Eugene Volokh's Blog, page 2673
November 11, 2011
Insights on School and Career Choices from the Student Loan Bond Market
The Wall Street Journal's outstanding series on the job market, college, and young people ("Generation Jobless") continues today with an interview with a leading investor in the student loan bond market. I asked a while back for reader help in finding examples of student loan bond documentation — and my thanks to the commenters who responded as well as a couple of experts who sent me links. This WSJ article talks about this market and what the experts look for in evaluating these bonds — and what they infer from the student loans they evaluate:
Investors like Mr. [Daniel] Ades have a unique view on the future for America's job-seekers. Their investments depend onaccurately predicting young people's ability to repay their loans, which means they obsess about everything from employment rates by profession to the long-term earning potential of young graduates.
Historically, investors have assumed 25% to 30% of student loans bundled into their bonds will default. But today they are baking in between 30% and 40% default rates among the current crop of graduates, said Chris Haid, a director in asset backed trading at Barclays Capital. Even those assumptions are a best guess and defaults could ultimately go higher if unemployment rises, Mr. Haid said.
This analysis translates into some surprising insights for students and policy makers. For example, in the current economy, it may make more sense to enter a technical college than to go to law school.
The advice to go to a technical school — meaning a two year vocational school or community college — rather than law school is based on the following:
In terms of picking a school, technical colleges may be less prestigious, but their low cost relative to the higher wages they deliver makes them attractive, according to Mr. Ades.
Tuition at public two-year colleges in the U.S. will cost $2,963 a year on average in the 2011 academic year, compared to $28,500 a year for four-year private colleges, according to estimates by non-profit group The College Board.
"It's not just about where you can get the best education," he said during an interview in the Miami Beach office of his hedge fund, Kawa Capital Management. Students should pick schools where the payoff from higher salaries upon graduation exceeds the cost of the education by the widest margin, he contends, especially when the job market contracts.
By that arithmetic, technical colleges come out on top, Mr. Ades said. "We're in a skills based economy and what we need is more computer programmers, more [nurses]," he said. "It's less glamorous but it's what we need." Law school, on the other hand, can end up a sucker's bet in periods of high unemployment, experts in student loan-backed bonds say.
One understands the point, but it is worth pointing out that Mr. Ades is focused upon whether a student will repay the loan. In that case, the decision where to go to school and how much to borrow will favor a more secure job even at a much lower salary over a higher but riskier job possibility, since the criterion is the ability to repay the loan and not to maximize the expected income value over time.
Which is to say, Mr. Ades favors low volatility and low risk, all things equal, whereas a student might well favor much higher volatility and higher risk if the criterion is income maximization. However, in a period of high unemployment and lower job possibilities, whether for all jobs or for the higher end jobs, then the strategy for loan repayment and income maximization tend to converge.
However, I invite comments to evaluate Mr. Ades' strategy, and my suggestion that what he wants and what students want are not precisely the same thing. Please be civil and on-topic.
Penn State
I have nothing useful to add about the awful events at Penn State, both the child molestation and the failure of various people to properly intervene to stop it. But I do want to second Jonah Goldberg's disgust at the rioting students, rioting that just adds an extra level of nastiness and moral failure to an already horrible chain of events.
Interesting Threat-of-Future-Bad-Conduct Case
In the Matter of the Detention of Danforth (Wash. Nov. 10, 2011) raises an interesting question about when someone with a history of sex crimes can be coercively incarcerated as a sexually violent predator based on his statement that he is worried that he'll commit another crime. The facts: Danforth, "a 64-year-old, mildly retarded blind man," has a long record of sex crimes:
In 1970, he was arrested for sexually abusing four boys between the ages of 7 and 13. Representative of his abuse of the other boys, Danforth put one boy on a bed, moved on top of him, kissed him, touched the boy's private area, and rubbed the boy's arm against Danforth's private area. Danforth was prosecuted for these offenses, but the case was dismissed for a speedy trial violation.
In 1971, Danforth approached a group of young boys at a ballpark and asked them if they wanted to have "sex play." Danforth was convicted of indecent liberties for this incident. The court ordered that he be sent for treatment at Western State Hospital. After a short time at Western State Hospital, Danforth was found to be not amenable to treatment and was sent to prison.
