Archive for the 'Government' Category

Oklahoma’s Fraternity Scandal and the First Amendment

A recent video of members of the University Of Oklahoma fraternity Sigma Alpha Epsilon (SAE) chanting racial slurs has recently exploded on the media throughout the country. The chants were not only undisputedly racist, but especially violent in nature. Specifically they chanted “There will never be a ni**** SAE. You can hang him from a tree, but he can never sign with me.”

oklahoma racism scandalThe University of Oklahoma promptly expelled both students who appeared to be leading the chant in the video. Parker Rice, a 19 year old freshman coming right from Jesuit College Preparatory School was the leader of the chant. Another student, Levi Pettit, was also expelled. Both families have apologized profusely. However, Rice is the only involved student who personally apologized.

Were the Students Protected by the First Amendment?

As shocking as this story is, there are several First Amendment Rights that come into question. Were these boys exercising their First Amendment right to free speech? And if so, was the speech protected and therefore not subjected to any legal action, including expulsion from a public university?

A potential lawsuit has been threatened by SAE against the University of Oklahoma for expelling the students. SAE contends that the two students’ immediate expulsion “runs contrary to due process” and that the university has no right to censor speech, despite its hateful content. Other organizations have joined the bandwagon to “protect” the students’ First Amendment rights, including The Foundation for Individual Rights in Education, which is a civil liberties nonprofit. This organization has stated that, as a public university, the University of Oklahoma has no right to punish students solely because of offensive speech.

The Supreme Court has held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” However, if it does not meet this test, the speech is protected under the First Amendment. For example, the Supreme Court struck down a criminal conviction of the white supremacy group, the Ku Klux Klan, for “advocating … violence … as a means of accomplishing political reform” because their statements at a rally did not express an immediate, or imminent intent to do violence. One could argue the same for the SAE incident which occurred on a bus full of only SAE kids who mostly shared the same views. Additionally, the factors which would be taken into consideration by a court, when deciding whether the speech was intended to incite violence, are that the video was only seconds long and privately recorded. The ruling essentially does not criminalize “mere advocacy.”

Hate speech is actually protected by the Constitution despite being offensive. If the speech is chanted in a private space, as in this incident, amongst people of similar views, it is protected. However, if directed toward African Americans, then if it was extreme enough to incite violence or imminent lawless action, then there would be no constitutional protection. However, the view of courts that have considered campus speech codes and other campus speech restrictions to be subject to first amendment protections. This is also true for fraternity speech, racist or not.

Unfortunately, the critics of the expulsion are legally correct. The students did have a right to free speech in the context in which they expressed it and, although there is an exception for “inciting violence” according to the legal standard, it likely would not apply to this busload of ignorant, drunk, privileged, white college students. Therefore, the public university likely did not have the legal right to expel them. It cannot punish the fraternity members solely for the content of their expression. With that said, both students would have be wise to leave on their own.

Will Racism Ever Stop Plaguing America?

America likes to think as a whole that we are past racism because overt acts such as these are abhorred by the majority. However, this story clearly shows that racism is still present in our society.

I have noticed that in the last few days the Oklahoma story has digressed from the racist video portrayal to the story of the poor frat boys whose lives are ruined. The media will always frame things the way they choose, which is often influenced by the pressure of institutions. But the community’s voice should always remain on point. In this case, it should be emphasized that the student’s actions were clearly wrong and highly offensive, regardless of whether or not First Amendment protections apply.

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Obama Proposes Relaxing Bankruptcy Restrictions for Student Debt

For more than a decade, bankruptcy was not really an option for student debt. Back in 1998, government loans to students were rendered non-dischargeable unless paying off the loans would be a severe hardship for the student. In 2005, private student loans were also rendered non-dischargeable absent a severe hardship. In 2015, President Obama has decided to make student loans the last major policy change of his presidency.

student loan debt bankruptcyLast week, the White House rolled out a plan called “A Student Aid Bill of Rights.” The bill has four parts: (1) a state-of-the-art complaint system to ensure quality service and accountability for the Department of Education, its contractors, and colleges, (2) a series of steps to help students responsibly repay their loans including help setting affordable monthly payments, (3) creation of affordable repayment plans based on student debt trends, and (4) every borrower has the right to quality customer service, reliable information, and fair treatment, even if they struggle to repay their loans. 

The White House’s “bill of rights” mostly talks about consumer protection for repayment of debts. The language of the proposed student bill of rights mirrors the stated goals of mortgage reform after the 2008 housing crisis. Mortgage reform focused on bank honesty and mortgage accuracy rather than homeowner forgiveness. Congress is also in the hands of the Republican Party and there’s no way on earth that the Republicans would simply forgive a majority of student debt. Assuming President Obama is actually serious about passing student loan reform and not just trying to frame the debate for the 2016 elections, than loan repayment has to be the agenda.

