Eugene Volokh's Blog, page 2680
October 31, 2011
Atheism, Religion, and Presidential Voting
The New York Times Room for Debate Forum has an interesting symposium on the role of religion in presidential elections. In his contribution, polling expert Andrew Kohut cites a 2007 Pew survey showing that atheism is viewed more negatively by voters than virtually any other possible trait of a presidential candidate. A whopping 63% of respondents said they would be "less likely" to vote for a presidential candidate who "doesn't believe in God" (3% said they would be more likely_. This easily exceeds the percentages who say they would be less likely to vote for a candidate who never held elected office (56), a Muslim (46), a homosexual (46), a person who had "used drugs in the past" (45), or a Mormon (30). Opposition to female, black and Hispanic candidates is several times lower (ranging from 4 to 14 percent, though some racists and sexists probably hid their true attitudes from the pollster). A more recent 2011 version of the same survey gets very similar results when it comes to atheists (61%), though there is less hostility towards gays (33%).
By contrast, 39% in the 2007 survey said they would be more likely to vote for a Christian candidate, compared to only 4% who said they would be less likely. However, many voters apparently don't want a candidate who seems too closely associated with religion. The same poll found that 25% would be less likely to vote for a candidate who has been a minister, while only 15% said they would be more likely to support him. The questions about Christians and ministers were not repeated in the 2011 study.
The data cited by Kohut reinforce other evidence showing that atheists are by far the most widely hated religious or ethnic minority in modern America. The evidence suggests that hostility to atheist candidates is primarily the result of bigotry rather than information shortcuts (e.g. — opposing an atheist candidate because one assumes that he's probably a liberal), though the latter is certainly a factor for some voters. In this 2006 article, I explored some of the reasons for that hostility and also explained why it isn't justified.
Law School Review
The National Law Journal has a new blog, Law School Review, focusing on legal education. Contributors include Brian Tamanaha, William Henderson, Erwin Chemerinsky, John O'Brien, Lucille Jewel, Kyle McEntee, and Michael Olivas.
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Saliva Left on Blood Alcohol Test Mouthpiece as "Abandoned" DNA?
Three weeks ago, I blogged about a Maryland case holding that a defendant had no reasonable expectation of privacy in his DNA left in a chair at the station house. Here's a related decision: A new California case holding that a defendant "abandoned" his DNA, relinquishing his Fourth Amendment rights, left on a mouthpiece of a blood alcohol test. (Hat tip: FourthAmendment.com)
The case is People v. Thomas, and it involves a burglary suspect. A DNA sample of the burglar was found at the scene of the crime. Although the opinion downplays this, it seems the police were trailing the suspect and waiting for a moment to collect a DNA sample from him to find a match. They got the chance when the police had reason to think the suspect was driving drunk: The officer pulled over the suspect and he consented to a breath test. The officer was really interested in the DNA sample, not the alcohol test, however, so he kept the mouthpiece of the test for DNA testing instead of discarding it. A DNA test of the mouthpiece revealed a match. The California court held that the testing did not violate the Fourth Amendment:
[D]efendant in this case had no privacy right in the mouthpiece of the PAS device, which was provided by the police, and he abandoned any expectation of privacy in the saliva he deposited on this device when he failed to wipe it off. Whether defendant subjectively expected that the genetic material contained in his saliva would become known to the police is irrelevant since he deposited it on a police device and thus made it accessible to the police. The officer who administered the PAS test testified that used mouthpieces are normally discarded in the trash. Thus, any subjective expectation defendant may have had that his right to privacy would be preserved was unreasonable. (Cf. Greenwood, supra, 486 U.S. at p. 40 [no reasonable expectation of privacy in garbage made accessible to the public, including the police].)
Alternatively, defendant argues that, because he was not advised his saliva would be tested for DNA, he did not intend to relinquish any privacy interest in it when he consented to the PAS test. The trial court found that defendant voluntarily consented to the PAS test, but did not consent to DNA testing of the mouthpiece. Defendant does not challenge these findings. Rather, he seeks to impose on the doctrine of abandonment the requirement of knowing consent, contending that he could not validly waive the privacy right in his saliva without being advised that it would be genetically tested and attempting to circumscribe the doctrine of abandonment by the scope of his consent.
