hello and welcome to kqed "newsroom." i'm thuy vu. coming up, california schools face teacher short ans and the new priorities in the trump administration. and san francisco's plan to offer free tuition at city college. and the new cabinet and security challenges. first as part of our continuing coverage of the first 100 days of the new administration, we examine a major legal setback to president trump's executive order banning refugees and visitors from seven predominantly muslim nations or thursday three judges at the ninth circuit court of appeals in san francisco unanimously refused to reinstate the controversial ban after it was blocked by a federal judge last week. the ruling comes just two days

after they heard oral arguments. president trump vowed to fight on. he tweeted, see you in court. the security of our nation is at stake. >> so we'll be doing something very rapidly, having to do with additional security for our country. you'll be seeing that sometime next week. in addition, we will continue to go through the court process and ultimately i have no doubt that we'll win that particular case. >> and joining me now to discuss the case and other legal developments are melissa murray, interim dean of uc berkeley law school. kqed senior editor of california politics and government, scott shafer, welcome to you both. we just heard what president trump said this morning. it's a mixed message it seems. what does that mean? he seems to be implying there might an new executive order, but they're also going to push something through the courts? >> they have 14 days to ask for what's called an enbanc review

from the full ninth circuit, they could also decide to appeal right to the supreme court. what would be probably the most thing to do is rescind the order that has been so problem mat nick a number of ways and write a new one. narrow it in a way that won't cause the problems both at the airports with the implementation and also in the courts. that may be what they'll do. that would probably be the easiest and fastest thing to do. >> maybe narrow it in such a way it does not apply to green card holders, for example? >> exactly. >> let's say they do decide to appeal to the supreme court. dean more ray, you were a clerk for sonia sotomayor, now a supreme court justice. if it does make its way to the supreme court, what are some of the issues likely to come up at the high court level? will they even discuss the merits of the case or is it going to be much more narrow? >> well, it will be an appeal of the ninth circuit ruling which was in itself a narrow ruling only about the question whether the court should stay judge robart's order below, putting

forth the temporary restraining order. it's the same set of questions, whether the government has met its burden to show that the ban should be reinstated. or whether the challenger states have shown that there's a good reason to withhold enforcement of the ban while more information is gathered. so we'll see a little bit of discussion of the merits because that's part of the standard for deciding whether or not a temporary restraining order can remain in effect. but it won't be the kind of elaborate discussion of the merits that you would ordinarily see in a case that is squarely about the constitutionality of the order. >> they could decide just not to take it up? >> they could, yes. >> it's early in the process, they don't ordinarily consider things at this point. >> right. an emergency ruling of this sort is incredibly rare. the likelihood they would take it up, probably very unlikely. they're on recess until february 17th. in the event the president wants an order quickly, the supreme court might not be the way to go. >> well, even if they took it up, they're short one justice right now.

and so let's say there's an ideological tie. what does that mean? >> the order of the ninth circuit stays and that's the controlling result. >> melissa, how has the supreme court historically ruled on immigration and national security matters? >> so the president and congress actually have quite broad powers in the arenas of immigration and national security. that is clear and courts have said that repeatedly. but that power is not unfettered and courts have been clear about that. a spate of cases in the early 2000s around the bush detainments of enemy combatants, it was clear in those cases although the political branches enjoy those powers they cannot use those powers that contravene the individual rights of citizens. this is the open question here, even people who are not citizens but nonetheless have some sort of expectation of right in the united states what's interesting is when issues like this came before the court under president obama, there were concerns and

accusations and lawsuits that he was overextending, exceeding his executive authored on immigration, protecting undocumented immigrants. and the lower courts ruled against obama. it came up to the supreme court. they deadlocked 4-4. and it was the conservatives who sided, voting against the president. it will be interesting to see now with a conservative president if those conservative justices somehow see that issue differently. >> yes, scott on twitter trump targeted federal judge james rowbart, called him a so-called judge because he was unhappy with the blocking of the immigration ban. are these types of tweets and statements having an impact in a legal case like this one, and potentially other legal cases? >> it's hard to know. it's becoming part of a pattern. he was very critical, not just on twitter, but in spoken words about judge curiel in san diego during the campaign, trump university, said he was biased because he was mexican.