I highly doubt that making student loans dischargeable through bankruptcy would actually result in more student loans being discharged. The reason is simple and it’s not merely politics: the federal government holds 90% of all student loans, which amounts to $1 trillion of the $1.2 trillion dollar student debt in the United States! Since $1 trillion is too much money even for Washington D.C. to throw away, the goal of all this student loan reform must be loan repayment rather than loan forgiveness.

Bankruptcy Helps Both Creditors and Debtors

So how would discharging student loans help students repay student loans? Since the current restrictions on student loan discharge are rather harsh, few student loan debtors file for bankruptcy. Fewer than 1,000 people every year try to discharge their loans through bankruptcy.

This is unfortunate because bankruptcy is not solely for debtors. Don’t get me wrong, the main purpose of bankruptcy is to give honest debtors a fresh start. However, bankruptcy judges don’t discharge debts for free. Debtors either have to sell their assets or restructure their debts. Either way, debtors have to repay as much of their debt as they can afford before the bankruptcy court will discharge their debts.

In other words, some creditors might actually get paid during bankruptcy. Many people believe that a debtor repays all their debts or the debtor files for bankruptcy and pays nothing. The reality is that if a debtor is struggling to repay loans, the creditors might not be repaid even if the debtor doesn’t file for bankruptcy. It’s a better deal for creditors to receive half of what they are owed in bankruptcy rather than receive nothing outside of bankruptcy.

Making student loans dischargeable through bankruptcy probably wouldn’t automatically result in more student loans being discharged. The best way to guarantee that student debts aren’t simply erased without repayment is to give student loan creditors a higher priority in creditor repayment. If student loan creditors are first in line, than student loan creditors will be repaid before the debtor’s assets or income runs out.

Even if student loan creditors aren’t given a high priority in repayment, student loan creditors might still get repaid. Bankruptcy is expensive for everybody involved. Bankruptcy courts, like must civil courts, would prefer that cases be settled before they get to the court room. Since student loans were non-dischargeable, student loan creditors had very little incentive to actually talk with debtors other than ask for the money owed.

If student loans were dischargeable, the federal government might actually have to talk to, and negotiate with, student debtors. If private banks are required to negotiate with debtors about their debt, we should expect the federal government to do the same.

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Texas Prison Riot Is a Reminder That Prisoners Have Rights, Too

Around 2,000 inmates took over the Willacy County Correctional Center in Raymondville, Texas a little over a week ago. They caused so much damage to the facility during the riot that 2,800 prisoners must be transferred to another location. The prison was deemed uninhabitable after fires were started and the property was severely damaged.

texas prison riotInhumane Conditions Sparked the Revolt

The correctional center is one of 13 “Criminal Alien Requirement” prisons. These facilities are privately run and consist primarily of illegal immigrant offenders (note: majority non-violent). “CAR” prisons hold over 24,000, and 2,800 are housed at Willacy. Prisoners have to sleep in tent dormitories, and are so tightly packed together that their feet can touch the bunk next to them. The prison has been nicknamed “Tent City” among locals.

The conditions at Willacy are inhuman. The inmates are forced to not only live in tight quarters, but are subject to disgusting conditions. There has been raw sewage from overflowed toilets, an infestation of spiders, and a huge lack of medical attention paid to inmates. For example, if an inmate has a toothache, the only solution is an extraction. One inmate had hepatitis C and reported it, but two years later still did not receive treatment. Reports of guard-on-inmate sexual violence has been reported, as well as the use of excessive solitary confinement. Inmates have been thrown into solitary confinement for simply asking for food. After reading this, can anyone blame the inmates for feeling the need to revolt?

Prisoners’ Rights

Prisoners do not have the same constitutional rights as free citizens, but they are protected by the Constitution’s prohibition of cruel and unusual punishment. Inmates also have the right to due process, right to administrative appeals, and a right of access to the parole process. They are also protected against discrimination under The Equal Protection Clause of the 14th Amendment.

Federal prison officials have full discretion to control prisoners and the conditions of their confinement. State prisoners have zero rights to specific classifications under state law. Instead, the Federal Bureau of Prisons has the power to make all decisions regarding inmates and terms of their confinement.

Prisoners are turned into numbers instead of people when they enter the criminal justice system. Too many are subject to horrific conditions that no human should have to endure.

What You Should Know about StingRay Cell Phone Surveillance

What Is the StingRay Tapping Device?