To this end, defendant analogizes his case to Ferguson v. City of Charleston (2001) 532 U.S. 67, 70–71 (Ferguson), where urine samples obtained from pregnant women in a state hospital were tested for drugs, and positive test results were turned over to the police. The respondents in Ferguson conceded that the tests were searches, and argued only that they were justified by consent or special needs. (Id. at p. 76 & fn. 9.) The majority in Ferguson assumed without deciding that the tests were done without the patients' informed consent and concluded that the special needs exception to warrantless searches did not apply because of the involvement of law enforcement. (Id. at pp. 77 & fn. 11, 80–81.). Defendant argues that an attempt to apply an abandonment rationale under the facts of Ferguson "would have been laughed out of court." Because the abandonment doctrine was not at issue in Ferguson, defendant's argument runs counter to the axiom that a case cannot stand for a proposition not presented or decided in it. (See People v. Annin (2004) 117 Cal.App.4th 591, 606.)
Ferguson did not involve the situation presented here, where the defendant consented to give a breath sample and in the process deposited saliva on a police device. In cases where a driver consents to give a blood sample under a state's implied consent law and the sample is afterwards genetically tested, some courts have concluded that the scope of the driver's consent does not permit genetic testing, either because the driver expressly limited his consent or because the express statutory purpose for testing the blood sample is to ascertain the presence of alcohol or drugs in the blood. (See e.g. State v. Binner (1994) 131 Ore.App. 677, 682–683 [886 P.2d 1056, 1059] (Binner); State v. Gerace (1993) 210 Ga.App. 874, 875–876 [437 S.E.2d 862, 863] (Gerace) The Binner court went further to hold that the defendant's limited consent indicated he did not intend to abandon his privacy rights in the blood sample. (Binner, at p. 682.) Unlike the blood samples in Binner and Gerace, the PAS breath sample in this case was used only to measure any blood alcohol in defendant's body, a use consistent with the implied consent statute. (See Veh. Code, § 23612, subds. (h) & (i).) The saliva defendant deposited on the PAS device, in which defendant could claim no right to privacy, was a mere incident to the PAS test. It was not the material collected for the limited purpose of the implied consent statute, and its subsequent testing was not dependent on defendant's express or implied consent.
Thoughts?
The Broccoli Slippery Slope vs. the Epidemic Slippery Slope
At Balkinization, Gerard Magliocca raises a possible slippery slope argument against striking down the individual health insurance mandate (this argument was, I think, first raised in an article by Mark Hall):
The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases. Many people are unfamiliar with the relevant Commerce Clause cases, but everyone seems to know about the broccoli hypothetical.
The hypothetical on the other side of this litigation, though, is just as powerful. Suppose that a dangerous epidemic breaks out that reduces interstate commerce by curtailing travel and other interactions for fear of contagion. A private company develops an effective vaccine that many people refuse to buy. Is Congress prohibited from ordering everyone in the country to buy the vaccine under the proposed activity/inactivity distinction?
It so happens that I address the very issue Gerard raises in a forthcoming article on slippery slopes and the individual mandate. I have two answers to his question. First, Congress can still pass a vaccination requirement that applies to everyone who crosses state lines. Crossing state lines is clearly an "activity" and an interstate activity to boot. Second, as a practical matter, state governments would have very strong political incentives to enact vaccination laws in the face of a "dangerous epidemic."
Gerard anticipates my second point, and finds it unsatisfying because it "sounds a lot like 'This is a non-issue because Congress will never order you to buy broccoli.' Either both responses are valid or neither is. One can't be adequate and the other not." Not so. The claim that a slippery slope is politically infeasible may be right in one scenario and wrong in the other because some policies are more politically viable than others. As I explain in this post, Congress has strong incentives to enact purchase mandates that benefit influential interest groups. The insurance mandate was itself adopted in part because of backing by the health insurance industry. By contrast, state governments are unlikely to sit on their heels in the face of a raging epidemic. Any state that does so is likely to lose business, and its politicians are likely to suffer retribution at the polls. Even the most ignorant voters tend to notice a rampaging epidemic that the government has failed to control.
Obviously, state governments could do a poor job of addressing an epidemic even in spite of good incentives. But the same is true of Congress.
UPDATE: I have made a few, mostly stylistic, changes in this post.
