Category: Education

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FAN 99.3 (First Amendment News) Court Denies Review in Off-Campus Speech Case

Today the Court denied review in Bell v. Itawamba County School Board. The issue in the case was whether and to what extent a public high school, consistent with the First Amendment, may discipline students for their off-campus speech. In a divided en banc ruling, the Fifth Circuit denied the First Amendment claim.

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  2. Town of Mocksville v. Hunter
  3. Miller v. Federal Election Commission
  4. Sun-Times Media, LLC v. Dahlstrom
  5. Rubin v. Padilla
  6. Hines v. Alldredge
  7. Yamada v. Snipes
  8. Center for Competitive Politics v. Harris
  9. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Electronic Arts, Inc. v. Davis
  5. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (relisted)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court’s next Conference is on March 4, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Private Lenders’ Troubling Influence on Federal Loan Policy

Hundreds of billions of dollars are at stake in the upcoming reauthorization of the Higher Education Act (HEA). Like the confirmation of a new Supreme Court justice, it may be delayed into 2017 (or beyond) by partisan wrangling. But as that wrangling happens, Washington insiders are drafting “radical” proposals to change the federal government’s role.

Faculty at all institutions need to examine these proposals closely. The law and public finance issues raised by them are complex. But if we fail to understand them, and to weigh in against the worst proposals, we could witness developments that will fundamentally change (and perhaps end) the university as we know it. Moreover, even if universities find ways to shield themselves from change, some proposals will leave students vulnerable to worse financing terms and lower-quality programs.

In a series of posts over the next few weeks, I’ll be explaining the stakes of the HEA reauthorization. For now, I want to start with a thought experiment on how education finance may change, based on recent activities of large banks and digital lending services I’ve studied. What would be ideal, in terms of higher education finance, for them?

Financiers consider government a pesky and unfair competitor. While federal loans offer options to delay payments (like deferment and forbearance), and discharge upon a borrower’s death or permanent disability (with certain limitations), private loans may not offer any of these options. Private lenders often aim to charge subprime borrowers more than prime borrowers; federal loans offer generally uniform interest rates (though grad students pay more than undergrads, and Perkins loans are cheaper than average). Alternatively, private lenders may charge borrowers from wealthy families (or attending wealthy institutions) less. Rates might even fluctuate on the basis of grades: just as some students now lose their scholarships when they fail to maintain a certain GPA, they may face a credit hit for poor performance.*

Now in conventional finance theory, that’s a good thing: the “pricier” loan sends a signal warning students that their course may not be as good an idea as they first thought. But the commitment to get a degree is not really analogous to an ordinary consumer decision. A simple Hayekian model of “market as information processor” works well in a supermarket: if bananas suddenly cost far more than apples, that signal will probably move a significant number of customers to substitute the latter for the former. But education does not work like that. College degrees (and in many areas further education) are necessary to get certain jobs. The situation is not as dire as health care, the best example of how the critical distinction between “needs” and “wants” upends traditional economic analysis. But it is still a much, much “stickier” situation than the average consumer purchase. Nor can most students simply “go to a cheaper school,” without losing social networks, enduring high transition costs, and sacrificing program quality.

For financiers, a sliding scale of interest rates makes perfect sense as “calculative risk management.” But we all know how easily it can reinforce inequality. A rational lender would charge much lower interest rates than average to a student from a wealthy family, attending Harvard. The lender would charge far more to a poorer student going to Bunker Hill Community College. “Risk-based pricing” is a recipe for segmenting markets, extracting more from the bottom and less from the top. The same logic promoted the tranching of mortgage-backed securities, restructuring housing finance to meet investor demands. Some investors wanted income streams from the safest borrowers only–they bought the AAA tranches. Others took more risk, in exchange for more reward. Few considered how the lives of the borrowers could be wrecked if the “bets” went sour.

Now you might ask: What’s the difference between those predictable disasters, and those arising out of defaults of federal loans? They’re very difficult to discharge in bankruptcy. But federal loans have income-based repayment options. For loans made after 2007, lenders in distress can opt into a payment plan keyed to their income level, which eventually forgives the debt. Private loans don’t offer IBR.

