Category Archive

When Corinthian Colleges, a national chain of for-profit colleges, went bankrupt last spring, students and taxpayers were left holding the bag. Though a federal judge recently found Corinthian liable for $531 million in damages for its illegal marketing and lending practices, the Department of Education failed to take effective action against the chain as it collapsed — indeed, the Department provided Corinthian with $35 million in new student aid money as it circled the drain.

That $35 million is gone forever, and the chances of anyone recouping the $531 million in damages are essentially zero. But even that figure is just the tip of the iceberg — the federal government backed some $3.2 billion dollars in student loans to Corinthian in just its final four years, much of which federal law entitles students to have forgiven in the wake of the chain’s closing. By one estimate, the government could wind up providing Corinthian’s alumni with as much as $3.5 in loan forgiveness by the time the whole mess is over.

How could this happen? Corinthian’s underhanded practices and shoddy finances were well-known long before the company collapsed, and the company had been the subject of multiple state and federal investigations in the years before it closed its doors. The Department of Education is supposed to be overseeing and regulating institutions like Corinthian, so why did the system break down so badly?

Regulating Too-Big-to-Fail Education, a new report by student debt expert Chris Hicks, finds that the ED’s regulatory tools, robust in principle, are not being used effectively to inform students, enforce compliance, or protect taxpayers from the effects of institutional failure. Just a few straightforward fixes, Hicks suggests, could save us all from the effects of future Corinthians.

One of the most powerful weapons the ED has against mismanaged and fraudulent colleges is something called the Financial Composite Score (FCS). The FCS is a rating of a school’s financial soundness — a college with an FCS above 1.5 is considered financially responsible, while a score below 1.0 is a major red flag. (An institution’s FCS score can range from -1.0 to +3.0.) An FCS below 1.5 is supposed to trigger special sanctions and oversight by the ED, specifically a requirement that the institution submit a letter of credit binding a significant percentage of its revenue as insurance against future defaults or sanctions.

Corinthian received a 0.9 FCS a full four years before it collapsed, but nothing was done. The institution was allowed to run out the clock on the finding, and the next year its FCS miraculously rose to 1.5, the exact number it needed to avoid ED action.

And as Hicks’ report shows, the problems with the FCS aren’t limited to lax enforcement. The FCS formula is outdated, arbitrary, and subject to gaming by institutions. In fact, many institutions are never given FCS scores at all, for reasons that remain unclear.

There’s more. FCS, because it only incorporates financial indicators of institutional health, ignores other warning signs. If the FCS was expanded to consider evidence of fraud, deception, or other malfeasance — and to allow the ED to force institutions to post letters of credit to hedge against risk of adverse outcomes in those areas as well — it would go a long way to giving the ED watchdog the teeth it so desperately needs. (To give you an idea of the scope of this problem, the New York Times recently reported that two dozen for-profit companies under investigation by state prosecutors currently operate a total of 152 colleges that receive $8.1 billion in federal grant and loan money last year.)

I could go on indefinitely — I’m by no means doing justice to the full scope of Hicks’ argument here — but that gives you a taste. If you’re interested in the subject, please read the full report.

It’s become increasingly obvious in recent years that we can’t fix higher education in the United States without fixing for-profit colleges. With fraudulent and mismanaged for-profits allowed to operate unchecked, students are being victimized while grant and loan money — taxpayer and student money — is being diverted away from more effective institutions. Legitimate higher education is being starved of funding. And perhaps worst of all, students — disproportionately poor, disproportionately at-risk students — are being left with worthless degrees or no degrees at all.

As Hicks writes, the Department of Education “has the authority and responsibility to take decisive action when it finds these schools are not responsible enough to continue to be trusted with billions of dollars from taxpayers and the livelihoods of the thousands of students enrolled at them.”

The time for such action is now.

The most closely watched court case in higher education over the last few years has been Fisher v. University of Texas, in which Abigail Fisher, a white woman, sued UT claiming that she was improperly denied admission to the university as a result of its affirmative action policies.

The first time Fisher made it to the Supreme Court, in the 2012-13 session, the justices declined to rule on the question of whether affirmative action in college admissions is constitutional. Instead, in an opinion written by Justice Anthony Kennedy, the Court found that the Court of Appeals had applied the wrong constitutional standard to the case, and sent the dispute back to them for reconsideration.

Fisher returned to the Supreme Court last fall, with many Court observers predicting that a majority of the justices would find campus affirmative action unconstitutional. But at oral arguments in December, more than one justice — including Kennedy, the presumed swing vote — suggested that the Court might not have enough information about the specifics of the Texas plan to rule on it conclusively.

