Student Loan Reform: Rights Under the Law, Incentives Under Contract, and Mission Failure Under ED

Abstract

The federal student loan program is a disaster. Over five million people are in default even though Congress provides all borrowers with the right to affordable payments and to discharge of borrowers’ debts in specific circumstances. Many student loan borrowers who could benefit from these rights are unaware they exist or are unable to exercise their rights.

This Article examines the dynamics and incentives that drive the longstanding problem of high default rates and repayment distress among student loan borrowers. Our core finding is that the Education Department adopts a creditors-rights framework for student loan repayment, which is inapposite for student loans because borrowers have unique, federal rights that are unavailable in market credit transactions. We then demonstrate why the mission and track record of the Education Department, including its failure to manage and oversee servicers, make it unlikely that the Department would ever adopt a borrower-rights focus on student loan repayment.

We build the case for the creation of the Student Borrower Protection Agency, modeled in part on the Consumer Financial Protection Bureau (CFPB). The function of the SBPA would be to serve student loan borrowers. Just as the country needed the CFPB to fill regulatory gaps in consumer financial protection, we need an agency that will deliver to student loan borrowers the rights promised under federal law.

Keywords: student loans, consumer credit, loan servicing, CFPB, consumer protection