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, https://doi.org/10.1093/alh/ajaa013:  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.