Tag Archives: Department of Education

Harms Dismissed In “Standing Dead Zone” of Executive Action

26 Friday Aug 2022

Posted by in Checks and Balances, Executive Authority, Student Loans

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I hate to contribute to the deluge of ink spilled over Joe Biden’s latest executive action, which forgives massive amounts of federal student loan debt, but there’s an angle that hasn’t received adequate treatment. Of course, Biden’s action is an abridgment of taxpayer rights, a violation of the separation of powers, and an affront to borrowers who already paid off their student loans, but it will be nearly impossible for any challenger(s) to show that they have standing in court. Writing in the Virginia Law Review earlier this year, Jack V. Hoover says this kind of action lies within what he calls a “standing dead zone” created by the courts.

I’ll start with a few preliminaries. Note that student loan forgiveness was NOT legislated, unlike the Paycheck Protection Program, which the Administration keeps referencing in defense of the action. And I’d be remiss if I failed to mention that Biden’s action looks like a pathetic attempt to salvage votes ahead of what some democrats fear could be a disastrous midterm election. In addition, the action is regressive, with benefits weighted heavily toward high-income debtors with graduate degrees. The cost (write down, loss) to the federal government was originally said to be near $300 billion, depending on uptake, but independent estimates now put the full cost at $600 billion. This wipes out the hoped-for deficit reduction in the ridiculous but much ballyhooed “Inflation Reduction Act”, and yes, student loan forgiveness may well be inflationary. At a minimum, it makes the Fed’s job of restraining inflation by tamping down demand that much harder. Loan forgiveness will not solve the underlying problem of runaway cost escalation in higher education. In fact, it will exacerbate the problem by encouraging non-payment and additional borrowing, while tuition to colleges and universities will escalate all the more. So this is really bad policy all the way around!

Biden’s action is clearly a huge stretch on statutory grounds. In particular, the Administration invoked the HEROES Act, which authorizes the Secretary of Education to waive loan requirements during periods of national emergency. In this case, the Administration appeals to hardships caused by the pandemic for individuals with student debt. Of course, just two weeks ago, the CDC rolled back their emergency pandemic guidelines on social distancing and quarantines, so the “emergency” seems to be over, officially. Also, the Administration recently ended the “return to Mexico” policy at the border on the pretext that it had only been necessary because of the pandemic! Pardon my incredulity, but playing the “pandemic card” at this point is both dishonest and hypocritical.

“Standing” in the legal sense can’t be found in the text of the Constitution. It was itself created by the courts. Even so, why do taxpayers, Congress, or past borrowers lack standing to challenge the action on student loans through the judicial system? How can that be when the harms are so obvious? Well, courts tend to avoid interfering with the executive branch, and they’d rather leave such disputes up to the political system to hash out. That doesn’t seem like a terribly effective way to practice the game of “checks and balances”. Nevertheless, for many years the courts have relied on a strict test for establishing plaintiff standing promulgated in the Supreme Court decision in Lujan v. Defenders of Wildlife. In that majority opinion, Justice Antonin Scalia laid out a three-part test, which Hoover describes thusly:

“… (1) injury in fact that is actual, concrete, and particularized; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that exercise of judicial power will redress the injury.28 The Court furthermore differentiated between cases in which government regulation targets the plaintiff and cases where the plaintiff complains about ‘unlawful regulation (or lack of regulation) of someone else,’ in which case “much more is needed” for standing to exist.29 The Court has regularly reaffirmed this formulation of its standing requirements.3”

Hoover discusses the executive’s authority to cancel debt under the Higher Education Act (HEA) of 1965. In terms of the impregnability of Biden’s action to legal challenge, Hoover implies that the president might just as well have fallen back on HEA as HEROES. However, the Department of Education (DOE) opined last year that it lacked the power to forgive debt. Here’s what the DOE said in 2021:

“… the Secretary does not have statutory authority to provide blanket or mass cancellation, compromise, discharge, or forgiveness of student loan principal balances, and/or materially modify the repayment amounts or terms thereof, whether due to the COVID-19 pandemic or for any other reason.”

