Loan Servicer Victims

February, 2022

Washington — Occasionally student loan borrowers in trouble track me down in the hope I can somehow help them.  They know I have had success in court against lenders and servicers.  In most cases, however, the borrowers are up against such formidable forces arrayed against them that there is no hope of resolution, even if the borrower has been denied proper servicing and consumer protections supposedly guaranteed by statutes and regulations.  

Some servicers are not only unapologetic about their mistreatment of borrowers, they flaunt behaviors that put their own financial interest above all else.  One servicer boldly stated, "there is no expectation that the servicer will act in the interest of the consumer."  Another servicer called directives by a Secretary of Education a "joke," and called Department of Education employees "pathetic" and "weak-minded."

In recent days, however, I've been looking at a borrower's case because her experiences are so typical and it presents another opportunity to peer into the predatory lending and servicing world. 

She first borrowed in 1989 and by 2002 had accumulated over $80,000 in student loans in the FFEL (bank-based, government subsidized) loan program.  In 2005, she requested and was granted a Direct (government) loan consolidation, but within a few days she was contacted by a private finance company specializing in loan consolidation that re-consolidated her loan back into the FFEL subsidized system.  The company was one of several that operated "boiler room" telephone banks to contact borrowers to get their lucrative taxpayer subsidies back into FFEL for their own benefit.  She now thinks, based on the sequence of events, that the company improperly obtained inside information about her first consolidation before it was ever fully completed, putting her at an information disadvantage when cold-called.  In the trade, this became known as "two-step" consolidation, which was indulged by the Department of Education until 2007.  

The benefits of the FFEL re-consolidation were nil, but the borrower remained in FFEL until 2020, when she consolidated back to the Direct program to take advantage of the repayment pause implemented during the Covid pandemic.  Over those fifteen years, her career as a physical therapist had good and bad times, as did her personal financial situation.  When unable to make loan repayments, she contacted her FFEL servicer (as told to do by the Department of Education) and asked to be put into repayment plans that lowered her monthly bills.  Invariably, the servicer put her into forbearance instead, during which interest accrued and was capitalized to add to her principal loan balance.   Once she was advised, incorrectly, that her loan was private and not eligible for any lower repayment options.  On other occasions, upon inquiring about various income-driven options offered in the Direct program, she was mis-advised that she would not qualify for any of those, because she was in FFEL.  

To date, over three decades, the borrower has made payments on her loans totaling nearly $70,000, but her principal is now almost $90,000.  She is now temporarily disabled and sees no clear way she will ever be able to pay off her loans.  Had she been properly advised of programs that cancelled loans in exchange for public service, she could have moved to Direct consolidation and worked in healthcare's non-profit sector, but she was always told she was not eligible.  Had she been properly advised by her servicers with an eye toward what was best for her, not for them, she likely would be completely out of debt.

There are thousands, if not millions, of similar stories among student loan borrowers.  Multiple investigations, audits, and reviews have corroborated this sorry situation.  

This all has come about not only as a cost to borrowers, but to taxpayers as well.  Federal taxpayers have unnecessarily paid billions in subsidies to the boiler room companies, making some of the owners billionaires themselves.* 

The Secretary of Education needs to step up and use his powers, expressly provided by law, to modify these loans.  My suggestion is to reset the loans at the original principal, less amounts repaid to servicers for any purpose, plus interest at the government's cost of money as an incentive to repayment.  Following this statutory path would target student loan relief to those who are most likely to need it, remediate damages done by unsound program management, and reestablish a modicum of trust and accountability going forward.

It's time for the Department of Education to be tough-minded for a change, and not cower before the challenge to set things right for exploited borrowers.  

___________________________ 

*Robert DeRose, as an owner of Student Loan Xpress, was subsequently caught up in a scandal that brought about the firing of the financial aid directors at USC, UT Austin, Columbia University, and Johns Hopkins University.  Xpress also gave company stock to a regulator at the Department of Education, who was dismissed but whose decisions favorable to the company were never reversed.  Cary Katz, an owner at College Loan Corporation, became a Las Vegas poker institution and a major source of political contributions to extremist groups and candidates.  

