalupe Posada. Last year, on Nov. 28, 2011, the ACLU filed suit on behalf of Coleman. The one substantive ruling on the case has been a preliminary injunction in which the court found in favor of Coleman and the ACLU.

In its initial filing, the ACLU contended that the application of the AATA ad policy to Coleman’s ad, and the AATA’s rejection of the ad under that policy, is a violation of the First Amendment’s guarantee of freedom of speech (count 1). The ACLU further contended that the AATA’s advertising policy generally violates the First Amendment on its face – because the policy is overly broad (count 2). So the case was both an “as-applied” as well as “facial” challenge to the AATA advertising policy.

The standard of review for the preliminary injunction won by the ACLU includes: (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by issuing the injunction.

Considering the first of the standards (merit of the claims), the court found in its Sept. 28 ruling that the AATA is in effect operating a public forum with its advertising program, because the “good taste” advertising provision is unconstitutionally vague. The court also concluded that AATA’s “scorn or ridicule” provision is not constitutional as applied – because it’s a content restriction that does not serve a compelling state interest. So the court concluded that the ACLU was likely to succeed on the merits of the claim.

With respect to the other standards, the court rejected the AATA’s argument that Coleman would not suffer irreparable harm. The AATA contended that Coleman had myriad other venues in which to express his views. To that, the court’s response was that the “[d]efendants’ argument proves too much; …” If that argument were to be accepted, the court concluded, it would be almost impossible – given “the ubiquitous opportunities for expression through the Internet and otherwise” – for a First Amendment plaintiff to establish irreparable harm.

With respect to the “public interest” standard, the court found that it’s always in the public interest to prevent a violation of a party’s constitutional rights.

With respect to the “substantial harm to others” standard, the court appeared to see some merit in the AATA’s contention that forcing it to run the ad would impair its ridership and reputation. However, the court saw that argument as affecting the kind of relief that might be granted, not whether some kind of relief should be granted at all.

AATA Ad Policy: Relief

In the court’s decision to grant the motion for a preliminary injunction, it stopped short of making a decision on the nature of the injunctive relief. Coleman had asked for injunctive relief in the form of immediate placement of his ad on the sides of AATA buses – and the court allowed in its decision that: “This is certainly a legitimate relief option.”

But the court also wrote that another option would be to allow the AATA to craft a new advertising policy that does not have the constitutional problems that the court identified in its opinion. So the court asked both parties to file briefs focused exclusively on the question of appropriate relief. Coleman and the ACLU argued that the relief should take the form of the AATA immediately accepting and placing Coleman’s ad on its buses. The AATA argued that it should be allowed to craft a revised policy. The AATA board’s action on Nov. 29 anticipates the possibility that the court would decide to accept the AATA’s argument on injunctive relief.

[.pdf of Oct. 12, 2012 supplemental brief by ACLU on appropriate relief] [.pdf of Oct. 26, 2012 response brief by AATA on appropriate relief] [.pdf of Oct. 30, 2012 additional supplemental brief by ACLU] [.pdf of Nov. 2, 2012 AATA response to ACLU additional supplemental brief] [.pdf of court opinion]

AATA Ad Policy: Text of the New Policy

In the court’s ruling granting the preliminary injunction to Coleman and the ACLU, the court concluded – based on evidence presented by both parties – that Coleman’s ad was rejected based on both the “good taste” and the “scorn or ridicule” standard in the AATA’s advertising policy at the time.

Here’s the marked-up version of the advertising policy with changes that the board adopted [added text in bold italics; deleted text in strike-through]:

Proposed Revised AATA Advertising Policy
A. The AATA, by permitting commercial advertising in or on its vehicles, shelters, informational material, buildings, and benches, does not thereby intend to create a public forum. Further, AATA requires that such advertising comply with specified standards to further the purposes of providing revenue for AATA, increasing ridership, and assuring that AATA riders will be afforded a safe and pleasant environment. AATA reserves the right to approve all advertising, exhibit material, announcements, or any other display and their manner of presentation. All advertising must be in considered in good taste and shall uphold the aesthetic standards as determined by AATA.
B. In order to minimize the chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience, advertising in or on AATA vehicles, in AATA shelters, buildings, benches or informational material which does any of the following shall be prohibited:

1.  Contains false, misleading, or deceptive material.
2.  Promotes an illegal activity.
3.  Advocates violence or crime.
4.  Infringes copyright, service mark, title or slogan.
5.  Defames or is likely to hold up to scorn or ridicule a person or group of persons.
6.  States or implies the endorsement of a product or service by AATA.
7.  Supports or opposes the election of any person to office or supports or opposed any ballot proposition. Contains political or political campaign advertising.
8.  Contains material which is obscene, as defined by MCL 752.362 or sexually explicitly, as defined by MCL 722.673, and as such statutes shall be amended or supplemented. Contains advertising that is obscene or pornographic, or in advocacy of imminent lawlessness or violent action.
9.  Promotes alcohol or tobacco products

The 6th Circuit of the U.S. Court of Appeals, in an Oct. 25, 2012 ruling, overturned a district court’s decision to grant a preliminary injunction in a case similar to the one Coleman filed against the AATA. The appeals court found essentially that the advertising policy of the Suburban Mobility Authority for Regional Transportation (SMART) was constitutional. The language in the AATA’s revised policy points (7) and (8) is taken from SMART’s policy. [.pdf of the 6th Circuit Court of Appeals ruling]

If the revised AATA policy were to be applied to Coleman’s advertisement, the ad could likely be excluded based on the revised “political advertising” clause – based on the idea that encouraging people to boycott Israel is to make a political statement. The corresponding clause in force at the time that Coleman’s ad was rejected would not have allowed its rejection, because a call to boycott is not a statement in support of someone’s election or in support of a ballot proposition.

Even if the court rules that the preliminary injunctive relief that’s to be granted is only to compel the AATA to revise its advertising policy – which it has now already done – this would not preclude an eventual outcome to the case in which the advertisement must be placed on AATA buses.

AATA Ad Policy: History of Income

Added after initial publication: Since the AATA’s advertising program began in 2005, through 2012 it’s generated an average of about $88,000 a year. That average is boosted by the second and third years of the program, when the program generated $169,000 and $134,000, respectively. Over the last four years, revenue dropped to a low of $33,000 before climbing back to $81,000 and $70,000 in the last two years. So far this year – from July to November, the ad program has generated about $67,000, which is almost as much as it generated for all of last year.  [.jpg of chart showing AATA advertising income]

Since mid-August, the AATA has had a new vendor for placement of ads on its buses and bus stops – CBS Outdoor Advertising of Lexington, New York. The decision to switch vendors, from Transit Advertising Group (TAG) of Farmington Hills, Mich., was approved by the AATA board at its Aug. 16, 2012 meeting. The AATA board upheld that decision after it was protested by TAG.