Hoover seems to be saying that it is all but impossible to challenge Biden’s bald assertion of extra-legal power in forgiving student loans. Hoover goes on to discuss all classes of potential litigants who might challenge student loan forgiveness: taxpayers, former borrowers, Congress, state governments, and loan servicers. He is skeptical of all those, citing various reasons for their lack of standing, but I’ll focus on only the first three classes.

Taxpayers: The logic of denying taxpayers standing is at least two-fold. First, taxpayers cannot show direct harm from the action, though they are likely to pay a higher inflation tax over time as a consequence. Second, Congress appropriated funds for student loans, but it did so as an entitlement, and it did not restrict loan amounts nor the executive’s ability to waive “the government’s claim that borrowers must return the funds to the Treasury”. Hoover believes that the courts would defer to the political branches of government in settling such issues. The whole thing sounds rather thin to my ears, but precedent will probably hold sway unless the Supreme Court revisits its position on standing.

Congress: The standing of Congress is another matter. If, in the view of the legislature, an executive agency has exceeded its statutory authority, the matter might reflect as much on Congress as elsewhere, in failing to provide adequate limitations, guideposts, or oversight. However, in this case:,

“Congress duly appropriated funds for student loans,83 and the Executive is responsible for the funding’s disbursement. This means that any claim of standing due to institutional injury from compromising Congress’s control of the federal purse would fail.”

Here again, it will be left to settle by the political branches of government. To avoid such conflicts, it is up to the legislature to write laws that bind the discretion of the executive to varying degrees. Unrestrained entitlements are a damn good way to cede control of the “keys to the Treasury”.

Other borrowers who’ve managed their student loan debt responsibly will also lack standing, according to Hoover. Like taxpayers, they cannot show any direct harm or injury. In addition, standing is difficult to establish when an action or inaction by an executive agency pertains to someone else.

It’s my hope that a court challenge will be brought all the way to the Supreme Court, and at some level a court will define a new standard or test under which plaintiffs can attempt to establish standing against executive or agency actions. This is sorely needed as a check on the explosive growth of the administrative state. Furthermore, the “standing dead zone” allows all sorts of politically-motivated mischief by the executive branch, and the Biden Administration seems more than willing to push executive authority to extremes. However, I’m not too optimistic about the possibility of a new test for standing. Before all is said and done, Biden is likely to expand student loan forgiveness well beyond $20,000 per borrower. Federal finance is looking more precarious with Biden’s every step, and many of those steps cannot be walked back by Congress, no matter who holds the majority.

Parents and Taxpayers Confront Rogue Educrats

14 Thursday Oct 2021

Posted by in Critical Race Theory, Education, Propaganda, Uncategorized

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This Norman Rockwell painting is called “Freedom of Speech”. It depicts a Vermont dairy farmer speaking his mind at a school board meeting, and no, he is not a “domestic terrorist”! (A recent piece by Selina Zito reminded me of this painting.) Today, parents of schoolchildren have a very special reason to be upset: the teaching of critical race theory (CRT) as part of the regular curriculum. A better name for this vapid “theory” might be “critical race theology”, because it is no “theory” at all: it is a set of “woke” accusations leveled against “out groups” designated by leftists: whites, straights, men, and sometimes groups like Jews and Asians. Many people of color are just as dismayed as those among CRT’s targets because its wrongheaded and corrosive nature is so plain. CRT is itself straightforwardly racist.

Taxpayers have a place in this debate as well, at both the K-12 and public university levels. However, their role in funding the indoctrination taking place in public schools has been neglected in the story of the revolt against CRT.

The Parent Trap

Many parents have taken strong action in response to the CRT onslaught. Some have quietly removed their children from public schools, while others have chosen to register their objections with school officials, often at school board meetings. Also, there has been some success at the ballot box by dissident school board candidates. This is grass roots participatory democracy in action, local and vocal. Certainly parents have a greater stake in their childrens’ education than anyone (except the kids themselves). They have a right to know what’s being taught and to provide critical feedback to schools.

School officials, teachers unions, and CRT teacher-enthusiasts are not likely to be straightforward about whether CRT is actually taught, however. This link might help you see through the gaslighting to which we’ve all been subjected. This article discusses various political avenues for fighting CRT in the schools. And here’s a “tool kit” that might be helpful.