 

    

"Thank You for Your (Pandemic) Service"

February, 2022

Washington — Knowing I am a veteran, occasionally people say to me "thank you for your service."  My reaction is always a mixture, in roughly equal parts, of acknowledgement and temptation to reply, "You don't know the half of it."  

My service is what a citizen can be called upon to do for his country.  It involved putting aside some of my rights and beliefs for a cause my country was trying to achieve.  It involved putting myself repeatedly into danger in a combat zone, on a sea-tossed powder keg of a ship, one of several named after active volcanoes for their tendency to blow up.   

These days, the people who should be thanked for their service are hospital workers, for the deadly dangers they encounter treating Covid patients.  We can all do our part to help them by making small sacrifices — vaccinations, masks, distancing — to beat back the disease and keep it from mutating into endless variants.  I view such sacrifices in the same sense as my naval service: a citizen's obligation when called upon.  And in a doubtless better cause.  

That's not how a sizable number of my fellow citizens see it, however, asserting that it is somehow more honorable to place ill-defined individuals' rights over individuals' responsibilities, even if it endangers hospital workers and many others.  The assertion of these rights, whatever they are imagined to be (it's often hard to tell on what they are based), is being manifest in ways that are endangering our health care systems and even the cohesiveness of our country itself.   

So when anyone thanks me for my service, I hope that they are giving of themselves in the service of fighting the pandemic, in the here and now.  If so, I'll thank them back for it, many times over.  They may be saving my life and the lives of my loved ones, not to mention protecting our whole society.   

 

  

Compromising Student Debt through Remediation

January, 2022

Washington — If I could set up a meeting at the U.S. Department of Education to address the student loan debt crisis, it would look something like this, with Secretary Cardona presiding.  Present would be his deputy and his undersecretary, along with the leadership of OGC, FSA, OPE and representatives from OMB and DPC.  

The Secretary:  "I've called you together because I believe I have the responsibility to act under statutory authority to uphold 'sound management and accountability' in our federal student loan programs.  That is what the statute requires, using words like 'duty' and 'obligation'.  The statute grants powers to the Secretary to accomplish this, including authority to waive, compromise, or release rights, claims, and demands related to loans.  

"Although there is some difference of opinion as to the extent of these powers, I believe there should be no doubt that they extend to matters of sound management and accountability, and to remediation where accountable management has been lacking.  It is distressing to read OIG, GAO, CFPB, and other reports that have identified specific management and accountability failures, only to learn that damages to borrowers have not been addressed.   

"Therefore, I ask you prepare for my consideration a variety of actions that can be applied to remediate documented shortcomings, with the goal of making borrowers whole and giving them confidence that the debt they have incurred has been reviewed and re-set to what it would have been but for the failures of program administration.  

"For example, if borrowers have systematically been victims of servicer 'forbearance abuse,' loan amounts should be automatically modified as a remediation.  Other examples are notorious delays in responding to borrowers, mishandling paperwork, and failures to advise borrowers of options to reduce debt.  

"For some borrowers whose remaining balances are the result of fees, penalties, capitalized interest, and other charges that would not have been incurred under sound management and accountability, the remediations may result in total loan cancellation.  How would this compare to other proposals to reduce debt by set dollar amounts?  I believe we have a special responsibility to borrowers who would have been well on their way to repaying their principal and interest, or actually have paid enough to cover both, yet still have large loan balances that they can never hope to repay because of administrative policies and practices that have operated to keep them in debt.  

"I also ask you to prepare analyses as to the effects of these remediations, to include breakdowns by various categories such as repayment status, principal amount borrowed, type of institution attended, age, race, and sex, so as to be able to evaluate how remediations would be targeted. 

"Please review as well the Secretary's powers under statute to adjust loan interest rates as an incentive to repayment, particularly in light of the upcoming end of the pandemic repayment pause on May 1st.  Include in the review the possible use of adjusting interest rates as remediation for past unsound management as well as the value of adjustments as an incentive in transitioning out of the pause.  Such a review should also take note of interest rate or origination fee adjustments previously made by Secretaries under these or other discretionary powers, as well as a view toward maximizing the economic benefits of loan cancellations and modifications that would result from various remediation actions.