But IBR is not that great a deal, you may counterAnd in many cases, you’re right, it isn’t! Interest can accumulate for 20 or 25 years. Then, when the debt is finally forgiven, the forgiven amount could be treated as income which must be taxed. There is no IBR for the tax payment. Moreover, the impact of growing debt (even it is eventually to be forgiven) on future opportunities is, at present, largely unknown. Many consumer scores may factor it in, without even giving the scored individual notice that they are doing so.

So why keep up the federal role in higher ed finance? Because one key reason federal loans are so bad now is because private lenders have had such a powerful role in lobbying, staffing the key loan-disbursing agency (Department of Education), and supporting (indirectly or directly) think tank or analyst “research” on higher ed finance. When government is your competitor, you use the regulatory process to make the government’s “product” as bad as possible, to make your own look better by comparison. And the more of the market private lenders take, the more money they’ll have to advocate for higher rates and worse terms for federal loans–or getting rid of them altogether.

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*The CFPB has warned lenders that using institutional cohort default rates to price loans could violate fair lending laws, and that may have scared some big players away from doing too much risk based pricing. However, with the rise of so many fringe and alternative lenders, and the opacity of algorithmic determinations of creditworthiness, the risk of disparate impact is still present.

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Journal of Legal Education: Volume 65, # 3, Spring 2016

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From the Editors

By Thomas D. Cobb & Kate O’Neill

Articles

           By Adam Chodorow & Philip Hackney

           By Lynn M. LoPucki

           By Justin McCrary, Joy Milligan, & James Phillips

           By Elaine Campbell

          By John C. Kleefeld & Katelyn Rattray

At the Lectern

           By Beth Hirschfelder Wilensky

Interview

           By Ronald K.L. Collins

Book Reviews

           By Duncan Farthing-Nichol

           By Michael Robertson

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Journal of Legal Ed Symposium: Ferguson & Its Impact on Legal Education

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The latest issue of the Journal of Legal Education (vol. 65, #2) is out. And here is the table of contents. (Go to this link for PDF files of each article). Beyond the Ferguson symposium, there is an essay on modern criminal procedure along with three book reviews.

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Reverse Broken Windows by  Christopher R. Green

At the Lectern

A Reader’s Guide to Pre-Modern Procedure by David L. Noll

Book Reviews

Dulce et Decorum Est: Critics of Student Loan Forgiveness Rally the Troops

For years, critics of loan forgiveness programs for students have argued that they are a form of “welfare,” when in fact they’re a necessary corrective to the excessively harsh bankruptcy regime imposed on student debt. But the critics are getting a hearing, and guess where the money is probably going:

[A]t some point, there is going to be a deal on appropriations and raising the debt ceiling. There is a lot of pressure to raise defense spending. Some of these student loan items [like the Public Service Loan Forgiveness Program] could wind up on the table in such a deal.

We’ve seen this pattern again and again: 1) create a scare about excessive “entitlement” spending, 2) spur either tax cuts for the rich or reallocation of “entitlement” money to the force or finance sectors, and 3) repeat once excess military spending once again drives budgetary imbalances. The PLSF is a low-cost program designed to promote provision of important services to the underserved. It’s amazing to think, of all the expenditure lines that could be attacked, this was the one chosen. But it is of a piece with larger social trends to shift money away from human services, and toward force and finance.
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The New York Times’ Curious War on Traditional Higher Education

It’s a strange position for America’s “paper of record” to take. Despite its largely traditionally-college-educated readership, the New York Times is constantly publishing articles attacking the value of university degrees. Tom Friedman dismisses them as expensive merit “badges” oft-unrelated to the exact qualifications needed for jobs. The ubiquitous Tyler Cowen blasts ed sector costs and inefficiencies, despite international acclaim for US universities. The author of The End of College has had a high-profile platform at the Times‘s Upshot blog.

All three men tend to characterize traditional college degrees as mere signals, barely (if at all) related to the actual skills, habits, and qualities of mind and character that lead to successful, fulfilling lives. I’ve never seen them grapple with the extensive empirical literature on why education increases earnings. Nor do they tend to respond much to the hard data that their colleague David Leonhardt provides on the costs and benefits of college.