In August 1987, Danforth asked a 16-year-old boy and his friend to participate in sexual activity. For this incident, he was charged and convicted of two counts of communication with a minor for immoral purposes. The Court of Appeals later reversed the convictions because it held that former RCW 9.68A.090 (1986) was unconstitutionally vague. This court overruled that holding in State v. McNallie, 120 Wn.2d 925, 933, 846 P.2d 1358 (1993) and affirmed the constitutionality of the statute.
Finally, in the summer of 1987, Danforth hit a 12-year-old boy over the head with a rock, forcibly pulled down the boy's pants and anally raped him, leaving the boy crying behind a theatre. For this, Danforth was convicted of second degree rape and served prison time. He was released in 1996.
From 1996 to 2006, Danforth had no convictions and apparently no arrests, but on several occasions he tried to get himself admitted to a mental hospital, explaining that he was worried that he'd reoffend, but was rebuffed. Then, in 2006,
Danforth went to the King County Sheriff's Office and asked to speak to a detective. He told the detective that he had come to "turn himself in" because he "[felt] like re-offending." Danforth then told the detective that he was sexually interested in young boys. Danforth said he needed to be in a facility permanently and told the detective that his desire was "dangerous." The detective called mental health professionals (MHPs) to interview Danforth.
Danforth explained to the MHPs that he "desires, needs, wants to have sex with children." Id. He told them, "I have impulses that I want to [have sex with children]. If I'm not locked up–I could reoffend." Among other statements, Danforth said that he would walk to a bus stop with young boys (or wait for young boys to arrive) and then try to have sex with them. He also said he would go to a specific video arcade, find a boy playing a video game, and rub against the boy, saying, "[I]f they like it I might pursue more." [The "would" seems to mean that this is what he thinks he may do if he weren't locked up. –EV] ....
The next day, a detective took a recorded statement from Danforth. Danforth reiterated his prior statements and asked to be committed as a sex offender. After explicitly describing how he would have sexual intercourse with a young boy, Danforth said, "I feel I'd be a serious danger to society if I was turned loose," and "if it wasn't for the police that I can turn to, I'm about ready to offend." ...
At that point, the state petitioned to commit Danforth as a sexually violent predator, under a statute providing,
When it appears that ... a person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement and has committed a recent overt act; and it appears that the person may be a sexually violent predator, the prosecuting attorney of the county where the person was convicted or charged ... may file a petition alleging that the person is a "sexually violent predator" and stating sufficient facts to support such allegation.
[Another provision states:] "Recent overt act" means any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.
Danforth resisted, either because he had a change of heart or (I conjecture) because he had wanted to be committed under a less restrictive system than is likely to be used for sexually violent predators; he moved for summary judgment claiming that the facts were insufficient to justify a trial on whether he should be locked up. The trial court denied the motion, and the case eventually came to the Washington Supreme Court. (Danforth has been locked up pending the appeal, because after his summary judgment motion was denied, he stipulated to being covered by the law for purposes of the remaining proceedings, subject to having a right to withdraw the stipulation if the denial of summary judgment was reversed on appeal.) Here's how the Justices voted:
1. Three Justices (let's call this the "lead opinion") took the view that the law is not a speech restriction at all, because it doesn't impose punishment or liability for speech as such, but only uses the speech as evidence that the person poses a serious danger of committing a crime. No First Amendment analysis was therefore required, the three Justices said, and all that was necessary was a showing that Danforth's speech was a "threat that ... creates a reasonable apprehension of [harm of a sexually violent nature] in the mind of an objective person who knows of the history and mental condition of the person engaging in the act." The three Justices would thus have held that Danforth should be committed, pursuant to his stipulation.
2. Two Justices (let's call this the "concurrence in the judgment") took the view that the law was a speech restriction, and was constitutional only if Danforth's statement was seen as falling within the "true threats" exception to the First Amendment — i.e., if they were statements made "in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted ... as a serious expression of intention to inflict bodily harm upon or to take the life of [another individual]." These Justices thought that the question whether these particular statements were true threats would normally have to go the jury; but given the stipulation in the trial court, and the fact that the denial of summary judgment wasn't reversed, his stipulation and therefore his commitment stands.