even though he's american, born in indiana. he was also critical of the ninth circuit while they were deliberating this case, which seemed to be rather self-defeating. that said, these judges are supposed to rise above those things. but you have to wonder when judges are attacked by the president or anyone else if it doesn't affect them on some level, make them a little less respectful of presidential authority, which is what the justice department is asking for in this case. they'll give deference to the president when the president is not particularly respectful of the judiciary. >> that assumes that the president is actually speaking to the courts when he makes those tweets as if he's speaking to someone else. the other pattern this fits into is the broader pattern of trying to delegitimize anyone who is a dissenting first. first the media. now the courts. the idea to set up a baseline throughout the country that the media cannot be trusted, now the courts are too political to be trusted just to your question

there affecting this case, yes, it came up during the oral arguments earlier this week where one of the judges asked the department of justice lawyer, can we consider the things that have been said during the campaign and after the campaign, rudy giuliani saying that the president-elect asked him to come up with a policy that would essentially ban muslims but wouldn't look like it's banning muslims? so that did have an influence on these judges. >> we're going to ask you about the flurry of activity by various states. you have california's attorney general, now joined other a gs in opposing, senator kamala harris now has a bill on this issue. how effective can california be in taking a stance on this? >> they're taking a page from texas and florida and the republican states that used this kind of maneuver very effectively during the obama years on climate change, the affordable care act, immigration as well. there are some things they can certainly slow things down. that's clearly happening with

this executive order. there are things that they can stop and challenge. but ultimately with a supreme court being the ultimate arbiter, once they get that ninth justice there, there's a chance that they will have that conservative majority. but there are certainly things they can do to slow things down and other things, just the president will be able to do that california and the other blue states won't be happy with. >> let's make a pivot to talk about neil gorsuch, nominee to the supreme court. what do you think of him, melissa? >> he's a jurist of impeccable credentials, very well liked, very well respected. it's the perfect pick for a president who has offered up a wide range of potential choices, none of which i think are quite as pitch perfect as neil gorsuch is. the interesting thing is gorsuch is being put out there as a pick who should appeal to everyone. credentials for a supreme court noom nominee, well liked, all of

this. but he's actually very, very conservative. in a way this is put forth as something everyone needs to get on board because it's so obvious. what has become more obvious is what is considered mainstream or down the middle is actually really more to the right than it used to be. >> this week he reportedly said that trump's remarks about the judiciary have been very "disheartening and demoralizing." trump of course saying those remarks have been misrepresented. what effect will it have on gorsuch's confirmation? >> i think it's -- first of all, i think he's a very, by all reports, a decent person, is probably personally offended. i don't know but as i read the body language while his nomination was being announced, he was standing there with his wife. i don't think that these are two people who are soul mates, the president and neil gorsuch. he's by all accounts a very decent guy and respectful. the other thing that i would add, though, is that he hasn't really had to rule on abortion, he hasn't ruled on gay rights. he's also a member of the

episcopal church in denver where he lives. there's some conservatives that are wondering. hoping he's not sort of a david souter surprise kind of a justice. >> some progressives are wondering too. he's now in the episcopalian church but raised catholic. maybe this is strategic on his part. he made comments with richard blumenthal. maybe this is a signal, i will stand up, i will be independent of the president. >> scott brought up abortion rights. i want to talk about that quickly. that's one of your areas of expert deals. last month vice president mike pence of course addressed an anti-abortion rally in washington. do you think there will likely be challenges to roe v. wade in the coming months? >> i don't think there will be a challenge to the decision roe v. wade which provides women with a right to an abortion. i think we will see lots of legislation chipping away at

