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Delivering on Debt Relief | Foreword 2020

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DELIVERING ON DEBT RELIEF Proposals, Ideas, and Actions to Cancel Student Debt on Day One and Beyond November 2020 STUDENT BORROWER PROTECTION CENTER ABOUT THE STUDENT BORROWER PROTECTION CENTER The Student Borrower Protection Center is a nonprofit organization focused on alleviating the burden of student debt for millions of Americans. The SBPC engages in advocacy, policymaking, and litigation strategy to rein in industry abuses, protect borrowers’ rights, and advance economic opportunity for the next generation of students. ABOUT DEMOS Demos is a dynamic “think-and-do” tank that powers the movement for a just, inclusive, multiracial democracy. Through cutting-edge policy research, inspiring litigation, and deep relationships with grassroots organizations, Demos champions solutions that will create a democracy and economy rooted in racial equity. ABOUT THE STUDENT LOAN LAW INITIATIVE The Student Loan Law Initiative is a partnership between the Student Borrower Protection Center and the University of California, Irvine School of Law to develop a body of rigorous research around how to address the student loan crisis. CONTRIBUTING ORGANIZATIONS Authors who contributed articles to this paper series hail from a diverse array of advocacy organizations and academic institutions. Authors are not speaking on behalf of their institutions, nor do authors necessarily endorse any piece in the compendium aside from their own. STUDENT BORROWER PROTECTION CENTER 2 DAY ONE CANCELLATION 2020 Table of Foreword 4 Seth Frotman, Dalié Jiménez, & Jonathan Glater Contents Introduction 10 Ashley Harrington & Mark Huelsman Relief for Public Service Workers 27 Michael Pierce & Rebecca Maurer Relief for Borrowers with a Defense to Repayment 45 Toby Merrill & Eileen Connor Relief for Borrowers in Income-Driven Repayment 74 Persis Yu Relief for Borrowers with Disabilities 94 John Whitelaw & Bethany Lilly Relief for Borrowers Whose Schools Closed 112 Robyn Smith Relief for Borrowers with a Disqualifying Status 134 Rye Salerno & Erik Manukyan Relief for Servicemembers and Veterans 150 Mike Saunders The Tax Treatment of Student Loan Discharge 166 and Cancellation John R. Brooks About the Authors 183 3 DELIVERING ON DEBT RELIEF | FOREWORD 2020 Foreword By Seth Frotman,1 Dalié Jiménez,2 and Jonathan Glater3 As of the date this compendium was published, the nation’s outstanding cumulative student debt burden stands at $1.7 trillion, collectively shouldered by 45 million Americans.4 This burden continues to rise unchecked—in only four short years, outstanding student debt is estimated to reach nearly $2 trillion.5 This looming cloud of student debt casts a growing shadow over our communities and our country. Research increasingly shows the ripple effects of student debt on households, cities, and the economy at large.6 We also know that the burden of student debt is not shouldered equally and only serves to further entrench widespread racial, gender, and wealth disparities.7 In particular, Black borrowers have disproportionately borne the brunt of 1 Executive Director, Student Borrower Protection Center and Co-Founder of the Student Loan Law Initiative. 2 Professor of Law at the University of California, Irvine School of Law and Co-Founder of the Student Loan Law Initiative. 3 Professor of Law at University of California, Los Angeles School of Law and Co-Founder of the Student Loan Law Initiative. 4 See Consumer Credit - G.19, Fed. Res. Bd. (Nov. 6, 2020), https://www.federalreserve.gov/releases/g19/current/default.htm; Federal Student Loan Portfolio by Borrower Age, Fed. Student Aid, https://studentaid.gov/sites/default/files/fsawg/datacenter/library/Portfolio-by-Age.xls (last accessed Nov. 13, 2020). 5 See Robert Hiltonsmith, Demos, At What Cost? How Student Debt Reduces Lifetime Wealth (2013), https://www.demos.org/sites/default/files/publications/AtWhatCost.pdf. 6 See Alvaro Mezza et al., Can Student Loan Debt Explain Low Homeownership Rates for Young Adults?, Consumer & Cmty. Context, Jan. 2019, at 2, 5; Hiltonsmith, supra note 5; Fed. Res. Bd., Consumer & Cmty. Context, Jan. 2019, https://www.federalreserve.gov/publications/files/consumer-community-context-201901.pdf; Bina Shrimal, Jacob DuMez, and Sarika Abbi, At What Cost? Student Loan Debt in the Bay Area, San Francisco Office of Financial Empowerment (Apr. 2019), https://www.frbsf.org/community- development/files/student-loan-debt-in-the-bay-area.pdf; Joelle Scally and Zayne Abdessalam, Student Loan Borrowing Across NYC Neighborhoods, Fed. Res. Bank of NY and N.Y.C. Dep’t. of Consumer Affairs (Dec. 2017), https://www.newyorkfed.org/medialibrary/media/ outreach-and-education/community-development/credit-conditions/student-loan-borrowing-nyc-neighborhoods.pdf; Riley Griffin, The Student Loan Debt Crisis Is About to Get Worse, Bloomberg (Oct. 17, 2018), https://www.bloomberg.com/news/articles/2018-10-17/the-student-loan- debt-crisis-is-about-to-get-worse (“Fed Chairman Jerome Powell[:] . ‘You do stand to see longer-term negative effects on people who can’t pay off their student loans. It hurts their credit rating; it impacts the entire half of their economic life. As this goes on, and as student loans continue to grow and become larger and larger, then it absolutely could hold back growth.’”). 