According to AATA controller Phil Webb, under the terms of the contract with CBS Outdoor Advertising, the AATA is guaranteed an annual minimum of $100,000 a year.

AATA Ad Policy: Board Discussion

Michael Ford, CEO of the AATA, told the board during his report that the advertising policy was something for which board action was needed. He told them that the outside legal counsel was available to provide support during the closed session that was on the agenda. Ford indicated the action to approve a revised policy was being requested in advance of the Dec. 6 status conference the following week with the judge and the opposing counsel.

The board’s roll call vote to go into closed session under the Michigan Open Meetings Act was unanimous. Unlike some public bodies that conduct their closed sessions by retreating to a different venue, when the AATA board meets at its headquarters building on South Industrial, it doesn’t have a convenient alternate space. So the audience is asked to leave the boardroom. Board chair Charles Griffith made an effort to soften the request: “I hate to do this to all our fine guests.”

When the board came back into open session, there was one amendment proposed to the resolution that enacted the revised advertising policy. The amendment tied the rationale for the change to the 6th Circuit Court of Appeals decision. Sue Gott proposed the addition of the phrase “to comply with current case law” to one of the “whereas” clauses:

Whereas, the board now desires to update the advertising policy, to comply with current case law which has been approved by legal counsel;

That addition was made on a friendly basis, and the board did not vote separately on it.

Griffith indicated that the board had heard from the attorneys about why the policy is recommended – to address the issues that were brought forward, responding to the judge’s request of the parties. Griffith said he thinks this change in policy would address “the issues that have been brought against us” and hoped that the AATA would be “in good standing moving forward” as other advertising requests are made.

Jesse Bernstein added that the revised policy provides clarification based on the 6th Circuit Court of Appeals decision. Roger Kerson noted that the 6th Circuit case involved a different transit authority, but the changes to the AATA’s policy make it one that that was accepted by that court as lawful. Kerson added that the AATA wants to operate within the law.

Outcome: The board voted unanimously to approve the changes to the AATA advertising policy.

Route #5 Improvements

At its Nov. 29 special meeting, the board was asked to approve a resolution that acknowledged the Title VI requirements related to the AATA’s planned service improvements on Route #5, and that set Jan. 27, 2013 as a start date for the more frequent service. As it relates to public transportation, Title VI of the Civil Rights Act of 1964 requires that changes to transit service have no disparate impact on disadvantaged populations.

Route #5 Improvements: Background

At the its Nov. 15, 2012 meeting, the AATA board had approved a funding resolution to support increased frequency on Route #5, which runs down Packard toward Ypsilanti. The funding took the form of a re-programming of funds from the AATA’s AirRide service, which is covering its costs and generating more passenger revenue than forecast. AirRide service will not be affected by the board’s move.

Route #5 has two branches – between downtown Ann Arbor and downtown Ypsilanti, and between downtown Ann Arbor and the Carpenter Road Meijer. The current service level runs buses every 15 minutes on the main trunk of the two branches. The board’s vote will result in an increase in service on the second branch, which is primarily within Ann Arbor, so that service on the main trunk would be every 10 minutes.

The annual cost of the increased frequency is $156,700. Pro-rated from the end of January through the end of September 2013, which is the end of the AATA’s fiscal year, the cost is $90,700. The vote at the Nov. 15 meeting to allocate the $90,700 came with dissent from board members Jesse Bernstein and Roger Kerson, who supported the need for increased service, but were inclined to follow the timetable recommended by AATA staff. That timeline would have involved a more comprehensive financial assessment of other services in the coming months and possible implementation of increased Route #5 frequency at the end of April.

During his report to the board at the start of the Nov. 29 meeting, CEO Michael Ford told the board that AATA was moving forward with board’s support on Route #5 improvements. The point of the resolution at the Nov. 29 meeting, Ford said, was to make sure the board is aware of the Title VI requirements – which ensure that there’s no disenfranchising of disadvantaged populations. That information had not been available at the previous meeting, Ford noted, but it was ready now.

Route #5 Improvements: Board, Staff Discussion

Asked to elaborate on the resolution, Chris White – AATA manager of service development – noted that the board had now been provided with the documentation that had been described at the board’s previous meeting. It included public input gathered on the changes, which White called uniformly positive.

In addition, White said, the Federal Transit Authority had promulgated a new circular on Title VI requirements, which disallows discrimination based on race. He described how the new circular did not really change what the compliance rules are, but rather how compliance is to be demonstrated. The analysis showing no disparate impact on minority populations isn’t required to be complete at this point, White said, but it’s required that the board specifically acknowledge receiving information about the analysis.

In summarizing the analysis, White noted that it’s a service increase, which is not typically what the Title VI regulations are concerned with. Subsequent back-and-forth between White and Roger Kerson drew out the fact that typically Title VI compliance is important when there’s a fare increase or a service reduction.

White then walked the board through four maps, two each for census tracts that have higher minority populations and lower incomes. White noted that there’s some overlap but pointed out that the areas for those categories are very different.

Route #5 service area plotted with minority census tracts (in red). The yellow and blue circles denote quarter-mile and half-mile radii around bus stops.

Route #5 service area plotted with low-income census tracts (in green). The yellow and blue circles denote quarter-mile and half-mile radii around bus stops.

White pointed out that Route #5 goes through many areas that are high minority and low income. White reiterated that the analysis is not yet complete – and it is not required to be at this point – but said there would be no adverse affect on minority or low-income populations, because what’s being proposed is a service increase.

Outcome: The board voted unanimously to approve the resolution adopting the revised service for Route #5 and setting a start date of Jan. 27, 2013.

December Board Meeting

After adjournment of the meeting, a brief discussion ensued between staff and board members about the need for December’s regular monthly board meeting. CEO Michael Ford indicated that the Route #5 item had been the only item slated for that meeting.

Jesse Bernstein indicated that if the Dec. 20 meeting were cancelled, he still wanted to make sure the board was kept up to date on possible developments on regional transit authority (RTA) legislation that the state legislature might enact in the lame duck session. State legislators have been considering a regional transit authority (RTA) for southeast Michigan, including the city of Detroit and the counties of Washtenaw, Wayne, Oakland and Macomb. The Detroit News and other media reported that the state Senate passed RTA legislation on Nov. 27, but it has not yet been passed in the House. The Washtenaw County board of commissioners voted earlier this month to rescind its previous support of the RTA as currently proposed, though the county board’s chair – Conan Smith – has been a strong advocate for the effort.