access to abortion without directly confronting the right. like whole women's health, the case from last term. i think we'll see more of that. so regulations that are aimed at sort of narrowing and narrowing the opportunities to exercise the right. but i think roe is a 43-year-old decision. i don't think that's going away. whether you can actually exercise it is a different question. >> on that we will have to end this segment. dean melissa murray and scott shafer our senior editor for politics and government, thank you both. >> thank you. turning to education. this week the confirmation of bessie devos as president trump's education secretary raises questions about what lies ahead for california's public school system and its roughly 6 million students. and here in the bay area, san francisco led the nation to make community college free to all city residents. >> when our city works together, we can accomplish great things. we're going to need that spirit as we face challenges on the

regional front, certainly on the national front. >> joining me now to discuss developments in education are linda darling hammond, president and ceo of the learning policy institute. and uc berkeley graduate school of education professor janelle scott. hello to you both. let's start with the city cowl ledge of san francisco, janelle. big announcement this week. free tuition for all san francisco residents. what kind of impact do you think that will have? >> certainly it remains to be seen. we'll see how it rolls out. it's a promising direction in terms of college access and affordability. we know college has been out of reach for so many people who would want to get access to higher education. you know, one of the difficulties in san francisco, it has become so unaffordable to live in san francisco in so many ways. there are some concerns about who will ultimately have access and the free division is limited to residents. but for residents of san francisco it's a wonderful thing potentially. >> i think there have been some

questions about over the long-term how it will be funded. what about african-american residents who have left the city? they won't be getting any assistance. >> right. >> hopefully it's a step in that direction in terms of making community colleges free around the country. there was a big movement in the last election to push policymakers to consider that. so perhaps san francisco will lead the way in that direction. >> all right. the other big news story in education this week, of course, betsy devos, linda. she was confirmed as education secretary. vice president mike pence broke the tie to get her confirmed. special education laws actually give quite a bit of authority to states to decide how schools should be governed. how much influence would devos actually have on california's schools? >> remains to be seen. but one of the interesting things is that the new federal law that replaced what was called no child left behind actually had several prohibitions against the secretary intervening in many state decisions.

so states have even more room to make their own decisions now than they did a couple of years ago. and the only issue we've heard from betsy devos about is charters and vouchers, choice. it's not clear that she has an interest in most of the other things that go into making an education system. >> she has no background in education, although she has been a big proponent of charter schools in michigan. >> yes. >> and being a billionaire, she has helped to fund some of that. >> she's also gotten some profits from some of them because she's invested in for-profit charter schools. >> but could she have an impact on things like special education, civil rights, title ix, those types of issues. >> well, there is concern the department of education may tamp down, defund, or undersupport the office of civil rights. a very important office. it takes care of defending civil rights for students with disabilities, for students of

color, for low-income students in a variety of ways. so that is a concern. there may be much less aggressive enforcement of some of the rights to an education that are critical for students. >> janelle, i want to ask you about how charter schools perform generally. first take a listen to what betsy devos said about this issue during her confirmation hearing. >> why in 2017 are we still questioning parents' ability to exercise educational choice for their children? i'm a firm believer that parents should be empowered to choose the learning environment that's best for each of their individual chirp. >> and janelle, what was interesting in the hearing was that at one point when she was questioned about whether she would hold all schools to the same financial and academic accountability standards, she said no. so in general, how do charter schools perform? >> so in general, charter

schools perform about the same way as traditional public schools perform. in that there are some charter schools that perform at very high rates of student achievement on standardized assessments. most are right in the middle. there are a subset that perform terribly. so we see incredible variability in terms of academic performance in the charter school sector. >> so is there any -- >> there's a piece of that that's really important, charter schools in some states do much better than charter schools in other states. and when you look at the differentiation among states you find that states that have more rigorous accountability laws for charters have higher-performing charters. in places where anybody can start a school, they don't have to have a particular kind of curriculum or hire qualified teachers or have a financial basis for what they're doing. you find a lot of starting and stopping of schools and much lower achievement. that's actually the case in michigan. but it's also the case in other

