Department of Education Hits Bottom

February, 2019

Washington -- It pains me to read more new, head-shaking accounts of dysfunction at the U.S. Department of Education. I worked there eleven years, from 1994-2005, day and (often) night. From 2005 to the present I have tried to carry on, as a private citizen, efforts to make the Department's programs work effectively and within the rule of law. I've invested a large chunk of my life in the cause.

Last month there were reports that morale has hit bottom at the Department. The Chronicle of Higher Education noted:

"The Department of Education placed 27th out of 27 midsize government agencies in the 2018 "Best Places to Work in the Federal Government" report. Morale in the department has fallen by more than 12 percentage points, one of the biggest drops of all federal agencies."

POLITICO wrote:

"DEAD LAST IN EMPLOYEE SURVEY: The Education Department came in last place in an annual ranking of the best places to work in the federal government. Employee engagement across the majority of federal departments dropped in 2018, the survey found. It showed a sharp drop in employee satisfaction regarding leadership, agency missions and pay."

This month came the news that Secretary Betsy DeVos tried to remove the acting Inspector General, the Department's watchdog, and replace her with another employee with a conflict of interest. The individual was later re-instated, after which a scathing IG report came out about the Department's failure properly to oversee student-loan servicers. The embarrassing report made national headlines from coast to coast. The sequence of events gives every indication that the Secretary was trying to suppress the report.

Another such critical report, on accreditation of for-profit schools, is apparently in the works. Those who follow the issue, like David Halperin writing for Republic Report, note conflicts of interest, missing funds, and a failure to follow the law to protect students. He is calling for the Secretary and the acting Under Secretary to resign.

Rank-and-file Department employees may not believe there is much they can do in these circumstances to keep the Department honest. If they protest and are punished for it, there is no functioning Merit Systems Protection Board to which they can turn for redress. That agency is likewise dysfunctional, to the point of soon closing its doors.

Employees can, however, turn to Congress. The Lloyd-LaFollette Act gives them protection to share their experiences and to be shielded from retaliation by the appropriations acts that incorporate the statute.

Unless Congress itself rolls over, that is. The coming weeks will be critical to see if the House in particular has the will to investigate and act to restore competence and the rule of law to the Department.

Two Favorite People

February, 2019

Lincoln -- What's not to like about two Nebraskans who have been turning heads recently. One should get the Pulitzer Prize for journalism and the other should be elected President of the United States.

The Pulitzer

If you read the Omaha World-Herald, you know of reporter Henry Cordes' series on how the board responsible for managing the Omaha Public Schools' pension fund lost hundreds of millions of dollars to bad judgment and fraud. The jaw-dropping stories are investigative reporting at its best. Not only that, the OWH has published large pictures of those responsible for the incredible waste. This should make everyone who touches pension funds, or holds any position of trust over public finances of any kind, shiver with due alarm as to their own performance.

This is not the first time Henry Cordes has dived into looking at fraud, waste, and abuse of public monies. For this latest work, on top of his lifetime achievement, he should be in line for a major award.

The Presidency

Lately when I've been asked for whom I'd like to vote for president in 2020, I tell them I have a Nebraskan in mind. He was born in West Point, Nebraska, and graduated from Butte high school and Chadron State College. He is a retired master sergeant in the Army National Guard. He taught English in China for two years and high school social studies in Mankato, Minnesota, for many years thereafter, where he was also a football coach. He went on to become a congressman from Minnesota and more recently was elected governor there.

I met Tim Walz last summer on Capitol Hill, in the Cannon building where he was hosting a meeting on soil health and conservation. He was a member of the House Agriculture Committee and arranged for the meeting to be held in the Veterans Affairs Committee's hearing room, as he was also a member of that committee. Unfortunately, I did not get into a sufficiently long conversation to compare notes with him as a fellow Nebraskan.

What a fine president he'd make: decent, knowledgeable, experienced. He was rated as having the 7th most bipartisan voting record in the House, demonstrating his ability to bring people together. Even Nebraska Republicans would have to give him a look, despite his being a Democrat (Democratic-Farmer-Labor Party). A lot of veterans from the enlisted ranks would like the idea of a master sergeant in charge of the Department of Defense, especially if the 2020 alternative is a draft-dodger. Many former high school football players would like the idea of a coach in the Oval Office, who could send poor performers for a lap around the White House when they need it. Governor Tim Walz for President!







What's the Matter with Iowa?

February, 2019

Lincoln -- Kansas has started to come to its senses after years of self-destructive governance chronicled by Thomas Frank in What's the Matter with Kansas? Now it must be asked, what's the matter with Iowa?

Three uncomplimentary articles have appeared this winter that reflect poorly on Iowa.