"I am pleased that this meeting includes OMB and DPC representatives.  I intend to brief the President on this as part of what I believe to be my duty to uphold sound management and accountability in the loan programs.  I know he is also concerned about what to do going forward, to slow and reverse the growth of student loan debt.   That will necessarily involve cracking down on predatory lending, which I believe is also a duty and responsibility of the Secretary.

"Thank you, and I await your reports."

 

      

Secretary's Powers, Secretary's Duties

January, 2022

Washington — Much has been written and said about the Secretary of Education's existing statutory powers to compromise and modify student loans under 20 U.S.C. 1082.  Moving the discussion forward, it is time to consider the duties vested in the Secretary under that provision, and how the powers and duties fit together.

The Secretary, according to the plain language of the law, has the obligation to administer federal student loan programs with sound management and accountability and act as necessary to assure that the purposes of federal student loan programs will be achieved.  Note especially the use of the word obligation.   

Some economists have written, persuasively, that cancellation of student loan debt in various cases and amounts would result in many economic benefits for the nation.  But now comes a new paper that lays out an additional compelling case for the Secretary to act, based on the history of demonstrably bad management of the programs.  Put forth by three respected consumer protection organizations, the paper charts a plausible course for the Secretary to fulfill his statutory obligations, which would complement the economic arguments.*  Done correctly, these relief measures could equal or exceed several other cancellation proposals. 

The suggested course builds on actions the Secretary has already taken to straighten out the Public Service Loan Forgiveness program, which actions have been well received by borrowers and the public.  Broad PSLF waivers are based on the conviction that the programs should operate as promoted to, and understood by, borrowers, not as woefully, negligently, and sometimes corruptly administered by lenders and loan servicers.  The same rationale, the paper argues, should be applied to all federal student loan programs, not just PSLF.  Borrowers across the board are often in trouble through no fault of their own.  The paper proposes automatic, retroactive relief based on debt reduction opportunities denied to borrowers, implemented through the Secretary's power to compromise and modify loans.  The necessary data to provide the relief, the authors point out, is already available to the Secretary in the NSLDS database.    

Last week I participated in a panel on the student debt crisis sponsored by the USC Casden Institute and centered around the film "Scared to Debt."  As a way forward, I suggested attention to five words:  recognition of the complicity of the Department of Education in amassing $1.8 trillion of student debt; the obligation of the current Secretary to remediate it; making the relief proportionate to the mismanagement; application of the limitation, suspension, and termination powers of the Secretary to slow current and future debt growth; and restoration of bankruptcy protections similar to those with other consumer debt.** 

It is regrettable beyond words that a dispute over the powers of the Secretary has become a partisan issue, particularly in the context of the repayment pause due to the Covid pandemic — set to expire in May — and the politics of the November 2022 elections.  Instead of arguing over the powers, I believe, it would be in the nation's interest to look foremost at the duties of the Secretary, those he is sworn by oath to uphold, and to see that they are performed.  Such action would provide much needed and justifiable relief to millions of borrowers, and get them back into making productive contributions to the nation's economy. 

__________________________

*The National Consumer Law Center (NCLC), the Student Borrower Protection Center (SBPC), and the Center for Responsible Lending (CRL) focus initially on how a repayment plan known as Income Driven Repayment (IDR) has failed, but the paper moves on to realize that this is only symptomatic of deeper problems, including repayment forbearance abuse of borrowers and even more systemic issues.  The paper's conclusions also recommend an earlier work by NCLC and CRL, the Road to Relief.  

**Complicity of Department of Education officials is not difficult to demonstrate.  For example, many lenders made false claims against the Department, which were paid; the funds soon found their way into new student loan programs, the terms and conditions of which violated consumer protections and left the borrowers deeply in debt; the Department then provided the lenders with reviews to whitewash the activities before they could be uncovered by the Inspector General.  Eventually, the IG identified and recommended actions against several lenders, but the Department, with rare exception, did not act on them.  Abundant evidence of the complicity exists in the audits of the IG, reports of the Iowa attorney general, conclusions of the Pennsylvania auditor general, litigation discovery, and primary source research published in Dan E. Moldea's Money, Politics, and Corruption in U.S. Higher Education (2020), p. 115ff.         