7 See Dalié Jiménez & Jonathan Glater, Student Debt Is a Civil Rights Issue: The Case for Debt Relief and Higher Education Reform, 55 Harv. C.R.- C.L. L. Rev. 131, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3475224&dgcid=ejournal_htmlemail_education:law:ejournal_abstractlink; Dalié Jiménez, Professor of Law, U.C. Irvine Sch. of L., Written Testimony Before the House Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law (June 25, 2019), https://www.law.uci.edu/news/in-the-news/2019/Jimenez-testimony.pdf; Disparate Debts: How Student Loans Drive Racial Inequality Across American Cities, Student Borrower Prot. Ctr. (2020), https://protectborrowers.org/wp- 4 DELIVERING ON DEBT RELIEF | FOREWORD 2020 the student debt crisis—recent research shows that the median Black borrower still owes 95 percent of their original student loan balance 20 years after graduation and Black borrowers also experience default at significantly higher rates.8 Now, as the nation grapples with another recession before millions of families have recovered from the last one, student debt threatens to add kerosene to the fire of the ongoing economic fallout from COVID-19.9 Yet, armed with the benefit of hindsight and buoyed by the possibilities afforded by a new administration, we recognize that we can and must act. In 58 days, President Biden will take office with the tools needed to take immediate action to eliminate this burden for tens of millions of people who have been needlessly forced to bear its brunt. In order to understand the need for such relief, we must first understand how we got here. The trillion-dollar policy failure we face today compounded over decades as the country slashed public investment in higher education and already-struggling American families were forced to borrow to compensate.10 As the country replaced grant funding to support access to higher education with the availability of debt, Congress enacted multiple legislative interventions intended to serve as a critical safeguard against growing student loan balances.11 Across the ideological spectrum, policymakers agreed that when we collectively shifted the risk of higher education onto the backs of tens of millions of our citizens, there must be strong safety valves content/uploads/2020/06/SBPC-Disparate-Debts.pdf; Kevin Miller, Am. Ass’n of Univ. Women, Deeper in Debt: Women and Student Loans (2017), https://www.aauw.org/research/deeper-in-debt. 8 Stalling Dreams: How Student Debt is Disrupting Life Chances and Widening the Racial Wealth Gap, Inst. on Assets and Social Policy (Sept. 2019) https://heller.brandeis.edu/iasp/pdfs/racial-wealth-equity/racial-wealth-gap/stallingdreams-how-student-debt-is-disrupting- lifechances.pdf. Further, Black borrowers disproportionately experience default—Black borrowers with a Bachelor's degree default at rates 5 times greater than their white peers and Black BA graduates are even more likely to default than white borrowers who do not graduate. The looming student loan default crisis is worse than we thought, Judith Scott-Clayton, Brookings Institute (Jan. 11, 2018), https://www.brookings.edu/research/the-looming-student-loan-default-crisis-is-worse-than-we-thought/. 9 See, e.g., Alana Semuels, The Never-Ending Foreclosure, The Atlantic (Dec. 1, 2017), https://www.theatlantic.com/business/archive/2017/12/the- neverending-foreclosure/547181/; Annie Nova, Many Americans Say Their Financial Situation Is Worse Since the Great Recession, CNBC (Oct. 11, 2019), https://www.cnbc.com/2019/10/11/many-americans-are-still-struggling-from-the-great-recession.html. 10 See Seth Frotman, Broken Promises: How Debt-financed Higher Education Rewrote America’s Social Contract and Fueled a Quiet Crisis, 2018 Utah L. Rev. 811, 820 (2018), https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1172&context=ulr. 11 See, e.g., 20 U.S.C. §§ 1087(a) (total and permanent disability discharge), 1087(c)(1) (closed school discharge); 1087(c) (false certification), 1098ee (protections in case of national emergency); see also Abbye Atkinson, Rethinking Credit as Social Provision, 71 Stan. L. Rev. 1093, 1104 (2019). 5 DELIVERING ON DEBT RELIEF | FOREWORD 2020 to serve as a counterweight.12 By design, those safeguards contemplated the
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