3. Four Justices, in the dissent [link fixed] — which began with a quote from 1984 and concluded with a quote from Minority Report — took the view that the law was a speech restriction, and concluded that the statements could not be seen as true threats. To quote the paragraph that best summarizes, I think, the dissent's long and detailed argument,
What is glaringly absent in this case is the slightest evidence that Danforth ever harbored the objective or purpose to perpetrate any sexually violent act. His plea for assistance is the antithesis of a threat. Danforth's statements were not threats under the plain meaning of the word because he specifically intended not to harm anyone. He sought help in order to avoid harming others. Moreover, even the State's own MHPs and psychologist thought Danforth's statements were cries for help rather than threats. The MHPs did not consider Danforth dangerous and would not even commit him to a 72–hour psychiatric hold.
So six Justices thought the law was a speech restriction, and was constitutional only if limited to "true threats"; but of those six, two thought that the statements could be seen as true threats, and that — given Danforth's stipulation that he was covered by the statute — Danforth should remain locked up. Those two, together with the three in the lead opinion, produced the result that Danforth does indeed remain locked up.
My tentative thinking: It seems to me that, given Danforth's explicit statements about what he thought he would do if he weren't locked up, it was indeed proper to view him as sexually dangerous and therefore commit him. But I would be much more troubled if such an action were taken based on less explicit statements, for instance framed as what he fantasized about doing or even about what he wanted to do. In any case, though, if you're interested in the subject, read the opinions, which are very interesting and accessible.
UNESCO Reprimands Israel Over Israeli Newspaper Cartoon
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That's the cartoon that led to UNESCO's reprimand. The cartoon was, according to the newspaper (Haaretz), "a riff on the government's anger at UNESCO's decision to accept Palestine as a full member," and I'm pretty sure it didn't seriously call on Israel to bomb UNESCO, or have any likelihood of leading Israel (or anyone else) to do so. In the words of the
Barkan pointed out that the government has no control over editorial cartoons printed in the papers....
After Barkan reported the conversation to the Foreign Ministry, it cabled back: "What exactly does UNESCO want of us — to send our fine boys to protect UNESCO's staff, or to shut down the paper? It seems your work environment is getting more and more reminiscent of 'Animal Farm.'"
Tattoos as Speech
The act of tattooing is generally protected by the First Amendment, holds Coleman v. City of Mesa (Ariz. Ct. App. Nov. 3, 2011, following a Ninth Circuit decision from last year and disagreeing with several federal district court decisions and appellate decisions from Indiana, New York, and South Carolina. The reasoning sounds quite right to me, though of course it doesn't preclude content-neutral regulations of tattoo parlors aimed at protecting public health, preventing tattooing of children, and so on.
Justice Stevens Defends Kelo
The WSJ's Jess Bravin reports on an interview with recently retired Justice John Paul Stevens in which he defended his "most unpopular opinion" — Kelo v. New London — from recent criticism by Justice Antonin Scalia (see here and here).
"It's the most unpopular opinion I ever wrote, no doubt about it," Justice Stevens said in an interview. He said he empathized with Ms. Kelo, "but the legal issue would have been exactly the same if it had been a gas station or a pool hall." . . .
"I had people at a bridge game stop me and ask, 'How could you have written that opinion? We thought you were a good judge, but we learned otherwise,' " he said. "But you can't explain the whole law of eminent domain to your bridge opponents."
He particularly criticized the logic of Justice Sandra Day O'Connor, who wrote the 1984 opinion supporting eminent domain in Hawaii and then turned around to write a passionate dissent in favor of Ms. Kelo. . . .
Justice Stevens suggested that Justice Scalia's view on Kelo had hardened over the years. When the decision came down, "Clarence wrote an intellectually honest opinion," Justice Stevens said, referring to a dissent by Justice Clarence Thomas. "He said you've got to go back and overrule this whole line of cases, which would be a fairly dramatic thing."