On Nov. 30, the AATA announced that the Dec. 20 meeting was cancelled.

Present: Charles Griffith, Jesse Bernstein, Eli Cooper, Sue Gott, Roger Kerson, Anya Dale.

Absent: David Nacht.

Next regular meeting: Thursday, Jan. 17, 2013 at 6:30 p.m. at the Ann Arbor District Library, 343 S. Fifth Ave., Ann Arbor [Check Chronicle event listing to confirm date]

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The board’s meeting comes in the context of a legal case that’s pending against the AATA for refusing to run an advertisement on the sides of its buses that states, “Boycott ‘Israel.’” The initial substantive ruling in the case went against the AATA, when the judge granted a motion for injunctive relief. But the nature of that relief – which could include forcing the AATA to run the ad – has not yet been determined.

After the initial ruling, the court asked both parties to file briefs with arguments on the nature of the injunctive relief. The AATA’s position is that it should be allowed to develop an advertising policy that’s constitutional in the opinion of the court and apply that policy to the ad – which was proposed by plaintiff Blaine Coleman. The ACLU, which is representing Coleman in the case, has argued that the injunctive relief should force the AATA to run the ad. A status conference with the court and the two parties is scheduled to take place on Dec. 6.

The AATA board’s apparent strategy will be to have a revised advertising policy in place for the Dec. 6 status conference, so that it’s in a position to argue the constitutional merits of that already-enacted policy. One significant part of the revision to the advertising policy that the board will be asked to vote on is the deletion of a clause that refers to poor taste: “All advertising must be in considered in good taste and shall uphold the aesthetic standards as determined by AATA.” The clause factors crucially in the court’s initial determination that the AATA’s advertising policy is likely not constitutional.

Updated: The Chronicle’s report on the Nov. 29 meeting of the AATA board is available here: [link]

However, the Sept. 28 ruling – by judge Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan – did deny AATA’s motion to dismiss the lawsuit, filed last year on Nov. 28.

Advertisement for a TV series on the side of an Ann Arbor Transportation Authority bus.

The court granted the American Civil Liberties Union motion, filed on behalf of plaintiff Blaine Coleman, for a preliminary injunction against the AATA. But the court stopped short of granting the ACLU’s requested relief, which was to force the AATA to run the ad.

The court’s ruling calls forcing the AATA to run the ad “certainly a legitimate relief option.” However, another possibility sketched out by the court would be to have the AATA craft a “new [advertising] policy without the constitutional infirmities identified by this opinion.” On that scenario, the court allowed the possibility that the injunctive relief to which Coleman would be entitled could be this: Reconsideration of his ad under a revised advertising policy that is constitutional.

A decision on the relief to be granted to Coleman and the ACLU will emerge from a process defined in the Sept. 28 ruling.  The ACLU has until Oct. 15 to file a brief on what it thinks the proper remedy and relief should be. From the time the ACLU files that brief, the AATA will have 14 days to respond. The court will then weigh those written briefs before making a decision on relief, and might schedule a hearing before deciding that issue. [.pdf of Sept. 28, 2012 court ruling on AATA advertising case] 

The case stemmed from Coleman’s attempt to purchase an advertisement for the sides of AATA buses. The AATA refused to run the ad. The proposed ad includes the text, “Boycott ‘Israel’ Boycott Apartheid,” and an image depicting a scorpion-like creature with a skull for a head. [.pdf of image and text of proposed ad] The image appears to stem from an original by Mexican artist José Guadalupe Posada.

In its initial filing, the ACLU contended that the application of the AATA ad policy to Coleman’s ad, and the AATA’s rejection of the ad under that policy, is a violation of the First Amendment’s guarantee of freedom of speech (count 1). The ACLU further contended that the AATA’s advertising policy generally violates the First Amendment on its face – because the policy is overly broad (count 2). So the case was both an “as-applied’ as well as “facial” challenge to the AATA advertising policy.

The standard of review for the preliminary injunction won by the ACLU includes: (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by issuing the injunction.

Considering the first of the standards (merit of the claims), the court found in its Sept. 28 ruling that the AATA is in effect operating a public forum with its advertising program, because the “good taste” advertising provision is unconstitutionally vague. The court also concluded  that AATA’s “scorn or ridicule” provision is not constitutional as applied – because it’s a content restriction that does not serve a compelling state interest. So the court concluded that the ACLU was likely to succeed on the merits of the claim.

With respect to the other standards, the court rejected the AATA’s argument that Coleman would not suffer irreparable harm. The AATA contended that Coleman had myriad other venues in which to express his views. To that, the court’s response was that the “[d]efendants’ argument proves too much; …” If that argument were to be accepted, the court concluded, it would be almost impossible – given “the ubiquitous opportunities for expression through the Internet and otherwise” – for a First Amendment plaintiff to establish irreparable harm.

With respect to the “public interest” standard, the court found that it’s always in the public interest to prevent a violation of a party’s constitutional rights.

With respect to the “substantial harm to others” standard, the court appeared to see some merit in the AATA’s contention that forcing it to run the ad would impair its ridership and reputation. However, the court saw that argument as affecting the kind of relief that might be granted, not whether some kind of relief should be granted at all.

That’s why the court has decided to solicit briefs from both parties regarding what they view as the proper relief.

Timeline

An annotated timeline of key events in the lawsuit so far:

• 2011-28-Nov: Complaint filed by ACLU on behalf of Blaine Coleman.
• 2011-29-Nov: Motion by ACLU for preliminary injunction to compel AATA to run the ad.
• 2012-31-Jan: Motion by AATA to dismiss the case.
• 2012-17-April: Motion Hearing. [ACLU asks for preliminary injunction forcing AATA to run the ad; AATA asks for dismissal of the case.] Court takes the motions under advisement.
• 2012-10-May: Status Conference. ACLU expresses preference for court to rule based on the current record of evidence and arguments. AATA would like extended discovery period and evidentiary hearing.
• 2012-29-May: Order on Evidentiary Hearing. Court sets evidentiary hearing for July 23, 2012 with expedited discovery. Purpose of the hearing is to address: the reason(s) for the rejection of Coleman’s advertisement; and the history of AATA’s enforcement of the advertising policy.
• 2012-05-June: Under the discovery process, ACLU makes eight specific requests for documents from AATA.
• 2012-18-June: AATA responds to eight ACLU requests for documents, with objections to several of them, but agrees to provide documents subject to those objections for most of the requests. The exceptions are items #5 and #6. Item #5 is a request that includes “all ads AATA has ever accepted or run, along with documentation regarding the date(s) of publication and purchaser/sponsor of the ad.” Item #6 is a request that includes “all documents related to the ACLU’s Freedom of Information Act requests in June and July 2011.” AATA objects to #5 and #6, saying that they are, among other things, over broad or unduly burdensome.
• 2012-25-June: Status Conference on the objections to requests #5 and #6.
• 2012-26-June: Court orders AATA respond to request #5. Court orders that each party file a memo making arguments on how the court should treat request #6.
• 2012-27-June: AATA submits memo arguing that request #6 asks for “information that is not relevant or likely to lead to the discovery of admissible evidence and because the discovery is beyond the scope of the court’s order setting the case …”
• 2012-27-June: ACLU submits memo arguing that request #6 seeks information that could reveal AATA internal communications about how AATA’s advertising polices are enforced from a practical point of view.
• 2012-29-June: Court rules for ACLU and orders AATA to respond to request #6 by July 5.
• 2012-23-July: Evidentiary hearing held.
• 2012-25-July: Court orders parties to file briefs based on evidentiary hearing.
• 2012-02-Aug: ACLU responds to order to file brief after evidentiary hearing. Additional evidence adduced includes the rejection of an ad after the ACLU lawsuit – proposed by an HIV-prevention website sponsored by the Michigan Department of Community Health, featuring a man with his shirt off. Email correspondence obtained by ACLU through the discovery process shows AATA staff weighed the current lawsuit in their decision initially to reject the ad. ACLU contends the HIV-prevention website ad did not actually violate any of the AATA’s advertising policies and argues that AATA was trying simply to establish that its advertising policy was not a de facto “public forum.” That’s part of one main argument made in the brief – that the AATA’s standards for inclusion or exclusion of an ad are unclear. The second main argument is that the AATA’s advertising policy, as it’s implemented, is viewpoint-based. Both parties address in their Aug. 2, 2012 briefs the question of how the court should rule if some reasons for rejecting the ad were constitutional, and some unconstitutional. ACLU argues that if there’s an unconstitutional reason for rejecting the ad, then the preliminary injunction requested by the ACLU should be granted – because the AATA has not shown that the ad would have been rejected anyway, even absent the unconstitutional reason.
• 2012-02-Aug: AATA responds to the order to file a brief after the evidentiary hearing. AATA argues that it followed its advertising policy consistently for all the ads that were submitted. The two parts of the advertising policy that are at issue include Section A and Section B(5). Section A states the intent of the advertising program is not to create a public forum, but rather to increase ridership and revenue, and that it provides grounds for rejection of an ad based on good taste and aesthetic concerns. Section B(5) allows for exclusion of ads that demean or hold a person or group up to scorn or ridicule. AATA argues that the parts of Section A can’t be parsed into component parts and must be considered as part of a whole. Both parties address in their Aug. 2, 2012 briefs the question of how the court should rule if some reasons for rejecting the ad were constitutional, and some unconstitutional. AATA argues that if there’s a constitutional reason for rejecting the ad, then the preliminary injunction requested by the ACLU should be denied.
• 2012-28-Sept: Court denies AATA motion to dismiss, and grants ACLU the preliminary injunction, but with relief to be determined. The requested relief was that AATA would be compelled to run the ad. The court calls this a legitimate option, but describes another alternative – that the AATA could come up with an alternative ad policy that does not have the constitutional infirmities the court identified. ACLU has until Oct. 15 to file a brief on remedy and future process. AATA will have 14 days to respond. A possible hearing on remedy is to be scheduled after the briefs are filed.

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Sue Gott takes her seat for the first time at the board table of the Ann Arbor Transportation Authority. (Photos by the writer.)

First was the election of a new board treasurer, David Nacht, in the wake of two relatively recent resignations from the board – former board treasurer Sue McCormick and Rich Robben. Nacht was elected treasurer though he was absent from the meeting; however, based on remarks from board chair Jesse Bernstein, Nacht had agreed in advance to serve in that capacity.

The board also formally received the report from a financial task force on funding for an expanded, countywide governance and service area. The task force is currently “on hold” following its Feb. 29, 2012 meeting, when it made its recommendations to the AATA. A few days after that task force meeting, the Ann Arbor city council ratified its part of a four-party agreement – between the AATA, the city of Ann Arbor, the city of Ypsilanti and Washtenaw County – that provides a framework for possible transition to a new governance structure for the AATA.

Both the resolution to receive the report, as well as  remarks at the board table during the meeting, made clear that the AATA board isn’t committing to an unconditional acceptance of every recommendation made by the task force. Rather, the task force’s recommendations will inform the board’s decision-making.

Also related to possible countywide expansion, at the April 16 meeting, the announcement was made of a special board meeting set for Thursday, April 26 at AATA headquarters, 2700 South Industrial Highway. The purpose of the meeting will be for the board to vote on adoption of a five-year service plan. The plan would be part of a proposal that is eventually put before the general electorate, who must ratify whatever funding plan is used for an expanded transportation authority.

AATA CEO Michael Ford indicated that the working name for the new transportation authority, if one is formed through the four-party agreement, is “Washtenaw Area Transportation Authority.”

The board also made a decision on an unarmed security guard contract that was impacted by the AATA’s adoption of a living wage standard. The hourly wages in the contract now meet the city of Ann Arbor living wage standard, adopted by the AATA board at its June 16, 2011 meeting. The need to bring the wages up to the living wage standard resulted in an increase that met the threshold requiring the board to approve it.

The board also received its usual range of updates and reports from its CEO and committees. Those included recent ridership numbers, an update on the lawsuit that was filed last year against the AATA over advertising issues, the proposed north-south commuter rail known as WALLY, and the AATA’s response to the auditor’s report.

During the meeting, Ford reported on discussions between AATA and the Ann Arbor Public Schools that have led to a preliminary agreement to replace three high school bus routes with existing AATA service – one route each for Huron, Pioneer and Skyline high schools. According to Ford, the change would allow AAPS and the Washtenaw Intermediate School District – which currently handles bus services for AAPS – to eliminate three buses and reduce costs.

Board Treasurer Election

As one of the first items handled by the board at its April 16 meeting, chair Jesse Bernstein asked for a motion to elect David Nacht as treasurer. The position had remained unfilled since the resignation of Sue McCormick from the board. She served through the Dec. 15, 2011 meeting. Shortly after that, Rich Robben also resigned from the board.