states. >> so some education leaders, including the head of the california teachers association, are concerned that if vouchers become the norm, and betsy devos seems to be a big supporter of vouchers, if that becomes the norm, then funding for public schools will be cut. do the two of you share that concern? >> well, i think following up on linda's point, in terms of what the office of the secretary of education can do in terms of state-level policies, betsy devos cannot mandate a state-level voucher policy in california. californians would have to do that. >> it failed twice before. it's been on the ballot, voucher initiatives. and it failed in michigan where she sponsored an initiative in 2000. there are a handful of voucher plans around the country. some are publicly funded, some are privately funded. and certainly it does reduce the amount of public allocations to public schools. and does put them in resource jeopardy. we know that.

>> and linda, teacher shortages. that also feeds into overall school performance, right? and your institute, the learning policy institute, recently released a report that about shortages and training programs to teachers. what did you guys find? >> we found there are short ans of math, science, special education teachers, bilingual education teachers, across the country. california has very severe shortages right now. to the point where districts -- 75% of districts say they're experiencing shortages. 80% say they're worse this year than last year. it's very hard to fill certain kinds of classes. courses get canceled. class sizes get increased. and people without training get hired. so it's a very pressing issue for the quality of education for students, particularly in those subject areas. >> and so you actually found that in 2015, from 2015 to 2016, the state issued more than 10,000 permits and waivers to

place people in classrooms who had not yet completed teacher training programs. >> right. many of them had not started any kind of training as well. so that's a very big warning sign. we had this kind of problem back in the late 1990s. and put in place a number of programs to stem the problem. teacher scholarships. if you would go into the field, financial aid, new programs to support teachers. all of those were eliminated in the 2000s. we actually have to go back to building an infrastructure to recruit people into the field. then also to keep them. we have a very high attrition rate. . if we could keep the teachers we bring in from mentoring them and providing supports we would be a lot better off as well. >> are there particular challenges unique to california in retaining teachers? >> i think certainly in particular areas in california you're going to see more acute needs, right? and so i think following a couple of decades of

accountability movement that has really sanctioned schools for low academic performance, has targeted schools with very extreme interventions, reconstitution, closure, and we've seen a number of layoffs in urbab school districts. i think when linda talks about the teacher shortages, we're talking about where they're most acu acute. in our highest needs school districts. i think that's something in california we need to pay attention to is where the shortages are most acutely experienced. >> there is innovative work going on. in los angeles, in san francisco, in other places. these teacher residency programs that have been designed bring in people, they might be mid-career changers, they might be new graduates, put them under the wing of one of the best teachers, pay for their preparation, get them a credential, and then they pledge to stay three, four, five years in that district. they get mentoring, they're

highly effective, they have very high retention rates. we do have some innovations that can meet the need if we get them planted in the right places. >> so those are our challenges at the state level. we've got an interesting scenario playing out at the federal level. and we will see how that plays out in the months and years ahead. all right, thank you both. linda darling hammond and janelle scott. >> thank you. turning now to foreign affairs. veteran npr correspondent david willner has reported on big issues from government surveillance, terrorism, suspects held at guantanamo bay. he joins us in the studio to talk about his work and recent national security developments in the trump administration. david wellner, thanks for being here. >> good to be here. >> at president trump's press conference with prime minister shinzo abe of japan, he said we should expect to see some sort of national security measure. perhaps as soon as next week. what is your take on that?

