Saturday, April 4, 2015

What was your first clue, Sherlock? A Chronicle of Higher Education writer explains that some colleges are gaming their student-loan default rates

Colleges must keep their student-loan default rates down or they will lose their right to participate in the federal student loan program. If a college's three-year default rate (as measured by the Department of Education) reaches 30 percent for three consecutive years, that college can be kicked out of the federal student loan program. And most colleges cannot survive without federal student-aid money.

Ben Miller, writing for Chronicle of Higher Education, explains how colleges can artificially keep their student-loan default rates down, hiding the fact that a lot of their students are not paying back their loans.  As Miller points out, DOE's student-loan default measure only calculates the percentage of defaulters who default within three years of beginning repayment--which is a very short window of time.
[B]ecause the measure tracks results for such a short time, it is possible for colleges to game the metric by artificially lowering the number of students who default within three years. How? A college can encourage borrowers to ask for a forbearance--an option in which the federal government allows borrowers to stop making payments without their loans becoming delinquent or heading toward default. Since it takes almost a year to default, the college needs borrowers to enter forbearance for a couple of years, ensuring they cannot show up in the default rate, even if they never make a single payment.
In fact, as Senator Harkin's Senate Committee documented in its report on the for-profit college industry, many for-profits aggressively encourage students to apply for economic hardship deferments, which are ridiculously easy to obtain.

That is probably why the three-year student-loan default rate for for-profits actually went down a bit according to DOE's 2014 student-loan default rate report. The for-profits are adept at getting their former students to sign up for economic hardship deferments that obscure the fact that these students are not making their loan payments.

Miller argued persuasively that a better measurement of student-loan defaults would be compare the number of students going into repayment at a college compared to the number of graduates.  Students who are going into repayment without graduating have lower rates of success than graduates in terms of getting good jobs, and they also have higher student-loan default rates.  Therefore, a college that has a high level of students beginning repayment compared to the number of graduates is probably a college that has a high student-loan default rate.

So what did Miller find?  Among public 4-year institutions, 84 students went into repayment for every 100 graduates.  But in the 4-year for-profit sector, 233 students went into repayment for every 100 graduates.  In other words, more than twice as many students attending 4-year for-profit institutions began repayment (in the most recent cohort of borrowers) than obtained degrees.

That is a very bad sign, and a strong indicator that the for-profits have much higher student-loan default rates than DOE's anemic metric shows.  It seems reasonable to conclude that the true student-loan default rate in the for-profit sector is at least twice as high as DOE reports; it is probably at least 40 percent!

The Obama administration surely knows that the number of students who default on their loans is much higher than DOE reports every year and that the true default rate for students who attended for-profit institutions is alarmingly high.

But so far at least, the for-profits have evaded effectively regulation; and they have hidden their true default rates by encouraging their former students to sign up for economic hardship deferments. Meanwhile they suck up about one quarter of all the federal student-aid money while only enrolling about 11 percen of all the post-secondary students.

Some day this house of cards will collapse, and the public will realize that the for-profit colleges have unacceptably high student-loan default rates. And we will have to face the fact that millions of people --mostly low-income and minority students--have defaulted on their loans and have had their lives wrecked by the fact that they attended for-profit institutions.

References

Ben Miller. Student-Loan Default Rates Are Easily Gamed. Here's a Better Measure. Chronicle of Higher Education, March 26, 2015.





Sunday, March 22, 2015

Susan Dynarski wrings her hands because we don't have enough information about the student debt crisis. But we know enough to take action.

Susan Dynarski recently wrote a half-page article in the Sunday Times, complaining about the government's lack of useful data about the federal student loan program. She's right of course.

The U.S. Department of Education releases very little useful information about the student-loan crisis. The Federal Reserve Bank of New York, which has issued alarming reports on the problem, relies on Equifax, a private credit reporting agency, for most of its information--not DOE. 

Why don't we have better data? Dynarski quotes a former DOE official who says "lack of will" on the part of DOE's data  collectors is part of the answer, along with "reluctance of senior political leadership in the Department of Education to press for action."