But Justice Scalia "did not join the opinion that would have overruled that. Rather, he joined Sandra's," Justice Stevens said.
FWIW, I've never been convinced that the Kelo dissenters are correct as a matter of constitutional law. While I think the use of eminent domain by the city of New London was horrendous policy, and I fully support efforts to constrain such eminent domain abuse through legislation and state constitutional amendments, I am not convinced such actions are barred by the Fifth Amendment, as I explained here and here.
The Keystone Pipeline Precedent
Others have commented on President Obama's decision to punt on the Keystone XL pipeline project. Ordering additional review pushes the decision past the next election and enables the Administration to evade responsibility should the project ultimately fail. As those who study environmental law know, delays of this sort are often enough to derail major projects for good — and that's certainly the outcome some environmentalists anticipate.
The CFR's Michael Levi suggests environmentalists are being short-sighted, as "the tactics and arguments that have won the day are ultimately as likely to retard clean energy development as they are to thwart dirty fuels."
oil pipelines are hardly the only pieces of energy infrastructure that will require government approval in coming years. This is particularly true if the United States wants to build a new clean-energy economy.
The country has already seen strong opposition to offshore wind energy in Massachusetts, including from environmental activists and local landowners, on the grounds that it will ruin spectacular ocean views. Solar plants will need to be built in sunny deserts, but local opponents continue to insist that the landscape blight would be intolerable. New long distance transmission lines will have to cross multiple states in order to bring that power to the places that need it most. Once again, though, a patchwork of local concerns and inconsistent state regulation is already making the task exceedingly difficult. . . .
Energy experts often note that it would be impossible to recreate today's energy infrastructure, given the intensity of opposition to pretty much any new development. The environmentalists' victory against Keystone XL will only reinforce that judgment. But realizing their broader vision — a low-carbon economy that enhances the nation's security and helps avoid dangerous climate change — will require defeating the same sort of local opposition that they have just embraced.
The experience of Cape Wind confirms this conundrum, as I have noted for some time.
Omelas State University
Science-fiction writer John Scalzi compares the events at Penn State to Ursula LeGuin's "The Ones Who Walk Away From Omelas." His comments are refreshingly direct. Tthe invocation of Omelas is apt, with a few qualifications. There was only one child who suffered for Omelas, and here it was failing to save the child(ren) that sacrificed utopia. Cowardice not only failed the children, it ultimately failed the hallowed football program those who kept silent sought to protect.
Note: There's a vibrant comment thread on Scalzi's post, so if you wish to comment, do so there.
(Hat tip: Brian Leiter)
November 10, 2011
Publicly Criticize Discrimination Lawsuit Against You — Risk a Retaliation Lawsuit Based on Your Speech
That's what Booth v. Pasco County (M.D. Fla. Oct. 28, 2011) concludes. Two fire department employees sued their employer for discrimination and harassment; they asked their union for help, but the union declined. The employees then filed an EEOC charge against the union for discrimination, to which the union responded by circulating to its members an "Update on Legal Issues" memo, which said, in part:
Local 4420 members Jerry Brown and Anthony Booth have filed a Charge claiming unspecified discrimination with the U.S. Equal Employment Opportunity Commission against the Union and the County. The Executive Board and our attorney feel it is a frivolous claim with no grounds for support and we are extremely confident in winning but will still have to defend the charges. This could be very costly and generate a legal bill of $10,000 or more. If it becomes too costly the Union may have to assess its member's additional fees to offset the cost. We will update you as it progresses.
According to the employees,
[S]hortly after the Union distributed the Legal Updates Memo they became social pariahs. Inter alia, Plaintiffs contend that union members were no longer willing to swap shifts with them, that they were not welcome at many of the stations which they wished to transfer to, and that they were subjected to numerous instances of hostile and aggressive treatment by the angered union members. [Later, this is described by the court as "various aggressive, harassing, and even violent behavior from their fellow union members," though without details. –EV] In short, Plaintiffs contend that the Legal Updates Memo caused significant detriment to both their careers and their lives.
