No One Looks Good in Prison Deal

September, 2023

Lincoln —  Seldom is a public policy deal struck that does not have winners somewhere along the way, but the recent state prison siting agreement on 300 acres north of Lincoln seems to be one.  No one is looking good; fingers are pointing; conspiracies abound.  

The cause of transparency in government was dealt a blow from both the state and the city.  Citizens had no warnings about what was going on.  Suddenly the state announced a new prison was to be built at North 112th and Adams Streets in northeast Lincoln, and that it had already paid landowners $17 million for 305 acres, or about $56,000 per acre.  When nearby residents revolted, the site was switched to another location north of I-80 that was already owned by the city, but which the city had previously said was not available.  The city gave it up and got the Adams street property in exchange, but with strings that it would pay for improvements at the new alternative  site.  The fait accompli was announced at a press conference.  

The rule of law may also have been dealt a blow.  There are statutory procedures that are supposed to govern such transactions.  If the state was acting under its eminent domain authority, there should have been public notice and an independent appraisal of the property.  

The cause of affordable housing lost out, too.  Imagine what landowners will think their agriculture-zoned property is worth if the state itself is paying $56,000 per acre.  Will taxpayers now have to subsidize developers even more to increase Lincoln's affordable housing stock? 

Neighborhood comity evaporated quickly, when north Lincoln residents complained that this would never have happened to south Lincoln.  And those near the final site asked why they had no voice at all in the matter. 

Ethnic and racial divides widened as Native Americans watched how quickly the city acted to move the prison away from a location next to a largely white, middle-class neighborhood, compared to their own constantly thwarted attempt — even through the city's board of zoning appeals — to protect an indigenous peoples' spiritual site in an environmentally fragile area near Wilderness Park.

Conservationists watched to see if anyone was aware how the prison site at 112th would degrade Prairie Pines, an important prairie and woodland natural habitat next door.   It was seldom mentioned.  

Penal reform advocates, who wanted to reduce prison populations as a part of prison construction considerations, lost a chance to make their arguments.  

Political analysts of all stripes, especially those with an eye for real or imagined conspiracies, widened already yawning gaps with declarations of who got the better of whom in the deal.  Some said the state cleverly planned it all beforehand to force the city's hand on the property the state wanted in the first place.  Others said the city got the better deal because it would up with a property to sell off, probably at a profit of millions at the needless expense of state taxpayers.

Was there a way to avoid all of this?  Questions remain as to why the city, or at least the city's state legislative delegation, did not press the state to explain the authority under which it was acting, and if the authority was eminent domain, to follow public transparency and appraisal requirements. 

Is there a way to move forward to remediate some of the damage done?  Yes.  The situation calls for a review by an outside, independent third party, perhaps a reputable good government organization outside Nebraska, to determine how public transparency was avoided, at what cost.  

The city could recover considerable credibility if it were quickly to commit to an open and transparent process to evaluate options on its newly acquired Adams Street property.  The city's own comprehensive plan calls for a buffer around natural resources like Prairie Pines; so does its climate action plan.  Its new local food plan might be a good fit with some of the property.  Sales of portions of the property could be used to fund conservation easements to protect other natural resources, including remaining parcels near the controversial development near Wilderness Park.  Prompt and proper appraisal of the Adams Street property would put a damper on wild land speculation around Lincoln that hurts the cause of affordable housing.  

Most of all, state and local governments must let citizens have a say.  





Time for the Big Fix in U.S. Higher Education

August, 2023

Washington — Now is a propitious time to fix much of what's wrong in U.S. higher education pricing, admissions, and financial aid.  Three recent developments make such action more plausible than previously, and a looming student loan repayment crisis makes it a necessity.  

Affirmation action based on race is out, per the U.S. Supreme Court.  Legacy admissions are perhaps the next preferences to fall, partly in response to the affirmative action decision.  And then there is Henry et al. v. Brown, a lawsuit striking at the way institutions surreptitiously manipulate enrollment management to favor the wealthy over the financially needy, which has contributed to the debilitating student loan crisis.  This case is not going away until there are many large settlements in favor of borrowers.  All eyes are on the Secretary of Education to see what he will do in response to these three developments. 

Now, as to the necessity of a sweeping fix, consider the following.  

All this is happening at a time when millions of student and parent borrowers are going back into loan repayment in October, after the Covid pandemic pause gave them three years of temporary relief.  The Biden administration is trying to effect a smooth transition to repayment but is hampered by a lack of resources from Congress to do the job.  The administration's earlier attempt to cancel up to $20,000 of debt for borrowers with annual incomes under $125,000, which would have cut the number of accounts to service by nearly half, was blocked in June by the Supreme Court.  

The Biden cancellation plan was not only blocked by the Supreme Court, it was also unpopular with many because it did not address the underlying causes of the huge debt build-up, which would be all too likely to repeat themselves quickly.  This viewpoint was widely distributed across the political spectrum, but the lack of attention to the future has been pounced upon by congressional Republicans especially, who continue to hold up funding to provide servicers what they need to get people back into repayment accurately and efficiently.  (This is ironic in that most servicers are located in red states, and are being impaired by their own congressional delegations.)

So what should the Secretary do?  There is a ready solution to address all of the above:  begin to enforce laws already on the books. 

The Secretary should send department program review teams to selected institutions with instructions to review whether their pricing, admissions, and financial aid processes are complementing or conflicting with the statutory purposes of federal student financial aid programs under the Higher Education Act. If they are complementing federal programs, they are not in trouble.  But if institutions are undermining federal programs by favoring the wealthy, in such a way that it results in higher debt for the financially needy, whether by legacy admissions or secretive algorithms, their future participation in HEA Title IV should be reviewed.*  Transparency in financial aid, and therefore in setting net price, is required by federal law.**  Serious misrepresentations by institutions in matters of admissions and financial aid are punishable under law by limitation, suspension, or termination from federal programs.***  

This reform action by the Secretary is urgently needed to convince skeptics that immediate help for servicers and borrowers (many of whom are the victims of unfair institutional practices) will not lead to even greater borrowing in the future.  Putting institutions on notice that they can and will lose their eligibility for federal student aid if they try to game the system, against the purposes of the HEA, will change institutional behavior.**** Reducing bias toward the wealthy (as well-documented by Raj Chetty and others) will also redound to the benefit of the lower income and its disproportionately large minority component.  This will counterbalance the loss of race-based affirmative action, which over the past three decades unfortunately acquired its own bias toward wealth. 

Such action by the Secretary is also necessary to restore the faith of Americans in the promise of higher education, which badly needs it.


* Legacy admissions are often dwarfed by wealth biased algorithms. Chetty et al. estimate them at 46% of bias toward wealth in their sample. Doing away with the former may only be cosmetic if it leads to increased reliance on the latter.

** 34 CFR § 668.42 Financial assistance information   

*** 34 CFR § 668.71 Scope and special definitions

**** Many institutions would welcome relief from the destructive merit-based aid arms race.  


DOJ and the Student Loan Crisis

August, 2023

Washington — How much of the nation's student loan crisis can be attributed to the Department of Justice?   It's a question that deserves more exploration than it has received.

There are at least four instances in the past few decades when DOJ made highly questionable calls that exacerbated the crisis.  