The "568 Cartel" and the Secretary of Education

January, 2022

Washington — For those following the nation's student loan crisis, and the role of colleges and universities in it, a new lawsuit illuminates how financially needy students are shortchanged by what is called "enrollment management."

The lawsuit, against sixteen institutions called the "568 Cartel," is receiving much national attention.  The plaintiffs describe enrollment management as a "largely secretive practice" the purpose of which is to raise the net price of tuition for those with financial need.

What the lawsuit does not mention — perhaps because it is obvious — is that the institutions expect students to pay higher tuition with student loans. Nor does it mention that enrollment management is widely practiced throughout higher education and is a major contributor to borrowers' current (and counting) $1.7 trillion student loan debt.    

I'm hopeful that subsequent media coverage will recognize that under federal law, these practices must be disclosed to students under the Student Right to Know law, and the Secretary of Education has the power to bring institutions into line through limitation, suspension, or termination of institutions' participation in federal student aid programs — the "L S & T" powers.  

In Senate testimony in 2007, I addressed these problems in considerable detail and recommended that they be resolved.  The testimony is still available on the webpage of the committee that heard it.   

Subsequently, in a later blog post entitled "'Enrollment Management' is Out Of Control," I again pointed out the problems and identified the Secretary of Education's powers to deal with them.

But nothing happened, which brings us to the current litigation, which is directed to just the tip of the iceberg. 

The whole imbroglio could be straightened out by the Secretary of Education, whom I believe has an obligation to act against illegal enrollment management practices, wherever they exist.   This mess did not happen on the current secretary's watch, but he is now in a position to take decisive action.  There is no excuse to say no one knew what has been happening.     

Purposefully Lax or Purposefully Complicit?

December, 2021

Washington — Last week I received sixteen boxes of documents relating to the several lawsuits that I brought in 2007, on behalf of the United States, against student loan lenders.  The documents were released to me by legal counsel after reviews to comply with settlements and court decisions, with several more boxes to follow.  The litigation ended in 2019.

So far, I have looked at only two of the boxes.  They contain many documents new to me that show revealing communications among certain lenders, their interest groups, and officials at the U.S. Department of Education.   They cover a time when there was widespread waste, fraud, and abuse in the federal guaranteed student loan program.  

These documents remain relevant today for several reasons.  They answer many questions about who was involved.  They raise questions about how the abuses led to predatory lending practices (in terms of both quantity and quality), which have contributed much to the current student loan crisis.  Because some of the lenders involved are now servicers of the massive federal student loan portfolio, the documents are helpful in understanding how miscreant organizations that acted lawlessly, as lenders, would do the same as servicers.*  

Which leads to a question of what should be done in fairness to borrowers who have been victimized.  An important dimension of these documents is how they reveal that federal officials at the U.S. Department of Education were not only "purposefully lax" in their dealings with lenders, as described by historian Elizabeth Tandy Shermer, but purposefully complicit.   

Where does the complicity fit into the current discussion about student loan cancellations and modifications?  Often it is not considered, but nothing would be more appropriate than to discuss such complicity in the context of the existing statutory power of the Secretary of Education to compromise and settle loans.

Among the documents' highlights and surprises, so far:

•  Confirmation that PHEAA knew its particular claims for taxpayer subsidies had little basis other than the belief that its connections within the Department of Education would prevail against any challenges.  Its assertions — frequent in these papers, that it did not set out deliberately to manipulate loan movements among bond estates to generate sharply higher subsidies — are undermined by internal emails that show PHEAA initially did not want to make too many claims, so as not to draw attention to what they were doing, and that Deputy Secretary William Hansen would be instrumental in approving their claims.  

•  Emails confirming that PHEAA did not want to turn over such documents to the Inspector General for an audit, under penalty of perjury, and they never did.  That included emails showing the desire of CEO Richard Willey to make aggressive claims.  

•  Revelation of the roles of Federal Student Aid director Terri Shaw and David Dunn, Secretary Margaret Spelling's chief of staff.  When OIG and OGC lawyers challenged the higher subsidies (which could cost taxpayers billions of dollars), PHEAA threatened that they would have Dunn overrule them.  Dunn would later prove to be a disappointment to PHEAA.  On the contrary, Terri Shaw was complicit throughout.  It was under her directorship that FSA sent program review teams to lenders like PHEAA to approve the claims after the fact, the findings of which were not accepted by OIG and OGC.  She eventually resigned rather than face what she knew would be Congressional questioning.   

