Three New Law Review Articles on Student Loans

November, 2020

Washington –  Three new, notable law review articles on student loans deserve the attention of the entire higher education community, especially those concerned about lapses in administering student loans at the U.S. Department of Education.  Each of the articles also intersects with topics explored in this blog in recent years.  

First is "Illusory Due Process: The Broken Student Loan Hearing System," by Deanne Loonin, in which the author provides an inside look at how federal contractors go through the motions of due process to give the appearance that student loans are administered under the rule of law.  The article presents original research, observation, and analysis never before published and is a remarkable contribution to the higher education literature. Toward the end of the article, reforms are offered to reverse the descent of the department and its contractors to such unacceptable levels.  One draws on, and quotes from, this blog's conclusion that corruption within the agency is an underlying cause of the descent. 

Second is David S. Rubenstein's "State Regulation of Federal Contractors: Three Puzzles of Procurement Preemption."   From the abstract: 

This article unpacks three doctrinal puzzles at the intersection of federalism and federal contracting, using student loan law as its anchoring case study. Currently, more than $1 trillion of federal student loan debt is serviced by private financial institutions under contract with the Department of Education. These loan servicers have allegedly engaged in systemic consumer abuses but are seldom held accountable by the federal government. To bridge the accountability gap, several states have recently passed “Student Borrower Bills of Rights.” These state laws include provisions to regulate the student loan servicing industry, including the Department’s federal contractors. States undoubtedly have legitimate interests to protect their residents, communities, and local economies against industry malfeasance. The overarching question, however, is whether federal law prohibits states from performing this remedial function.

Although this article is a thorough discussion of many aspects of "preemption," it would have been even more instructive had the author explained why the Department of Education under Secretary Betsy DeVos suddenly inflicted the dubious doctrine on the student loan world in 2018.  It was in considerable part due to favored contractors' loss of sovereign immunity, much discussed in this blog in previous posts.  One of the first actions of the Biden Administration should be to withdraw the DeVos preemption edict, not only on grounds that it hurts borrowers, but that several courts across the country have found it wanting.

Third is "The Sovereign Shield," by Kate Sablosky Elengold and Jonathan Glater.  The authors explore how agencies like the Department of Education are subject to capture by interest groups. They even name names, as in this passage: 

The case of student loan servicers illustrates potential capture concerns all along the spectrum. We turn again to PHEAA as an illustration of the revolving door between industry and government. Sally Stroup, for example, spent twelve years on the staff of PHEAA before staffing the House Education and Workforce Committee, had a brief stopover as a lobbyist for Apollo Education Group, which represents for-profit colleges and universities, and then was named as the Assistant Secretary of Postsecondary Education in President George W. Bush’s Department of Education.  Ms. Stroup is far from the only example. One of President Donald Trump’s most trusted campaign advisors now owns the lobbying firm representing PHEAA, Kathleen Smith, a former DeVos top aide, has been hired by PHEAA as senior vice president and director of federal relations, and a former PHEAA executive, Robert Cameron, was named the CFPB’s private student loan ombudsman, a job that has been called “the nation’s top [student loan] watchdog.”

The question the authors don't address, but should, is whether this is not just capture, but racketeering and corruption.  Such has been suggested before in the "Iron Triangle" series of this blog, naming the same names and several more.  A fuller treatment is offered in Dan E. Moldea's 2020 book,  Money, Politics, and Corruption in U.S. Higher Education.  

All three of the above law journal articles are required reading for those who want to understand current student loan dilemmas and choices confronting the nation.  In times past, the higher education trade press covered these matters; now it is increasingly only law journals.  But at least, as illustrated by these outstanding articles, someone is paying attention to the lows to which a major federal agency has fallen.     

Listening to Trump Voters

November, 2020

Lincoln – Our American democratic institutions have been tested, but they held.  We have conducted a free and fair presidential election.  Joe Biden won the popular vote by six million; the electoral vote will turn out to have a substantial margin as well.  

This does not mean our democratic norms won't be tested again, and soon.  The fact that over 70 million voters chose Donald Trump, who delighted in upending our institutions, over Joe Biden, a dedicated institutionalist, signals that we have not heard the last of whatever it is that has made so many Americans down on the very foundations of our country.