1.  In the early 1990s, a group of colleges known as the Overlap Group agreed to limit the amount of grants they were giving to non-needy students, to be able to target the financially needy instead.  DOJ stepped in to say it would be a violation of the Sherman Antitrust Act for the colleges not to compete against each other with grants for the non-needy.  A federal appeals court ruled for the colleges, but DOJ did not change its position.  Congress then carved out a narrow exemption for such colleges, but again DOJ held fast in its interpretation.  This helped set the stage for a merit-based arms race among many colleges that not only remains to this day but has spread widely, short-changing need-based aid that could have been deployed to the financially needy to reduce student loan borrowing.  It has also led to tuition hikes and the practice of discounting to give the illusion of aid.  

2.  In the early 2000s, several student loan lenders began making false claims against the Department of Education.  After Inspector General's audits, Secretary of Education Margaret Spellings ended paying the false claims but did not require the lenders to pay back any ill-gotten gains.  In subsequent litigation over the false claims, DOJ did not intervene against the lenders, despite remarkably detailed discovery evidence documenting the illegal schemes. (If this didn't result in DOJ's intervention, what would?) This sent a signal to the student loan industry that action against it from DOJ under the Higher Education Act was unlikely.  Bending or breaking rules might eventually have to be stopped, but there would be no consequences, even requirements to reimburse.  This set the stage for widespread loan servicer dysfunction in the subsequent decade, adding billions of dollars of debt onto student and parent borrowers.  Secretary Miguel Cardona recently announced the cancellation of $39 billion of such debt, which appears to be only a first installment.

3.  In 2016, another small group of colleges held discussions to try once again to limit college aid to the non-needy, which might have led to reform of legacy admissions as well.  (Legacy admissions are sometimes explained as a way for colleges to raise funds, but those funds are often returned back as aid to non-needy students.)  According to a chapter in a soon-to-be-published book about "enrollment management," when DOJ learned of these discussions, it demanded that the colleges preserve any records as possible evidence of violations of the Sherman Act.  This gave the enrollment management industry (historically associated with lenders) the green light to roar ahead on making so-called merit aid even more of a priority over need-based aid at many colleges.  The financially needy would have to rely on ever greater student loan debt.  

4.  In 2023, DOJ's solicitor general appeared before the Supreme Court on behalf of President Biden's student loan cancellation effort under the HEROES Act.  A key question in oral argument was whether the State of Missouri, out of its relationship with the Missouri-based student loan servicer MOHELA, had standing as a plaintiff.  Elizabeth Prelogar argued for DOJ that Missouri did not have standing, but inexplicably (a huge surprise to me), said MOHELA would have standing if it had been a plaintiff.  This gave the Supreme Court majority an opportunity to make a much shorter leap to give Missouri standing, if DOJ was conceding that MOHELA had it.  

I thought at the time (and still do) that this was a huge gaffe tactically and an abrupt reversal of DOJ policy.  In 2016, the loan servicer PHEAA asked the Supreme Court to take up, on certiorari, a 4th Circuit decision that PHEAA was not an arm of Pennsylvania.  The Court asked the solicitor general to advise it of the position of the United States on the question.  In the summer of 2016, in the DOJ solicitor general's office, both PHEAA counsel and counsel for two plaintiffs against PHEAA gave presentations.  (I was present for the plaintiffs.) In a written response to the Supreme Court's request shortly thereafter, the solicitor general counseled the Supreme Court to deny certiorari to PHEAA, on grounds that it was not an arm of Pennsylvania, which the Court then did in January, 2017.* 

The relationship of PHEAA to Pennsylvania is substantially the same as MOHELA to Missouri.  What made Elizabeth Prelogar suddenly argue that MOHELA would have had standing?  The Supreme Court had denied PHEAA certiorari on essentially the same question.  Why didn't DOJ raise this?  Neither Missouri nor MOHELA had standing until DOJ gave MOHELA away in oral argument.  It was then inevitable for Chief Justice John Roberts to exploit it in his written decision.  

It can be argued that the Supreme Court majority was bent on making the student loan case another notch in its belt supporting a "major questions doctrine," regardless of roadblocks in its way, but why was DOJ such a willing party to it on the question of standing?** On such points is the course of history determined.  

It is another example of how DOJ has made dubious decisions on student loan matters for decades, which have disadvantaged borrowers and have actually undermined the federal government's own programs to help the financially needy.  DOJ actions have driven up borrowing and its inactions have contributed to a broken student loan servicing system.  Its gaffe hangs over future attempts to provide student debt relief.  

What will done about it?  DOJ has recently shown signs that it is beginning to understand how it has been hurting the financially needy, and how some colleges have tried to use their (now-expired) statutory exemption from the Sherman Act to collude in favor of merit-heavy enrollment management schemes.  Is DOJ's decision to file a statement of interest with the court in the Henry case a long-overdue reversal?  Probably not.  DOJ still has a long way to go.***   


*See Dan E. Moldea, Money, Politics, and Corruption in U.S. Higher Education (2020), pp. 125-126.

**DOJ and the Solicitor General were more impressive in defending the use of the HEROES Act as the basis for student loan relief, although many experts believe the HEA would have been a better choice.  Unfortunately, DOJ also disadvantaged itself on the matter of the relief apparently being so costly that it triggered a "major question" in the view of some on the Court.  The relief could and should have been scored at a "minor question" level by subtracting debt cancellation already (April, 2022) announced and owed borrowers as a result of servicer dysfunction, as well as subtracting uncollectible amounts already subject to the Federal Claims Collection Standards (FCCS), 31 C.F.R. Subt. B, Ch. IX, which is under DOJ and Treasury jurisdiction.  The numbers presented to the Court were double- and triple-counting, and should have been unduplicated.  Had they been, the sharpest written exchange among justices in modern Court history, which has shaken the Court's standing in the eyes of the public, could have been avoided.

***From the DOJ statement of interest: "The United States offers no view on Plaintiffs’ antitrust standing, their factual claims, the proper definition of “need-blind,” the application of any applicable statute of limitations, or the separate motions to dismiss...."  In other words, in its statement DOJ offered the court a way out of the case without ever looking at how exactly financially needy students were being forced into higher levels of debt, despite the plaintiffs' detailed descriptions of enrollment management schemes that were illegal if for no other reason than they were secretive and not disclosed as required by the Higher Education Act (see citations below).  Rather than dealing these schemes a coup de gras, DOJ is choosing to soft-pedal them. 

34 CFR § 668.42 Financial assistance information.


(1) Information on financial assistance that the institution must publish and make readily available to current and prospective students under this subpart includes, but is not limited to, a description of all the Federal, State, local, private and institutional student financial assistance programs available to students who enroll at that institution.

(2) These programs include both need-based and non-need-based programs.

(3) The institution may describe its own financial assistance programs by listing them in general categories.

(4) The institution must describe the terms and conditions of the loans students receive under the Federal Family Education Loan Program, the William D. Ford Federal Direct Student Loan Program, and the Federal Perkins Loan Program.

(b) For each program referred to in paragraph (a) of this section, the information provided by the institution must describe -

(1) The procedures and forms by which students apply for assistance;

(2) The student eligibility requirements;

(3) The criteria for selecting recipients from the group of eligible applicants; and

(4) The criteria for determining the amount of a student's award. 
[Emphasis added]    

34 CFR § 668.71 Scope and special definitions.

(a) If the Secretary determines that an eligible institution has engaged in substantial misrepresentation, the Secretary may -

(1) Revoke the eligible institution's program participation agreement, if the institution is provisionally certified under § 668.13(c);

(2) Impose limitations on the institution's participation in the title IV, HEA programs, if the institution is provisionally certified under § 668.13(c) ;

(3) Deny participation applications made on behalf of the institution; or

(4) Initiate a proceeding against the eligible institution under subpart G of this part.

Will Merlin Hear these Birds in the Future?

