Sunday, March 22, 2015

Susan Dynarski wrings her hands because we don't have enough information about the student debt crisis. But we know enough to take action.

Susan Dynarski recently wrote a half-page article in the Sunday Times, complaining about the government's lack of useful data about the federal student loan program. She's right of course.

The U.S. Department of Education releases very little useful information about the student-loan crisis. The Federal Reserve Bank of New York, which has issued alarming reports on the problem, relies on Equifax, a private credit reporting agency, for most of its information--not DOE. 

Why don't we have better data? Dynarski quotes a former DOE official who says "lack of will" on the part of DOE's data  collectors is part of the answer, along with "reluctance of senior political leadership in the Department of Education to press for action."

In other words, the Obama administration and Arne Duncan's Department of Education don't want the public to know just how bad the student loan crisis really is.

Barack Obama and Arne Duncan just want to get out of town before the federal student loan program collapses. They are like those American officials during the Vietnam War who scrambled to get on one of the last helicopters leaving Saigon before the city fell to the North Vietnamese.

Barack & Arne just want to get out of town before the student loan crisis blows up.
Make no mistake. Barack and Arne know what's going on. They know the lid is about to blow off this smoothly managed crisis.  And they are trying to strew a little evidence around to show they are trying to address the problem without really doing anything about it. For example, President Obama released his laughable and toothless "Student Bill of Rights" earlier this month.

Solving the student-loan crisis will take more than empty platitudes. It will take courage.
  • It will take courage to rein in the for-profit college sector, which is raping low-income and minority students by enticing them to enroll in high-cost educational programs that don't lead to good jobs.
  • It will take courage to amend the Bankruptcy Code so that insolvent student-loan debtors can get reasonable access to bankruptcy relief.
  • It will take courage to stop garnishing the Social Security checks of elderly debtors who defaulted on their student loans.
  •  It will take courage to stop the private student-loan debt collectors from tacking huge penalties on to the loan balances of defaulted student-loan debtors.
And it will also take a sense of human decency, which President Obama's Department of Education apparently does not have.

Thus, in the Myhre bankruptcy case,  we see the Department of Education opposing bankruptcy relief for a quadriplegic student-loan debtor who was working full time and was still unable to support himself financially, much less pay off his student loans.

And in the Lamento bankruptcy case, the Department of Education opposed bankruptcy relief for a single mother of two who was working full time and was only able to put a roof over her children's heads because she was living rent free with her mother and stepfather.

In both the Myhe case and the Lamento case, DOE wanted these unfortunate student-loan debtors to sign up for 25-year repayment plans. And that has been the Obama administration's overall strategy for dealing with the student loan crisis.

Yes, rather than do the decent thing and work for bankruptcy relief for worthy student-loan debtors, President Obama's Department of Education is trying to force most oppressed student-loan debtors into 25-year repayment plans.

And why is DOE doing that? Because if President Obama and Arne Duncan's Department of Education were forced to publicly admit that millions of student-loan debtors are insolvent and will never pay off their loans, the whole sorry business of the federal student loan program would collapse.

But they won't admit it. And that is why, Ms. Dynarski,  the Department of Education is not releasing useful data about the student-loan crisis.

But I'll bet you already knew that, didn't you, Ms. Dynarski? After all, you are one of President Obama's advisers.

Susan Dynarski: We need more information!

Susan Dynarksi. So Much Student Debt, So Little Information. New York Times, March 22, 2015, Business section, p. 5.

Richard Fossey & Robert Cloud. In re Lamento: An Honest But Unfortunate Debtor is Entitled to Sleep at Night Without Worrying About Unpayable Student-loan Debt. Teachers College Record, February 23, 2015.

In re Lamento, 520 B.R. 667 (Bankr. N.D. Ohio 2014).

Myhre v. U.S. Department of Education, 503 B.R. 698 (Bankr. W.D. Wis. 2013).

Thursday, March 19, 2015

Legal Education and the Battle of Isandlwana: Our Country Isn't Solving Problems Because Our Colleges and Professional Schools Aren't Properly Training Our Leaders

What do law professors do beside teach law students?

Most of them write law review articles--long, tedious pieces with literally hundreds of footnotes. And they write a lot of them.  All American law schools sponsor at least one law journal; and many sponsor several. Each year, these journals publish about 10,000 law review articles!

Law scholars use an arcane system for crafting their footnotes under rules laid out in The Bluebook, an almost incomprehensible volume published by Harvard Law School. The Bluebook is now in its nineteenth edition, and its text is even more opaque than the 18th edition. In fact, Richard Posner, an esteemed judge on the Seventh Circuit Court of Appeals, described it with a quote from Heart of Darkness: "The horror! The horror!"