McCormick was replaced by Eli Cooper, city of Ann Arbor transportation program manager. And Robben was replaced by Sue Gott, university planner at the University of Michigan. Gott was unable to be present at the board’s March meeting, so the April 19 meeting marked the first meeting she attended. At the meeting, she received welcoming remarks from Bernstein and others.

Offering his support for Nacht’s nomination as treasurer, Charles Griffith took an initial humorous tack, based on the fact that Nacht was not present at the meeting. However, saying that he didn’t think his remarks were getting any funnier, Griffith quickly wrapped them up. Bernstein expressed his appreciation to Nacht for being willing to serve in the capacity of treasurer.

Outcome: The board unanimously elected David Nacht as treasurer.

With the election of Nacht as treasurer, the board is again settled into a complete committee and officer structure. Officers are now: Jesse Bernstein (chair); Charles Griffith (secretary); and David Nacht (treasurer). The planning and development committee consists of: Anya Dale (committee chair); Sue Gott; and Eli Cooper. The performance monitoring and external relations committee consists of: Charles Griffith (committee chair); David Nacht and Roger Kerson. The governance committee consists of the board chair and the two committee chairs. [See also previous Chronicle coverage: "AATA Resets Committee Membership."]

Financial Task Force Report

The board was asked to vote on a resolution that accepted for further consideration the recommendations of a financial task force on funding for an expanded, countywide governance and service area.

The task force is currently “on hold” following its Feb. 29, 2012 meeting, when it made its recommendations to the AATA. A few days after that task force meeting, the Ann Arbor city council ratified its part of a four-party agreement – between the AATA, the city of Ann Arbor, the city of Ypsilanti and Washtenaw County – that provides a framework for possible transition to a new governance structure for the AATA.

The April 19 board resolution addresses part of the reason that the task force was reluctant to make a specific funding recommendation: Pending currently is state legislation on (1) transportation funding through vehicle registration fees, and (2) the establishment of a regional transit authority for a four-county area in southeast Michigan (including Washtenaw County). From the board’s April 19 resolution: “… the AATA will monitor proposed legislation and other conditions affecting transit funding, and reconvene the FTF as needed to consider amendments to their recommendations…”

The financial task force had calculated that there’s a roughly $32.9 million gap between existing funding and what would be needed to fund the first five years of expanded services. To cover that gap, the task force calculated that a countywide millage of 0.5 mill would be needed – if the mechanism of funding were to be a countywide transit tax. But the task force declined to identify a millage as the solution to that funding gap, in light of pending legislation at the state level that might make other mechanisms available. [.pdf of Feb. 29 report draft approved by the financial task force]

The categories of service recommended as part of the first five years of the program include ongoing bus replacements, urban bus network enhancements (including enhancements to the WAVE, a western Washtenaw express), countywide door-to-door and flex services, express bus services, local community circulators, park-and-ride lots, vanpool services, and “superstops” in the Washtenaw Avenue corridor.

The subcommittee also recommended an average increase for fixed-route fares of 50 cents, with the possibility of fare increases for paratransit services as well. Higher fares should be charged for express bus services, with the possibility of distance-based zone fares.

Also significant in the financial task force report was a recommendation that certain projects – like the north-south high-capacity connector, high-capacity service along Washtenaw Avenue, as well as the east-west and north-south commuter rail service – be considered separately. Those projects are not recommended for inclusion for local expenditures in the first five years. It’s also recommended that the Ann Arbor downtown circulator service (previously called The LINK) should be discretionary and should rely on private investment.

The language of the resolution passed by the AATA board on April 19 does not accept the task force recommendations unconditionally. The resolved clause reads [emphasis added] “… accepts the recommendations of the Financial Task Force for consideration by the AATA and the community.”

And the minutes from the April 10 meeting of the planning and development committee indicate that there may not be universal agreement on the AATA board with at least one of the task force recommendations – to exclude rail projects from expenditures of local funds in the first five years of the plan, and to spend local money only on local projects.

From the minutes: “Eli Cooper was assured by Michael Benham [AATA strategic planner] that the FTF is an advisory task force, with the board having ultimate authority to accept, decline, or modify their recommendations. Eli expressed concern with only using local money for local projects for the first 5 years. If this was to occur, then the Board may not be in alignment with their overall priorities (for expansion of services). Other than that, Eli was interested to hear more about the FTF and staff opinions as to how they see the first 5 years playing out.”

In reporting out from the performance monitoring and external relations committee at the April 19 board meeting, Charles Griffith noted that the committee had received the report on the financial task force recommendation.

Eli Cooper summarized the work of the task force and the subcommittee that had formed within the task force, by saying the group went above and beyond expectations, by providing models that AATA staff could continue to use to evaluate the implications of different strategies. He said it was with great pleasure that he was putting forward the motion to accept the report and allowing it to inform the board’s deliberations. He appreciated the work that the task force had done.

Board chair Jesse Bernstein added his thanks to the task force, saying that they were very busy people who volunteered – two of whom lead billion-dollar companies. [He was referring to Albert Berriz, CEO of McKinley Inc. and J. Patrick Doyle, CEO of Domino's Pizza.] It was a joy to see those people get together and roll up their sleeves and get the work done, he said.

Outcome: The board unanimously approved the resolution accepting the task force recommendations for further consideration.

Unarmed Security Contract

The board considered a one-year, $205,000 contract with Advance Security to provide unarmed security guard services. It will be for the fourth year of a contract first authorized by the board on March 19, 2009 for one year.

From left: AATA board members Charles Griffith and Roger Kerson. They paused for The Chronicle in their conversation after the meeting.

The contract came before the board because it increased the amount of the contract from the previous year by more than 10% – from $150,000 to $205,000, or 36.7%. The AATA procurement policy requires board approval for increases of contracts over 10%. The new contract is based on hourly wages between $14.33 and $19.67 per hour for a regular shift, and between $21.50 and $29.51 for extra hours and holidays.

The hourly wages in the contract now meet the city of Ann Arbor living wage standard, recently adopted by the AATA board at its June 16, 2011 meeting. The need to bring the wages up to the living wage standard was the reason for the revision to the contract. The living wage standard for the city of Ann Arbor is set to increase slightly starting May 1, 2012 – to  $12.17/hour for those employers paying health insurance and $13.57/hour for those employers not paying health insurance.

The original contract, authorized by the board in 2009, was met with one vote of dissent at the time – from David Nacht, who wanted his no vote to express his desire in the future that clearer information be provided about low bids. The staff memo accompanying the April 19 resolution indicated that the original contract was sent to 29 firms for bid and that 11 responses were received.