August, 2023

Lincoln — The bird identification app Merlin heard the following birds during the early mornings of July 23-29 on the north half of our tallgrass prairie and riparian woods at 5840 West Superior.  

The property is in the process of receiving a conservation easement, but two neighboring properties to the north and east, currently grasslands, may soon be developed.  If that happens, how many of these species will disappear?  Likely a majority of them.  

July 23. Red-eyed Vireo, Downy Woodpecker, Northern Cardinal, American Goldfinch, Black-capped Chickadee, Field Sparrow, American Crow, House Wren, Red-headed Woodpecker, American Robin, Song Sparrow, Cedar Waxwing, Blue Jay

24. (additional) Vesper Sparrow, Upland Sandpiper, Eastern Kingbird, White-breasted Nuthatch, Common Yellowthroat, Baltimore Oriole, Rose-breasted Grosbeak, Eastern Wood-Pewee, Red-bellied Woodpecker, Gray Catbird, Grasshopper Sparrow, House Finch, Red-tailed Hawk 

25. (additional) Cooper's Hawk, Great-tailed Grackle, Eastern Meadowlark

26. (additional) Dickcissel

27. (additional) Yellow-throated Vireo

28. (additional) Great-crested Flycatcher, Brown Thrasher

29. (additional) Killdeer

Total July 23-29: 34 species

Unexpectedly absent from the Merlin list (heard or seen at other times):  Great Horned Owl, Barred Owl, Yellow-billed Cuckoo, Northern Bobwhite, Yellow-shafted Flicker, Red-winged Blackbird, Tree Swallow, Barn Swallow, Eastern Bluebird, Orchard Oriole. 

And what about butterflies and other pollinators?  Monarchs were spotted frequently during the last week of July, especially on Whorled milkweed, Common milkweed, and Butterfly milkweed.  Wachiska Audubon reports in its August newsletter that the 17-acre aforementioned grassland to the east, owned by the City, "was hayed a few weeks ago, and by the end of July the native grasses and forbs had really taken off.  There were dozens of common milkweed plants that were over two feet tall after the haying and some timely rains...."  Wachiska deserves credit for clearing invasives from this parcel to give grassland birds and pollinators a chance.  

Speak for Yourself, David Brooks

August, 2023

Washington — David Brooks made a splash with his column "What if We're the Bad Guys Here?"

We can condemn the Trumpian populists until the cows come home, but the real question is: When will we stop behaving in ways that make Trumpism inevitable?

Speak for yourself, David Brooks. Just when will you stop? You're long overdue.

Some of us have been trying to behave responsibly, reaching out to the Trumpian populists to address their real needs, to demonstrate to them that democracy works, that they do not need to follow a dangerous authoritarian to get their voices heard and their needs addressed.

I've spent years working on the Farm Bill (which should be called the Food Bill), trying to get elected officials on both sides of aisle to make the bill a vehicle to address crises in rural (and culturally rural) areas, such as the lack of healthy food, the faltering health care system, and the deaths of despair caused by obesity and opioids. One solution would be to bring back the Extension Service to address nutrition and wellness. Do you know what the Extension Service is, why it is trusted when other institutions are not, and why channeling help through it could make a big difference in political as well as physical health? Do you and your fellow Bad Guys (the so-called elites) ever think in these terms? Not in my experience.

I've spent even more years trying to stop the nation's student loan system from widening class and race inequalities.  With rare exception, I have not noticed you and your fellow Bad Guys engaged in this effort. Now higher education is widely distrusted, especially by the Trumpian populists, which portends ill for the nation on many levels — political, economic, and social.

So, yes, stop behaving so counterproductively, so stupidly, if I may say it that way.  For good advice, seek out people who have the highest Bad Guy credentials but have overcome them.  We're out there. Will you pitch in?


Is It Racketeering?

August, 2023

Washington — A few years ago, a Philadelphia newspaper reporter called me to validate, if possible, what he thought was an outrageous statement from a board member of the federal student loan servicer PHEAA.  The board member had told him that PHEAA did not cancel federal student loans even if borrowers qualified by law, because holding onto the loans was how PHEAA made money, not by canceling them.

I told him it was all too true and he had an obligation to report it publicly for the sake of the integrity of the federal student loan program.  Not to mention how PHEAA was adding to ever-higher debts for many who will never be able to pay them off.   

The call came around the same time a PHEAA employee asked me for advice on how to fight his dismissal for objecting to how PHEAA was misleading borrowers through its call-center operations.

It was not long until the attorneys general of Massachusetts and New York both sued PHEAA on behalf of their states' borrowers.  

The U.S. Department of Education, however, took the side of PHEAA.  In a March, 2018, notice from Secretary Betsy DeVos, the Department claimed that neither states nor borrowers could bring actions against PHEAA because of "federal preemption" under the Higher Education Act.  (Talk about federal overreach!) The Department also ended its cooperation with another federal agency, the Consumer Financial Protection Bureau, with regard to student loan borrower complaints.  The Department of Justice even attempted to intervene against the Massachusetts lawsuit. 

These actions were led and coordinated by former PHEAA employees who rotated through the Department of Education.

Fast forward to 2023.  Several state and federal judges have knocked down the "preemption" attempt to bilk borrowers and the Department of Education has, appropriately, begun to make remediations to those victimized. 

In the Federal Register of July 24, 2023, Secretary Miguel Cardona finally reversed the bizarre attempt to protect servicers from borrowers, and from states acting on behalf of borrowers.  He announced the return to "cooperative federalism," the foundation of the Higher Education Act of 1965.  This follows his action earlier in the month to cancel $39 billion of student debt that was the result of improper servicer actions.

An experienced attorney with considerable federal experience is now asking, in part on behalf of family members who have been borrower victims, if PHEAA's willful behavior is an example of illegal conduct under the Racketeer Influenced and Corrupt Organizations act (RICO).   It certainly seems to be.  If this isn't racketeering, it's hard to imagine what would be.   

PHEAA is no longer a federal loan servicer; much of its portfolio has been transferred to MOHELA, a servicer with its own set of credibility problems.  But that does not mean a RICO lawsuit against PHEAA could not be brought.  

Moreover, at what point should colleges have been obligated to warn potential borrowers of the risks involved in taking out student loans, that servicers could and would undermine the terms and conditions of the loans, and that consumer protections would be erased in the process?  Would the FTC and SEC permit the marketing of such products in other sectors of the economy?  Surely not.    

I regret that I was never able to help the PHEAA employee who was fired.

To my knowledge, the Philadelphia newspaper reporter never made public what the PHEAA board member told him.  Had he done so, perhaps that $39 billion — and counting — figure would have been much lower.    




Secretary's Bombshell

July, 2023

Washington — After yesterday's bombshell announcement by the Secretary of Education that the government would cancel $39 billion of student loans for over 800,000 borrowers, it's time to get answers as to what's going on here.  

The Secretary said it is necessary to act to correct mistakes that were made in a broken lending and servicing system, which is one way of putting it.  A more accurate way would be to call it what it is:  finally, a quantification of years of massive waste, fraud, abuse, mismanagement, malfeasance, deception, and racketeering.

While I applaud the work of those dedicated employees at the U.S. Department of Education who have been working tirelessly to bring fairness to victimized borrowers (you know who you are), here are questions that must now be answered about the ongoing debacle that has been festering for many years:

  • What did the government know and when did it know it?  
  • Was there inside help for the perpetrators from within the Department of Education and Department of Justice?
  • Will there be clawbacks from any loan servicers or will taxpayers have to pay the entire cost of the cancellations?  
  • Will there be an investigation and prosecutions?  