Here is a quote from the University of Houston Law School's Bluebook Guide that described just one change that was instituted in the nineteenth edition:
Rule 1.2(a) [E.g.]: Clarifies that when this signal is combined with another signal such asSee”, the comma separating the signals should be italicized while the comma at the end of the signal should not be.   
Law reviews are edited by law students, and student editors are required to master the mysteries of The Bluebook in order to edit law-article manuscripts. As a student at Harvard, Barack Obama must have spent a lot of time with The Bluebook when he was Editor of Harvard Law Review.

And Barack Obama's educational background may explain why he is at loggerheads with two powerful heads of state: Benjamin Netanyahu and Vladimir Putin.  Putin is a former KGB man, Netanyahu is a special forces veteran of the Israel Defense Force, and Obama is a former footnote checker. It is not hard to imagine why Netanyahu and Putin seem so contemptuous of our President.

And this brings me to the Battle of Isandlwana, which was a disastrous military defeat for the British army during the Anglo-Zulu War.  In January 1879, a force of 20,000 Zulu warriors overwhelmed a British force of about 1500 men on the rolling plains around Mount Isandlwana. The British commander, Lord Chelmsford, believed that modern weapons and trained British soldiers could defeat much larger enemy forces equipped only with spears and a few antiquated muskets.

But Lord Chelmsford was wrong. Splitting his forces, Lord Chelmsford departed from a supply camp at Isandlwana, leaving Brevet Colonel Henry Pulleine in charge. Lord Chelmsford had not fortified the camp, thinking it unnecessary; nor did he encircle the camp with a laager.  After all,  the British were armed with Martini-Henry rifles; and they had two cannons, a rocket-launching battery and 500,000 rounds of ammunition. What could go wrong?

The Battle of Isandlwana: Hey, what could go wrong?
On the morning of January 22, 1879, Lieutenant Colonel Pulleine's scouts spotted a large force of Zulus sitting patiently in a ravine; and they reported back to Pulleine.  He ordered troops to form a long skirmishing line about 1500 yards in front of the camp.

For a while things went well. British soldiers shot down attacking Zulus by the score; and the troops were in a jolly mood.  Gradually, however, the Zulus encircled the British right flank, which eventually collapsed.  British troops fell back to the camp itself, where small groups made a last stand before being overwhelmed. Almost the whole force was massacred.

Donald Morris's The Washing of the Spears is the best historical account of this battle. Morris explains that the British were deployed too far from their ammunition supply; and the ammunition boxes proved difficult to open--requiring special screwdrivers to get the lids off the boxes.  A movie about the battle, entitled Zulu Dawn, depicts soldiers standing in long ques waiting for ammunition. One scene shows a military clerk filling out receipt slips while Zulus spear soldiers patiently standing in line.

It shouldn't have turned out that way. After all, Lord Chelmsford was an esteemed British commander who had purchased commissions in respected military units.  He probably thought he knew what he was doing when he split his forces and departed from an unfortified camp.

And Lieutenant Colonel Pulleine, who was trained at Sandhurst, received plenty of warning that the Zulus were on their way. His camp was well provisioned, and he had two cannons and some rocket launchers. How could things have turned out so badly?

Arrogance, in my opinion. The British officers thought it inconceivable that they could be defeated by a native force armed mostly with spears, even if the enemy had the advantage of overwhelming numbers.

And arrogance is the cause of most of our nation's recent blunders in the international arena. We are the United States, after all. We have superior technology such that we can kill our enemies with drones simply by pushing a button. And our leaders all went to the best colleges and professional schools: Harvard, Yale, Brown, Stanford, Oxford.  And our law-trained leaders know The Bluebook backward and forward.

But our arrogance is leading us to defeat after defeat against our enemies and our competitors. And our president, trained at Harvard Law School, is no match in a duel of wits against people like Vladimir Putin and Benjamin Netanyahu.

Our elite colleges and universities have failed us. Instead of training problem solvers and crisis managers, they have produced arrogant elitists--people much like Lord Chelmsford.  And so long as we place such people in charge of our national security, we will see our national strength and stature diminish.


Donald R. Morris. The Washing of the Spears: The Rise and Fall of the Zulu Nation. New York: Simon & Schuster, 1965.

The Bluebook (19th edition).

Zulu Dawn (1979).

Tuesday, March 17, 2015

The Inuits Flipped a Duck at the Federal Government in 1961: A Suggestion for Mass Protests Against the Abuses of the Federal Student Loan Program

 In May 1961, the Inupiat people of Barrow, Alaska staged their first mass act of civil disobedience in the long and noble history of the Inuit people. Perhaps their community protest offers some lessons for the millions of Americans who suffer under the burden of crushing student-loan debt.