In reporting out from the performance monitoring and external relations committee, which had reviewed the contract, Charles Griffith described the revisions as based on getting the contract in compliance with the new living wage policy.

When the board came to the item on its agenda for a vote, board chair Jesse Bernstein asked for a verbal overview, which AATA controller Phil Webb gave. From a back-and-forth between Griffith and Webb, it emerged that the board would almost certainly not need to approve the contract again next year, because the need to increase it was already being addressed this year.

AATA CEO Michael Ford alerted the board to the fact that other contracts impacted by the living wage policy would likely be coming to the board for approval, when they were renewed.

Outcome: The board voted unanimously to approve the new contract with Advance Security for unarmed security guard services.

Communications, Committees, CEO, Commentary

At its April 16 meeting, the board entertained various communications, including its usual reports from the performance monitoring and external relations committee, the planning and development committee, as well as from CEO Michael Ford. The board also heard commentary from the public. Here are some highlights.

Comm/Comm: WALLY Update

As part of its meeting information packet, the board was provided with an eight-page update on the status of WALLY (Washtenaw and Livingston Railway), which is envisioned to provide north-south commuter rail service between Howell and Ann Arbor.

The conclusion of the report is a staff recommendation to expend funds ($50,000) already included in the FY 2012 budget that are designated for the WALLY project. The report includes a draft resolution that the board could use to authorize the funds.

Ordinarily, the expenditure of funds from the budget would not necessarily need an explicit board authorization. However, in the case of the WALLY project, the board stipulated in a Sept. 15, 2011 resolution that the $50,000 designated for WALLY in the FY 2012 budget would not be expended without the explicit consent of the board. [See Chronicle coverage: "AATA on WALLY Rail: Forward with Caution."]

One of the challenges for WALLY is the cooperation of the Ann Arbor Railroad in the use of the tracks south of roughly Barton and Plymouth roads on the north side of Ann Arbor. Ideally, the commuter service would extend farther south into Ann Arbor. The report contains a description of an Oct. 12, 2011 meeting between Ann Arbor Railroad president Jim Erickson and AATA CEO Michael Ford, when Ann Arbor Railroad representatives expressed continued general opposition to passenger service on its property. However, the meeting offered some possibility that Ann Arbor Railroad would at least work with AATA on the issue of railcar storage immediately south of a WALLY station. And the report describes Ann Arbor Railroad as willing to entertain a “business proposition.” [.pdf of April 2012 WALLY update]

Ford indicated at the April 19 meeting that more work would be needed before the issue of WALLY could be brought before the whole board.

Comm/Comm: Loose Ends from Audit

Reporting from the performance monitoring and external relations committee, Charles Griffith said the committee had reviewed the audit from last month. [The audit findings were discussed at the board’s March 15, 2012 meeting and included in The Chronicle’s report of that meeting.]

The auditor had made some recommendations, he said, and the AATA had responded to them. The committee was pretty happy with where things stand, Griffith reported. One outstanding issue the committee is still reviewing is the AATA’s practice of buying fuel futures. Griffith said the committee does not think the practice is actually allowed, based on some further legal review, because it stands out as an unconventional practice. But the committee has encouraged staff to explore other options. The practice has saved the AATA money, he said, but it’s just not very standard.

Among the other items in the auditor’s report is an item of information: If Michigan’s personal property tax were to be eliminated, as proposed in Senate Bill 34, the amount of the annual transit tax that’s used to help fund the Ann Arbor Transportation Authority would decrease by $420,000 annually.

AATA controller Phil Webb included the item in his reaction to other findings in the audit – which he conveyed in a memo to AATA CEO Michael Ford. The memo was part of the AATA board’s information packet for its April 19 meeting.

Currently, the AATA receives around $9 million a year from a roughly 2 mill tax. The $9 million is about 31% of the AATA’s $29.4 million FY 2012 budgeted revenues. The elimination of the personal property tax would decrease the AATA’s total budget revenues by around 1.4%.

Comm/Comm: Ridership Stats

As a part of its regular information packet, the board received the performance data on ridership, costs per mile and the like. For regular fixed-route service on weekdays, ridership in March 2012 showed a gain of 8% compared to March 2011 – an average of 24,501 passengers for each weekday, compared to 22,639 per weekday in March of 2012.

AATA ridership, year-over-year. Red bars are this year's figures. The blue line reflects last year's figures. (Image links to .pdf of detail performance data.)

That continues a trend since October 2011, the start of the current fiscal year for the AATA. Each month the average number of weekday passengers per month has been greater than the corresponding month in the previous year.

For the AATA’s paratransit service (A-Ride), the data from March show a slight decrease in the average number of passengers for each weekday – 505 compared to 518 a year ago. But in four of the last six months, ridership on A-Ride has been slightly greater than in the corresponding month a year earlier.

Increased ridership had led to decreased costs per rider, per service hour and per service mile, and a corresponding increase in the percentage of the cost that is paid by rider fares. [.pdf of AATA ridership and performance data]

Also at the meeting, CEO Michael Ford provided the most recent numbers for the new Detroit Metro Airport service  (AirRide) for the period from April 8-14. For that period, the service had 678 total passengers – 336 eastbound to the airport and 342 westbound from the airport to Ann Arbor.

The AirRide service began on April 2. It offers 12 buses each way daily. The AATA authorized the contract with Indian Trails’ Michigan Flyer to provide the airport service at its Feb. 16, 2012 meeting.

Comm/Comm: AAPS Collaboration

In his oral report to the board, CEO Michael Ford highlighted an item from his written report, which relates to the current fiscal challenges of the Ann Arbor Public Schools system. AATA and AAPS have been discussing ways the two entities could collaborate. From the written report:

Chris White [AATA manager of service development] and Ron Copeland [AATA operations manager] have been meeting with staff from the Ann Arbor Public Schools (AAPS) and Washtenaw Intermediate School District (WISD). WISD operates school bus service for AAPS. Discussions have yielded a preliminary agreement to replace three high school bus routes with the use of existing AATA service, with minor modifications; one route each for Huron, Pioneer and Skyline High Schools. This would permit AAPS/WISD to completely eliminate three buses and reduce costs.  AATA would provide passes which AAPS would distribute to eligible students. Each time a student boards a bus AATA would charge AAPS. It is hoped that agreement can be reached in April for implementation in the fall of 2012.

Comm/Comm: AATA Lawsuit Update

On April 19, U.S District judge Mark Goldsmith heard motions at the federal building and courthouse in Flint on a lawsuit filed last year against the Ann Arbor Transportation Authority. At the AATA board meeting later that day, board chair Jesse Bernstein reported that after hearing oral arguments, Goldsmith did not rule on anything from the bench. His written ruling is expected at some unspecified future time.