>> well, trump said that there are tremendous threats, as he put it, out there facing the american people. and he said that he was elected to protect people against those threats and he took that seriously. this measure he promised for next week, he didn't elaborate on. however, there is an executive order draft that's been circulated over the past couple of weeks that talks about sending more prisoners to guantana guantanamo. people that have been referred to during the campaign as bad dudes. these could be islamic state fighters, could be others sent there. i was just in guantanamo and found there is plenty of room at the inn for these prisoners, 200 spots or so could be used immediately for them. this could be done, it would also raise questions about whether it's legal to actually keep islamic state fighters in a prison that was designed to hold people who are associated with al qaeda based on the 2001 authorization for use of military force.

so it could get complicated if trump follows through with that. however, we don't know for sure if that's going to be what the measure he comes out with next week or something else that we haven't even heard of yet. >> in the meantime, there also is some talk that perhaps he will draft a new executive order on the immigration ban. and maybe even make it more narrowly focused. even so, has the damage already been done? has the fact that this travel ban happened in the first place really tarnished our reputation abroad? >> well, i think it's been seized on by the islamic state, for one. some of its fighters are called this the blessed ban. they see this as a propaganda tool for them. >> anti-american -- >> it reinforces the narrative that the u.s. is anti-muslim, and that's already out there, and whether this order stands or not, that damage may have been done. i think that if the order

continued to be enforced, there could be further damage from it. a lot of national security experts say this was not the way to keep the country safer, by having that order put out. >> on the national security front, another issue making headlines is that steve bannon, trump's chief strategist, is now on the national security council's principals committee. how will that affect the way the nfc operate and how will that affect the working relationship with the national security adviser, michael flynn? >> well, bannon really is seen as sort of a -- the power in the white house. and how much influence he'll have over the national security council, we don't know. we don't know if that council has even met yet in the trump white house. but bannon and flynn do see eye to eye on some issues. they are both deeply suspicious of iran. russia might be another story. flynn has flirted in many ways with russia and i guess it will probably be some kind of a conflict that the national

security council will have to advise trump on that will give us an idea how much sway bannon holds in that group. it's unprecedented, of course, to have a political operative be on that council, especially as a principal. >> since you brought up russia and michael flynn, there is news out today, a "washington post" article said that flynn might have talked to a russian diplomat or ambassador about sanctions prior to the inauguration. do you have any more information about that? >> well, the "post" is saying they have nine curt and former government officials who say that there are records of flynn having spoken with the russian ambassador to washington. right after christmas, it was a time when president obama at the time had imposed sanctions on russia for hacking into the democratic national committee. and there was expulsion of 35 russian diplomats accused of being spies. the closure of two of their

weekend recreational centers in new york and maryland. and there was no response from russia to that. and at the time it seemed very strange because this is the kind of thing that another countkuco would reciprocate, kick out 35 american diplomats. nothing happened, and there was speculation there might be some kind of a back channel going on. since then, flynn initially denied there had been any talk of this. this week he walked that back a bit and said he couldn't recall having had such a conversation. but flynn's the former director of the defense intelligence agency. and he should know that those conversations with the russian embassy are monitored by u.s. officials. >> he was unauthorized, if it happened, to have that type of conversation before the inauguration? >> there is something called the logan law which says unauthorized people are not to carry on conversations before officials making promises. it dates back to the 1700s and has never actually been used to convict anybody. so i wouldn't expect that to be used this time either. >> all right.

there is so much to discuss and i'm sorry to say we have to say good-bye to you right now. we hope to have you back on, david wellner, npr's national security correspondent, thank you so much. that does it for us. for more coverage, kqed.org/newsroom. i'm thuy vu. thanks for watching.

>> president trump vows to keep fighting after a federal appeals court keeps his travel ban on hold. i'm amy walter. we explain what happens next, tonight on "washington week." >> we are going to do whatever is necessary to keep our country safe. we will be extreme vetting. >> a three-judge panel keeps in place a hold on president trump's executive order that restricts travelers from seven muslim-majority countries. >> it's about people's lives, the impact on their lives and the future of our country and our constitution. >> as the white house reviews its options, including a possible appeal to the supreme court, trump's nominee to the high court distances himself from the president's criticism of federal judges. will neil gorsuch's rebuke