The Barrow Duck-In of 1961
Here's what happened. Under the Migratory Bird Treaty Act, ratified by Congress in 1918, spring hunting of migratory waterfowl was made illegal in the United States. The ban on spring hunting was justified as a way to protect migratory birds during the spring nesting season.

But no one consulted the Inuit people of Alaska about the spring-hunting ban. The Inuit had hunted ducks and geese for centuries and depended on spring waterfowl hunting to obtain essential food after long arctic winters when their food supplies were depleted.

For almost a half century, the federal government had not enforced the Migratory Bird Treaty Act against the Inuit. But in 1961, three years after Alaska became a state, federal game wardens began arresting spring duck hunters. The Inuit protested to everyone they could find at both the state and federal level, but no one would listen.  Federal bureaucrats were convinced that Eskimos could buy their food in the grocery store just like everyone else and that it would actually be cheaper for them to buy store-bought food than shotgun shells.

On Saturday, May 31, Alaska state legislator John Nusunginya, himself an Inupiat, met with two federal game wardens in Barrow to explain the Inuits' point of view. As it happened, Nusunginya was carrying a shotgun as he and the wardens were strolling down a street in Barrow. When a flight of eider ducks flew by, Nusunginya "pumped a couple of them down" and was promptly arrested.

The Inuit faced down the federal government in 1961
The Inuits quickly organized a town meeting in the local theater and invited Harry Pinkham, one of the federal game wardens, to attend. When he arrived, 138 Inuit men each presented him with a duck and a signed statement confessing to hunting ducks out of season.

Pinkham admitted that he couldn't arrest them all: "I can't handle that much paperwork" (Burwell, p. 6). And of course federal agents had to preserve all the evidence, which meant flying nine sacks of ducks down to Fairbanks.

As I heard the story from an Inuit man who claimed to have participated in the "duck-in," Inuit women turned themselves in as well, forcing the federal government to arrest every adult in Barrow and take on childcare responsibilities for the entire village. But this recollection may be apocryphal.

Michael Burwell's account of the duck-in, presented to the Alaska Historical Society in 2004, is undoubtedly the most accurate rendition of these events; and apparently no one was actually jailed.

But the Inuit had made their point.  As one Inuit man recalled:
We were so well organized that if they had arrested every man in Barrow, the womenfolk were going to be next. And then the children. At the time there was not a jail big enough in the state of Alaska. They would have had to have a C124 coming in and out for days to move Barrow out to jails in the States! (Burwell, 2004, p. 7)
Eventually, the Inuit won a legal exemption to the Migratory Bird Treaty Act, which they enjoy to this day.

We Need Mass Protests to Demand Bankruptcy Reform for Student-Loan Debtors
Student-loan debtors should take a lesson from the Inuits' creative act of civil disobedience.  Currently, there are 7 million student-loan debtors who have defaulted on their student loans; and 9 million more have obtained economic hardship deferments and are not making loan payments. Millions of these people are suffering under the burden of massive student loans. Some have had their paychecks garnished, and others have had their income-tax refund checks seized. More than 50,000 people had  their Social Security checks garnished last year.

For the most part, these miserable people suffer in silence. The colleges and universities have their lobbyists and lawyers, as do the banks and the student-loan collection companies. They protect their interests in the halls of Congress and in the courts.

And when overburdened student-loan debtor attempt to discharge their loans in bankruptcy, the federal government and the loan collectors send their attorneys to court to stop them from getting relief. The U.S. Department of Education actually opposed bankruptcy relief for a quadriplegic man who was working full time but could not make enough money to sustain himself because he had to pay a full-time person to feed him, dress him, and drive him to and from work.

The federal government and its loan-collecting henchmen can easily beat down a few lonely souls who attempt to obtain relief in bankruptcy court. Three or four lawyers are generally enough to squelch the intrepid individuals who file adversary actions to discharge their debts.  And the federal government and the scholarly commentators spread the word that it is almost impossible to discharge a student loan in bankruptcy, so most insolvent debtors don't even try to shed their loans in bankruptcy.

But change is in the air. Several bankruptcy courts have ruled sympathetically for student-loan debtors over the past couple of years; and a couple of research articles have reported that student-loan debtors actually stand a pretty good chance of obtaining partial or total relief from their student-loan debts if they file for bankruptcy and bring adversary actions against their creditors.

So what would happen if every student-loan debtor who is truly insolvent and who took out student loans in good faith filed for bankruptcy and brought an adversary action for debt relief? And what would happen if these insolvent debtors filed for bankruptcy without a lawyer, relying on the facts of their cases and the sympathy of a bankruptcy judge in the hope of obtaining justice?