We need to find out just what that is.  We should hear, systematically, from Trump voters to learn more about what drives their deeply-felt opinions and grievances.

Some three and a half years ago, I suggested that Democrats were out of touch with voters, especially in the rural heartland, and that they should do an "Eat Crow Tour" to listen to why voters rejected them.  Part of the problem, I thought, was simply neglect, which could be remedied by multiple heartfelt apologies.  Obviously, that idea went nowhere.  

It's time to resuscitate it, but make it over without any party ownership.  Call it the American Unity Project or something that suggests goodwill and a genuine desire to learn what drives so many people to embrace candidates and policies that are not in the American political tradition.

Or maybe they are; it's just different traditions that are re-asserting themselves.  

I suggest that several non-partisan civic organizations band together to hold hearing-like sessions around the country to take public testimony.  The testimony should not seek balance; it should be invited from Trump supporters, to give them a chance, for better or worse, to be heard.  The testimony should be recorded and archived, to be analyzed by scholars and non-partisan individuals who can sort it out for common threads and themes.

Who could preside over the taking of such testimony?  I'm sure there are plenty of people who have the credibility and the demeanor to do so.  Not everyone in the country is at everyone else's throat.  I'd certainly like to hear from rural Trump voters about what shapes their political behavior.  And to know if their opinions of Trump have changed any after he sought to overturn the election.    

As a political scientist, I have hypotheses about what we might hear, but I am not a Trump voter.  There is nothing like collecting actual evidence.  There is also the cathartic effect that could be a substantial benefit from the effort. 

I am not willing to trust the future of the country to a few pundits or propagandists who give us their wisdom about how to read the results of the 2020 election.  We need to hear from citizens themselves to understand just what has driven them to the brink of unraveling America and to see what repairs are in order to keep it from actually happening.   The repairs to our institutions might not be as difficult as we think, but if they are, we need to know that, too.  

  

Needed: Algorithms to Broaden the Mind

November, 2020

Lincoln, Berlin – This morning's New York Times offers an insightful piece by Bret Stephens about Germany's Dolchstosslegende.  It includes this observation in reference to the fall of the Weimar Republic:

In a famous passage of “The Origins of Totalitarianism,” Hannah Arendt noted how “Mass Propaganda discovered that its audience was ready at all times to believe the worst, no matter how absurd, and did not particularly object to being deceived because it held every statement to be a lie anyhow.”

How apt, so as to understand our own times.  But that is not the point of this post.

I found the column because I like to look for thoughtful writers, like Bret Stephens, who are not necessarily of my own political persuasion.  I want to see their analyses of issues.  Which is why I have often turned to writers like George Will and, before him, William F. Buckley, before reading those whose views may be closer to my own.  Not to mention learning something of what they had to offer, including vocabulary.  Even if they sometimes drove me to despair.  

A person can go far by knowing both sides of issues, not just arguments in support of one's own views.

I recall a conversation a few years ago, among friends, about social media algorithms.  Some said they wanted to be led to sites that were aligned with their interests and their thinking, be it shopping or politics.  That, they argued, was human nature.

Some of us said the opposite.  Regardless of shopping benefits, we did not want to participate in a big political groupthink exercise.  

Social media algorithms are clever and sophisticated.  What I'd like to see is an app that senses where I need to broaden my mind, which leads me to understanding different perspectives beyond my own.

Such an approach might even help save Facebook, Twitter, and other social media platforms whose algorithms keep driving us apart.  Stop treating us like Pavlov's dogs. 

Bret Stephens' Dolchstosslegende column is not going to go viral, but there should be an algorithm that gives it the attention it deserves.   

   

Why Such Covid Case Disparities?

November, 2020

Washington, Lincoln, Berlin –  This week the number of Covid-19 cases per 100,000 population was 1345 in Berlin; 2818 in the Washington DC suburb Montgomery County; 4098 in Lancaster County, Nebraska; and 5252 in Nebraska overall.   

This is bad news all around, but why the disparities?  The easy answer is that the more the people fought against the virus with proven countermeasures, the more it paid off.   