The New York Times describes the debt trap state-regulated cosmetology schools set for unwary Iowans who want to become cosmetologists. Student-loan borrowers will find it difficult if not impossible to make enough in this profession to pay off their loans. The article raises a question: knowing that borrowers will be ruined financially, how can state and federal education authorities, and loan servicers and collectors, participate in this shameless exploitation?

The Guardian describes suppression of academic freedom at Iowa State University. Faculty research there must conform to outside funders' expectations, or else. A U.S. Senator withdrew an offer of his papers to ISU out of concern that they would be censored.

An Inside Higher Ed article, focusing on current tenure struggles, recalls a previous low point for ISU decades ago in the margarine wars. Faculty advanced the idea that consumers at home should try margarine during WWII because the troops abroad needed dairy products like butter. Some faculty were forced out by the butter lobby, including two who went on to win Nobel prizes at other universities.

I remember how consumers who wanted to be patriotic, or simply to save money, were discouraged from buying margarine. In the 1940s, we had to buy margarine in packaging that made it look like white lard, then mix in yellow food coloring from a separate capsule if we wanted it to look like butter. As a kid, that was sometimes my household chore.

As a Nebraska taxpayer and UNL alumnus, I should reflect on my own state and institution. I don't think the situation is so bad, at least in comparison to our neighbor. The NU Board of Regents recently strengthened protections for faculty and others who face retaliation for unpopular views (or even popular views that run afoul of outside funders' wishes). It would be a wise administration that never has to see the protections applied.

The Bum's Rush

February, 2019

Washington -- Senator Lamar Alexander, chairman of the Committee on Health, Education, Labor, and Pensions, is suggesting an up-tempo pace to reauthorize the Higher Education Act. He wants committee action this spring and final passage this summer.

To be sure, the country needs a major overhaul of the HEA. Federal programs clearly are not working well. Student loan debt is out of control. Many colleges are in financial trouble and several are closing. Corruption is endemic in the for-profit sector. The Department of Education is controlled by the interests it is supposed to regulate.

Senator Alexander offers small-bore remedies, like reducing the number of questions on the FAFSA financial aid application form, simplifying loan repayment options, and replacing one college accountability measure that doesn't work with another that is likewise destined not to.

That's one step forward, one sideways, and one backwards, leaving no net progress at a time when bolder thinking should be in order.

Let me suggest two bigger ideas whose times have come.

• Some in Congress have proposed that student-loan borrowers have more refinancing options. Yes, by all means, and Congress should also provide for borrower refinancing through the federal tax system so that borrowers can repay their loans as part of their federal taxes. Other countries do this successfully. Repayment would be based on income without the complications of having to file annual income statements with separate loan servicers in order to take advantage of income-based repayment. It would also provide student-loan borrowers with consumer protections commensurate with those provided other borrowers. This would be a first step in phasing out the error-prone, self-dealing servicers completely, at a savings of several billion dollars over the period of the HEA reauthorization, which could be reinvested in grant aid for needy students or to upgrade IRS systems, or both.

• In the original HEA of 1965, program participation by institutions required outside matching funds as a quality control safeguard. SEOG and FWS still do, at a matching rate of 25%, in cash or in kind. It's time to put such requirements on all federal student grants at all participating institutions, regardless of sector. Much of the wrangling over special laws and rules for for-profit institutions would be eliminated with true, outside the federal government matching requirements, universally applied.

Senator Alexander's rush to push through an HEA reauthorization comes at a time not only when higher education challenges are more formidable than his solutions, but at a time when the House should be preparing long-overdue oversight hearings into program and personnel issues at the Department of Education, which is in a competency if not a corruption tailspin.

Perhaps Senator Alexander's unstated goal is to tie up staff with HEA reauthorization rather than oversight, and to rush through a bill before investigations can properly be conducted. A good response by the House majority would be to say that the sooner the Department of Education replies to subpoenas, FOIAs, and letters of inquiry, the sooner HEA reauthorization can take place.

In other words, oversight must not suffer a bum's rush on HEA.







Words that need a Time Out

January, 2019

Washington -- Words that have lost their meaning need to be retired or at least given a long vacation to see if they can come back refreshed. Here is my list, plucked from recent topical news and experiences.

Farm Bill. Most of the money in the Farm Bill does not go to farmers. In the last iteration, the meaning of farmers was expanded to include farmer-nieces and farmer-nephews, who may never have been on a farm.

Specialty Crops. That's what the Farm Bill calls food. (As in Michael Pollan's admonition, "Eat Food.") These foods – you probably call them fruits and vegetables – get second class treatment in the Farm Bill, after subsidized "commodity crops" that are mostly directed toward biofuels, or for processed foods sent overseas to globalize our obesity and diabetes epidemic.