In other words, the Obama administration and Arne Duncan's Department of Education don't want the public to know just how bad the student loan crisis really is.

Barack Obama and Arne Duncan just want to get out of town before the federal student loan program collapses. They are like those American officials during the Vietnam War who scrambled to get on one of the last helicopters leaving Saigon before the city fell to the North Vietnamese.

Barack & Arne just want to get out of town before the student loan crisis blows up.
Make no mistake. Barack and Arne know what's going on. They know the lid is about to blow off this smoothly managed crisis.  And they are trying to strew a little evidence around to show they are trying to address the problem without really doing anything about it. For example, President Obama released his laughable and toothless "Student Bill of Rights" earlier this month.

Solving the student-loan crisis will take more than empty platitudes. It will take courage.
  • It will take courage to rein in the for-profit college sector, which is raping low-income and minority students by enticing them to enroll in high-cost educational programs that don't lead to good jobs.
  • It will take courage to amend the Bankruptcy Code so that insolvent student-loan debtors can get reasonable access to bankruptcy relief.
  • It will take courage to stop garnishing the Social Security checks of elderly debtors who defaulted on their student loans.
  •  It will take courage to stop the private student-loan debt collectors from tacking huge penalties on to the loan balances of defaulted student-loan debtors.
And it will also take a sense of human decency, which President Obama's Department of Education apparently does not have.

Thus, in the Myhre bankruptcy case,  we see the Department of Education opposing bankruptcy relief for a quadriplegic student-loan debtor who was working full time and was still unable to support himself financially, much less pay off his student loans.

And in the Lamento bankruptcy case, the Department of Education opposed bankruptcy relief for a single mother of two who was working full time and was only able to put a roof over her children's heads because she was living rent free with her mother and stepfather.

In both the Myhe case and the Lamento case, DOE wanted these unfortunate student-loan debtors to sign up for 25-year repayment plans. And that has been the Obama administration's overall strategy for dealing with the student loan crisis.

Yes, rather than do the decent thing and work for bankruptcy relief for worthy student-loan debtors, President Obama's Department of Education is trying to force most oppressed student-loan debtors into 25-year repayment plans.

And why is DOE doing that? Because if President Obama and Arne Duncan's Department of Education were forced to publicly admit that millions of student-loan debtors are insolvent and will never pay off their loans, the whole sorry business of the federal student loan program would collapse.

But they won't admit it. And that is why, Ms. Dynarski,  the Department of Education is not releasing useful data about the student-loan crisis.

But I'll bet you already knew that, didn't you, Ms. Dynarski? After all, you are one of President Obama's advisers.

Susan Dynarski: We need more information!
 References

Susan Dynarksi. So Much Student Debt, So Little Information. New York Times, March 22, 2015, Business section, p. 5.

Richard Fossey & Robert Cloud. In re Lamento: An Honest But Unfortunate Debtor is Entitled to Sleep at Night Without Worrying About Unpayable Student-loan Debt. Teachers College Record, February 23, 2015.

In re Lamento, 520 B.R. 667 (Bankr. N.D. Ohio 2014).

Myhre v. U.S. Department of Education, 503 B.R. 698 (Bankr. W.D. Wis. 2013).














Thursday, March 19, 2015

Legal Education and the Battle of Isandlwana: Our Country Isn't Solving Problems Because Our Colleges and Professional Schools Aren't Properly Training Our Leaders

What do law professors do beside teach law students?

Most of them write law review articles--long, tedious pieces with literally hundreds of footnotes. And they write a lot of them.  All American law schools sponsor at least one law journal; and many sponsor several. Each year, these journals publish about 10,000 law review articles!

Law scholars use an arcane system for crafting their footnotes under rules laid out in The Bluebook, an almost incomprehensible volume published by Harvard Law School. The Bluebook is now in its nineteenth edition, and its text is even more opaque than the 18th edition. In fact, Richard Posner, an esteemed judge on the Seventh Circuit Court of Appeals, described it with a quote from Heart of Darkness: "The horror! The horror!"