•  Confirmation of the centrality of Scott Miller, a PHEAA consultant and lobbyist, Steven McCullough of Iowa Student Loan, and Kathleen Smith of the Education Finance Council, a trade group.  Miller is continually contemptuous of those who would try to block the higher subsidy scheme.  McCullough serves as a conduit for Hansen after Hansen left his Deputy Secretary position, passing along suggestions as to how to bring pressure on the department's lawyers to fall into line.  Kathleen Smith wages internecine conflict throughout the loan industry to try to keep the scheme from unravelling.  

•  John Dean, a lawyer for the Consumer Bankers Association, wrote legal opinions for lenders to make higher subsidy claims based on his assessment of confusion in the Education Department and the huge "opportunity" it presented. 

•  Confirmation of dissent within the student loan community, with prescient expressions of concern that false claims could threaten the future of the whole industry. Sallie Mae chided PHEAA over the scheme; Henry Howard, a lender, wrote disparagingly: "A chimp could make money with... the alchemy.... Just incredible." 

These documents help fill in the blanks and corroborate previous accounts of the corruption, especially those written by Stephen Burd and Dan E. Moldea.  Historians should take note of the existence and content of these papers.  The revelations should be of considerable interest to those who are currently assessing the Secretary's powers to compromise and settle student loan debt.   

_____________________________________________

*Most of the documents come from discovery at PHEAA, which in 2021 decided not to pursue further federal servicer contracts, apparently in the hope that a retreat would wind down costly litigation and investigations, which intensified after PHEAA lost its sovereign immunity in litigation in 2017.    

More on "Drowning in Debt"

December, 2021

Washington — In the previous post, I offered initial thoughts about Elizabeth Tandy Shermer's book, Indentured Students: How Government-Guaranteed Loans Left Generations Drowning in College Debt.  It is an important work, worthy of further dissection and debate. 

It is the work of an outsider to the student-loan industry, a historian who brings formidable skills to her subject and whose analyses are often a refreshing departure from lesser works by authors who bring hidden and not-so-hidden agendas to their product.  

Conversely, I am a student-loan insider — and political scientist, as opposed to historian — whose observations and experiences sometimes do not line up in quite the same direction as Professor Shermer's analyses.   Let me illustrate with a working paper I wrote while at the U.S. Department of Education in 2003, and then turn to how the findings apply to Shermer's book.   

Using the databases of the National Center for Education Statistics, I looked at student financial aid distributions over time.  Here is some of what I found:

1.  Whether federal Pell grant funding for financially needy students went up or down over time, loans in students' financial aid packages went up, especially to the low-income.  Institutions superimposed their own, often conflicting priorities over federal grant and loan programs. 

2.  Low-income Black students were given the greatest loan burdens in student financial aid packages.  Non-needy students of all races were favored in aid packaging. 

3.  Many colleges placed private loans in student financial aid packages, with less favorable terms that federal guaranteed loans, even for students who had remaining federal eligibility.   

None of this was a big surprise.  I had previously written a peer-reviewed paper in 1997 that demonstrated how grants and loans were fungible in student financial aid packages, so the actual beneficiaries of various types of financial aid might not be those for whom it was intended.*   

More surprising were the reactions to the 2003 working paper.  

From the outset, it was difficult to work with NCES to get the data, as they did not want to see presentations by race by income.  I had been asking for this presentation for some time in NCES reports, but pressure from institutional interests prevented it.  Colleges did not like the idea of showing how grant aid was going to higher income students in general, let alone how bad this appeared from multiple angles when broken out by race.     

Several policy analysts in think tanks and advocacy organizations reviewed the working paper.  Will Marshall at PPI arranged a session to review it, along with other works on student financial aid.  One economist said she agreed with every aspect of the paper and its findings, but that they must not be shared outside the confines of the room because they revealed too much about how student financial aid practices actually worked.  If Congress knew, the thinking went, much of the advocacy work for more student aid funding would be undermined.  