If there is an investigation, I stand ready to assist to the extent I can shed light on these and related questions.  When the government knew can be pinpointed; who assisted inside the government can be identified.  Evidence is abundant.  Some is already public; some would have to be released by the government itself.  

This morning I received an email from a student loan borrower in Oregon who had been victimized badly over the years, into whose case I looked in much detail.  She was notified yesterday that most or all of her remaining loan balance would be cancelled.  I had taken up her case directly with the Department, which kindly allowed me to describe exactly how lenders and servicers worked their frauds and deceptions on her.  She wrote: "This is GREAT news and a huge relief."

This is being repeated in 800,000 households today.  Again, I applaud those in the Department of Education, and in the borrower-advocacy community, who have worked so hard for this moment.

As a taxpayer, however, I want investigations and accountability.*  And corrections to the "broken system" that gave rise to it all.  


* How is the $39 billion being scored on the government's books?  In the case of the Oregon borrower, she had already paid back nearly all of her original principal and her balance was almost wholly attributable to lender and servicer "mistakes," as the Secretary put it.   It was never properly an account receivable and its correction requires no government outlay.   A further scoring question:  how much of the $39 billion would have duplicated the Biden administration's cancellations under the HEROES Act?  To the extent the HEROES cancellations would have zeroed out about half of the eligible borrowers' accounts, it would be duplicative.  Because the policy behind the $39 billion was announced months before the HEROES cancellations, it should have been considered current policy and scored to reduce the HEROES cost estimate that the Supreme Court used to convince itself that the HEROES cancellations constituted a "major question."  As more and more victimization of borrowers is revealed — wait for discoveries on Parent PLUS loans — it will become apparent that the HEROES cancellations were not so major after all.    

Mixed Supreme Court Messages

July, 2023

Washington — Talk about mixed messages.  Take these two, from Chief Justice John Roberts' majority opinions on, respectively, the recent affirmative action and student loan cancellation cases.  They seem to go against the thrust of the balance of the two opinions:

Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. 

We hold today that the act allows the Secretary to ‘waive or modify’ existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up.

I interpret these passages if not as invitations, at least as openings for the Biden administration to reshape the higher education landscape, which badly needs it.   

Many colleges and universities themselves had turned affirmative action, in practice, into a fig-leaf coverup for admissions and financial aid discrimination against the lower income, ironically putting financially needy black students disproportionately into debt.  Now is a chance to change that, by starting to look at all relevant factors in both admissions and financial aid.  

As for student debt cancellation, the way now seems clear for the Secretary to use his compromise and settlement powers under the Higher Education Act to remediate wrongs committed against borrowers who have been victimized by well-documented debt traps.  Now is a chance not only to provide relief to borrowers, but to gather public support for such cancellations as a matter of fairness.  Borrowers did not sign up for the kinds of predatory lending practices they too often encountered at every step of the way.  The Biden administration has not done a good job of explaining that, and it has cost them dearly.  Had they fashioned debt relief around fairness from the outset, we would all be in a better place today.* 

Among the first statutory or regulatory provisions to modify would be interest rates (and fees) that brought in more revenue, for a decade, than was necessary to cover the cost of the program, and then compounded at high rates when borrowers fell behind, reducing the possibility that they could ever pay off their debt.  

Another provision to modify relates to bankruptcy, to bring it closer to how other consumer debt is treated. 

The Biden administration should also move to shut off any suggestion that the Supreme Court's awkward stretch to make MOHELA an arm of the State of Missouri gives MOHELA and other loan servicers sovereign immunity.  Borrowers and consumer protection agencies, now more than ever, need to be able to hold them accountable for mistakes and deceptions. 

These actions should not be made in a vacuum, but with an eye toward higher education reforms that reduce reliance on student (and parent) debt.  The whole country is waiting for leadership.  I suggest getting back to cooperative federalism, also known as skin-in-the-game for states and institutions.  

As to timing, it would be a mistake to try to channel everything through negotiated rule-making.  Early and decisive action is necessary in the face of a looming loan re-payment crisis.  

Advice: while it may be tempting simply to fulminate against the Supreme Court, in order to stir up anger in the base, the better course is to use the openings the Court left open to actually solve problems. 

*A crucial number to know, which the Biden administration has never provided, is how much of the $1.6 trillion in debt is principal and how much is interest, fees, capitalized interest, penalties, negative amortization, and the like.  This would be helpful in fashioning a compromise and settlement initiative that would be widely accepted by the public, if explained.  




Virginia Family Research

June, 2023

Lincoln — This, the month of the new official American holiday Juneteenth, is a fitting time to look at the history of slavery in the Virginia branch of our own family.  I've been a subscriber to the genealogical research service Ancestry for several years.  The following is a summary of what I've found.  

It also presents an opportunity to raise questions about others' conclusions on certain slavery related matters, some of which seem off-base and in need of correction. 

Most of my ancestors emigrated from Sweden to America in the late 19th century, but my paternal grandmother's roots go back to early colonial Virginia.  Through her, Ressie Mae Zicafoose Oberg, I am a 3rd cousin, six times removed, of our fourth president, James Madison, and a 1st cousin, five times removed, of our twelfth president, Zachary Taylor.  Both were slaveholders.  

Madison, father of the Constitution and drafter of the Bill of Rights, did not free his slaves but left them to his wife Dolley, with the provision that they not be sold without their consent. Taylor also did not free his slaves, asking only in his will that in their old age they be "made comfortable."  

As to my direct ancestors, several Virginians were slaveholders.  Among the earliest were generations of Strother families, of English emigrant origin, dating from the mid-17th century and accounting for the presidential connections.  In the late 18th century, however, Anthony Dabney Strother and his wife, Frances Eastham Strother, freed their slaves on grounds that the practice was immoral, according to an account written by their son Philip Eastham Strother, who became a Methodist minister in Kentucky.  Henceforth my line of Strothers, who descended from another of the couple's sons, Francis, in Pendleton County, Virginia, were not slaveholders.  

Judge Harlan M. Calhoun, a very distant relative, wrote in a foreword to his father's local history of the Civil War, "There had been virtually no slaveholders in Pendleton County."  A closer inspection, unfortunately, shows this is not true.* Notwithstanding the Strother example, my ancestral lines in that mountain county west of the Shenandoah included slaveholders among the Hull, Wimer, Simmons, Ruhlman, Phares, and Hoover families. 

Ancestor Peter Thomas Hull (1706-1776) emigrated to the area, via Pennsylvania, from the German Palatine.  His daughter Catherine married the Palatine emigrant Peter Zickafoose (Ziegenfuss), creating the Zicafoose line in America. Hull's son Captain Peter Hull, who led a Revolutionary War militia company against Cornwallis at Yorktown, eventually became one of the largest slaveholders in the area, with sixteen slaves in 1810.   

Ancestor Philip Wimer (1756-1839), whose parents perished at sea in 1771 as the family emigrated from Frankfurt to Philadelphia, became indentured to a Pendleton County miller.  He subsequently joined Captain Hull's unit and later became a slaveowner in the county along with his son, Philip Wimer, Jr.  (After the Civil War, in the 1880s, with slavery a memory, his grandson Peter B. Wimer moved the family to Lancaster County, Nebraska, near North 84th and Agnew Road, where he was joined by his daughter Susan [whose mother was Sarah Strother], her husband William Clark Zicafoose, and their children Otto and Ressie Mae.)   