They then sued the union not just for the alleged discrimination, but also for retaliation — the retaliation being the union's speech criticizing their lawsuit. And the district court held that the union had no First Amendment right to speak out, so the retaliation claim against the union could proceed to trial:
[T]he Union alleges that its right to inform its union members of Union legal matters is protected speech; thus, it asserts that it had a protected right to inform its union members that: (1) Booth and Brown had filed EEOC charges against the Union; (2) that it believed such charges to be "frivolous;" and (3) that it might be required to raise union dues in order to properly defend against these actions.
The Court is not persuaded by this argument as "the regulation of discriminatory speech in the workplace constitutes nothing more than a time, place and manner regulation of speech." Robinson v. Jacksonville Shipyards, Inc., 706 F.Supp. 1486, 1535 (M.D. Fla. 1991). Under the Constitution, a valid time, place and manner regulation "requires a legitimate governmental interest unrelated to the suppression of speech, content neutrality, and a tailoring of the means to accomplish this interest." Id. As "the eradication of workplace discrimination ... is a compelling governmental interest," prohibiting discriminatory workplace speech does not present Constitutional problems. Id. Moreover, discriminatory speech is not protected speech as "potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection." Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984).
This strikes me as quite wrong. People and organizations have a First Amendment right to speak out to publicly defend themselves against charges of wrongdoing, even when that could foreseeably lead to social ostracism of the accusers. (It's conceivable that there could be some limit to that under Brandenburg v. Ohio, if the speech is intended to and likely to cause imminent illegal conduct; but the court does not require any such showing, contenting itself with a finding that it is "entirely foreseeable" that the memo "would provoke anger" and thus retaliation from fellow union members at some unspecified time in the future.) Imposing liability based on such speech is unconstitutional, for largely the same reasons I've given with regard to speech to the workplace at large that allegedly creates a "hostile work environment"; and the restriction can't be defended as "content-neutral," because it imposes liability based precisely on the harm that supposedly flows from what the speech says. (See Part I of this article for more.)
But while I think this is true as to all speakers who publicly defend themselves, it's especially so for unions. Unions are self-governing institutions, funded by members and answerable to their members. If union leadership is accused of discrimination, union members need to know the leadership's reaction, so they can decide whether they should remove the leadership. If the union is having to spend money, which comes from union members, the members deserve to know that. And if fellow union members are working against the interest of the union, union members likewise deserve to know that.
Indeed, such knowledge might lead to improper conduct on some members' part. But a vast range of speech could lead some listeners to act improperly — whether by ostracizing fellow union members, ostracizing strike breakers, ostracizing fellow blacks who choose to shop at white-owned stores (see NAACP v. Claiborne Hardware Co. (1982)), attacking bankers, evading the draft, killing police officers, or what have you. The point of cases such as Brandenburg is precisely that speech can't be restricted simply because of this risk, even when the foreseeable illegal conduct on the part of some listeners is much more serious than that alleged here.
A similar issue arose in the Widener Law School / Prof. Lawrence Connell matter, though that case also involved threats of litigation and the serving of subpoenas; this one involves simply speech by the union to its members. Likewise, both the Widener case and Bonnell v. Lorenzo (6th Cir. 2001), a similar retaliation-by-response case, at least involved restrictions imposed by employers controlling their own employees; such restrictions also raise problems, especially in the university context, but at least they do involve employers' managerial control over their own programs by people who are paid by the employer.
Here, the potential liability would be imposed by the government acting as sovereign, with no special power stemming from its proprietary role — the zone in which the First Amendment protections should be the strongest. And yet according to the court, the union lacks the free speech right to publicly rebut the allegations against it, and publicly explain how and why union money is being spent.
Not Safe to Display an American Flag in an American High School
Dariano v. Morgan Hill Unified School District (N.D. Cal.), decided the day before yesterday, upholds a California high school's decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. (See here and here for more on this case.)
The decision might well be correct under Tinker v. Des Moines Independent Community School Dist. (1969), which allows a "heckler's veto" in K-12 school: Schools may indeed restrict student speech when it's likely to cause substantial disruption, even when the disruption stems from other students' hostility to the speech. As I mentioned in an earlier post, I think the speech restriction violates a California statute that gives students extra protection, but that claim wasn't raised in this federal lawsuit.