UPDATE #2: It's a fair point to suggest, as some commenters do, that under my logic, Congress could enact the individual insurance mandate by restricting it to people who cross state lines. I think that would be permissible under current Commerce Clause doctrine, even if it might not be under the text and original meaning. However, many people could still evade the mandate by avoiding interstate travel. Not everyone crosses state lines regularly. Moreover, a health insurance mandate tied to travel would seem weird to many people, which in turn would reduce its political feasibility (not so with a vaccination mandate tied to travel, since it's easy to see that part of the purpose of such a mandate is to stop the spread of an epidemic across state lines). More generally, requiring mandates to be tied to "economic activity" of some sort reduces the risk of harmful mandates because mandates with "tie-ins" tend to disincentivize whatever activity they are tied to. The more onerous the mandate, the greater the disincentive. For example, a mandate tied to employment will tend to increase unemployment. Congress will not always be willing to pay that price.
"Islam Is of the Devil" T-Shirts in Junior High School and High School
Sapp v. School Board of Alachua County (N.D. Fla. Sept, 30, 2011), which was just made available on Westlaw today, holds that (1) a public school properly restricted the wearing of "Islam is of the Devil" T-shirts because they led to substantial disruption, and (2) the school's broader policy banning "clothing or accessories that ... denigrate or promote discrimination for or against an individual or group on the basis of age, color, disability, national origin, sexual orientation, race, religion, or gender" was constitutional.
Decision 1 strikes me as correct, given Tinker v. Des Moines Indep. Comm. School Dist. (1969), which allows speech in K-12 schools to be restricted if it seems likely to cause substantial disruption. To be sure, this allows a "heckler's veto" that wouldn't be allowed outside K-12 schools — here, for instance, the disruption included (among other things) a student's telling one of the T-shirt wearers, "My friend is a Muslim, and he's going to kill you"; if this happened outside school, that would only be justification for punishing the threatener, not suppressing the speech of the threatened. Nonetheless, Tinker does allow student speech to be restricted when it causes disruption, and hostile reactions might well be quite disruptive.
Decision 2, though, strikes me as incorrect, because it isn't limited to speech that causes disruption; indeed, the policy is much like that struck down by the Third Circuit in Saxe v. State College Area School Dist. (2001). Indeed, the policy is so broad that it would ban display of messages that say "Preserve Traditional Marriage" (in a context where this is understood as opposing proposals to allow same-sex marriage), even if such messages create no disruption — after all, such a message "promote[s] discrimination ... against ... [a] group on the basis of ... sexual orientation. For that matter, the policy would likewise ban display of messages that support race-based affirmative action, since that likewise would be "promot[ing] discrimination for ... [a] group on the basis of ... race." That can't be constitutional, even given Tinker.
The First Amendment and the Government as K-12 Educator
Since First Amendment controversies involving the government as K-12 educator often come up on the blog, I thought I'd summarize the Supreme Court's precedents on the subject:
1. The government acting as K-12 educator (i.e., kindergarten through 12th grade) may restrict peech if it
a. "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school," Tinker v. Des Moines School Dist. (1969), or
b. "inva[des] ... the rights of others," id. (query what rights these are — the Court has never discussed this, and the majority and Justice Alito's concurrence in Morse v. Frederick (2007) described Tinker by reciting only the disruption prong), or
c. is "vulgar and offensive" because of its particular wording and not because of its viewpoint, Bethel School Dist. No. 403 v. Fraser (1986); see also Morse ("[Fraser] should not be read to encompass any speech that could fit under some definition of 'offensive.' After all, much political and religious speech might be perceived as offensive to some."), or
d. "would [be] interpret[ed by a reasonable observer] as advocating illegal drug use and ... can[not] plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use," Morse (Alito, J., concurring).
2. Under Tinker, mere fear of interference isn't enough; there has to be some specific "reason to anticipate" interference. This is especially so if the restriction seems aimed at a particular viewpoint, though the Court has left open the possibility that even viewpoint-based restrictions would be allowed if certain viewpoints were particularly disruptive. Tinker.
3. Lower courts are split about the degree to which this justifies restricting off-campus speech on the grounds that it may cause disruption on-campus.
4. Fraser seems to generally support the school's power to restrict vulgar speech by its students (consider the statement "[T]he First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket"). But one could also interpret it as being limited to the speech of students who are participating in school-endorsed events (such as students speaking to school assemblies); Justice Alito's Morse concurrence could be read as taking the latter view when it describes Fraser as covering "speech that is delivered in a lewd or vulgar manner as part of a middle school program."