Which brings us to the Court’s new vacancy. Justice Scalia’s vote in Fisher has never been in doubt — he declared in a concurrence to the original ruling that he considered affirmative action unconstitutional. But his death is unlikely to change the math immediately, since Justice Kagan, a supporter of affirmative action, is not participating in this case. (As Obama’s Solicitor General, she had responsibility for the administration’s briefs in the run-up to Fisher‘s first appearance before the Court.) If Kennedy and the more conservative justices all vote to overturn affirmative action, and the Court’s liberals all vote the other way, then Scalia’s absence merely shifts the tally in the conservatives’ victory from 5-3 to 4-3.

That only applies, though, if the Court reaches a final decision on the merits now. If they send the case back for further consideration at a lower level again, Scalia’s replacement will presumably be seated in time for the next round. And Scalia’s may nudge Kennedy toward that approach — in general, the justices prefer not to make important decisions short-handed, and Scalia’s absence means that on this issue the Court is down not just one vote, but two.

If the Court sends Fisher back to the lower courts, then, and if they take the case up again when they’re at full strength, and if Scalia’s replacement is appointed by Obama (or a Democratic winner of the 2016 election), this term’s anticipated 4-3 vote to overturn affirmative action will likely turn into a 4-4 tie.

And in the case of such a tie, the lower court’s decision would stand — but it wouldn’t set precedent for the rest of the country. The ultimate fate of campus affirmative action would be left unresolved … until a subsequent case arose in the context of another university’s admissions policies. And if that happened, Justice Kagan would in all likelihood be free to participate, changing the 4-4 Fisher tie to a 5-4 victory for affirmative action.

Unless, of course, there’s another vacancy on the Court before then.

With Justice Scalia’s death yesterday, people who disagreed profoundly with his legal theories have been falling over themselves to praise his intellect. President Obama summed up the consensus in a televised statment, eulogizing Scalia as “a brilliant legal mind with an incisive wit … one of the towering legal figures of our time.”

This has been the standard take for a long time now, and plenty of good and smart people say it’s true of Scalia the private man. But it hasn’t been true of his judicial writing for quite a while.

I read a fair number of Supreme Court opinions every year, and I learn something from most of them — including, and perhaps particularly, when I disagree with the authors. Justice Roberts’ opinions, for instance, frequently challenge me. I often find myself mulling his arguments, going back and re-reading sections of them to better understand how they fit together. I don’t remember the last time I did that with Scalia.

Scalia’s dissents in particular are lauded for their invective and bravado, but in recent years those rhetorical tools were hardly ever put in the service of serious argument. He wasn’t trying to convince, and he wasn’t trying to educate. He was trying to entertain.

And the entertainment was pitched at the cheap seats. Scalia’s most famous dissents were catnip for people who never read Supreme Court opinions. They failed to engage productively with the work of his colleagues, and they demanded nothing of the reader. They were empty spectacle, and ultimately cynical — their message was “this is all show business anyway, so let’s have some fun with it.” And the jokes weren’t even all that funny.

As I said after reading one of his death penalty concurrences last term, Scalia was the guy in your Women’s Studies class who made a grand show of logically refuting his classmates … but who clearly hadn’t done the reading.

Clarence Thomas doesn’t get a lot of respect from casual observers of the Court; he’s often perceived as an intellectual lightweight and a hanger-on. But if you read his opinions, and even more so his dissents, you see a reckoning with law and history and theory that compells you to engage. With Scalia recently, it was mostly just the Scalia Show — preening, flouncing, histrionic, full of insults and strained witticisms. (The dissents Thomas and Scalia wrote in the Obergefell marriage equality case last year illustrate this gap.)

Such opinions did little credit to the Court, and it does no credit to the Court to pretend otherwise.

At Texas A&M this Tuesday, a group of sixty students from Uplift Hampton Preparatory School, a predominantly black and Latino high school nearly two hundred miles away in Dallas, were visiting the campus when several of them were approached by white students from the college. One white student asked two of the Hampton girls for their opinion on her Confederate flag earrings, at which point, according to an account released by state senator Royce West,

“a group of white male and female students, who [were] within earshot of the first event, told a larger group of the high school visitors … to ‘go back where you came from.’ They continued their taunts by using the most well-known racial slur that’s directed toward African Americans and also made other references to the Confederate flag.”