Horticulture. In the Farm Bill, organic crops that are good for us are tucked away in the horticulture subsections, as if they are only for gardeners*, not farmers. What's wrong with the word agriculture for organics? Who writes these bills, farmer-nephews?

Entrepreneur. This French word has been useful in recent decades to describe legitimate business enterprises undaunted by calculated risk-taking. It has never implied scamming, until now. Etymology dictionaries henceforth should include its new meaning, as used by Liberty University when describing its official who moonlights by corruptly rigging political polls. He's just an "independent entrepreneur," according to this university. Maybe we should give the German word Unternehmer its chance instead, until it can likewise be corrupted.

Evangelical. For decades this word had a religious meaning. Now it has a political meaning. It needs a ten year hiatus to see if it can ever come back to its original sense. By the way, evangelisch in German means Protestant, if anyone is looking for refuge from its American political usage.

Guys. This was once slangy, as in the wonderful musical "Guys and Dolls." Back when, it would never be used to greet a mixed party entering a restaurant, for example. What word are we now supposed to use for "guys"? Can't we just go back to the plural word you, or you all, or folks, or even y'all, rather than ruin guys? The English have the sense not to call everyone blokes.

Student Financial Aid. How, exactly, is putting people into debt "aid"? The misuse of this word has exacted a great toll on the unwitting. Call grants grants; call loans loans; drop the word aid.

Innovation. As used now by the federal Department of Education, it has become a dog-whistle word to signal education "entrepreneurs" (see above) that the coast is clear to raid the U.S. Treasury with their schemes.

Dog-Whistle. Still a good word, at least for now. Would that we didn't have to wear it out, too.

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* Nothing against horticulture in its correct sense. I am a gardener as well as a farmer. Just don't relegate the organic movement to gardening at a time when large farms are converting to organic methods to survive and to provide healthy food.







Genoways and Ricketts

January, 2019

Lincoln -- Like Governor Ricketts, I have not read This Blessed Earth, by Ted Genoways, a book chosen by One Book One Nebraska for statewide readership and discussion.

I have not read it yet, that is. Like a lot of people, I'll be eager to read the book that caused our governor to balk when it came to signing a routine proclamation for it.

I'm still reading Genoways' earlier book, The Chain, a book about the meat packing industry, the likes of which has not been written since the days of Upton Sinclair's The Jungle. And I've read excerpts of Genoways' new book as published in 2017 in Harpers magazine, titled "Bringing in the Beans."

The governor thought This Blessed Earth would not be unifying, he said. Actually, I think the governor feared it would be unifying, and he would not like the results. Family farmers have it hard; pointing it out should not be considered divisive.

Ricketts said Genoways was out of touch with Nebraskans. But Genoways is a graduate of Lincoln East High School and Nebraska Wesleyan University. He studied under Ted Kooser. He has written award-winning poetry about his grandfather's job at the Omaha stockyards, inviting critics to compare Carl Sandburg.

Genoways is known nationally as a "tenacious scholar." My take on his writing is exactly that; he is thorough to a fault in his documentation and his exacting portrayals of people and their work. It isn't always pleasant to read. Truth can be like that.

This tempest recalls public reactions to other Nebraska authors' works. Mari Sandoz was run out of Lincoln for her book Capital City. She had to move to Denver for her own safety. Willa Cather was not always kind to Nebraskans. She thought poorly of the generations that followed the pioneers, especially in her 1923 essay in The Nation.

In all likelihood, the governor hasn't read those works either. He might be shocked to know Cather wrote for The Nation.

A lot of people are laughing at the governor for inadvertently helping to sell This Blessed Earth. There is a term for enjoying another's misfortune: Schadenfreude. As a Nebraskan, however, I am embarrassed for the governor, not laughing at him, so a more appropriate term is fremdschämen. It's a sentiment applicable to much in Nebraska politics this day and age.








Release of the Mueller Report

January, 2019

Washington -- The confirmation hearing of William Barr for Attorney General left a huge issue hanging: whether Barr, if confirmed, will release the forthcoming Mueller Report to Congress.

Whether he does or not, Mueller can take it upon himself to provide it to Congress under the Lloyd-Lafollette Act of 1912. Mueller is a government employee, paid by taxpayers, and is protected from being dismissed for doing so by the plain language of the Act:

"the right of employees ... to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied." 5 U.S.C. § 7211

"The purpose of this Act was to allow Congress to obtain uncensored, essential information from federal employees. Congress intended to allow the federal workers direct access to Congress in order to register complaints about conduct by their supervisors and to report corruption or incompetence."*

That pretty much sums up the situation. Barr could refuse to transmit the report to Congress, but Mueller could certainly act on his own, which would be consistent with his charge to investigate.**

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* From https://en.wikipedia.org/
wiki/Lloyd%E2%80%93La_Follette_Act,
accessed 16 January 2019.