A new device called StingRay Tapping Device enables the police and the government to track cell phone communications. The StringRay is a box that electronically connects to local cell phone towers. It then simulates the cell phone tower, and in turn prompts signals from cell phones attached to the tower.

cell phone tower stingray trackingIf the police can connect to hundreds of citizen’s phones, what stops them from tapping into the general population’s phones?

StingRay’s Use by Police

From 2007-2014 in Tallahassee, FL, the city police used the StingRay in more than 250 investigations. This means they used it in about 40 investigations per year, in a city where the population is only 186,000. Even if the police are using the StingRay just to find criminals, are they taking advantage of this power and relying on it too much?

In one of these cases, a drug deal gone wrong lead the police to use the StingRay to track down the location of the suspect. Tadrae McKenzie and a couple of friends robbed a dealer of weed and money in a parking lot and fled the scene. Police found his whereabouts about a week later and he was arrested.

During the trial, McKenzie’s defense team became suspicious that a secret surveillance tool was used because there was no evidence that would lead the police straight to McKenzie’s home. The judge then ordered the police to show the device. They did in fact use a StingRay.

The FBI has declared there is no mandate for court warrants to be used when connecting a StingRay to a cell phone tower. They decided the device does not violate our Fourth Amendment and it is lawful for the police to track communications of suspects. The Obama Administration stands by this. The administration has declared that citizens have no privacy in public areas.

Senator Questions the Use of StringRay

Recently, Florida Senator Bill Nelson gave a speech to the Senate about the threat that StingRay poses to consumers’ privacy. “It’s time for us to stand up for the individual citizen of this country and their right to privacy,” said Nelson. The Senator also send a letter to FCC Chairman Tom Wheeler, requesting certain explanations regarding the nature of the company behind StringRay.

Should Restaurant Employees Be Required to Wash Their Hands?

Freshman Senator Thom Tillis has a novel idea: it shouldn’t be mandatory for restaurant employees to wash their hands after using the restroom. The catch would be that restaurants that don’t require employees to wash their hands have to post signs stating so.

Thom TillisMost reactions will be, “I’d never eat at a restaurant that doesn’t mandate employee hand washing!” That’s the Senator’s point: most businesses that posted signs telling customers their workers don’t have to wash their hands would go out of business. The free market is just as effective, if not more so, at regulating the economy than the government.

Critics have expanded Tillis’ reasoning to other issues. If restaurants simply have to post signs that their employees aren’t washing hands, then nuclear power plants can post signs explaining radiation is pouring out of the plant rather than shield the reactors.

Contrary to popular belief, there are many areas of law where disclosure is the rule rather than government mandate. Real estate sale laws are built on disclosures. Government doesn’t force houses off the market if they have problems; consumers are merely advised that the house they are looking at might be subject to landslides or infested with terminates. California, one of the most liberal states in the country, doesn’t require physicians or attorneys to purchase malpractice insurance. If these professions don’t purchase insurance, they merely have to disclose their lack of insurance to clients or patients.

We require disclosure instead of action in many areas of life. Disclosing lack of hand washing instead of requiring hand washing seems dangerous and it is. However, there are far more dangerous activities where the regulation merely requires disclosure.

The Type of Regulation Matters

Tillis’ opponents have also denounced his suggestion as more regulation. Requiring posting signs that employees don’t wash hands instead of a requiring that employees wash their hands is merely trading one regulation for another.

From a practical standpoint there could be a real difference. California doesn’t require professionals purchase insurance because insurance in the golden state is extremely expensive. If doctors or attorneys starting new firms or clinics were required to buy insurance, they might be pushed out business before they could even get started.

Of course, hand washing doesn’t have that practicality dimension. It’s not that expensive to turn on a faucet for a few minutes. No, Senator Tillis is basing his argument on pure principle. The role of government regulation in the market is to ensure that consumers have full and complete information. It is not the government’s role to determine how a company should work. The former is about advising the consumer while the latter is about controlling businesses.

Of course, disclosure laws aren’t perfect. Courts hear plenty of cases about whether real estate sellers or agents have to disclose that a house floods, has mold, or is haunted by a ghost. California deals with complaints that professionals without insurance bury disclosure forms in a mountain of other paperwork. If restaurants merely had to disclose that their employees don’t wash hands, there’s a good chance many of them would put the signs in obscure places.

It’s true that businesses sometimes break disclosure laws. But people break laws all the time, even when the law is mandatory. Ironically, Senator Tillis’ proposal would still require government oversight, but instead of the FDA, it would probably be from sick patients bringing lawsuits to courts.

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