Ancestor Leonard Simmons, along with his son Captain Henry Simmons and grandson William George Simmons, also became slaveowners in Pendleton County in the first decades of the 19th century. The 1810 census shows that our 4th great-grandfather Captain Henry Simmons (1760-1825) owned four slaves. His 1823 will gave his slave Reuben to his son William George Simmons. The will also provided that if his "negroe man Larrence...and negroe woman Else should get so old as not to be abel to maintain themselves the heirs must maintain them..." Other slaves owned by Captain Simmons, according to his will, were Anthony, Daniel, Elsey, Hannah, Fanny, and Judey.

Ancestors Christian Ruhlman, Johnson Phares, and Michael Hoover owned fewer slaves.  Michael Hoover at his death had only one slave, Jim, and in his will gave him his "entire freedom."  I don't know what kind of person Michael Hoover was, but to his credit he did what two presidents wouldn't — give a slave freedom. 

Of interest is that several of these families acquired land as a result of Revolutionary War service, and then acquired slaves to work it. 

Census records and wills do not reveal much as to the hows and whys of slave ownership in these families.  Unlike other areas of Virginia, there were no cotton or tobacco plantations in the county, along the branches of the South Potomac River, hence the numbers of slaves owned was fairly small.  By the onset of the Civil War, the numbers had diminished.  Only three of the above families had slaves in Pendleton County as late as 1860.  

Back to the Strother family, in particular to our 2nd cousin, four times removed, David Hunter Strother, pseudonym 'Porte Crayon.'  He was a famous writer and illustrator known throughout America in the mid-19th century for his stories and illustrations in Harper's Monthly.  As far as I can determine, neither he nor his branch of the family owned slaves.  Revisionists** in recent years suggest he was both a slaveowner and a propagator of ugly stereotypes of slaves.  This seems wrong and a slur on his reputation.  His illustrations of the 1859 trial of John Brown and his two black co-defendants — runaway slaves — were sympathetic and aided the abolitionist cause.  A Virginian from Martinsburg, he joined the Union army, fought in thirty battles and approved the burning of VMI for teaching treason; he became a brevet brigadier general and after the war was a supporter of Reconstruction, especially of education for the formerly enslaved.  His detractors need to look at his life and work more closely.

As I was growing up in the company of my grandmother, she and the family spoke of their heritage as "Pennsylvania Dutch" (Dutch meaning Deutsch, or German), not Virginian.  Which was quite true, because several of the ancestors came from the German Palatine, first to Pennsylvania then on to Virginia.  Whether they knew much about the rest of their heritage, including slavery, I don't know.  

In all families there are heroes and rogues, sometimes even combined into single individuals; I'm curious about them all, especially now with more tools to look into both the good and the bad of family history.    


 *The reason Judge Calhoun distorted the historical facts was to make the case that our relatives who fought for the Confederacy were motivated by principle and that defense of slavery had nothing to do with it.  He wrote: 

Confederate soldiers of that county [Pendleton] were not believers in or supporters of the institution of slavery.  They fought for their conception of the rights of the people as individuals and for local self-government, much as their forbears had fought for such principles in the War for Independence. 

For some reason, he could not acknowledge that many of those Confederate soldiers had actually grown up in slaveholding families in Pendleton County. See 'Twixt North and South, by Harrison M. Calhoun, edited by Harlan M. Calhoun, Former Judge, Supreme Court of Appeals of West Virginia, McCoy Publishing Company, Franklin, WV, 1974, p. xi.    

**See, for example, "Race and the Rise of a Mass Visual Culture: The Case of David Hunter Strother’s Virginia Illustrated" by Christopher Lukasik, American Literary History, Volume 32, Issue 3, Fall 2020, Pages 446–479,  The author writes, misleadingly:

The publication of David Hunter Strother’s Virginia Illustrated under the pseudonym Porte Crayon in Harper’s Monthly (1854–56) provides a compelling case study through which to consider the role of race in the development of a US mass visual culture. The media combinations found within and the reception history of Virginia Illustrated demonstrate the importance of racialized viewing to the early success of Harper’s Monthly at a critical moment in media history. To be sure, Virginia Illustrated circulated racist stereotypes to be mass consumed, but the image/text operations of Strother’s literary sketches and illustrations also extended the privileges and pleasures inherent in the performance of the white male gaze to the expanding readership of Harper’s Monthly....  

This fashionable academic jargon is simply not an accurate description of the man who was chief of staff to the Union general (coincidentally his mother's first cousin) who emancipated slaves in three states before Lincoln's own emancipation of them.  Porte Crayon's detractors either want to distort his life for their own purposes or they have not done their homework on him.    


States: Beware of Education Policy Dangers

June, 2023

Lincoln — States like Nebraska are taking up ideas that have superficial appeal as good education policy but are fraught with dangers the states haven't thought through.

One such idea is completion of the federal FAFSA college financial aid application as a requirement for high school graduation, as described in a recent article in the higher education trade press.

I would not recommend it.  Do states understand that FAFSA data are often shared by colleges with enrollment management consultants to determine family price sensitivity?  Here is how Josh Mitchell in his book The Debt Trap describes what one such typical consulting company does with FAFSA family income and other data.  

Firms like Ruffalo Noel Levitz help schools determine how much to discount for each student to make as much money as possible overall. The firms use hundreds of variables – including race, home address, SAT scores, parental education level and wealth, and even how many times the student visited campus during recruiting – to gauge each student’s “price sensitivity.” That phrase refers to how much his or her family might be willing and able to pay. The firms study the behavior of the past three years of freshman classes and then suggest, down to the dollar, what the school should charge students of different characteristics.

More than requiring students to fill out the FAFSA, states should first be pressing the federal government to crack down on colleges and their enrollment management consultants who use data collection against the interests of students, families, and, ironically, federal financial aid programs themselves.  The secretary of education already has the necessary authority, under current law, to prohibit practices that undermine higher education access.  

Another suspect idea is providing generous state tax credits for contributions to private and parochial elementary and secondary schools, on the theory that this will provide more opportunity for  disadvantaged students, including minorities.  But the money may not wind up being applied to that purpose, in practice.  Money is fungible. 

States should look at the experience of U.S. higher education when federal grants, loans, and tax credits were made widely available to financially needy students and families.  Tuition-charging institutions soon adjusted tuition levels, tuition discounts ("scholarships"), and loan offerings to maximize income, employing sophisticated enrollment management consultants to shape admissions and financial aid policies.  The end result, in the case of higher education, has been more opportunity for the non-needy and increasingly large debt burdens for minorities, as documented in many analyses of the distribution of student and parent debt, by race

States would be wise to prohibit those K-12 schools benefiting from state tax credits from offering loans to pay tuition as part of dubious and downright unconscionable enrollment management plans, to head off a repeat of the nation's backfired higher education experience.*  At a minimum, states should require such schools to meet standards for admissions and pricing that regulate discredited scholarship displacement, lead generation, and recruiting practices.    

I do not express these cautions from any particular political, ideological, or religious standpoint.  Rather, the concerns are based on a career in public budgeting and finance during which I have seen many education policies result in opposite effects from those intended, and in diminished government fiscal capacity to address real educational challenges as they arise. 


*  Loans are already a common means for families to pay private K-12 tuition.  The formidable enrollment management company EAB is positioning itself to move into K-12 education with the same techniques it employs in higher education, to maximize institutional revenues and enhance brand identification.  One prominent K-12 lender that was a U.S. Department of Education postsecondary contractor is no longer, due to many successful lawsuits including one from the federal Consumer Financial Protection Bureau.      