Garland’s Effrontery

To top it all off, recently we’ve witnessed an act of fascist authoritarianism by the U.S. Attorney General that, by all appearances, involves a conspiracy between the Biden Administration, top officials at the Department of Justice, and the National School Boards Association (NSBA). AG Merrick Garland’s memorandum of October 4 announced a “partnership among federal, state, local, tribal, and territorial law enforcement to address threats against school administrators, board members, teachers, and staff.“ He did not provide actual evidence of threats against school boards or personnel, however. Yet Garland is willing to treat interested parents as if they are domestic terrorists! His memorandum is a thinly veiled warning to anyone having the temerity to confront school authorities on issues like CRT, as well as school mask mandates (which are ineffective, unnecessary, and detrimental to learning, socialization, and the psychological well being of children). Furthermore, we now know of an obvious conflict of interest: Garland’s daughter is married to the cofounder of Panorama Education, which sells training materials for teachers of CRT.

While Garland’s attempt to undercut free speech might chill the willingness of some parents to speak out against CRT in the schools, many refuse to back down. The following is an excerpt from a letter to the NSBA written on behalf of 427,000 parent-members of 21 organizations:

“Our organizations unequivocally oppose violence and find it deeply troubling that you imply otherwise about concerned citizens who care deeply about their community’s children – and who are concerned by the direction that America’s schools have taken.

  • Citizens are angry that school boards and school officials around the country are restricting access to public meetings, limiting public comment, and in some cases conducting business via text messages in violation of state open meetings laws.
  • They are angry that schools are charging them thousands of dollars in public records requests to view curriculum and training materials that impact their children and that should be open to the public by default.
  • They are angry that pandemic-related learning losses have compounded the already-low reading, writing, and math proficiency rates in America’s schools.
  • They are angry that rather than focusing on declining student achievement, large numbers of districts have chosen to fund, often with hundreds of thousands of dollars in taxpayer money, “social justice” and “diversity, equity, and inclusion” programs with finite resources.”

Insularity At the Board

I’ll be surprised if Garland’s memorandum doesn’t inspire many parents to push harder against CRT in their local schools. However, getting in front of school boards is not always easy, thanks to restricted access for public comment. Here’s an example of the draconian reaction by school authorities in their effort to silence parents, from Orange County, CA. In my own local school district in Missouri, making a short comment at a board meeting first requires submission of a request detailing the subject or question you wish to address to the board. Not only can they simply ignore your request, but it also gives them an opportunity to “circle the wagons” in advance, as it were, even calling upon various “friends of the board” to attend en masse.

The leftists who support CRT fight dirty, as this article notes:

“Nicole Solas, a mother who has complained about her school board, has been harassed and even sued by the authorities. Go ahead, ‘arrest me,’ she said on Twitter. ‘They wanted to publicly humiliate me,’ she said. ‘They paid a PR firm to call me a racist in the national media. So they really wanted to ostracize me from my community.’”

The anger of parents toward this bankrupt philosophy in our schools, and its belligerent proponents, is well justified. Parents obviously have the biggest stake in this controversy. My kids are grown, but I’m angry too, in part because the once-fine education offered by our school district has digressed to brutish proselytization about victimhood, its supposed perpetrators, and the emphasis on the Left’s version of “social justice”. I’m also angry as a taxpayer. While the student population might shrink as decent families abandon the brainwashing camps in favor of private schools or home schooling, does anyone expect the tax bill to decline commensurately? At all? School taxes should be a ripe area for activism, because lots of people don’t want to pay for this shit!

Our Taxes, Our Schools?

Opponents of CRT won a victory of sorts this summer when the U.S. Department of Education amended a proposal that would have prioritized CRT initiatives in awarding grant money.

“The Department of Education withdrew ‘the requirement that grantees incorporate curriculum and instruction based on or similar to the 1619 Project or the works of Ibram X. Kendi.’”

Hooray for that. And in August, the U.S. Senate passed a “STOP CRT” amendment to the otherwise misbegotten $3.5 trillion “social infrastructure” bill. The amendment would ban the use of federal funds for teaching CRT in schools. Of course, that the federal government has any role in funding local schools, and in shaping their curricula, is itself regrettable.