I tell you what would happen. If 1 million worthy individuals filed for bankruptcy during a single year, the whole rotten, stinking, bloated and predatory student loan program would collapse because the federal government and the higher education community would have to publicly admit that the present system is unsustainable. 

Something like an Eskimo flipping a duck at a federal game warden.


Michael Burwell. (2004). “Hunger Knows No Law”: Seminal Native Protest and The
Barrow Duck-In of 1961. Alaska Historical Society Meeting, Anchorage, AK. Accessible at:

Note: My account of the Inuit Duck-in of 1961 is taken entirely from Mr. Burwell's excellent paper, which is posted on the web.

Wednesday, March 4, 2015

For Want of a Starbucks, a College Was Lost: Sweet Briar College is Closing Its Doors

Sweet Briar College announced yesterday that it is closing its doors at the end of the academic year.

Sweet Briar is one of those obscure but vaguely elite colleges that average Americans have heard about but are totally clueless about where they are located. Bowdoin? Colgate? Williams? Amherst? Where in the hell are these places?

Sweet Briar College: Too Far From a Starbucks
Well, Sweet Briar is a small liberal arts college for women located in the foothills of the Blue Ridge Mountains of Virginia. It is quite small--less than 600 undergraduates, but it is a lovely place. The college has a horse-riding program, a Study Abroad program, and several notable alumni.

But Sweet Briar is expensive. The sticker price to attend Sweet Briar for a year is just under $35,000 in tuition and fees.  And that doesn't include the cost of oats for your horse or the artisan cheese you will eat when you are studying abroad in France.

According to an article written by Scott Jaschik for Inside Higher Ed, Sweet Briar is closing for several reasons. First, students are less and less enamored with rural colleges. Even though Sweet Briar's campus--located on 3200 rural Virginia acres--is stunningly beautiful, most young people want to be where the action is, which is in the cities.

As Sweet Briar's President James F. Jones Jr. put it, "We are 30 minutes from a Starbucks."

Second, single-sex colleges have fallen out of fashion. Single-sex institutions have been totally wiped out in the public sector after the Supreme Court ruled that Mississippi University for Women and the Virginia Military Institute had discriminated on the basis of sex due to their single-sex admission policies. And most private colleges that started out as single-sex institutions now admit both women and men.

And of course, it is getting harder and harder to determine a student's gender, which makes single-sex admissions policies a bit awkward. The New York Times Magazine ran a story about transgender students at Wellesley that identified some of the complexity of gender issues at a private women's liberal arts college.

Third, it is harder and harder for private colleges that are not in the top tier to make a go of it. As Jaschik's article noted, only about one out of five women who were admitted to Sweet Briar chose to enroll there.

Sweet Briar and most private colleges try to sweeten the deal for potential students by discounting their tuition fees.  At Sweet Briar, the so-called discount rate for attractive first-year students was 62.8 percent in 2014.  That's right--the real cost for selected first-year students was only about one third of the sticker price.

So who pays the sticker price? Only suckers like you, Mom and Pop.

I say good riddance to Sweet Briar and all the overpriced private liberal arts colleges that failed to offer a product that students wanted at a price that families could afford. They have brought their demise on themselves by jacking up the sticker price of tuition and then giving discounts to special students who are selected based on criteria that are less than transparent. These schools have been operating more like used-car dealers than academics in the way they have sought to attract students, and now the jig is up.

Moreover, in my opinion, the vaunted value of a liberal arts education at one of these joints is vastly overrated. Many of the professors at these elite institutions are peddling postmodernism under the guise of a liberal arts education. And you don't need to attend an expensive private college to achieve the wry, edgy cynicism of a postmodernist.  Just watch Jon Stewart on television.

The crucial fact is this: the non-elite private liberal arts colleges are surviving almost totally on the federal student aid program; and students are having to borrow too much money to receive a non-spectacular education from these places.

What will replace Sweet Briar and the other overpriced, private liberal arts colleges as the purveyors of quality post-secondary education? I don't know. But I think it is likely that a great many private liberal arts colleges will close their doors before we figure it out.


Scott Jaschik. (2015, March 4). Sweet Briar College will shut down. Inside Higher Ed. Available at:

Mississippi University for Women v. Hogan, 478 U.S. 718 (1982).

Ruth Padawer. (2014, October 15). When Women Become Men at Wellesley. New York Times Magazine. Available at:

Ry Rivard. (2014, July 2). Discount Escalation. Inside Higher Ed. Available at:

United States v. Virginia, 518 U.S. 515 (1996).