5. The government has extremely broad latitude over speech during class, speech on exams, and speech in school-run activities (such as high school newspapers).
6. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988), upheld a principal's exclusion of certain articles from a student-written school newspaper; but this generally reflects broad government-as-speaker law, and not special rules related to the government as K-12 educator. The government could, for instance, equally restrict what is published in government agency newsletters, though such newsletters' readers are employees and patrons, not students.
D.C. Council Considering Requiring Speech Code in City Parks and the University of District Columbia
The proposed law would mandate that public and charter schools, city parks, city libraries, and the University of District Columbia ban
any gesture or written, verbal or physical act, including electronic communication, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory handicap, or by any other distinguishing characteristic that: ...
has the effect of insulting or demeaning any student or group of students in such a way as to cause substantial disruption in, or substantial interference with, the orderly operation of a school, university, recreation facility, or library.
Say, then, that someone puts on an event at a park that "has the effect of insulting or demeaning" Muslims or Scientologists or fundamental Christians or gays or men or women, if some of the insulted or demeaned group consists of "students" (whether school or university students). And say that this "cause[s] substantial disruption in, or substantial interference with, the orderly operation of" the park — perhaps by leading to a counterdemonstration, or maybe just by insulting some other park visitors. Under the policies that the proposed law would mandate, such speech would have to be banned. Yet that would be a pretty clear violation of the First Amendment as it protects free speech in a traditional public forum such as a park, see, e.g., Forsyth County v. Nationalist Movement (1992). And even on non-traditional-public-forum property, such as in a library or an indoor recreational facility, viewpoint-based restrictions would be unconstitutional; a ban on speech that demeans groups based on various criteria would likely qualify as viewpoint-based and therefore unconstitutional.
Likewise, the proposed law would require the University of District Columbia to punish UDC students who "insult[] or demean[]" such groups, so long as it is found that the speech "cause[d] substantial disruption" — and not just by its volume or its location, but by the "insulting or demeaning" viewpoint that it expresses. Yet that likewise would be inconsistent, it seems to me, with the many lower court decisions that strike down campus speech codes, see, e.g., McCauley v. University of the Virgin Islands (3d Cir. 2010). An article in a student newspaper, for instance, might "cause substantial disruption" because it leads to student protests or broad student upset (or even to fights among some students); but, given those lower court cases, the author and publisher of the article would remain constitutionally protected against government-imposed student discipline.
In public schools, such restrictions might be upheld, under Tinker v. Des Moines Indep. Comm. School Dist. (1969); Tinker did hold that speech that substantially disrupts school operations is constitutionally unprotected. But that case is focused on the special context of speech in K-12 educational institutions. It doesn't justify similar restrictions in parks or at universities. (Thanks to Hans Bader for the pointer.)
Crime of "Denigrating Turkishness" Violates European Convention for the Protection of Human Rights
So held the European Court of Human Rights in Altuğ Taner Akçam v. Turkey (Oct. 25, 2011), a case brought by a professor (who teaches at an American university) who had been subject to prosecutions (brought by individuals) under the law based on his work on the Armenian genocide. An excerpt from the court's reasoning:
53. The applicant complained that the existence of Article 301 of the Turkish Criminal Code interfered with his right to freedom of expression. He maintained that the mere fact that an investigation could potentially be brought against him under this provision for his scholarly work on the Armenian issue caused him great stress, apprehension and fear of prosecution and thus constituted a continuous and direct violation of his rights under Article 10 of the Convention, which reads as follows:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime ..." ...
82.... [T]he Court concludes that the criminal investigation commenced against the applicant and the standpoint of the Turkish criminal courts on the Armenian issue in their application of Article 301 of the Criminal Code, as well as the public campaign against the applicant in respect of the investigation, confirm that there exists a considerable risk of prosecution faced by persons who express "unfavourable" opinions on this matter and indicates that the threat hanging over the applicant is real. In these circumstances, the Court considers that there has been an interference with the exercise of the applicant's right to freedom of expression under Article 10 of the Convention....
84. Such interference will infringe the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. It should therefore be next determined whether it was "prescribed by law"....
