Can Encouraging Loan Default be Banned as ‘Educational Malpractice’?

By on December 12, 2011

Last week, former Department of Education official Diane Auer Jones called for New York University to "take action to silence" Professor Andrew Ross over comments he made to Occupy Wall Street students at Washington Square Park and elsewhere. Jones, writing for The Chronicle of Higher Education‘s blog Brainstorm, writes that "[a]cademic freedom does not give Dr. Ross the right to knowingly advise students to do something that will harm them for years to come, and that violates a legal contract between the borrower and ultimately the federal government." 
If Jones’s troubling argument is taken seriously, it could justify broad censorship of academics commenting on matters of public policy, particularly in the fields of economics and law. Her sentiment raises a number of First Amendment and statutory questions, so although she doesn’t explicitly reference these issues herself, I wanted to review a few of them here.

It is true that among universities’ financial assistance information dissemination obligations found in 20 U.S.C. § 1092, universities must provide certain accurate information to student loan borrowers. Specifically, institutions receiving student loan funds are required to inform students on an annual basis as to the "rights and responsibilities of students receiving financial assistance."  

But are professors prevented from providing additional commentary, or even misinformation, on the subject? As a matter of statutory construction, the answer has to be "No." The institution, not its professors, is required to provide information and resources related to the application for, receipt of, and repayment of student loan assistance. Students seeking clarification on points raised by professors can contact the institution directly. As in the arena of faculty political speech, it is unreasonable to assume that all professorial speech is on behalf of the university itself and represents an official institutional position. 

Even if we assume, for the sake of argument, that Professor Ross is bound by 20 U.S.C. § 1092, his commentary on the macroeconomic consequences of student loans and possible avenues for civil disobedience still does not violate the law. Professor Ross isn’t saying to students, "You do not have these obligations"; he is saying, "According to this law, which I find unjust, you have these obligations." Indeed, Professor Ross’ arguments are only powerful because he is accurately informing students of their existing obligations. Were he telling students that "None of you owe this money; those are all accounting errors," then perhaps NYU would have a legal obligation to correct him-assuming again for the sake of argument that Ross’ speech is treated as that of the university itself. But that is not the statement Ross is making, and reasonable people will not presume him to be speaking on behalf of the institution. 

Furthermore, is Professor Ross encouraging any "imminent" lawless action, per the meaning of the term under Brandenburg v. Ohio, 395 U.S. 444 (1969)? The conduct he is encouraging students to engage in is not "imminent" in the relevant legal sense. I have yet to see specific information that Professor Ross has done anything other than encourage defaulting in the unspecified future, thus failing Brandenburg‘s requirement of immediate violation of the law.

Finally, to what extent is Professor Ross encouraging imminent "lawless" action under Brandenburg? Default is provided for in the statute, and includes the exception to release by bankruptcy. In this regard, "default" is not illegal: it’s an option available to student loan borrowers, akin to deferment or forbearance. More interestingly, however, is that assuming default does violate the statute, is this "lawless" under Brandenburg? The Brandenburg line of cases has almost always dealt with acts that are historically felonious at common law: murder, arson, theft, and so forth. These behaviors are "violent," and circuit courts have often emphasized that point. See, e.g., Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 244 F.3d 1007, 1015 (9th Cir. 2000) (discussing true threats and First Amendment in relation to advocacy of violence). On this view, it seems Brandenburg does not apply to permit limitations on incitement to violate administrative regulations. There is nothing to indicate that the First Amendment does not protect speech inciting others to violate, for example, the "blue or black pen" or paper stock requirements for filing suit in many jurisdictions: "I think you should go, right now, and sue Joe, and do it in purple ink." 

Particularly in the case of peaceful civil disobedience, restricting such speech would seem ridiculous and untenable from a free speech perspective. It seems to be core protected speech for a professor to say, "I recommend that you go, right now, to the Dean’s Office, and don’t leave until you get an answer!" Furthermore, lawyers and politicians often legitimately advise otherwise innocuous "illegal" action all the time, such as breaking contracts with the government. These could be construed as "lawless" actions, but common sense dictates otherwise. For example, commenting on a recent change in Department of Education regulations related to the illegality of removing from campus a student who only poses a threat to himself or herself (and not to others), risk management consultant Brett Sokolow recently noted that "it may be that the best thing to protect the community and its members may be to violate federal law." Violating Title II may be "illegal," but the only penalty is losing federal funding. Similarly, failing to live up to certain Environmental Protection Agency regulations may only lead to a revocation of a license. Indeed, perhaps one way to distinguish between what is and is not governed under Brandenburg is the possible penalty, similar to the "felony" and "misdemeanor" distinction under criminal law.

Thankfully, New York University shows no indication of clamping down on Professor Ross’s free speech rights. While NYU is hardly the bastion of free speech one might desire, its tolerance in this case is admirable.