The harder question is why the character and will to fight is so weak in Nebraska, and in Great Plains states generally.  

One factor seems to be the susceptibility of populations to partisan political propaganda, which, for whatever reasons (mostly spurious), has been discouraging Covid countermeasures, both subtly and overtly.  Nebraska, overall, has been blanketed for months with political messaging downplaying Covid; Lincoln not quite so much, being a city with competitive parties; Montgomery County even less, being the home of many scientific organizations and agencies, including NIH and FDA.  

Berlin is mostly beyond the reach of American commentators on Fox News, Sinclair Broadcasting, and One America Network.  It also knows the destructive power of political propaganda, having once succumbed to the master who perfected it, Joseph Goebbels.  

Nebraska is showing faint and belated signs of resistance to its state political leadership, which incredibly has refused for months to look at numbers of cases and has actually threatened action against local governments that want to put up a fight against Covid with all tools at their disposal.   More cities and counties are finally beginning to take matters into their own hands.  They have been encouraged to do so by the Nebraska medical community, which itself was slow off the mark but finally came to understand that they should not have lent their credibility to the half-measures and winks of state officials that kept the leadership in favor with the propagandists rather than going all out to save lives.  

What Nebraska could use now are a few football analogies directed toward its political leadership, to encourage them show a change of heart:  Stop calling the same play that doesn't work (hoping for available hospital beds); fully use the running, passing, and kicking games (contact-tracing, mask mandates, shelter-in-place where necessary); play hard all four quarters; make a fourth quarter comeback.  

Also:  Flip the channel on television sets away from govertainment to sports where the players follow the rules or are tossed out, and to science and nature programs, where pursuing truth is valued above all.    

Fighting Covid Spread with Science and Truth

November, 2020

Lincoln – A new research paper from the KU Institute for Policy and Social Research concludes that mask mandates are an effective way to fight Covid-19.  It analyzes the "natural experiment" underway in Kansas, previously discussed in an earlier post.

In Kansas, there was "a 50% reduction in the spread of COVID-19 in counties that had a mask mandate compared to those without."  This is a profoundly encouraging finding if we have the will to learn from it.  

Nebraska has a similar natural experiment underway, because mask mandates are in effect in Lancaster and Douglas counties but not elsewhere.  NU researchers should do a similar study and go one obvious step further: hypothesize and test a causal relationship, that the higher a county's percentage vote on November 3rd for Donald Trump (notably opposed to mask mandates), the higher the county Covid cases per capita.  

Aversion to masks and mask-mandates is observably rampant in rural Nebraska.  It must be considered a cause of the spread of Covid locally and elsewhere.  Going maskless is not just taking a risk with one's own life, it is an act of spreading the disease to others.  Rural Covid surges are actually taking over urban hospitals. From the Lincoln Journal Star:

Hospitalizations continue to surge in Lancaster County..., setting a new daily hospital census record for the third consecutive day. The vast majority of those hospitalized...are not Lancaster County residents....

The spread of disease has causes.  If this were the Bubonic Plague, we would be doing whatever we could to eliminate rats, fleas, and lice that spread it.  Likewise, we should deal honestly with spread of Covid by those who insist that the disease is a hoax, that masks don't work, or that individual freedom is at stake in the matter of mask mandates.  

Freedom is indeed at stake: the individual freedoms and the very lives of the victims of such beliefs and behaviors.  "The freedom to swing your fist ends where my nose begins." 

It is shameful that our elected leaders will not use their positions to fight Covid for all they are worth, by changing the behaviors of the maskless with mandates.  Mandates work.  It is time to put politics totally aside and save lives.  Enough with the years of false witness,* making victims of us all. 

The KU study demonstrates a use of the tools of science to discover truth.  May we read it – and heed it – north of the border. 

___________________________

* See the Ninth Commandment.

Dangerous Post-Election Strategies

November, 2020

Washington – As noted in earlier posts, the after-election strategies of both presidential contestants depend somewhat on which political party controls the House of Representatives on a one-vote-per-state basis, as provided in the Twelfth Amendment to the Constitution.  The losing candidate could try to move the presidential selection away from the Electoral College into the House, if his party controls it.  