The reactions to the working paper from my connections in the Black policy community were muted.  Analysts and advocates are organized around HBCUs and around TRIO aid programs, not around the issues of the bigger picture.  Sometimes they had been lukewarm to me in other circumstances, such as when I had previously worked in the Office of Legislation and Congressional Affairs and was known for thinking beyond the legislative agendas of those particular, more narrowly focused, interest groups.

The reaction was more positive with regard to the paper's finding that private loans were being placed in the aid packages of students who qualified for loans with better terms.  This was a message I passed along to colleagues in organizations like NASFAA and NACAC.  Within the year, word went out within the financial aid community that this should not be happening.  Private loans lost their luster for a few subsequent years (although they soon made a comeback). 

Which brings the discussion back to Professor Shermer's work and where it may or may not line up well with my own. 

Shermer is on-target in pointing out that "operations is policy" (p. 237).  How programs are operated in practice may be different, even wildly different, from the statutory language and intentions that created them.  However, the context in which she explains this deals with how the Nixon Administration did not implement key 1972 legislation as Congress thought it would.  A better and more consequent illustration is how institutions subsequently came to implement neither version, but established their own, more self-serving operations, through which much of federal aid intended to benefit students has been deployed to serve institutional interests.  It was this that NCES was pressured not to show, and why representatives of institutional interests did not want to discuss research findings outside of friendly confines.  

As to matters of race, my experience suggests too much attention is paid in the book to HBCUs (thirty-one references in the index), as if "developing institutions" should be in the forefront of the discussion on racial inequities.  I make this observation fully aware that this is the customary approach of many scholars and journalists.  But HBCUs enroll fewer than ten percent of Black students.  Their institutional needs should not dictate policy on matters such as PLUS loans, and their frequent photo-ops with presidents should not mislead any of us into thinking that directing a few billion dollars their way will solve systemic, nation-wide issues in distributing student financial aid more equitably.  

In other words, consideration of Title III of the HEA must not eclipse dealing with longstanding disparities in Title IV operations.  Likewise, Title IV problems should not take a back seat to the idea that inequalities in society at large are responsible for those most in trouble with student loan debt, as suggested in this passage (p.199):  "Only later did researchers uncover that increasing enrollments and opportunities to borrow did not erase longstanding inequalities after graduation."  

Some researchers knew all along that the way Title IV operated, with its "opportunities to borrow" and its troublesome distribution of debt, was leading to big trouble.  Those problems would only be heightened when the Department of Education, already complaisant on the growing problems of student debt, came to be led by appointees from the loan industry itself who encouraged an anything-goes approach to lending in the early 2000s.  

Readers should know that the student financial aid foundation was already cracked well before that corruption-riddled era, with its explosion of dubious lending, commenced.**

Next month, I will participate in a panel with Professor Shermer and others who will have read her book.  I look forward to a good discussion.  

___________________________

* See subsequent corroboration and further explanation, including that of "enrollment management," in Stephen Burd's four-part series, Undermining Pell. 

** For an account of the period 2002-2019, see Dan E. Moldea, Money, Politics, and Corruption in U.S. Higher Education, 2020.   

A New Work on Indentured Students

December, 2021

Washington —  Historian Elizabeth Tandy Shermer has written a welcome addition to the literature of the nation's ongoing student debt crisis.  The book, Indentured Students: How Government-Guaranteed Loans Left Generations Drowning in College Debt, looks back through the eras of the New Deal, the GI Bill, Sputnik, and the creation of the student loan industry.  

The book is unusually insightful on topics ranging from hierarchies across higher education sectors, to the relationship of student financial aid to college prices, to inequities by race and sex that have actually been exacerbated by student loans.

What is missing in the book is more development of the "how" in the title, particularly during the tumultuous first decade of the twenty-first century.   While earlier chapters admirably delve into the people who shaped policies for good or ill, the treatment of later eras leaves readers hanging without the same pursuit of who was responsible for what, why, and how.  Example (p.279):  

"With [the 2006] presidential primaries rapidly approaching, and investigations underway of abuses in student lending, the president fired industry insiders from a purposefully lax Education Department."