87. The Court reiterates that the relevant national law [restricting expression] must be formulated with sufficient precision to enable the persons concerned — if need be with appropriate legal advice — to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Whilst certainty is highly desirable, it may entail excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are a question of practice....
93. In the Court's opinion, while the legislator's aim of protecting and preserving values and State institutions from public denigration can be accepted to a certain extent, the scope of the terms under Article 301 of the Criminal Code, as interpreted by the judiciary, is too wide and vague and thus the provision constitutes a continuing threat to the exercise of the right to freedom of expression. In other words, the wording of the provision does not enable individuals to regulate their conduct or to foresee the consequences of their acts. As is clear from the number of investigations and prosecutions brought under this provision (see paragraphs 28–33 and 47 above), any opinion or idea that is regarded as offensive, shocking or disturbing can easily be the subject of a criminal investigation by public prosecutors...
"Concedes and Dismisses Accusations"
What does "concedes and dismisses accusations" mean to you? My sense is that in this context "concedes" usually means, "acknowledge[s] as true, just, or proper; admit[s]." That's an uneasy fit with "dismisses," but I would think many readers would interpret "dismisses" in light of "concedes," so the phrase means "acknowledges the accusations as true, but dismisses their significance."
Because of this, I was surprised to see the New York Times politics page headline reading, "Cain Concedes and Dismisses Accusations of Harassment"; as the text below the headline noted, Cain claimed he was innocent, which isn't really compatible with "concedes." To be sure, headlines are notoriously hard to craft in an unambiguous way, given the need for brevity — but wouldn't "Cain Dismisses Accusations of Harassment" or "Cain Rejects Accusations of Harassment" be shorter and clearer? And while the text of the story corrects the misimpression created by the headline, my sense is that headlines are often all that many readers glance at.
UPDATE: Some readers suggest that "concedes" here is shorthand for "concedes the existence of." If so, it strikes me as pretty confusing shorthand; as the definition I quoted illustrates, "concedes" generally refers to acknowledgment that certain accusations are "true, just, or proper," and not just to acknowledgment that the accusations have been made.
Thanks to Prof. Samuel Levine for the pointer.
The Fragmenting of the New Class Elites, or, Downward Mobility
Glenn Reynolds is correct in his weekend post to point to the social theory of the New Class as key to understanding the convulsions in the middle and upper middle class; I've written about it myself here at VC and in a 1990s law journal book review essay. The angst is partly income, of course — but it's also in considerable part, as Glenn notes, "characterized as much by self-importance as by higher income, and is far more eager to keep the proles in their place than, say, [Anne] Applebaum's small-town dentist. It's thus not surprising that as its influence has grown, economic opportunity has increasingly been closed down by government barriers."
The problem the New Class faces at this point is the psychological and social self-perceptions of a status group that is alienated (as we marxists say) from traditional labor by its semi-privileged upbringing. It is, for the moment, insistent not just on white-collar work as its birthright and unable to conceive of much else. It does not celebrate the dignity of labor; it conceived of itself as existing to regulate labor. So it has purified itself to the point that not just any white-collar work will do. It has to be, as Michelle Obama instructed people in what now has to be seen as another era, virtuous non-profit or government work. Those attitudes are changing, but only slowly; the university pipelines are still full of people who cannot imagine themselves in any other kind of work, unless it means working for Apple or Google.
The New Class has always operated across the lines of public and private, however, the government-university-finance and technology capital sectors. It is not a theory of the government class versus the business class — as 1990s neoconservatives sometimes mistakenly imagined. As Lasch pointed out, it is the class that bridges and moves effortlessly between the two. As a theory of late capitalism (once imported from being an analysis of communist nomenkaltura) it offers itself as a theory of technocratic expertise first - but, if that spectacularly fails as it did in 2008, it falls back on a much more rudimentary claim of monopoly access to the levers of the economy. Which is to say, the right to bridge the private-public line, and rent out its access.
The OWS movement against this social theory backdrop? Let's leave aside the material reality of its occupation: geographies in which public order was deliberately withdrawn to indulge a certain class of youth and not-so-youth (and the aging generation of New Class professionals projecting its political nostalgia onto it). The result is theft, violence, sexual assault, and levels of filth that, absent the infrastructure of the world's richest large society, would mean what it means in Haiti — dysentery, cholera, epidemic disease. Epidemic disease is what happens when you shit your nest, unless there is a larger society that will clean up after you. The culture industry averts its eyes in its effort to have its nostalgic dream intact. But leave that aside, and leave aside, too, the folks who send in the organic beet root and goat cheese — for the consumption of the wanna-be New Class that, somehow, has notions of property and entitlement of an intensity that only a born regulator can have, and therefore fine-tuned notions of who eats organic and who goes to the soup kitchen.