Indeed, Donald Trump has lost the popular vote and is well behind in the Electoral College, but Republicans will control the House (on a one-vote-per-state basis), so a strategy is afoot to have Republican-controlled state legislatures certify alternative slates of electors in hopes that Joe Biden could be denied sufficient electoral votes to reach the 270 he needs to be declared the Electoral College winner.  

The rationale of the state legislatures would be that the popular elections in their respective states were fraudulent.  Although there seems to be no evidence of any significant fraud, a vigorous campaign is underway to make citizens believe there was.  

However, under law it is governors who certify electoral slates, so it becomes a question of which states did Biden win that have both Republican legislatures that would overturn a popular vote and a Republican governor who would certify a Republican slate of electors.  That appears to be only Arizona and Georgia.  But their combined 27 electoral votes, subtracted from Biden's current projection of 306, still leaves Biden with 279.  

What if Republican legislatures in Pennsylvania, Michigan, and Wisconsin, where Biden won the popular vote narrowly, certify slates to compete with the slates certified by their Democratic governors?  That would drop Biden below 270.  However, both houses of Congress must agree on rejection of any slates certified by governors, and the House, with a Democratic majority for such a vote, would not agree.

So it appears as if any strategy to deprive Biden of at least 270 electoral votes is not feasible, given the November 3rd election outcomes as they played out in each state.   

There is always the possibility that the courts might get involved and give a novel reading to the Constitution and to existing election laws, should any election questions come to them.  I believe this is unlikely.  It seems to me more plausible that the Roberts Court would reject such judicial contortions and instead use the occasion to try to restore Supreme Court credibility as an even-handed institution after making a misstep in Bush v. Gore in 2000.   The Court badly needs more credibility if it expects its other decisions to have public support.  

That leaves Trump with the use of the military to try to stay in power.  He has dismissed the Secretary of Defense, who showed an unwillingness to use the military for political purposes.  But Trump will also have to deal with the uniformed military leadership, which is doubtless preparing to resist misuse of the military in any effort to override the election outcome.  Officers are duty-bound to obey only lawful orders, and orders to overturn an election would not be among them.    

We can only hope it doesn't come to that, but to prepare for it if it does.  

Nebraska Covid Emergency

November, 2020

Lincoln – Nebraska's leading medical professionals are now in open public conflict with Governor Ricketts about how to deal with  Covid-19, which is out of control in Nebraska.  From the Omaha World-Herald:

Record numbers of COVID-19 cases and hospitalizations have prompted health care providers to call for Nebraska Gov. Pete Ricketts to adopt stricter health measures to stem the spread of the disease.

“Nebraska hospitals are suffering,” Dr. Erica Carlsson, an emergency medicine physician at Nebraska Medicine, said on Twitter. “Our ER’s are jam-packed and we are tired. We need real mandates, enforcement of those mandates and action by the government. Nebraskans will suffer and many will die if we keep up this pace of COVID spread.”

Similar messages were posted online by health care providers from the two other Omaha-based health systems....

Dr. James Lawler, a director at UNMC’s Global Center for Health Security, said health care providers’ calls for more action reflect “the frustration and desperation that my colleagues are experiencing.”

It's long overdue for the chasm to become public.  The governor and medical professionals have been in conflict since April, but not so publicly.  

The governor's response: 

A spokesman for Ricketts said the governor’s decisions regarding pandemic restrictions are based on science and data, not social media campaigns and tweets.

Ricketts said Thursday that he wanted to wait several more weeks to see the impact of directed health measures put into effect last month...

Several more weeks?  At the cost of how many lives?  Governor, back away as quickly as you can from your previous positions and start following the advice of medical professionals on the front lines.  It is they who are basing their advice on "science and data"; you are not.  Stop the claim that mandatory mask requirements are counterproductive; there is no such evidence. Stop threatening local governments with financial penalties if they take more aggressive actions than you propose.  Stop your state health department from overruling local officials who are closest to what their local communities need.  Stop the nonsense of looking at the trailing indicator of remaining hospital beds as your "North Star" to guide you.  The beds are soon full to overflowing, because you have been looking at trailing, not leading, indicators.  Nebraska business leaders know that, too, and have aligned themselves with the recommendations of the medical community.  