Many Problems with Proposed NET Regulations

April, 2023

Lincoln — In advance of a May 4, 2023, public hearing, the Nebraska Environmental Trust is taking comments on its proposed Title 137 rules and regulations.  I've followed the Trust closely for many years and previously been a plaintiff in successful litigation against illegal Trust procedures and actions. I will be filing the following comments.   

The proposed NET Title 137 regulations are vague and confusing to potential applicants.  Unfortunately, the ranking system invites gaming and will result in arbitrary and capricious decisions.  The proposed regulations introduce new procedures, not based on statutory authority, which are almost certain to lead to increased conflicts of interest, politicization of the agency, and waste and abuse of taxpayer resources. 

It is not clear why the various changes are being proposed. Although the NET webpage makes reference to reports of the State Auditor and Department of Administrative Services, those reports are not linked for the public to review.  An NET spokesperson recently suggested the changes were to eliminate duplication.  An annotated version of the changes, identifying which provisions are being changed because they are duplicative, as opposed to those that introduce new content and procedures, would help the public understand and evaluate the new regulatory proposal.  Without adequate explanation, the public may be led to believe that the proposals are an effort to reduce regulations when in reality they are making major changes. 

The new regulations should prescribe Open Meetings Act requirements, so that the public can know how members evaluate grant applications.  Anonymity imbedded in the regulations must be removed from the process at all levels of award consideration, including subcommittees.  

The regulations should clearly separate the process for determining legal eligibility from evaluating merit, so that the two are not mixed improperly.  Statutory legal eligibility standards are dichotomous while merit is a continuous variable.  Combining the two without recognizing the difference is not statistically meaningful and can lead to ranking distortions and legal challenges.

The regulations must not add new factors to the award process that go beyond statutory authority.  A proposed new provision  would require award "consistency...with other state policies...", without further identification of what those policies might be.  Potentially this could include legislative or gubernatorial policy preferences through various communications that may or may not have the force of law and may cause violations of other required administrative procedures.  The provision is not only vague, it invites abuse.

Another proposed regulation  would require that "grants for land purchases or easements shall not cause the elimination of the property tax liability."  This is vague as to whether any or all amounts of liability would be eliminated and, more problematic, it is not based on statutory authority as witnessed by the fact that land purchases and easements have long been awarded as part of the mission of the Trust.  They are among the most effective natural resource protection tools, often sought by farmers and others to protect their investments in essential conservation practices.      

The proposed regulations  would eliminate the current language, "Members of the board shall comply with the conflict of interest provisions of the Nebraska Political Accountability and Disclosure Act."  This is unwise to eliminate for any purpose and raises the question of whether the intention is to thwart another agency's statutory responsibilities.

If anything, conflict of interest protections should be enhanced to address an actual situation that contributed to the aforementioned litigation.  Unusually large political contributions to a governor, after an election, from within an industry with a pending NET award application, occurred simultaneously, whereupon the governor's appointees on the NET board voted to make the award.  The award (for the benefit of for-profit businesses in the industry) was clearly illegal; only upon the filing of a lawsuit, and the potential for legal discovery, did the NET board withdraw it.  

State conflict of interest provisions, which deal with even the appearance of conflicts, must be applied to all parties involved, including the NET board.  Clearly, the integrity of state government should not have to depend on citizens who take legal action at their own expense, prevail at court, and then request the court to reimburse attorneys fees from state taxpayers, which the court appropriately did in this case.  It should never happen again.  

A proposed new provision that allows members to vote on awards to their own agency, if only half goes elsewhere, could be an invitation to abuse.  The statute  is clear that the award must be primarily for other purposes, not for the agency in question, so the share should be well less than half.  The new regulations should not suggest the creation of matching fund programs for an agency and its clientele groups.  

A proposed new requirement  that "No application receiving fewer than twenty-five percent (25%) of the maximum points will be funded" is vague as to purpose and could easily be gamed to distort rankings, awards, and Trust fund balances.  Fund balances have recently become an issue as they are in danger of being transferred for purposes outside the mission and protection of the Trust.     

New regulations should be focused on assisting potential applicants understand the purpose and process of NET, and to increase public transparency and accountability.  The proposed regulations should be withdrawn in their entirety and a new set presented to the public, after review by the Attorney General to ensure removal of the above-described problems, as well as many others too numerous to mention. NET was once smooth-running and non-controversial; that should be the goal again.

Ten Years of Blog Posts

February, 2023

Ten years ago I started writing this blog without expectation that it would be read by many people, because I did not distribute it through social media nor did I take comments or advertising.  I simply set out to write on a variety of current-affairs subjects centered around three different capital cities that I know well, with the intention that each of the posts would leave readers with something true, original, independent, constructive, and pragmatic.

Five hundred sixty-three blog posts later, the readership counter shows over 129,000 total views over the decade.  I don't know how many of those came from search engines and bots that wandered upon the posts unintentionally, but likely a lot.  And not all readers visited with good intent: law firms in student loan litigation once tracked what I wrote and (unsuccessfully) tried to use it to their advantage in court.  

Some individual posts have received many reads, others few.  Top readership last year reached 116 for a post explaining the success of a lawsuit against the Nebraska Environmental Trust.  But lower readership posts have barely reached double digits.  

I tried to set high standards in my first post in 2013, on the Philippine-American war.  I'm pleased that posts over the years have wound up as citations in academic articles and encyclopedias, most notably those about the remarkable but almost forgotten ecologist Edith Schwarz Clements.  (A longer version of those posts at UNL Digital Commons has received over a thousand downloads, from many countries.)

Posts on corruption in federal agencies, especially those explaining revolving doors between government and industry, have been quoted in law review journals.  I believe the posts contributed to the welcome demise of unscrupulous federal student loan servicers Navient (formerly Sallie Mae) and PHEAA.  

On occasion, I have sent posts directly to agencies, activists, and media with the hope of stimulating action.   Posts on scholarship displacement have contributed to outlawing deceitful financial aid packaging practices in a growing number of states.  One year there was a boomlet for my suggestion to replace the portrait of John C. Calhoun in the U.S  Senate reception room with one of George Norris, who was supposed to receive the honor decades ago but was blocked by his own fellow Nebraskans.  (That hasn't happened, but I'm not giving up.) 

Because of the pandemic, I've not been able in recent years to be in Berlin as much as I'd like.  German federal and state governments present issues worth exploring in depth.  The USA neglects the study of comparative government at its own peril, which is ironic in the case of Germany, a successful federal republic brought into being by far-sighted American leadership after WWII.  

Future blog posts may get into past events that are still relevant but will be lost to history if not documented, such as my last post on important moments in the expansion of special education in Nebraska.  I'd also like to share more genealogical research that extends well beyond my own family, especially about who was where in the Civil War and what they did, honorably or otherwise.  

Thank you, readers, whoever you are.  I am always delighted to hear from you, as I did not long ago from the grandson of a legendary Nebraska educator about whom I had written mostly (but not entirely) favorably.  He was grateful for the post as a welcome addition to his understanding of his notable grandfather.  

I am grateful to all readers over the years.  Again, thank you.  


History's Lessons for Nebraska Special Education

February, 2023

Lincoln — Nebraska's latest attempt to deal with complex public school funding and property taxation issues has unexpectedly brought about new and welcome discussions about increasing state tax support for schools' special education programs.   

Several parties, including the governor, see substantial increases as key to smoothing over other differences in state education aid formulas.  The governor has called for the state to pay 80% of local schools' special education costs, as set forth by statute but not funded at that level for decades.  Educators and local school board members have endorsed the increases.