At the state level, many Republican office-holders seem unaware of the use of state resources for CRT in schools, as this piece about Indiana demonstrates. Perhaps they’ve been cowed, and are reluctant to comment for fear of being called racists by CRT proponents. Registering strong displeasure with state legislators regarding the onslaught of CRT is something all within our opposition should be doing.

Local taxes still account for most school funding. There’s obviously no way to get around school district bond servicing. Most ballot initiatives on school taxes appear at the behest of the school districts themselves, and generally those go in only one direction: up! General funding may be subject to reduction via ballot initiative, but petitions are usually necessary, and apparently those have been few and far between. A more promising avenue for wresting control over school funding are school voucher programs, whereby school funds (either state or local dollars) follow the student rather than remaining under the control of monopoly school districts. School choice is expanding across a number of states, having been given a boost by the pandemic. CRT might prove to be an additional impetus in some states. But parents should be careful: some private schools are just as brazen as public schools when it comes to peddling CRT. And there is the danger that vouchers, one day, will bring unwelcome government curriculum mandates.

Joining Arms

The widespread adoption of critical theology in public schools (and universities) is not only a corruption of education: it is institutional roguery and a misappropriation of taxpayer funds for political indoctrination. This is aggravated by the unresponsiveness of many school boards, administrators, and teachers. Parents have good cause to be infuriated, and so do taxpayers. They are natural allies in this struggle to win back our educational institutions.

The Special Olympics and Tax-Funded Philanthropy

30 Saturday Mar 2019

Posted by in Big Government, Education, Federal Budget

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The federal government’s contribution to funding the Special Olympics (SO) illustrates the widespread view of government as a limitless font of subsidies for appealing causes. People were up in arms over the elimination of $17.6 million dollars in federal grants for the SO in President Trump’s budget proposal. Granted, that’s a pittance as budget items go. Later, Trump promised to restore the funding. That is, of course, in addition to the millions in federal tax subsidies already granted on private gifts to the SO.  As Nick Gillespie explains, SO funding is like so many other things people want from government that government has no business doing. Why, exactly, should the federal government, or any level of government, fund the SO? It is a wonderful program, but it simply does not have the character of a public good, nor is it a safety net issue.

The SO certainly benefits the athletes and families that take part, but those benefits are strictly private. Perhaps the larger population of disabled individuals takes inspiration from watching the SO, along with good-hearted people everywhere. Most everyone is happy to know that the SO happen, but those are no more public benefits than the good vibes you get from viewing an inspirational film or theatrical production. For that matter, sports fans and patriots are inspired by great efforts on the part of the U.S. Olympic team, but the federal government does not fund the U.S. Olympic Committee. It’s therefore absurd to assert that the public bears an obligation to pay for the most athletic of disabled individuals to have opportunities to compete and win medals just like Olympic athletes.

Gillespie explains a little about the history and funding of the SO:

“Founded in 1968 by Eunice Kennedy Shriver, the Special Olympics is a 501(c)3 nonprofit, meaning that deductions to it are tax deductible. According to its 2017 financials (the most-recent available on the web), the organization had total revenues of about $149 million, including $15.5 million in federal grants. It’s not a stretch to assume that if federal funding disappears, the resulting outcry would lead to record donations.”

And again, let’s not forget that corporate gifts to the SO are tax deductible up to certain limits. Gillespie also quotes Secretary of Education Betsy DeVos:

“There are dozens of worthy nonprofits that support students and adults with disabilities that don’t get a dime of federal grant money. But given our current budget realities, the federal government cannot fund every worthy program, particularly ones that enjoy robust support from private donations.”

Families with disabled children have extraordinary needs. It’s probably better to think of federal support for those needs as a safety net issue, a form of social insurance. There are several federal programs that provide funds to support low-income families with disabled kids. And while the cut to SO funding was in the budget originally submitted by Secretary DeVos, Gillespie notes that the DOE’s budget “allocates over $32 billion for ‘high-need students,’ which includes intellectually disabled students.” 

DeVos was widely criticized for her budget, but as Gillespie says, she sets a fine example for anyone in a position to help rein in the growth of federal spending and ultimately the federal budget deficit. Given the DOE’s track record of poor programmatic guidance (Common Core), counter-productive school disciplinary mandates, and it’s complete lack of impact on educational outcomes after 40 years of existence and many billions of dollars spent, the continued existence of the DOE is difficult to rationalize.