Governor Ricketts is not the only politician acting irresponsibly.  Former congressman and mayor of Omaha, Hal Daub, felt ill on election day, went to vote and on his way home obtained at test which proved his suspicions correct: it was Covid.  How many people did he infect at the polls?  

All of which raises the question of what President-elect Biden can do nationwide to fight the pandemic now, because he does not take office until January 20th and the incumbent president has disengaged himself from consideration of immediate countermeasures against the pandemic.  

Recommendation:  when Biden appoints his Covid task force this week, he should ask them to come up with suggestions that would have bipartisan support and even get the current administration's agreement for immediate action where possible.  

For example, one suggestion would be to have the incumbent president use the Defense Production Act to authorize federal agencies like FEMA, DoD, and DHS to coordinate production and distribution of medical supplies, as well as emerging Covid treatments, among the states.  The president has already said he would use federal agencies to distribute vaccines, so this overdue action should not be seen as any fundamental violation of principles of federalism.

Another suggestion would be to obtain early agreement on a Covid legislative package by involving key Republican governors in negotiations to break the current congressional impasse.  Governors Charlie Baker, Phil Scott, and Larry Hogan know that getting help to states on a bipartisan basis is crucial to keeping local governments functioning.  That assistance would be not only for frontline health workers but also to keep firemen and policemen on the job, which the current administration should surely be ready to support.  

A key to combating Covid everywhere is not to wait until January 20th, but to get a running start on bipartisan actions by involving responsible Republican governors immediately.  

___________________________

P.S.  (Three days later)  It's good to see the message that we can't wait from UNMC's Dr. Lawler, in the national press.  Read it here. 

Incredible Victory for Democracy

November, 2020

Washington, Lincoln, Berlin – The 2020 U.S. election, now winding up, will go down in history as one of democracy's greatest triumphs.  Pundits claiming it was somehow a calamity are wrong.

Look at the popular vote: the spread between Joe Biden and Donald Trump is four million and counting.  Importantly, that's not just Democratic votes; it includes votes from Republicans who split their tickets.  Republican candidates ran ahead of Trump in many races.  The incumbent, democratic norm-breaking president is being ousted on a bipartisan basis.  From Maine through Nebraska to California, Trump underperformed.  This gives nascent hope to Never Trump Republicans and those who want to return the party more to its founding principles.   

I'm also looking at what this election might do to shake up the Democratic Party, which badly needs to reconsider its election strategies.  The party may now be forced into an overdue understanding of various constituencies whose voices it has badly neglected — Hispanics and rural Americans are two obvious examples.  The Democratic Party must also clean its house of advisers who are so out of touch with America that they failed, while winning the presidency, to take the Senate and almost lost the House (not to mention their 2016 election fiasco and the Senate losses in 2018).  

But back to the historic nature of this election.  It's a huge victory for democracy, even comparable to the fall of the Berlin Wall, to D-Day, and to the Battle of Midway.*  Let there be no mistake about the 2020 election: democracy in the U.S. faced a hugely difficult challenge, not unlike great struggles of the last century. 

How can 2020 compare to those events?  Consider these very real threats:

First, a large segment of the U.S. dangerously developed a taste for un-presidential behavior in its leader, fed by news media the likes of which have not been seen since the heyday of Dr. Joseph Goebbels, the propagandist of Germany's Third Reich.  The more Trump broke norms, even of truth and decency, the more his base adherents cheered. Second, opposition party Democrats played into media hands by failing to develop their own disciplined messaging, allowing Democrats to be successfully, however wrongly, characterized as opponents of law and order, as socialists, and as totalitarians themselves who would end free speech.  Third, voter suppression techniques were widely applied by Republican Party operatives as never before, in an attempt to intimidate, discourage, and disqualify Democratic voters, all during an ongoing pandemic. 