The initial lawsuit was filed by the ACLU on Nov. 28, 2011 on behalf of activist Blaine Coleman, who had sought to purchase an advertisement for the sides of AATA buses. The AATA refused to run the ad. The proposed ad includes the text, “Boycott ‘Israel’ Boycott Apartheid,” and an image depicting a scorpion-like creature with a skull for a head. [.pdf of image and text of proposed ad]

The two motions heard by Goldsmith on April 19 included one by the plaintiff – for a preliminary injunction or temporary restraining order, to compel the AATA to accept the advertisement for its buses that it had previously rejected. [.pdf of Nov. 29, 2011 ACLU motion for preliminary injunction]

The other motion heard on April 19 was AATA’s motion to dismiss the case. [.pdf of AATA motion to dismiss] [.pdf of AATA brief on preliminary injunction/restraining order] [.pdf of ACLU reply to AATA's response]

At its April 19 meeting, AATA board members had scheduled a closed session on the litigation, as permitted by the Michigan Open Meetings Act, but did not hold the session because Goldsmith did not rule on the two motions.

Comm/Comm: Special Meeting – April 26

During his oral report to the board, AATA CEO Michael Ford said he was asking that a special meeting of the board be convened for Thursday, April 26 at 4:30 p.m. The special meeting will be held at AATA headquarters, 2700 South Industrial Highway.

The purpose of the meeting is to receive formally a detailed five-year service plan that has been developed by the AATA as part of its plan to expand its governance and transportation service to a countywide area. The service plan is part of a key step specified in a four-party agreement – between the AATA, the city of Ann Arbor, the city of Ypsilanti, and Washtenaw County – that would establish a framework for a possible transition to a new governance structure. From the agreement: “… AATA will publish details of the service and funding plan in newspaper(s) of general circulation in the Washtenaw County.”

Of the four parties to the agreement, the city of Ann Arbor is the only entity so far to ratify it. The Ann Arbor city council voted to approve the four-party agreement at its March 5, 2012 meeting.

It’s hoped that the board will have a copy of the service plan by April 23, before voting on it on April 26.

Also at April’s monthly board meeting, Ford indicated that the working name for the new transportation authority, if one is formed through the four-party agreement, is “Washtenaw Area Transportation Authority.”

Related to the countywide plan, during public commentary at end of the meeting, Vivienne Armentrout told the board she appreciated being invited to participate in an organizational district advisory committee meeting for the Ann Arbor district.

Vivienne Armentrout before the AATA board's April 19 meeting. Out of the frame to the right is Sue Gott, with whom Armentrout was talking.

She had some concerns and questions, though. She said that most invitees were members of stakeholder groups, and attendance had been sparse – she attributed that to the somewhat last-minute scheduling of the meeting. She said her understanding of Ann Arbor’s district advisory committee is that it’s supposed to be citizens of Ann Arbor interacting with those people who are representing Ann Arbor on the countywide board. She said she’d like to see broader participation from regular folks.

Board chair Jesse Bernstein thanked Armentrout for attending the meeting and told her she was right – it was an organizational meeting. All such meetings are open to the public and it’s an ongoing process the AATA is beginning. The district advisory committees will meet at least four times a year, he said, not just in Ann Arbor, but in the other districts throughout the county.

Also during public commentary at the end of the meeting, Thomas Partridge called for the as-yet-unincorporated Act 196 countywide board and the financial task force, as well as all similar organizations, to meet in a venue that can be videotaped by Community Television Network.

Comm/Comm: Retreat – May 16

As part of his oral report to the board, CEO Michael Ford announced details of the board’s retreat. It will be held on May 16 starting at noon at the Holiday Inn Express on Briarwood Circle. The hotel is near one of the stops on AATA’s AirRide service between downtown Ann Arbor and the Detroit Metro airport. The retreat will include the board’s regular May meeting.

Comm/Comm: IT Plan

Reporting out from the performance monitoring and external relations committee, Charles Griffith said the committee had had a fairly lengthy discussion on the IT plan – a benchmarking effort as well as short-, medium- long-term recommendations. There are implications for possible additional staffing, he said, to prepare for expansion of service. He alerted the board that there could be something that comes before the board at a later time.

Comm/Comm: Local Advisory Council

The local advisory council is a group that provides input and feedback to AATA on disability and senior issues. Reporting to the board on the LAC’s activities, Clark Charnetski welcomed Sue Gott to the board. He told the board the LAC had received a presentation from Jewish Family Services on their accessibility plan. The LAC had also continued its discussion on its driver appreciation program, to recognize great drivers in the paratransit program. The idea is for AATA call-takers to work with the LAC to evaluate the drivers for special recognition.

Charnetski also reported that the LAC had sent Doug Strong a letter. Strong is CEO of University of Michigan Hospitals and Health Centers. The LAC had inquired about UM’s plans to provide sheltered walkways for riders of public transportation so they can get from bus stops into the medical center. The LAC had not yet received a reply to the letter, so they’d be sending out a follow-up letter.

The LAC had also discussed the A-Ride vehicle replacement program – because the vehicles are reaching the end of their useful life.

Comm/Comm: More Service

During public commentary, Thomas Partridge introduced himself as an advocate for those needing affordable transportation services and called for additional services, beyond what’s currently offered by AATA. He called on the board to place an update on expanded, countywide transportation on every monthly agenda. He also called for a monthly review of the SelectRide contract through which the AATA provides A-Ride service. He contended that within the last three weeks, he’d asked for rides through A-Ride and had been picked up by two vehicles reeking of gasoline and apparent exhaust system leaks.

Comm/Comm: Disability Community

During public commentary, Carolyn Grawi, with the Center for Independent Living, said she was very pleased that members of the disability community are being involved in the countywide planning effort. She offered some feedback on AirRide service between Ann Arbor and the Detroit Metro airport, saying that some people were not sure where the service would drop them off. She also noted that construction on South State Street was affecting Route #6 on-time performance. It affects the ability of riders to make their connections to other routes, she said, and it’s a general concern, not just one that affects the disability community.

Present: Charles Griffith, Jesse Bernstein, Eli Cooper, Roger Kerson, Anya Dale, Sue Gott.

Absent: David Nacht.