Here is a quote from the University of Houston Law School's Bluebook Guide that described just one change that was instituted in the nineteenth edition:
Rule 1.2(a) [E.g.]: Clarifies that when this signal is combined with another signal such asSee”, the comma separating the signals should be italicized while the comma at the end of the signal should not be.   
Law reviews are edited by law students, and student editors are required to master the mysteries of The Bluebook in order to edit law-article manuscripts. As a student at Harvard, Barack Obama must have spent a lot of time with The Bluebook when he was Editor of Harvard Law Review.

And Barack Obama's educational background may explain why he is at loggerheads with two powerful heads of state: Benjamin Netanyahu and Vladimir Putin.  Putin is a former KGB man, Netanyahu is a special forces veteran of the Israel Defense Force, and Obama is a former footnote checker. It is not hard to imagine why Netanyahu and Putin seem so contemptuous of our President.

And this brings me to the Battle of Isandlwana, which was a disastrous military defeat for the British army during the Anglo-Zulu War.  In January 1879, a force of 20,000 Zulu warriors overwhelmed a British force of about 1500 men on the rolling plains around Mount Isandlwana. The British commander, Lord Chelmsford, believed that modern weapons and trained British soldiers could defeat much larger enemy forces equipped only with spears and a few antiquated muskets.

But Lord Chelmsford was wrong. Splitting his forces, Lord Chelmsford departed from a supply camp at Isandlwana, leaving Brevet Colonel Henry Pulleine in charge. Lord Chelmsford had not fortified the camp, thinking it unnecessary; nor did he encircle the camp with a laager.  After all,  the British were armed with Martini-Henry rifles; and they had two cannons, a rocket-launching battery and 500,000 rounds of ammunition. What could go wrong?

The Battle of Isandlwana: Hey, what could go wrong?
On the morning of January 22, 1879, Lieutenant Colonel Pulleine's scouts spotted a large force of Zulus sitting patiently in a ravine; and they reported back to Pulleine.  He ordered troops to form a long skirmishing line about 1500 yards in front of the camp.

For a while things went well. British soldiers shot down attacking Zulus by the score; and the troops were in a jolly mood.  Gradually, however, the Zulus encircled the British right flank, which eventually collapsed.  British troops fell back to the camp itself, where small groups made a last stand before being overwhelmed. Almost the whole force was massacred.

Donald Morris's The Washing of the Spears is the best historical account of this battle. Morris explains that the British were deployed too far from their ammunition supply; and the ammunition boxes proved difficult to open--requiring special screwdrivers to get the lids off the boxes.  A movie about the battle, entitled Zulu Dawn, depicts soldiers standing in long ques waiting for ammunition. One scene shows a military clerk filling out receipt slips while Zulus spear soldiers patiently standing in line.

It shouldn't have turned out that way. After all, Lord Chelmsford was an esteemed British commander who had purchased commissions in respected military units.  He probably thought he knew what he was doing when he split his forces and departed from an unfortified camp.

And Lieutenant Colonel Pulleine, who was trained at Sandhurst, received plenty of warning that the Zulus were on their way. His camp was well provisioned, and he had two cannons and some rocket launchers. How could things have turned out so badly?

Arrogance, in my opinion. The British officers thought it inconceivable that they could be defeated by a native force armed mostly with spears, even if the enemy had the advantage of overwhelming numbers.

And arrogance is the cause of most of our nation's recent blunders in the international arena. We are the United States, after all. We have superior technology such that we can kill our enemies with drones simply by pushing a button. And our leaders all went to the best colleges and professional schools: Harvard, Yale, Brown, Stanford, Oxford.  And our law-trained leaders know The Bluebook backward and forward.

But our arrogance is leading us to defeat after defeat against our enemies and our competitors. And our president, trained at Harvard Law School, is no match in a duel of wits against people like Vladimir Putin and Benjamin Netanyahu.