** Moreover, the Consolidated Appropriations Act of 2018 makes it illegal for any person to use federal money to “implement or enforce any nondisclosure policy, form, or agreement” that does not explicitly inform federal employees of their right to report any “violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety” to any member of Congress.... See commentary by Stephen M. Kohn at https://thehill.com/blogs/congress-blog/judicial/402027-are-trumps-ndas-legal

How to End the Federal Shutdown

January, 2019

Washington -- Here's a way to end the shutdown quickly: agree to appoint a High Commission to handle border security enhancement, and empower it to make decisions as to where on the Southern border to build physical barriers and where to use other means and measures. Give it two years and an appropriation made up of new money and money previously appropriated but unspent, not to exceed $5 billion.

The High Commission would be headed by George Schultz and George Mitchell, impeccably credentialed statesmen, who would seek the advice of security and legal experts to help guide the decisions.

The president said on national television that he was following the advice of experts, so this should satisfy him, as should the designation of a High Commission. Democrats have previously acknowledged the need for physical barriers of some nature in some locations, so this should satisfy them. No one needs to blink first.

This is not so much a compromise as a expedient way forward that would result in better border security as well as reopen the government.

The country is in a perilous state, vulnerable to health, transportation, and national security dangers far more serious than any dispute over physical barrier design. We need to press for solutions to open the government, commensurate with growing risks.

Lessons from The Nation's Prairie Capital

January, 2019

Lincoln -- Some days are better than others when it comes to governments, whether federal, state, or local. On January 9, 2019, as the federal government remained partially closed and the president walked out of a meeting to open it, state and local officials meeting in Lincoln calmly discussed and made progress on long range planning for the prairie grassland area northwest of the city.

The Lincoln meeting was chaired by the mayor and attended by top city officials and natural resource administrators from the University of Nebraska. The staff work for the meeting was excellent and the discussion moved forward based on facts and science. The meeting concluded with a sense of progress and accomplishment. Would that such people were in charge at the federal level.

A highlight of the meeting for me was an aside from a university official who reported that a recent visitor to Lincoln, a national leader in the discipline of range management, wanted to visit the grave of Frederic Clements in Wyuka cemetery, to pay homage to the remarkable founder of plant ecology. They found the gravesite and paid their respects. Clements was born in Lincoln and studied under Professor Charles Bessey before revolutionizing the world of life sciences with his far-reaching theories. His work (and that of his equally remarkable wife Edith Schwartz Clements) lives on not only in the history of science, but on the practical level in soil and water conservation efforts worldwide.

Great people and great lessons can come out of Lincoln, The Nation's Prairie Capital.


Passing the Baton

January, 2019

Washington -- The 4th Circuit Court of Appeals has, as somewhat expected, denied our remand request in the last of the nine civil fraud cases we brought against student loan lenders. The last case took over eleven years of back-and-forth wins and losses.

The overall final score therefore remains at 7-2. Seven lenders settled, each paying back in the millions.* One lender was determined by the court to be an arm of a state government, thus immune from suit.** The last defendant escaped, but its litigation expenses exceeded what it could have settled for and it faces additional litigation from others because of the losses it incurred in fighting our case.

Our overall record with the 4th Circuit is now concluded at 3-1. Over the years, we won three important decisions from the Richmond court. We could have ended at 3-0 and not tried for a fourth victory, but I felt an obligation to students, families, and taxpayers to continue until the legal process was fully concluded.

One of our Circuit Court victories was affirmed by the U.S. Supreme Court, so our record there is 1-0. That case will remain an important precedent in Eleventh Amendment jurisprudence.

The baton is now passed to others whose own cases are well underway. Borrowers have filed class action lawsuits based on our 2017 victory stripping sovereign immunity from the last defendant. A state attorney general has likewise brought suit on behalf of borrowers and prevailed in the first round of litigation. More will follow. The baton has been passed with a good lead for the final legs.

I express again much gratitude to my legal teams. And settlement monies have been invested back into charities that protect students, veterans, families, and taxpayers from unscrupulous and predatory practices in higher education finance.

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* The paybacks did not cover the amounts illegally claimed, however. Although the Inspector General determined that all such funds should be returned to the U.S. Treasury, Secretary Margaret Spellings overruled the Inspector General and allowed the lenders to keep the proceeds of their false claims. Hence the lawsuit under the False Claims Act to recover the funds.

** The Arkansas lender conceded, however, that it had made improper claims and voluntarily returned approximately $6 million to the Treasury prior to the lawsuit. My own research determined that the amount at issue was closer to $12 million, so the outcome was more of a tie than a loss. Because of this 50-50 split, the overall outcome could also be described as 7-1-1.