I learned about this incident yesterday, when a guy I know on Twitter, a lawyer who works with the campus free-speech group FIRE, tweeted that while “racial slurs are ugly … expelling doesn’t fix the problem.” In a followup, he responded to Senator West’s suggestion that the students involved “should be strongly disciplined, if not expelled” by declaring that “the university can use its own speech to decry the racism, but it can’t ‘not tolerate’ racism by expelling” students.

Here we have one of the core recurring arguments connected to today’s student movement in a nutshell: A group of students do something bigoted, campus activists call for them to be punished, and someone points out that the First Amendment forbids it.

Over the last year in particular, lots of students have been pushing colleges to take action against  speech, and lots of civil libertarians have been criticizing them for doing so — like it or hate it, they say, you can’t punish free speech.

But it turns out that’s not quite true.

Not all speech is protected, particularly in an institutional context. Bigoted campus speech in particular may be actionable if it constitutes harassment under the terms of the Civil Rights Act of 1964, and free speech advocates do their cause no favors when they neglect that fact.

Under American law, colleges and universities have not only a right but an obligation to act in certain cases of student-on-student harassment. The exact contours of that obligation aren’t settled — there haven’t been enough Supreme Court cases to establish clear precedents on all the relevant questions — but a decision from 1999, Davis v. Monroe, laid out the basic outlines. Public schools, the Court said then, have a responsibility to act in cases in which student-on-student sexual harassment is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” (Subsequent decisions have extended that ruling to cover other kinds of bias, and some have replaced the “and” in “severe, pervasive, and objectively offensive” with an “or.”)

What does all this mean? It means that the United States Congress and the Supreme Court recognize that harassment of a student by other students may be so intense and abusive as to make it impossible for that student to participate fully in the educational process. And it means that when such a student is targeted on the basis of race, gender, disability, or certain other characteristics, the harassment constitutes a federal civil rights violation.

Consider that standard in the context of this week’s incident at Texas A&M. Prospective enrollees were, according to the state senator’s account, called vicious racial slurs, taunted by a group of students, and told they didn’t belong on campus. College officials, including campus police, were made aware of the incident but reportedly did little about it.

Clearly this behavior was offensive, and clearly the prospective students were targeted on the basis of their race. Which brings us to the big question: Was the harassment severe enough to “effectively bar [the high schoolers’] access to an educational opportunity or benefit”?

Again, this is the crucial point. Campus speech doesn’t lose its First Amendment protection because it’s obnoxious or offensive or wrong or hateful. It has to have a specific, concrete impact: It has to seriously compromise someone’s ability to obtain an education at the institution. And by that standard, it seems to me, one can reasonably argue that the reported treatment of those high schoolers at Texas A&M this week was racial harassment of a kind that the college has a right and even a responsibility to address.

These were black high school students visiting a college they were thinking of applying to. They arrived on campus and were barraged with racial epithets, Confederate flag taunts, and claims that they don’t belong at the university. College officials witnessed it happening and failed to effectively intervene.

Are the students of Uplift Hampton likely to apply to Texas A&M after all that? I suspect some of them may not be.

Now, I’m not a lawyer, and I’m not saying that a harassment case would be a slam dunk in this situation. But just as freedom of speech is a real thing and an important thing and a recognized fact of American law, so too is the right to pursue an education, and so too is the right to be free from discrimination on campus.

When bigoted, obnoxious campus speech is so aggressive and sustained that it materially interferes with students’ ability to become or remain a part of a campus community, colleges have a right and an obligation to take action. That’s a fact. And if we want a reconciliation between antiracist activists and civil libertarians, we need to acknowledge that fact and begin to work toward a shared understanding of how to translate it into policy.

Last night on Twitter I said a few things about the “Bernie Bro” phenomenon — the hostility and abuse that folks have been getting recently in online spaces when they express criticism of Bernie Sanders or his candidacy for president — and I want to say a bit more about it today.

My own experience, and it’s shared by a lot of other people, is that this is real, and — in this campaign cycle — distinctive. I get more crap, and more aggressive crap, when I say something negative about Sanders (who I’m likely voting for) than I do when I say something negative about Clinton, and I’m more likely to have my motives questioned when I do. When I tweeted a few things a week or so back about Sanders’ ill-phrased Supreme Court tweet, a bunch of people showed up to tell me exactly what was wrong with my tweets, my character, and my intellect, including several with high follower counts who I ordinarily don’t interact with.

So why is this happening? I have a hunch.

In 2000, there was a tremendous amount of animosity between Gore supporters and Nader supporters, with a huge amount of vitriol being expressed on both sides. Same thing with Clinton and Obama in 2008 — lots of ugliness, lots of anger flowing in both directions. This cycle there’s some of that coming from the Clinton camp, but it’s not not as much as is coming from Sanders supporters.