Our elite colleges and universities have failed us. Instead of training problem solvers and crisis managers, they have produced arrogant elitists--people much like Lord Chelmsford.  And so long as we place such people in charge of our national security, we will see our national strength and stature diminish.

References

Donald R. Morris. The Washing of the Spears: The Rise and Fall of the Zulu Nation. New York: Simon & Schuster, 1965.

The Bluebook (19th edition).

Zulu Dawn (1979).


Tuesday, March 17, 2015

The Inuits Flipped a Duck at the Federal Government in 1961: A Suggestion for Mass Protests Against the Abuses of the Federal Student Loan Program

 In May 1961, the Inupiat people of Barrow, Alaska staged their first mass act of civil disobedience in the long and noble history of the Inuit people. Perhaps their community protest offers some lessons for the millions of Americans who suffer under the burden of crushing student-loan debt.


The Barrow Duck-In of 1961
Here's what happened. Under the Migratory Bird Treaty Act, ratified by Congress in 1918, spring hunting of migratory waterfowl was made illegal in the United States. The ban on spring hunting was justified as a way to protect migratory birds during the spring nesting season.

But no one consulted the Inuit people of Alaska about the spring-hunting ban. The Inuit had hunted ducks and geese for centuries and depended on spring waterfowl hunting to obtain essential food after long arctic winters when their food supplies were depleted.

For almost a half century, the federal government had not enforced the Migratory Bird Treaty Act against the Inuit. But in 1961, three years after Alaska became a state, federal game wardens began arresting spring duck hunters. The Inuit protested to everyone they could find at both the state and federal level, but no one would listen.  Federal bureaucrats were convinced that Eskimos could buy their food in the grocery store just like everyone else and that it would actually be cheaper for them to buy store-bought food than shotgun shells.

On Saturday, May 31, Alaska state legislator John Nusunginya, himself an Inupiat, met with two federal game wardens in Barrow to explain the Inuits' point of view. As it happened, Nusunginya was carrying a shotgun as he and the wardens were strolling down a street in Barrow. When a flight of eider ducks flew by, Nusunginya "pumped a couple of them down" and was promptly arrested.

The Inuit faced down the federal government in 1961
The Inuits quickly organized a town meeting in the local theater and invited Harry Pinkham, one of the federal game wardens, to attend. When he arrived, 138 Inuit men each presented him with a duck and a signed statement confessing to hunting ducks out of season.

Pinkham admitted that he couldn't arrest them all: "I can't handle that much paperwork" (Burwell, p. 6). And of course federal agents had to preserve all the evidence, which meant flying nine sacks of ducks down to Fairbanks.

As I heard the story from an Inuit man who claimed to have participated in the "duck-in," Inuit women turned themselves in as well, forcing the federal government to arrest every adult in Barrow and take on childcare responsibilities for the entire village. But this recollection may be apocryphal.

Michael Burwell's account of the duck-in, presented to the Alaska Historical Society in 2004, is undoubtedly the most accurate rendition of these events; and apparently no one was actually jailed.

But the Inuit had made their point.  As one Inuit man recalled:
We were so well organized that if they had arrested every man in Barrow, the womenfolk were going to be next. And then the children. At the time there was not a jail big enough in the state of Alaska. They would have had to have a C124 coming in and out for days to move Barrow out to jails in the States! (Burwell, 2004, p. 7)
Eventually, the Inuit won a legal exemption to the Migratory Bird Treaty Act, which they enjoy to this day.


We Need Mass Protests to Demand Bankruptcy Reform for Student-Loan Debtors
Student-loan debtors should take a lesson from the Inuits' creative act of civil disobedience.  Currently, there are 7 million student-loan debtors who have defaulted on their student loans; and 9 million more have obtained economic hardship deferments and are not making loan payments. Millions of these people are suffering under the burden of massive student loans. Some have had their paychecks garnished, and others have had their income-tax refund checks seized. More than 50,000 people had  their Social Security checks garnished last year.