The new discussions can benefit from a look back to 1974, when Nebraska enacted a forward-looking statute and made a major funding commitment to the education, at the local level, of children with special needs.  

Working in the state Budget Division at the time, I was a close observer of the passage, funding, and implementation of that legislation. 

Prior to 1974, children with disabilities were often sent to state residential institutions or hidden from sight, as opposed to their education being a responsibility of local school districts.  The federal government had not yet passed the Individuals with Disabilities Education Act (IDEA) of 1975, which guaranteed access to a free appropriate public education in the least restrictive environment to every child with a disability.

Credit for Nebraska's early leadership in focusing on local public schools' responsibility for special education goes mostly to two individuals, as I witnessed it.  

Jack Lamphere was director of special education at the Nebraska State Department of Education.  He envisioned placing responsibility for special needs children clearly with the local school district for appropriate placement, whether it was a program at the local school or elsewhere, with the state paying 90% of the cost, through the school.  The financing was important so that schools did not have an incentive to place children at state institutions rather than serving them locally.  

Dale Johnson of the state legislative fiscal office worked closely with Lamphere to refine the concept into legislative language and estimate its substantial costs accurately.  He kept both the legislature's Education and Appropriations committees advised of discussions.  Senator David Stahmer of Omaha introduced the legislative product as LB 403.  

I was brought into the discussions to assess the outlook for the legislation as seen by the executive branch, the support of which would be crucial for passage.  Jack Lamphere advised that support from the state Education Commissioner and the State Board of Education would be less than he hoped.  Dale Johnson concluded that support from Senator Jerome Warner, chair of the Education Committee, and from Senator Richard Marvel, chair of the Appropriations Committee, would not be forthcoming unless Governor J. James Exon made the first move to give it his endorsement.  

I thought highly of Lamphere and Johnson and the work they had done.  Their legislation was necessary to give school districts the right incentives to create and expand badly needed special education programs.  Although federal IDEA legislation was two years away, I agreed with them that Nebraska could lead the way and be ready if and when federal legislation was enacted.  

In early 1974, several of us met with Governor Exon in his corner office at the state capitol to discuss LB 403 and other budget-related issues.  My recollection has Norman Otto, Don Leuenberger, Stan Matzke, and John Jacobson also present.  I made the presentation on special education and the pros and cons of LB 403.  Governor Exon asked for my recommendation.  I said that although it had a big price tag, the needs were great and the legislation well-crafted.  

There was no dissent in the room.  Governor Exon waited momentarily for others to weigh in, then made his decision: "It's the right thing to do."  Later that year, LB 403 became law.  

The new law's implementation in 1975 was bumpy, to say the least.  Jack Lamphere left the Department of Education for a job with the Houston Public Schools in Texas.  Francis Colgan, inexperienced in administering state programs, replaced him with his own ideas on how the funding mechanisms should work.  With the support of Commissioner Cecil Stanley, who had never involved himself in understanding LB 403 incentives and was soon to retire, Colgan began to distribute LB 403 funds directly to schools as if the money were general state aid, not tied to special education, and directly to residential institutions, such as the state schools for the visually impaired and the deaf, without any effort between local schools and the institutions to draw up individual plans for the children's most appropriate placement.  

When the payment vouchers came to the Department of Administrative Services, they were delayed pending a determination by the state attorney general as to their legality.  Deputy attorney general Gerald Vitamvas and assistant attorney general Harold Mosher advised DAS that the Colgan vouchers could not be paid until they conformed to the new LB 403 statutory requirement that all the funds were to flow through the local schools in support of individualized education plans, regardless of where the plan was carried out.  

Francis Colgan did not back down and started lobbying state senators directly for his distribution scheme, which had the support of school superintendents who were eager to receive state money but did not want to recognize their responsibility for special needs children.  He also had support from the leaders of state residential institutions who feared losing their populations to the de-institutionalization movement of the times, of which LB 403 was a part.  

I witnessed one Colgan lobbying effort in front of senators in a legislative chamber.  He used an onion to explain that children have layers, like onions, and that everyone has special needs if we just uncover enough layers.  On that basis, he said he was justified in distributing special education funds as general state aid to schools, no strings attached, because everyone has some kind of limitation.  He said the special education money would make up for shortcomings in other state aid appropriations.  

Upon learning of the impasse, Governor Exon consulted with Gerald Whelan, newly elected lieutenant governor and recently chairman of the State Board of Education.  They offered to come to a meeting of the state board and its new commissioner, Anne Campbell, accompanied by assistant attorney general Harold Mosher, to clarify legal requirements for payment of the vouchers.  I also attended the meeting, which took place in Lincoln's old Cengas building, then the education department's headquarters. It was a bad start for the new commissioner, who had been poorly served by her predecessor, Cecil Stanley, and by Jack Lamphere's replacement, Francis Colgan.  The upshot of the meeting was that vouchers would be paid only on the condition that they followed the law, and those who wanted the new money but the old ways of dealing with special needs children were free to make their case to the next legislature to amend the law.  The governor made clear that he was pleased with the new law and expected the commissioner to carry it out.  

Francis Colgan soon found employment in another state.  A few statutory changes were made in subsequent years, but public schools gradually began to accept more responsibility for special needs children, prompted by parents who were enthusiastic about mainstreaming options rather than institutionalization.  LB 403 of 1974, overall, has been a huge success.  

State special education funding in 2023 has fallen to less than 50%, unfortunately, but this year may be the time for another boost.  The lessons of the past suggest that it is money well spent, but that it can get entangled with other agendas if state legislators and officials are not watchful.  

State officials must not repeat the mistakes of 1975 by confusing special education funding with other state aid, to the neglect of the population that is to benefit.  

Nebraska AG's Backfiring Lawsuit

January, 2023

Lincoln —  Is pressure building on the Nebraska attorney general to drop or settle Nebraska v. Biden, which seeks to undo the Biden Administration's student loan cancellation plan?  For Nebraska borrowers, the debt relief could total as much as $2 billion and help an estimated 200,000 or more individuals.  

But it is not only potential beneficiaries who are questioning the wisdom of the lawsuit.  New developments show serious concerns from conservative law professors, fiscal watchdogs, and businesses.   

In an amicus brief filed with the Supreme Court, Notre Dame professor Samuel Bray and University of Chicago professor William Baude, both notable conservatives, are advising the Court to deny Nebraska and other plaintiffs standing to sue, so that the Court does not sit "in constant judgment of every major executive action — which is not its constitutional role."

Meanwhile, an analysis by three University of Virginia economists shows who is benefitting from the lawsuit, which is keeping the pandemic-related student loan repayment pause in effect until the lawsuit is resolved:  "Our analysis shows the across-the-board pause on federal student loan payments disproportionately benefits the most affluent borrowers. Continuing the payment pause without means-testing its benefits leads to ballooning costs for taxpayers."

On January 18, a Nebraska-based major student loan servicer announced layoffs of 560 employees.  According to Business Insider:

The company confirmed in a statement that 350 of those employees were hired in the past six months after Biden announced up to $20,000 in debt relief to help with what was expected to be high call volume as the relief was implemented and student-loan payments were turned back on. But the debt relief has been blocked.... [T]he lack of work for those additional employees led to this decision.

This is surely not the way the Nebraska attorney general and his five fellow plaintiffs expected the lawsuit to unfold.  They originally fixated on challenging the president's emergency powers to cancel debt, but in so doing they are creating a constitutional issue regarding legal standing, extending a regressive and wasteful fiscal policy and, in the process, hurting their own economies and businesses.  

