Withholding Transcripts: Policy, Possibilities, and Legal Recourse

Abstract

Although scholars usually think of America’s 1.4 trillion in student loans as unsecured debt, institutions of higher education do have a right akin to a security interest in some circumstances: they can withhold a student’s official transcript. In fact, the Department of Education “encourages” schools to withhold transcripts for unpaid Perkins loans or other debts owed directly to the institution.

A withheld transcript puts a borrower, and particularly a non-completer, in a double bind. She may need the transcript to complete her degree to get a higher paying job. But without the higher paying job she cannot get the extra income to pay off her debt and have her transcript released.

Although student loan practitioners are anecdotally reporting an increase in cases related to withheld transcripts, there is currently no administrative data available for how frequently this practice occurs.

This paper begins to answer these questions and aims to lay an outline for future scholarship on the issue. In Part I, it outlines the current state of transcript withholding, discussing the applicable state and federal laws — or lack thereof. Part I also dives deeper into Ohio’s administrative data to give a sense of the scope of the practice in at least one state, and finally points to the bankruptcy code to give a sense of the practice’s use across the country. Part II turns to the legal theories that underpin the school-student relationship. There has been a deep inconsistency across courts as to who actually owns an official transcript and the extent to which formalized contract principles override the property principles at play. Part III discusses largely untested legal theories that could be available to students who wish to challenge current practices. Finally, Part IV turns to the public policy concerns at play, concluding that the current widespread use of transcript withholding may not be in the best economic interest of students or schools.

Keywords: Student loans, transcripts, property law, contract law, legal studies