Sadly, there’s just too much money in education disruption narratives for the Times‘s most prominent writers to give up on them. Critics have documented how “influence moved from the $795/$495 per person corporate-sponsored [New York Times Schools for Tomorrow] conference [with the theme Virtual U: The Coming Age of Online Education] to the pages of the newspaper of record.” As Facebook and other tech firms angle to squeeze ever more control over (and compensation from) their “content partners,” those partners in turn seek advertising from similar tech firms in other sectors. That’s one reason you’ll see, for example, long stories (aka “earned content”) about legal technology “disruptors” in legal trade publications, near paid ads for the same firms elsewhere on the magazine or website.

I’ll make one grudging concession to Cowen: he’s long argued that marketing is set to become a much larger part of our economy, and you can see its dominance congealing in the ed space now. “Disruptive innovators” push for more for-profit schools and nano-degrees–even though the former have seen so many scandals, and the latter have barely been tested. But what these newfangled entrepreneurs lack in quality, they make up for in marketing budgets. The figures exposed a few years ago were shocking:

At the end of July 2012 the Senate Committee on Health, Education, Labor and Pensions presented an 800-page report, the culmination of a two-year investigation into ‘for-profit’ higher education institutions.​ The senators found that at such institutions a mere 17.4% of annual revenue was spent on teaching, while nearly 20% was distributed as profit (the proportion spent on marketing and recruitment was even higher).

All those marketing dollars, flowing to Google or Facebook as conduit, or publications like the New York Times as content, get attention. It’s no wonder why leading technologists and journalists think it’s so important to promote the disruptors. But they may find their own brands tarnished as the harsh realities of techno-utopian ed reform gradually become more apparent.

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UCLA Law Review Vol. 62, Issue 2

Volume 62, Issue 2 (February 2015)
Articles

Judging Opportunity Lost: Assessing the Viability of Race-Based Affirmative Action After Fisher v. University of Texas Mario L. Barnes, Erwin Chemerinsky & Angela Onwuachi-Willig 272
Enforcing Rights Nancy Leong & Aaron Belzer 306
Milliken, Meredith, and Metropolitan Segregation Myron Orfield 364

 

Comments

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Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences Jordan Cunnings 510

Taking Human Capital Theory Seriously: Simkovic on “The Knowledge Tax”

Graduate professional education in the US is facing a financing squeeze. Some argue that those learning to become doctors, nurses, engineers, lawyers, and the like should get no help from the federal government, because they tend to earn higher incomes than average. Others question that premise, arguing that past results of grad degrees are no guarantee of future performance. They believe that an impending wave of defaults on federal student loans will raise the cost of federal credit programs.

Nevertheless, each side argues for policy with convergent outcomes. The “grad students will be rich” camp argues for curtailing federal loans, since they believe professionals can handle the higher interest rates on the private market. The “grad students will be poor” camp wants to raise the rates on federal student loans, to build up the already hefty surpluses the government is now making, to prepare for the putative future defaults. In the eyes of both, graduate students are the undeserving recipients of government largesse.

I’m not convinced by either: the “too rich” camp fails to value professional services properly, and the “too poor” camp is relying on controversial accounting techniques. But until I read Mike Simkovic’s recent paper “The Knowledge Tax,” I’d never thought of an even more fundamental distortion at work here: tax policy. Simkovic lays out the problem with characteristic clarity, considering a hypothetical college graduate deciding on (1) attending medical school and practicing medicine; or (2) purchasing a small vacant building and converting it into rental apartments:
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A National University

One proposal that was in many early Annual Messages was that Congress should create a National University in the District of Columbia.  George Washington, James Madison, and John Quincy Adams endorsed this idea, but nothing happened.  (Locating the University within the District would have satisfied concerns about the constitutional power of Congress to create a university.)

I wonder how higher education in the United States would have been different if Congress had acted.  A National University would have wielded a great deal of influence over higher education (you would think) and might have led to a more centralized approach to education more generally.  Whether this would have been a good thing is hard to say.  One could argue that higher education in the United States is strong precisely because it is not dominated by one or two places (I’m talking to you–Oxford and Cambridge), but critics of our system (especially of its cost) might argue otherwise.