For the most part, these miserable people suffer in silence. The colleges and universities have their lobbyists and lawyers, as do the banks and the student-loan collection companies. They protect their interests in the halls of Congress and in the courts.

And when overburdened student-loan debtor attempt to discharge their loans in bankruptcy, the federal government and the loan collectors send their attorneys to court to stop them from getting relief. The U.S. Department of Education actually opposed bankruptcy relief for a quadriplegic man who was working full time but could not make enough money to sustain himself because he had to pay a full-time person to feed him, dress him, and drive him to and from work.

The federal government and its loan-collecting henchmen can easily beat down a few lonely souls who attempt to obtain relief in bankruptcy court. Three or four lawyers are generally enough to squelch the intrepid individuals who file adversary actions to discharge their debts.  And the federal government and the scholarly commentators spread the word that it is almost impossible to discharge a student loan in bankruptcy, so most insolvent debtors don't even try to shed their loans in bankruptcy.

But change is in the air. Several bankruptcy courts have ruled sympathetically for student-loan debtors over the past couple of years; and a couple of research articles have reported that student-loan debtors actually stand a pretty good chance of obtaining partial or total relief from their student-loan debts if they file for bankruptcy and bring adversary actions against their creditors.

So what would happen if every student-loan debtor who is truly insolvent and who took out student loans in good faith filed for bankruptcy and brought an adversary action for debt relief? And what would happen if these insolvent debtors filed for bankruptcy without a lawyer, relying on the facts of their cases and the sympathy of a bankruptcy judge in the hope of obtaining justice?

I tell you what would happen. If 1 million worthy individuals filed for bankruptcy during a single year, the whole rotten, stinking, bloated and predatory student loan program would collapse because the federal government and the higher education community would have to publicly admit that the present system is unsustainable. 

Something like an Eskimo flipping a duck at a federal game warden.

References

Michael Burwell. (2004). “Hunger Knows No Law”: Seminal Native Protest and The
Barrow Duck-In of 1961. Alaska Historical Society Meeting, Anchorage, AK. Accessible at: http://www.uaa.alaska.edu/cafe/upload/Hunger-Knows-No-Law-AAAMarch2005Last.pdf

Note: My account of the Inuit Duck-in of 1961 is taken entirely from Mr. Burwell's excellent paper, which is posted on the web.

Wednesday, March 4, 2015

For Want of a Starbucks, a College Was Lost: Sweet Briar College is Closing Its Doors

Sweet Briar College announced yesterday that it is closing its doors at the end of the academic year.

Sweet Briar is one of those obscure but vaguely elite colleges that average Americans have heard about but are totally clueless about where they are located. Bowdoin? Colgate? Williams? Amherst? Where in the hell are these places?

Sweet Briar College: Too Far From a Starbucks
Well, Sweet Briar is a small liberal arts college for women located in the foothills of the Blue Ridge Mountains of Virginia. It is quite small--less than 600 undergraduates, but it is a lovely place. The college has a horse-riding program, a Study Abroad program, and several notable alumni.

But Sweet Briar is expensive. The sticker price to attend Sweet Briar for a year is just under $35,000 in tuition and fees.  And that doesn't include the cost of oats for your horse or the artisan cheese you will eat when you are studying abroad in France.

According to an article written by Scott Jaschik for Inside Higher Ed, Sweet Briar is closing for several reasons. First, students are less and less enamored with rural colleges. Even though Sweet Briar's campus--located on 3200 rural Virginia acres--is stunningly beautiful, most young people want to be where the action is, which is in the cities.

As Sweet Briar's President James F. Jones Jr. put it, "We are 30 minutes from a Starbucks."

Second, single-sex colleges have fallen out of fashion. Single-sex institutions have been totally wiped out in the public sector after the Supreme Court ruled that Mississippi University for Women and the Virginia Military Institute had discriminated on the basis of sex due to their single-sex admission policies. And most private colleges that started out as single-sex institutions now admit both women and men.

And of course, it is getting harder and harder to determine a student's gender, which makes single-sex admissions policies a bit awkward. The New York Times Magazine ran a story about transgender students at Wellesley that identified some of the complexity of gender issues at a private women's liberal arts college.