Next regular meeting and board retreat: Wednesday, May 16, 2012 at noon, Holiday Inn Express, 600 Briarwood Circle [confirm date]

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The ad features the text “Boycott Israel” and “Boycott Apartheid,” with an image depicting a scorpion-like creature with a skull for a head. At its Nov. 17 meeting, the AATA board voted to affirm the rejection of the ad, inviting Blaine Coleman – whom the ACLU is representing in the case – and the ACLU to discuss the advertising policy. The board’s vote had come in response to a letter the board had received in August 2011 asking the AATA to reverse the decision to reject the ad. [Chronicle coverage of the board's decision, the legal issues and some other similar cases are included in a report of that meeting: "Bus Ad Rejection Affirmed"]

According to Korobkin, after the AATA board’s resolution was passed, there was some communication between the ACLU and the AATA before the suit was filed.

The complaint now filed in U.S. District Court for the Eastern District of Michigan (Southern Division) includes two counts alleging violation of the First Amendment (free speech) and two violating the Fourteenth Amendment (due process) for a total of four counts.

The ACLU is contending that the application of the AATA ad policy to Coleman’s ad, and the AATA’s rejection of the ad under that policy, is a violation of the First Amendment’s guarantee of freedom of speech (count 1). The ACLU further contends that the AATA’s advertising policy generally violates the First Amendment on its face – because it is overly broad (count 2).

The Fourteenth Amendment counts can be similarly paired, and are based on vagueness. One count alleges that the way in which Coleman’s specific ad was rejected was vague (count 3). The other Fourteenth Amendment count alleges that the AATA’s ad policy on its face is vague (count 4) and it’s generally not the case that “a person of ordinary intelligence can readily identify the applicable standard for inclusion or exclusion.”

Typical felony box on an employment application.

The fact is, not many employers will. And that has an impact on the likelihood that former prisoners will find their way back into the corrections system.

In 2008, approximately 12,500 citizens returned from prison to the communities of Michigan. Within two years, nearly half of them will return to prison.

And research by the Justice Policy Center at The Urban Institute has shown that a principal factor in such high recidivism is a lack of employment opportunities. It is not a lack of adequate qualifications, but rather the social stigma surrounding a felony conviction that prevents many ex-prisoners from landing a job – and the lack of a job that leads them to offend again.

Social service programs can assist ex-offenders in finding housing, accessing mental/physical health treatment, and job-readiness training.

However, it is employers who must ultimately step up and give all qualified individuals a fair opportunity for jobs, if ex-prisoners are to have a fair chance to become stable providers for themselves and their families.

One way to ensure a fair shot is to prohibit discrimination based on criminal history – by banning that box on application forms that requires applicants to check it if they’ve been convicted of a crime.

In most cases, prison sentences are a way to repay a “debt to society.” But the stigma of a criminal conviction often follows a person long after that debt is supposed to have been settled and they have returned to the community.

Public Benefits

While steady employment can serve as a stabilizing force in the life of an ex-offender, prohibiting employment discrimination based on criminal history can also produce financial benefit for both the understanding, open-minded employer, and also for the public at large. Many businesses can receive tax credits for hiring individuals with a felony background, as they are considered a “target population” for unemployment reduction by the federal government.

Society benefits from a gainfully employed ex-offender, because the money spent to house an incarcerated citizen can be used for other programs, or to reduce the state’s budget deficit. The Michigan Department of Corrections annual budget is around $2 billion – that reflects an average annual cost per prisoner of more than $32,000.

What Other Communities Are Doing

To discourage employers from unfairly denying job opportunities to qualified people solely because of a past criminal conviction, many cities and counties throughout the U.S. have adopted ordinances or policies that require employers to eliminate the box on the application asking applicants to disclose past criminals records. A compilation by the National Employment Law Project shows that these cities/counties include Chicago, Ill.; San Francisco, Calif.; Boston, Mass.; and the County of Travis (Austin area, Texas).

In the case of Boston, the ordinance was later expanded from government jobs (with exceptions such as law enforcement), to more than 3,000 private vendors that do business with the city.

Here in Michigan, the city of Battle Creek adopted an ordinance in June 2008 that banned the box for its own hiring procedures. Battle Creek’s ordinance also requires a similar hiring practice of vendors who have contracts with the city.

And just this month, in January 2010, the city of Kalamazoo announced that it would no longer ask about prior criminal history on its applications for employment.

Locally, the American Civil Liberties Union of Michigan has taken up the cause against apparent automatic exclusion of applicants for jobs at the Wal-Mart in Saline [December 2009 ACLU letter to Wal-Mart].

A Reasonable Hiring Process

Elimination of the criminal conviction box on job applications would not mean that employers would be forced to hire criminals. Rather, it gives people with criminal records the opportunity to explain their situation in an interview setting, while employers would still have the power to decide against hiring someone based on his/her qualifications.

The only difference between most prevailing practice and a more reasonable approach is that criminal background checks would be conducted after the applicant is determined to be otherwise qualified for the position, and after a pending offer of employment has been made.

If a background check is conducted and an applicant is found to have a criminal offense that is likely to interfere with that applicant’s abilities to carry out the responsibilities of the position, the employer would be entitled to rescind the employment offer.

The employer would then be required to inform the applicant of the denial of employment, provide him/her with a copy of the background report, and indicate to the applicant the specific parts of the report that concern the employer. This will give the job seeker the opportunity to present information rebutting the accuracy and/or relevance of the report, such as the changes he/she has made since the criminal conviction.

There are certain jobs that individuals with specific criminal convictions will not be able to hold. For example, some sexual offense convictions may prevent a person from working with vulnerable populations, such as children, the elderly, or the disabled. Thus, a list of jobs that – for safety reasons – require background checks prior to hiring should be excluded from the policy.

Outside of jobs on this list, however, it would be unacceptable for any business to deny employment “just because” an applicant has a felony record. If there is no reason to believe that the person is likely to re-offend in a manner that would hurt the business, or endanger the public, the prior felony should not factor into an employment decision.

What the City of Ann Arbor Can Do

The city of Ann Arbor’s employment application includes a box in the form of the question [emphasis added]:

Have you ever been convicted of a Felony or a Misdemeanor within the last 7 years? If yes, please state where, when and the nature of the offense(s), and the sentence(s) imposed by the court: NOTE: Conviction of a Felony or a Misdemeanor is not an automatic bar to employment (all circumstances will be considered).

A way to make sure that prior convictions are not a bar to employment – automatic or otherwise – would be for the city of Ann Arbor to follow the lead of our neighbors in Battle Creek and Kalamazoo by eliminating the prior conviction disclosure as a part of its pre-offer job application and to require its vendors to have similar policies in place.

Jason Smith, a master’s in social work student at the University of Michigan, works as an intern with the Michigan Prisoner ReEntry Initiative.