Ironies abound.  Nebraska has shot itself in both feet, even before considering how the debt relief would aid middle and low-income families to assist a sluggish Nebraska economy.  

Moreover, this week the U.S. Government Accountability Office released a report condemning the U.S. Department of Education for halting investigations of college misrepresentations (mostly by for-profit schools) during the Trump administration (no surprise there).  This has created even more dubious student loan debt that will have to be cancelled under "borrower defense" or other statutes.  

There is a way to settle the lawsuit quickly.  The Biden administration does not have to use emergency powers to cancel debt.  There is already statutory authority authorizing it.  Agreement and action on that point should satisfy the plaintiffs, allow the U.S. Department of Education and its loan servicers to get back to work, save taxpayers from wasteful spending on regressive policies, and avoid a constitutional crisis over standing.  

We should thank those who have come forward, consumer advocates and conservatives alike, to point out the folly of this lawsuit, a half-baked scheme that originated in a dark-money den — Koch-funded American Commitment — with scant to no input from Nebraska citizens and taxpayers. 

We should also thank in advance any media sources that explain these issues to Nebraskans, few of whom know anything about the lawsuit's huge consequences that hang in the balance.  



Don't Close the Books Yet on Governor Ricketts

January, 2023

Lincoln — Before the books are closed on the performance of Pete Ricketts as Nebraska's governor, a few entries should be re-assessed and fact-checked.  

The governor left office riding unexpectedly high, making the most of an adulatory article about his handling of the Covid pandemic, published by Politico in April, 2022.  The article, based on Politico's own constructed index, concluded that Nebraska's Covid record was "surprisingly" best in the nation.  It gave much credit to a previously obscure "Center for Operational Excellence" established by Ricketts in the Nebraska Department of Administrative Services.  

I worked in Nebraska state government for several years, when it was less partisan, and continue to be in touch with many who keep close tabs on it.  Before the article appeared, Ricketts got low marks for management, as might be expected of someone who had no previous experience in government or the military.  The departments under his control ("code" departments) lurched from one crisis to another — foster care collapse, prison riots, contracting errors, stolen drug evidence, attempted grants to political contributors, a major environmental disaster, and significant accounting lapses.  Not the stuff of "operational excellence," by any definition.

The glaring discrepancy has two good explanations:  (1) Politico's index is poorly conceived; (2) Nebraska's Covid outcomes are in spite of the governor, not because of him. 

• Politico's index curiously weighs factors such as Nebraska's low unemployment rate, which is largely unrelated to its Covid policies.  A more credible Covid ranking, created by The Commonwealth Fund in June, 2022, ranks Nebraska a less surprising 14th, behind other midwestern states Minnesota and Illinois but ahead of Iowa, Missouri, Kansas, and South Dakota.

• Politico's article, to its credit, explores how Nebraska's ranking may be due to leadership from sources other than the governor, namely the University of Nebraska Medical Center and public health directors in Douglas and Lancaster counties.  These leaders often disagreed with Ricketts' decisions and pushed for tougher anti-Covid measures, saving lives.  They did not mince words or send mixed signals about the value of vaccinations, for example, as did the governor.  Rural areas, Ricketts' political base, have had the worst Covid outcomes in the state.  

As Ricketts left office, he also repeated his mantra that government should be "run like a business."  But his record suggests the slogan, as he interprets it, means something other than close attention to departmental management.  Ricketts seldom deigned to get directly involved in code departments' crises, but distanced himself from them.  Witness the AltEn environmental calamity at Mead.  Ricketts was not a buck-stops-here kind of administrator. 

Where our former governor ran government most like a business was in financing and maneuvering candidates in state legislative elections, to put people obligated to him on his oversight body, as would any successful business baron with the wherewithal to choose his own board of directors.  Unfortunately, this way of doing business has seriously weakened Nebraska's constitutional checks and balances.  

Before the conclusions of the Politico article and Ricketts' superficially repaired reputation are etched in stone, their underlying premises need to be more carefully examined, lest the incoming governor thinks he has inherited a formula for success in governing.  What he actually has are many worsening problems that can only be resolved with a stronger hand at the administrative helm of state government.    

Nebraska Authors Diminished

January, 2023

Lincoln —  The reputations of two remarkable Nebraska writers are in decline, according to sources that surprisingly seem to welcome it.   

First, a group of Vermont librarians has removed the name of Dorothy Canfield Fisher from an annual book award on grounds that she may have had connections to the eugenics movement.  The evidence is totally unconvincing.  As to the book in which she is said to show eugenics sympathies — Bonfire —  it is, if anything, a refutation of eugenics: a main character of low birth exceeds all expectations.  No matter.  The award has been renamed.    

Now comes an unexpected swipe at Canfield Fisher's friend and renowned contemporary, Willa Cather, from a PBS News Hour report about a sculptor who is creating Cather's likeness for placement in the U.S. Capitol.  In an otherwise laudatory segment about Cather, viewers (about 2.7 million nightly) are suddenly told: 

"[I]n recent decades, critics have pointed out shortcomings in how she represented race."
"She was a woman of her time.  And she didn't represent Native American life well. She did not represent African American life well or frequently."

This is news to some of us who have read her novels and found them filled with respectful depictions of Native Americans, especially her novels set in the American southwest.  She was in awe of indigenous cultures and saw them as inspirations in Death Comes for the Archbishop and other works.  In Song of the Lark, Mexicans living in Colorado befriend and develop Thea Kronberg's musical talents.  In her final published novel, Sapphira and the Slave Girl, Cather devotes years of work to strip away all sentimentality for the institution of slavery.  Because she was a descendant of slaveowners herself, in her final chapter Cather inserts her real-life self as a five year old Virginian, so no one misses the point that slavery, for her, was not only an abomination but deeply personal.  

To me, Cather was decidedly not a "woman of her time."  In her time, notable novelists were avoiding these subjects entirely, or writing of them stereotypically.   

To be sure, a search for Cather critics turns up a few who find fault in her works on these topics, with reasonable foundation.  But they temper their words carefully so as not to put Cather into a category with bigots or racists, lest today's critics themselves, writing fashionably about race and ethnicity, someday be labeled "of their time."  

Would that PBS News Hour were as judicious with their millions of viewers.  

Bringing Order Out Of Chaos

January, 2023

Washington — After the chaos of the House speaker's election, the nation needs to see a demonstration that the House can pass meaningful legislation under its new leadership and new rules.  It needs quickly to bring an important bill through a standing committee, through the House Rules Committee, and pass it with a roll-call floor vote to send to the Senate.

Anything less invites suspicion that we are still facing insurrection in the Capitol.   

A good choice for the purpose is the restoration of bankruptcy rights for student loan borrowers, which has bipartisan, bicameral support.  It has backing across the ideological spectrum and from the chairman of the Federal Reserve.   Members of the House Freedom Caucus have voiced their favor.  Both houses have legislation for the purpose already drafted from last year. 

This is substantive legislation and a key step in resolving the nation's student loan mess.  Passage could be a factor in breaking the impasse over student loan cancellations, not only by providing another option for borrower relief, but especially by disincentivizing lenders and servicers, whose revenues depend on perpetuation of debt, from preying on the most vulnerable.   

The nation's media are focused on conflict, most notably over how to raise the federal debt ceiling in a few months, doubtless a profound problem.  Stoking conflict, however, is not what the nation needs right now.  We need an answer to the question of whether the Freedom Caucus is bent on bringing down the government, as sometimes seems the case, or actually making it work.  

Bankruptcy restoration legislation presents a rare opportunity not only to help resolve a policy issue, but to resolve procedural issues of the highest possible order.