Third, it is harder and harder for private colleges that are not in the top tier to make a go of it. As Jaschik's article noted, only about one out of five women who were admitted to Sweet Briar chose to enroll there.

Sweet Briar and most private colleges try to sweeten the deal for potential students by discounting their tuition fees.  At Sweet Briar, the so-called discount rate for attractive first-year students was 62.8 percent in 2014.  That's right--the real cost for selected first-year students was only about one third of the sticker price.

So who pays the sticker price? Only suckers like you, Mom and Pop.

I say good riddance to Sweet Briar and all the overpriced private liberal arts colleges that failed to offer a product that students wanted at a price that families could afford. They have brought their demise on themselves by jacking up the sticker price of tuition and then giving discounts to special students who are selected based on criteria that are less than transparent. These schools have been operating more like used-car dealers than academics in the way they have sought to attract students, and now the jig is up.

Moreover, in my opinion, the vaunted value of a liberal arts education at one of these joints is vastly overrated. Many of the professors at these elite institutions are peddling postmodernism under the guise of a liberal arts education. And you don't need to attend an expensive private college to achieve the wry, edgy cynicism of a postmodernist.  Just watch Jon Stewart on television.

The crucial fact is this: the non-elite private liberal arts colleges are surviving almost totally on the federal student aid program; and students are having to borrow too much money to receive a non-spectacular education from these places.

What will replace Sweet Briar and the other overpriced, private liberal arts colleges as the purveyors of quality post-secondary education? I don't know. But I think it is likely that a great many private liberal arts colleges will close their doors before we figure it out.

References

Scott Jaschik. (2015, March 4). Sweet Briar College will shut down. Inside Higher Ed. Available at: https://www.insidehighered.com/news/2015/03/04/sweet-briar-college-will-shut-down

Mississippi University for Women v. Hogan, 478 U.S. 718 (1982).

Ruth Padawer. (2014, October 15). When Women Become Men at Wellesley. New York Times Magazine. Available at: http://www.nytimes.com/2014/10/19/magazine/when-women-become-men-at-wellesley-college.html?_r=0

Ry Rivard. (2014, July 2). Discount Escalation. Inside Higher Ed. Available at: https://www.insidehighered.com/news/2014/07/02/prices-rise-colleges-are-offering-students-steeper-discounts-again

United States v. Virginia, 518 U.S. 515 (1996).







Wednesday, February 11, 2015

Homeless People Borrowing Money to Attend College: Is That a Good Idea?

According to a recent news story, 58,000 homeless people are enrolled in college, a 75 percent increase from just three years ago (Ashtari, 2015). How, you might be asking, are homeless college students paying their tuition bills?

Most, if not all of these hapless college students are eligible to receive Pell Grants based on their economic circumstances and most are probably borrowing money from the federal student-loan program.  At the University of Massachusetts-Boston, a student support center provides free meals for homeless people and guidance on financial aid.

Is this a good idea? Kathleen O'Neill, who runs something called Single Stop USA at Bunker Hill Community College, thinks it's a great idea for homeless people to attend college. "These are people who get it," said Ms. O'Neill. "The way out of poverty is education and they are committed to doing whatever it is they need to do to get there"(as quoted in a Huffington Post article).

Obviously, having homeless students in college works out great for the colleges. They get more tuition-paying students, and the federal student-aid program foots the bill.

I would love to chat but I'm late for my social studies class.
But some colleges have been criticized for recruiting homeless people. A few years ago, Drake College of Business was spotlighted for recruiting homeless people and then paying them a stipend. For a time at least,  homeless students apparently received $350 biweekly stipends so long as they showed up for 80 percent of the classes and received "Cs" for their work.

Drake's president defended the practice of recruiting homeless students. "We do not believe that recruiting at [homeless] shelters is either illegal, unethical, or immoral so long as the recruitment of students from shelters is above board, which it has been," Drake's President Ziad Fadel said of its practice (as quoted in Golden & Hechinger, 2010). Nevertheless, Drake stopped recruiting homeless students.