To put it another way, what’s weird is less what Bernie’s people are doing than what Hillary’s people (mostly) aren’t.

If you look at Nader 2000, Gore 2000, Clinton 2008, and Obama 2008, one common factor, absent in Clinton 2016, leaps out: They all thought they were the underdog. They all thought they had a shot to change the world, and they all thought they were getting screwed out of that shot by the system and their opponents. Nader was running a third-party campaign in a country where the major parties conspire to keep third parties down. Gore’s people were scared that Nader was going to tank the election for them. Clinton was battling to be the first woman president, facing all the misogyny that went with that, and Obama was in the same boat with regard to race. In each of those cases, for the supporters of each of those candidates, victory was close enough to taste, and the prospect of defeat was too bitter to bear.

Which brings us to 2016.

For Clinton, there’s far less cause for anxiety than there was in 2008. She entered the race as a huge front-runner, and she still holds that position. She’s got more experience in both campaigning and governing, a much bigger advantage in cash and endorsements, and a far weaker Republican field to contend with if she makes it to November. She is, by just about any analysis, the clear favorite to win both the Democratic nomination and the presidency. Bernie Sanders’ campaign, on the other hand, is right where all the others were in 2000 and 2008. He’s underfunded. He’s widely reviled or dismissed by powerful forces in the media and his own party. He’s fighting an uphill battle against the DNC and Wall Street. And as the country’s potential first Jewish president, he’s facing no small amount of ugly bigotry along the way.

Sanders’ supporters see victory as almost within their grasp, and a lot of them think that if he loses it’ll be because the presidency was stolen from him. They’re simultaneously ecstatic and terrified.

And sometimes — as we saw eight years ago and eight years before that — people in that frame of mind wind up freaking out and doing stupid and obnoxious things.

Not all of Sanders’ supporters are acting like jerks, of course. Most of them, the huge majority, aren’t. But some of them are. Enough of them to be a problem.

Demographics play a role in this as well. Sanders’ support skews young, which means there are more of his partisans in the social media spaces where the worst of this kind of obnoxiousness tends to take place. The most vocal jerks among his supporters also include quite a few white men who are happy to deploy racist and misogynist attacks against those they disagree with.

It’d be a mistake, though, to attribute the obnoxiousness of Sanders’ worst followers purely to the demographics of his base. Yes, Sanders’ support skews white and male, but Clinton still has enough of a lead nationally that in raw numbers, the two candidates are running pretty much even among men and among white voters.

Sanders presumably leads among people who are both white and male, and even more so among young white men, but those differences aren’t staggering — Clinton has plenty of young white men in her camp, and it’s not just (though it is disproportionately) young white men who are engaging in this behavior. My strong suspicion is that if the underlying dynamics of the race change — if Sanders, say, wins Iowa and New Hampshire and then goes on to pull out a third straight victory in Nevada — we’ll see the vitriol from his camp decline and that of the Clinton camp rise, even if their supporters’ demographic skews stay pretty similar.

•          •          •

When I talked about this stuff on Twitter last night, one of the most interesting responses I got — and I got it from several people — was the argument that this stuff shouldn’t matter in the election, because people shouldn’t be basing their votes on which campaign has the worst supporters. This struck me as wrongheaded in a few different ways.

First, there are reasons to talk about this stuff other than its horse-race impact. If it’s true — and I believe it is — that Sanders’ supporters are disproportionately abusive in online settings, that’s not just a problem for Sanders. It’s a problem for the people who are being targeted, and Sanders supporters may be in a better position than others to assist them. Those of us who support Sanders’ campaign can help address this problem, and if we can, we should.

And even if we think people shouldn’t change their votes on the basis of the actions of online jerkery, elections aren’t determined by how people should vote. They’re determined by how people do vote, and whether they vote at all. And if people’s experiences online make it less appealing to be a Sanders supporter, less comfortable to associate with that campaign, that’s got the potential to cost him votes. Even if people don’t jump ship to Clinton because of it, some may stay home, or volunteer less, or opt out of discussing their views with their friends. The Sanders campaign is a grassroots campaign, and grassroots campaigns need all the enthusiasm they can get.

I’m seeing far too many people spending far too much energy trying to convince folks that their experiences with Sanders supporters online aren’t real, or aren’t important, or shouldn’t be discussed. Nobody’s going to vote for Bernie because someone tells them they’re wrong to be angry about this stuff, or that they’re lying about it, or they’re stupid if they let it affect their vote.

That’s not how you build a movement. That’s not how you make a revolution.