As someone who watched this happen from both inside the department and from subsequent litigation discovery, I can attest to the accuracy of the statement.  I also admire its perspicacity, as it goes well beyond conventional wisdom and packs the punch of truth.  But the book does not go on to explain how this left students drowning in debt.  Who were these people? What did they do? What investigations?  What abuses?  Readers are left guessing.  

If the Education Department was "purposefully lax" (and it was), what does that mean for borrowers who are now paying the price, as victims of predatory lending?  Does it mean the Department should remediate the damage done?  I believe the answer is yes, and that it can be done under existing statutory authority, namely the "compromise and settlement" provisions of 20 U.S.C. 1082.*  

There is a straight line from the corruption of the early 2000s to the current student loan crisis.**  One of the book's missed opportunities is that it does not illuminate this connection, to fulfill the promise of the book's title.  Otherwise, this is a remarkably insightful book from which we all can learn. 

_____________________________

* The Biden Administration has an opportunity to offer significant student loan relief by use of the compromise and settlement authority as outlined in a recent work by Claire Torchiana and Winston Berkman-Breen of the Student Borrower Protection Center.  See especially p. 44.  

** Given what the Department of Justice knew about the corruption of the era, it is perplexing that it did not act as it did later in the college admissions scandal "Operation Varsity Blues," when the perpetrators were prosecuted under federal RICO statutes.  The difference, apparently, is that the racketeering in the former case involved federal officials, which was just too hard for DOJ to take on.     

Fists and Noses, Hobbes and Locke

November, 2021

Lincoln — "Freedom" has taken on new definitions recently, acquiring meanings that have surprised me.  

I had thought the concept was long-since defined in aphorisms like "the freedom to swing your fist ends where my nose begins," and other such expressions.  Clever sayings imparted the idea that freedom has limits and carries with it responsibilities.  

"There is no freedom to shout fire falsely in a crowded theater" also expressed the limits of freedoms guaranteed in the Bill of Rights, making clear that they are not absolute.  

Now the idea is abroad that freedom is violated by local, state, or federal government requirements to get vaccinations or wear masks for the protection of society from disease.  The notion, overly simplistic to me, is that a government should have no interest in what one does with his or her own body.

I grew up at a time when we had a military draft, when vaccinations were mandatory for school admissions, and most everyone accepted these as proper functions of government.  It was part of the understanding that government is obliged to act to "secure the blessings of liberty," an expression from our Constitution's preamble.  Certain personal sacrifices, large or small, have long been considered necessary in a society where "freedom is not free," another expression noting the limitations of freedom, especially popular with those who served our country in uniform.  

Re-defining freedom in a way that turns these laws and mores upside down should make citizens reflect on where the lines should be drawn between personal freedom and the duty of governments to protect and defend our society.

I would draw the line where governments begin to restrict the right to vote so as to deny us a Constitutionally guaranteed republican form of democracy; to limit the freedom to assemble peaceably; to limit freedom of movement without due process; to delay the administration of justice; and a whole lot more.   There are limits that government at any level must not transgress.

But governments through their inaction can also cross the line.  Permitting a person's fist to smash another person's nose denies more freedoms than it protects.  My freedoms, and those of a majority of Americans during the pandemic, have been curtailed by those who refuse in the name of their own self-defined freedom not to get vaccinated.  Government indulgence of fists over noses is a slippery slope in the direction of anarchy, which in turn invites authoritarian and totalitarian responses.  It is not a coincidence that many of those who most aggressively tout anti-vaccination "freedom" are also those who would use the government to diminish other freedoms.  This is a Hobbesian view of society, in contrast to the Lockean philosophy embodied in our country's founding documents.  

Perhaps the marketplace can help resolve these conflicts.  If the lives of the unvaccinated are more expensive to save, and treating them clogs up the hospitals and slows business recovery, let it be reflected in health insurance costs.  Likewise, I am not troubled by distinguishing the vaccinated from the un-vaccinated in the workforce, in the military, and in public admissions and accommodations, if the distinctions are part of an effort to recognize that the freedom to swing one's fist does indeed end where another's nose begins.  Philosophers like Bentham and Mill, who have best defined our freedoms, would approve.  

Nothing could be more compatible with the freedoms America traditionally stands for than agreeing on the need for vaccinations to secure the blessings of liberty.    