If homeless people borrowed money to attend college, obtained the training they needed to get good jobs, and then paid off their student loans, this would be a Cinderella story. But my guess is that an awful lot of these 58,000 people will never pay off their student loans. And when they go into default they will be barred from participating further in the federal student aid program.

In my view, a university that feeds homeless people while it helps them fill out financial aid applications sounds a lot like the way religious homeless shelters used to operate. Sure, we'll feed you, but you have to listen to this sermon first. Here's a nice hot meal, but don't spell soup on your FAFSA form.

When I reflect on the fact that 58,000 homeless people are paying tuition with federal student aid money, President Obama's proposal to offer two years of free education at the nation's community colleges sounds like a good idea.

Wouldn't it be better if economically disadvantaged people could get two years of free secondary education or training rather than forcing them to take out student loans to pay their tuition bills--loans very few of them will ever pay back?

References

Shadee Ashtari. A Look Into the 'Double Lives' Of America's Homeless. Huffington Post, December 26, 2014 (updated January 7, 2015. Accessible at: http://www.huffingtonpost.com/2014/12/26/college-student-homeless-boston_n_6145980.html

Daniel Golden & Jon Hechinger. For-Profit N.J. College Halts Recruiting of Homeless. Bloomberg, May 5, 2010. Accessible at: http://www.bloomberg.com/news/articles/2010-05-05/drake-for-profit-college-in-new-jersey-will-stop-recruitment-of-homeless










Sunday, February 8, 2015

No Statute of Limitations on Student Loan Debt: How Can That Be Justified?


Abandon hope, all ye who enter here. 
                                 Dante Alighieri 

Awhile back, Governor Jerry Brown vetoed a bill passed by the California legislature  that would have expanded the statute of limitations for bringing sexual abuse lawsuits against private schools, including schools operated by the Catholic Church. The law did not apply to sexual abuse claims against public school teachers.

Cartoon Credit: Carol Simpson

In vetoing the statute, Governor Brown invoked ancient principles of fairness that put time limitations on lawsuits. "Statutes of limitation reach back to Roman law and were specifically enshrined in the English common law by the Limitations Act of 1623," Governor Brown wrote in his veto message. "Ever since, and in every state, including California, various limits have been imposed on the time when lawsuits may still be initiated. Even though valid and profoundly important claims are at stake, all jurisdictions have seen fit to bar actions after a lapse of years."

Statutes of Limitations Invoke Ancient Principles of Fairness

Governor Brown correctly stated the law regarding statutes of limitations. It is not fair, as the courts sometimes put it, for aggrieved parties to “sleep on their rights” and then file a lawsuit long after a claim has grown stale, when memories and witnesses may have faded away and critical documents may have been lost. Thus, all states give claimants a specific time limit for filing a lawsuit. If the claimant fails to file within the time limit, the claimant irrevocably loses the right to seek a remedy in court.

Unfortunately for student loan debtors, these ancient principles of fairness do not apply to student loans. In 1991, Congress passed 20 U.S.C. § 1091a, a statute that abolished all limitation periods that might otherwise apply against specified lenders and governmental entities that seek to collect on student loans. As one scholar succinctly summarized the law, “[O]nce a student contracts for a student loan, the student cannot use a statute of limitations as a defense against collection on that loan by the entities listed in the statute—ever” (Roper, 2005, p. 37, emphasis supplied).

The Fabrizio case: Student-Loan Guarantor Attempts to Collect a 25-Year-Old Judgment

In 2010, this harsh federal law was applied in a case against Anthony Fabrizio, who borrowed about $9,000 in the early 1970s to help pay for his postsecondary education (New York State Higher Education Services Corporation v. Fabrizio, 2010). Apparently, Fabrizio did not pay back the money, and the lender obtained a default judgment against him in 1983 for $9,664.63. In 2008, twenty-five years after the debt had been reduced to judgment, the New York State Higher Education Services Corporation, which (through a predecessor agency) had guaranteed Fabrizio’s loan, told Fabrizio to begin paying off the debt or the agency would start garnishing his wages.