Yet while the judge might have been right in his decision, the situation in the school seems very bad. When we're at the point that students can't safely display the American flag in an American school, because of a fear that other students will attack them for it — on May 5 or on any other day — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students' speech), something is badly wrong. Here's an excerpt from the court opinion describing the facts that led the court to uphold the restriction:
On Cinco de Mayo in 2009, a verbal exchange and altercation arose between a group of predominantly white and a group of Mexican students. This altercation involved an exchange of profanities and threats were made. A makeshift American flag was put on one of the trees on campus. A group of Caucasian students began clapping and chanting "USA" as this flag went up. This was in response to a group of Mexican students walking around with the Mexican flag. One Mexican student shouted "fuck them white boys, fuck them white boys." Vice–Principal Rodriguez directed the minor to stop using such profanity. The minor responded by saying "But Rodriguez, they are racist. They are being racist. Fuck them white boys. Let's fuck them up." Vice–Principal Rodriguez removed the minor from the area....
When Plaintiff M.D. wore an American flag shirt to school on Cinco de Mayo 2009, he was approached by a male student who shoved a Mexican flag at him and said something in Spanish expressing anger at Plaintiffs' clothing....
On the morning of Cinco de Mayo 2010, a female student approached Plaintiff M.D., motioned to his shirt, and said "why are you wearing that, do you not like Mexicans?" Plaintiffs D.G. and D.M. were also confronted about their clothing by female students before [brunch] break....
Defendant Rodriguez was leaving his office before brunch break on May 5, 2010, a Caucasian student approached him and said, "You may want to go out to the quad area. There might be some — there might be some issues."
During brunch break on May 5, 2010, another student called Vice–Principal Rodriguez over to a group of Mexican students and said that she was concerned about a group of students wearing the American flag and said that "there might be problems." Vice–Principal Rodriguez took her statement to mean that there might be some sort of physical altercation. A group of Mexican students also asked Defendant Rodriguez "why do they get to wear their flag when we don't get to wear our flag?" ...
While meeting with Plaintiffs about their attire, Defendant Rodriguez explained that he was concerned for their safety. Plaintiffs did not dispute that their attire put them at risk of violence. Plaintiff D.M. stated that he was "willing to take on that responsibility" in order to continue wearing his shirt....
Following Plaintiffs' departure from school they received numerous threats from other students. Plaintiff D.G. received a threat of violence via text message on May 6th. He received another threatening call from a male saying he was outside of D.G.'s home that same night. Plaintiffs D.M. and M.D. also were threatened with violence. A student at Live Oak overheard a group of male students saying that some gang members would come down from San Jose to "take care of" Plaintiffs. Based on these threats, Plaintiffs did not go to school on May 7....
Plaintiffs contend that they are entitled to summary judgment because the undisputed evidence shows that they were treated differently than students wearing the colors of the Mexican flag, and that this distinction was based on the unpopularity of their viewpoint. Defendants respond that Plaintiffs have offered no evidence demonstrating that students wearing the colors of the Mexican flag were likely to be targeted for violence, and that officials treated all students for whose safety they feared in the same manner.
When the government infringes upon protected speech in a discriminatory manner, such conduct may constitute a violation of the Equal Protection Clause as well as the First Amendment. See Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 96 (1972). "[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny it those wishing to express less favored or more controversial views."
Here, for the reasons discussed above, Defendants have provided a non-discriminatory basis for asking Plaintiffs to remove their American flag attire. Defendants have put forth significant evidence demonstrating that Plaintiffs were asked to change clothes in order to protect their own safety. Plaintiffs have not offered any evidence demonstrating that students wearing the colors of the Mexican flag were targeted for violence. To the contrary, the undisputed evidence shows that Plaintiffs were the only students on campus whose safety was threatened that day, at least to the knowledge of Defendants. In addition, Defendant Rodriguez has testified that he did not see any students wearing the Mexican flag on their clothing during the day. He also testified that he did not see any students with Mexican flags displayed on their person until he saw photos in the newspaper in the days following Cinco de Mayo.
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