  

Defend the Canfield Name

November, 2021

Lincoln — The name Canfield is much storied and honored in Nebraska.  May it ever remain so.

James Hulme Canfield was chancellor of the state university during its early golden era.  The UNL administration building is named for him.  Robert Knoll, author of the authoritative history of the university, wrote, "James Canfield's record as chancellor is unsurpassed in the whole history of the University of Nebraska."

The great chancellor's daughter, Dorothy Canfield Fisher, grew up in Lincoln.  Subsequently, after returning to her family's New England roots, she became a celebrated Vermont writer.  She wrote fiction and non-fiction, for young and old.  She championed causes of women and minorities.  From her years in Lincoln she knew Willa Cather and maintained a lifelong friendship and correspondence with her.  Eleanor Roosevelt named Dorothy Canfield Fisher one of America's ten most influential women and upon Fisher's death wrote:

I had never known Mrs. Fisher intimately, but I read her books with constant interest and pleasure.... Mrs. Fisher was a woman of great spiritual perception, and for many years it has given me comfort if I found myself on the same side of a controversial question with her. We might discover ourselves to be unpopular at the moment, but in the end our position would probably prove to be the best one, I felt, if she believed in it....  May her influence be kept alive among us for a very long time.  

In 2017, a member of the Abenaki Native American tribe of Vermont controversially suggested that Dorothy Canfield Fisher's name should be removed from an annual children's book award.  She was accused of being a eugenicist and of disparaging French Canadians and Native Americans in her writing, particularly in the 1933 novel Bonfire.  

Another Vermonter joined in, making this startling claim:  "Fisher’s involvement with the eugenics movement informed the subject matter of much of her fiction, portraying an idyllic picture of Vermont, romanticizing rural values and describing, pretty unsubtly, the 'right' and 'wrong' kind of people."

Most of those who came to the defense of Dorothy Canfield Fisher, unfortunately, did so only tepidly. They did not push back with evidence that her link to eugenics was only an imagined guilt by association and that Bonfire was surely written as a rebuttal to the idea that heredity is destiny. Rather, they weakly offered that she was a "product of her time." Her name was removed from the award.

Those who have actually read Dorothy Canfield Fisher know that she was decades ahead of her time and deserves better. Which raises the question of the role of scholarship. Where is the academic community in interpreting her works and pursuing the truth about her?

I read Bonfire to determine if there is evidence to support the charges against her. Importantly, it was written the same year her daughter Sally married John Paul Scott, a Rhodes Scholar and zoologist who debunked eugenics and whose views likely shaped the novel.

The novel is set in a small town in Vermont. The protagonist is a district nurse who returns home after living and working in Paris in the 1920s, an autobiographical reference to the author herself. The townspeople see themselves as divided between the better folk who live in the valley and those with hereditary defects living in the hills above. Everyone in the novel knows everyone else's heredity, and they are all judged by the area's inhabitants accordingly.

I count at least thirty-five separate references in Bonfire to heredity.  The nurse herself, however, is not so sure about its influence.  She signals this early on with statements about how human differences might be explained by nutrition and education instead.  She sets up a boarding school arrangement at the local academy to give those living on the mountainsides a chance to improve themselves.  In doing so, she despairs of "the grim local cult of heredity, which made it one with Fate."

Her critics must have missed that sentence.  

A subplot of the novel is a comparison of the lives of two young women, one raised in privilege and one rescued from poverty and family dysfunction in the hills.  It is almost modeled as a scientific experiment.  The results are unclear.  As is often the case in science, the null hypothesis offers itself for rejection but there are too many variables to reach any glib conclusions.  

What is clear, however, is that easily-missed references in Bonfire to French Canadians and Native Americans are not in the voice of the author, but in the voices of those she challenges, those of the "grim local cult."  That matters, decisively.  Bonfire is a disturbing novel, but not in the way its latter-day detractors suggest.

The point is this:  it may be fashionable these days for some to disparage people who are not around to defend themselves, in the misguided hope that somehow it will reflect well on their particular causes.  It doesn't, and is counterproductive.  And indulging it does not reflect well on the academic community, which may know better but remains all too silent.  

The Canfield name deserves restoration.  Nebraskans should come to the defense.