Once a program appears in the federal budget, no matter how inappropriate as a public priority, and no matter how ineffective, its constituency will always defend its funding with rabid enthusiasm. That defense is multiplied by a chorus of statists in the media and elsewhere who, in their benevolent intentions for the taxes paid by others, can be counted upon to call out the “cruelty” of any proposed cuts, or even mere cuts in a program’s projected growth. The Special Olympics episode, and the DOE, are cases in point.

School Discipline, Disparate Impact, and Disparate Justice

05 Friday Oct 2018

Posted by in Discrimination, Education, Uncategorized

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Sad to say, there are racial disparities in victimization by misbehavior in schools, and African American children are the most victimized in terms of their safety and academic environment. Yet since 2014, the Department of Education (DOE) has been enforcing rules against “disparate impact” in school disciplinary policies, often aggravating that victimization. In a paper entitled “The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline: Wrong For Students and Teachers, Wrong on the Law“, authors Gail Heriot and Alison Somin expose these unfortunate policies and the distortion of actual law they represent. These policies and actions are presumed by the DOE and the Office of Civil Rights (OCR) to be authorized under Title VI of the Civil Rights Act of 1964, but Heriot and Somin show that Title VI is not a disparate impact law and that enforcement of strictures against disparate impacts exceed the authority of the OCR.

When are disciplinary policies discriminatory? Disparate treatment occurs when a student from a “protected class” is punished more severely than other students for an identical misdeed. That is obviously discriminatory and unfair. A disparate impact, however, is a statistical difference in the punishments meted out to a protected class relative to others, which is not prima facie evidence of discrimination. Given consistent application of disciplinary policies — identical treatment for all classes under those policies — disparate impact is possible only when there are differences in the actual behavior of students across classes. Of course, such a difference does not mean that the protected class is “less worthy” in any absolute sense; instead, it probably indicates that those students face disadvantages that manifest in misbehavior in greater proportion within a school environment. The consequences of refusing to punish that behavior are bad for everyone, including and perhaps especially the miscreants themselves.

Disparate impact enforcement rules are fundamentally flawed, as Heriot and Somin explain. Almost any decision rule applied in business or other social interaction has a disparate impact on some parties. Defining qualifications for many jobs will almost always involve a disparate impact when protected classes lack those skills in greater proportion than unprotected classes. In schools, such rules lead to more lenient disciplinary policies or a lack of enforcement, either of which are likely to bring even greater disciplinary problems.

In schools with large minority populations, these perverse effects penalize the very minority students that the DOE hopes to protect. And they often have harsh consequences for minority teachers as well. Walter Williams bemoans the difficulties faced by many teachers:

“For example, after the public school district in Oklahoma City was investigated by the OCR, there was a 42.5 percent decrease in the number of suspensions. According to an article in The Oklahoman, one teacher said, ‘Students are yelling, cursing, hitting and screaming at teachers, and nothing is being done, but teachers are being told to teach and ignore the behaviors.’ According to Chalkbeat, new high school teachers left one school because they didn’t feel safe. There have been cases in which students have assaulted teachers and returned to school the next day. …

An article in Education Week earlier this year, titled ‘When Students Assault Teachers, Effects Can Be Lasting,’ discusses the widespread assaults of teachers across the country: ‘In the 2015-16 school year, 5.8 percent of the nation’s 3.8 million teachers were physically attacked by a student. Almost 10 percent were threatened with injury, according to federal education data.'”

To state the obvious, this undermines the ability of teachers do their jobs, let alone enjoy teaching. For many, quitting is an increasingly tempting option. And Williams, an African American, goes on to say “… when black students are not held accountable for misbehaving, they are set up for failure in life.”

When it comes to misbehavior, equalizing discipline by subgroup is almost certain to be unjust. And disparate impacts are almost certain to be a byproduct of a just disciplinary system when other social forces lead to differences in preparation for schooling. When the focus is placed on a by-product of Justice, rather than justice itself, as when disparate impacts are penalized or prohibited, everyone loses. It obviously harms unprotected classes, but ultimately it harms protected classes even more harshly by subjecting them to degraded school environments, less educational opportunity, and fewer rewards in life.