In social theory, OWS is best understood not as a populist movement against the bankers, but instead as the breakdown of the New Class into its two increasingly disconnected parts. The upper tier, the bankers-government bankers-super credentialed elites. But also the lower tier, those who saw themselves entitled to a white collar job in the Virtue Industries of government and non-profits — the helping professions, the culture industry, the virtueocracies, the industries of therapeutic social control, as Christopher Lasch pointed out in his final book, The Revolt of the Elites.
The two tiers of the New Class have always had different sources of rents, however. For the upper tier, since 1990, it has come through its ability to take the benefits of generations of US social investment in education and sell that expertise across global markets — leveraging expertise and access to capital and technological markets in the 1990s to places in Asia and the former communist world in desperate need of it. As Lasch said, the revolt and flight of the elites, to marketize themselves globally as free agents — to take the social capital derived over many generations by American society, and to go live in the jet stream and extract returns on a global scale for that expertise. But that expertise is now largely commodified — to paraphrase David Swenson on financial engineering, that kind of universal expertise is commodified, cheaply available, and no longer commands much premium. As those returns have come under pressure, the Global New Class has come home, looking to command premiums through privileged access to the public-private divide — access most visible at the moment as virtuous new technology projects that turn out to be mere crony capitalism.
The lower tier is in a different situation and always has been. It is characterized by status-income disequilibrium, to borrow from David Brooks; it cultivates the sensibilities of the upper tier New Class, but does not have the ability to globalize its rent extraction. The helping professions, the professions of therapeutic authoritarianism (the social workers as well as the public safety workers), the virtuecrats, the regulatory class, etc., have a problem — they mostly service and manage individuals, the client-consumers of the welfare state. Their rents are not leveraged very much, certainly not globally, and are limited to what amounts to an hourly wage. The method of ramping up wages, however, is through public employee unions and their own special ability to access the public-private divide. But, as everyone understands, that model no longer works, because it has overreached and overleveraged, to the point that even the system's most sympathetic politicians understand that it cannot pay up.
The upper tier is still doing pretty well. But the lower tier of the New Class — the machine by which universities trained young people to become minor regulators and then delivered them into white collar positions on the basis of credentials in history, political science, literature, ethnic and women's studies — with or without the benefit of law school — has broken down. The supply is uninterrupted, but the demand has dried up. The agony of the students getting dumped at the far end of the supply chain is in large part the OWS. As Above the Law points out, here is "John," who got out of undergrad, spent a year unemployed and living at home, and is now apparently at University of Vermont law school, with its top ranked environmental law program — John wants to work at a "nonprofit."
Even more frightening is the young woman who graduated from UC Berkeley, wanting to work in "sustainable conservation." She is now raising chickens at home, dying wool and knitting knick-knacks to sell at craft fairs. Her husband has been studying criminal justice and EMT — i.e., preparing to work for government in some of California's hitherto most lucrative positions — but as those work possibilities have dried up, he is hedging with a (sensible) apprenticeship as an electrician. These young people are looking at serious downward mobility, in income as well as status. The prospects of the lower tier New Class semi-professionals are dissolving at an alarming rate. Student loan debt is a large part of its problems, but that's essentially a cost question accompanying a loss of demand for these professionals' services.
The OWS protestors are a revolt — a shrill, cri-de-coeur wail at the betrayal of class solidarity — of the lower tier New Class against the upper tier New Class. It was, after all, the upper tier New Class, the private-public finance consortium, that created the student loan business and inflated the bubble in which these lower tier would-be professionals borrowed the money. It's a securitization machine, not so very different from the subprime mortgage machine. The asset bubble pops, but the upper tier New Class, having insulated itself and, as with subprime, having taken its cut upfront and passed the risk along, is still doing pretty well. It's not populism versus the bankers so much as internecine warfare between two tiers of elites.
The downward mobility is real, however, in both income and status. The Cal graduate started out wanting to do "sustainable conservation." She is now engaged in something closer to subsistence farming.
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