I give much credit for overcoming these obstacles to citizens who stood for hours in long, long lines to vote, despite all. They risked their lives for democratic values.  I also give much credit to ticket-splitting Republicans (there were many), who mustered a final measure of decency and respect for our form of government to make this a bipartisan and historic victory for democracy itself.  

What did this victory prevent?  Another four years of increasingly autocratic rule, in my view, would have shredded our hard-earned international alliances, especially NATO; destroyed the best of our Civil Service; made the judicial branch subservient to the executive branch; squandered another four years in the race for climate change solutions; and undermined the integrity of future elections.  

No Kaiser, Emperor, Czar, or Comrade-Chairman ever posed a greater threat to our democracy than did the situation into which our country blundered with the election of 2016.  The disastrous fallout from that election has proved to be second only to the danger once presented by Der Führer, in my assessment.   

Let us build on this incredible 2020 election to end a shameful chapter of American history.  There is much to build on.  However, it does not serve us well to demonize those who did not contribute to the victory.  I understand Trump voters; many are not independent actors so much as media-addicted collections of vulnerable humans overwhelmed by messages of fear and division, and they reacted accordingly.  It's time to reach out to them with a more hopeful and understanding approach, which action should also be a tonic for those on the winning side as well.  

Look at the popular vote; look at the bipartisan nature of the Trump repudiation; look at the obvious yearning among voters for a return to decency and democratic values.  This was a truly great election. 

_______________________________

* Midway was a narrow escape from an Asian, fascist-aligned, totalitarian power.  The 1942 battle, like the 2020 election, could easily have gone the other way.  We lost the carrier USS Yorktown, but the Japanese lost four carriers.  The victory only stopped the enemy's advance; it did not end the war, which would go on for three more years.  But it was an incredible victory nonetheless, and gave democracy hope.  

*  D-Day was another difficult victory for democratic governments. General Eisenhower was so uncertain of the outcome that he had a speech ready to admit failure.  But the 1944 amphibious landing at Normandy was ultimately a success and led to an end of the war a year later, over European fascism.  

* The fall of the Berlin Wall in 1989 represented a rollback of communist totalitarianism and a resounding victory for democratic governments.  It was brought about by resolute democracies, to be sure, but also by internal weaknesses in authoritarianism, which failed to take into account democratic impulses in oppressed populations.  

Test of Character

November, 2020

Lincoln –  Nebraskans, confronting an alarming increase in Covid-19 infections, are facing a test of character.  Will we fight the pandemic or, like some other states in our region, give up and let the disease run its course, at whatever horrible cost?  

There are discouraging reports from Iowa, the Dakotas, and other states where governors say there is nothing they can do.  Nebraska Governor Ricketts has also been in that camp from the outset; his North Star guide has been to hospitalize those who becomes sick, not to use his powers to limit the number of cases.  Instead, he urges "individual responsibility."     

Now the hospitals are about to be overwhelmed.  The governor responds by saying that Nebraska has low unemployment.  But Nebraska always has low unemployment.  

There is a glimmer of hope in Nebraska, as the governor's appointed state health director has finally acknowledged the obvious, as reported by the Lincoln JournalStar:  

 
Dr. Gary Anthone, the state's chief medical officer, said "it is obvious that we are headed in the wrong direction" as COVID-19 cases continue to grow and spread across the state while hospital beds begin to fill.

"We cannot surge our way out of this pandemic by increasing hospital beds or staffing," he said. "We need to stop the number of cases rising daily. We need to decrease the number of people who are hospitalized."

Perhaps this statement is a harbinger of a change in state policy.  Governor Ricketts needs to get in step with local elected officials who want to fight the pandemic; he should not continue to oppose their efforts.*  Fighting the pandemic with "individual responsibility" makes no more sense than relying on people's good judgment about how fast to drive, or whether to buy auto insurance, or whether to poison groundwater resources with atrazine.  Collective action is sometimes necessary to protect the health and well-being of the greater population.  This is one of those times. 

This is a test of character.  Facing down the disease will require facing down those who would give up.

____________________________

* The governor and attorney general have opposed local mask mandates, despite their efficacy and despite the support of many businesses that also welcome them because they provide greater protection for those who want to patronize the businesses, not to mention controlling infections more generally.