Fabrizio tried to persuade a New York court to enter an order declaring that his debt was deemed paid under a New York law stating that a money judgment is presumed to have been paid after 20 years from when the creditor was first entitled to enforce it.

Unhappily for Mr. Fabrizio, a New York appellate court ruled against him, finding that 20 U.S.C. 1091a, abolishing all statutes of limitation that might otherwise protect a defaulted student-loan debtor, overrode the New York statute of limitation.  Fabrizio can still be made to pay back the loan. Presumably, he is also liable for collection fees and more than 30 years of accumulated interest.

Defaulting Student Loan Debtors Have No Place to Hide

Today, there are millions of people who have defaulted on their student loans, and some of those loans are now quite old. Nevertheless, student-loan defaulters are never off the hook for their debt--no matter how old that debt might be.

As the Fabrizio case illustrates, statutes of limitation do not apply to student-loan debts that are guaranteed by the federal government, and a lender can pursue collection at any time, even if the lender took no action for a quarter of a century.

Moreover, unlike most other overburdened debtors, student-loan debtors cannot discharge student loans in bankruptcy unless they can show that failure to discharge their student loans will cause them “undue hardship”  (11. U.S.C. § 523(a)(8)(B)). As several scholars have observed, it is very difficult for student-loan debtors to discharge their student loans in bankruptcy--even in heart-rending circumstances (Pardo & Lacey, 2009, Fossey, 1997). 

In fact, student-loan debtors who fail to repay their loans can have their Social Security checks garnished, a practice that the Supreme Court approved in the 2005 decision of Lockhart v. United States.  People who took out student loans in their early twenties and never paid them back can see their Social Security income diminished by their failure to discharge their student-loan obligations (Cloud, 2006).

Abandon Hope, All Ye Who Enter Here

For millions of college students, the federal student loan program has become a nightmare. Over the years, Congress has passed harsh legislation that has stripped student-loan debtors of traditional legal protections like statutes of limitation and unfettered access to the bankruptcy courts.  As a result, for individuals who default on their student loans, even those who took out their loans in good faith, the famous passage from Dante seems chillingly appropriate: “Abandon hope, all ye who enter here.”  
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Note: Parts of this essay were taken from an essay originally published in 2010 in Teachers College Record.  The citation for the original article is Richard Fossey & Robert C. Cloud, Abandon Hope, All Ye Who Enter Here: Defaulting Student Loan Debtors Have No Place to Hide. Teachers College Record, October 12, 2010 at http://www.tcrecord.org, ID Number: 16195.

References

Chae v. SLM Corporation, 593 F.3d 936 (9th Cir. 2010).

Cloud, R.C. (2006). Offsetting Social Security benefits to repay student loans: Pay us now or pay us later, Education Law Reporter, 208, 11-21.

Fossey, R. (1997).  "The certainty of hopelessness:" Are courts too harsh toward bankrupt student loan debtors?  Journal of Law and Education, 26, 29-48. 

Garner, B. A. (Ed.). (9th ed. 2009). Black’s Law Dictionary. St. Paul, Minn.: West Publishing Company.

Lockhart v. United States, 546 U.S. 142 (2005).

Joseph Mack (2006). Nullum Tempus: Governmental immunity to statutes of limitation, laches, and statutes of repose. Defense Counsel Journal, 73, 180-196.

New York Higher Education Services Corporation v. Fabrizio, 900 N.Y.S.2d (A.D. 3 Dept. 2010).

Raphael I. Pardo & Michelle R. Lacey (2009).  The real student-loan scandal: Undue hardship discharge litigation.  American Bankruptcy Law Journal, 83, 179-235.

Glen E. Roper (2005). Eternal student loan liability: Who can sue under 20 U.S.C. 1091a? Brigham Young University Journal of Public Law, 20, 35-78.