Bankruptcy court overlooks predatory lending, discharges student loans based on debtor’s autism instead.

On May 17 in Todd v. Access Group, Judge Robert Gordon of the Bankruptcy Court for the District of Maryland issued one of the most offensive (despite being ostensibly benevolent) decisions I’ve seen in a while, in which he forgave a woman’s massive student loan debt in light of her Asperger’s Syndrome.

I can’t quarrel with the overall outcome. This woman had amassed over $300,000 in student loan debt that she couldn’t possibly repay. She had started amassing the debt pursuant to her Rehabilitation Plan at 39, having never held a long-term job in her entire life. While education is often helpful, it’s unclear why Rehab Sevices would encourage a woman who’d never held a job in her life to go to law school, a profession that has a remarkably poor employment rate and high debt load, then drop out of law school and get a masters degree from some random place and then a PhD from an unaccredited online university, is just beyond me. All of these seemed practically calculated to saddle this woman with high student loan debt in return for utterly worthless degrees and no prospect for post-graduation employment. And, indeed, the debtor had not gotten a single job despite getting a Masters and a “PhD.” This is student loan abuse and ANYONE in a similar situation should have their student debt forgiven.

In addition, it appears that Ms. Todd lost many of the supports that had made her few past employment experiences possible. Despite having a significant disability that made it difficult to live independently, she received no housing support, no vocational supports beyond funneling her into overpriced educational programs, and no independent living supports. She was basically set up to fail.

That said, the opinion itself focused less on the inequitable actions of the lenders and rehab people, and more on how her “eerie disconnectedness from a comprehensive life experience” as a result of her “incurable ailment,” i.e. autism. Here are some choice quotes:

Notwithstanding the good intentions of all involved, Ms. Todd‟s and the DOE‟s collaborative mission to integrate her into the work force turned out to be a lost cause (outside of its purely academic benefits) due to her Autism and its utter negation of her ability to ever hold down a real job that paid significant wages.

The Court concludes that to expect Ms. Todd to ever break the grip of Autism and meaningfully channel her energies toward tasks that are not in some way either dictated, or circumscribed, by the demands of her disorder would be to dream the impossible dream.

And, rejecting to the defendants’ argument that Todd’s academic success meant that she could work:

[I]t is certain that however demanding her classroom experience was, Ms. Todd had the benefit of significant accommodations and the [Department of Education's ADA and Rehabilitation Act] enforcement power behind her as she made her way through school.

So basically, receiving ADA accommodations mean that your degree doesn’t count as much of an achievement.

As bad as these quotes are, the quotes from the plaintiff’s expert are even worse:

A person with intellectual disability may be able to bus tables at McDonald’s but after 10 minutes the person may walk out the door and do something else unless the supervisor standing there telling them you can’t go outside to look at the birds, you need to bus the tables and this is how you do it.

So a person with Asperger’s syndrome cannot focus on a task and execute an eight hour day of something productive in order to be paid for doing it or producing something that is of less importance to an employer.

Yes, he did just say that Asperger’s is an “intellectual disability” that renders one liable to just wander off of the job site for no reason (keep in mind that this woman had no history of wandering off in the one job she’d had previously, and in fact had testified that she almost never leaves her house).

That this sort of catastrophic description of disability is extremely common among lawyers representing people with disabilities, especially those who are seeking some sort of benefit tied to the person’s ability to prove they can’t work. Lawyers aren’t really programmed to think much about how perpetuating stereotypes like this can hurt others with disabilities, such as those who may lose access to educational opportunities that actually will lead to work or those who are trying to combat employers’ perceptions that people with their disabilities aren’t valuable employees (and this case has already elicited delightful comments on the the ABA Journal’s article on the case, complaining that the ADA shouldn’t force lenders to lend to people with disabilities, and schools shouldn’t be admitting them).

That said, I’d like to think that a different litigation strategy could have gotten Todd the student loan relief she needed without forcing her to testify in court, and present expert testimony, that she was inherently unemployable and all of her academic achievements were meaningless. This sort of strategy can actually harm clients’ ability to deal with having a disability in the long term. Unfortunately, lawyers also aren’t really programmed to think about the effects that a litigation strategy will have on their clients’ lives beyond whether or not it will help the client win a particular case.

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5 Comments

Filed under Disabilities, The Law as Applied to Weird People & Situations

5 responses to “Bankruptcy court overlooks predatory lending, discharges student loans based on debtor’s autism instead.

  1. SR

    Thanks. I’d been hoping you’d comment on this one since I first saw it pop up on my newsfeed. Now I know why it didn’t sit right with me when I read it the first time.

  2. It’s weird because I’ve definitely had people describe me in that kind of way when I am seeking accommodations or services. It’s the kind of thing you learn to just accept or even associate with being able to get the support you need, to the extent that some people will get mad if you DON’T talk about them that way. Or certainly if you don’t talk about their helpless little autistic sister that way.

    At 22 I’m about to get my first job working at a summer camp (not a stereotypical job for someone who supposedly has a “social skills deficit”!). I hope I’ll do well. At the same time I wish I could have been deemed to be the kind of person who deserved either state financial support or help with finding jobs before I got to be this old. I hope that if I need those things in the future I’ll be able to get them. But it’s interesting that there’s this dichotomy of helpless person versus full person and that if you’re disabled you can’t be both.

    I wonder if she would have been forgiven her debt if the lawyer had used another argument. I obviously know WAY less about the law than you but my subjective experience as a disabled person says that they wouldn’t have.

    • Twitchy Woman

      Hi Pancho – I’ve been thinking about this comment because it merits a more thoughtful response than anything I’ve been able to compose this week. In the meantime I wanted to say that I agree that there’s a systemic perception among advocates for benefits (and people seeking benefits) that this is how you get help.

      I would like to think that there are ways to characterize disability that will enable people to claim disability benefits without having to elicit pity from judges regarding how little they can do overall – an accommodations/support rather than charity model – but lawyers are understandably reluctant to try new approaches. This reluctance, though, can be harmful: a close friend of mine really needs SSDI, for example, but the process of claiming it would require her to prove to a judge that she can’t do anything on her own as a result of her depression, and this in and of itself will likely make her depression worse and more intractable. So she’s going without.

      Moreover, when judges hear these arguments, and only these arguments, from attorneys for people with disabilities, that essentially teaches them that this is the way to think about disability. Those judges might then discriminate against people with disabilities in other contexts, such as discrimination claims. With bankruptcy judges it’s not as much of a problem since they rarely if ever have to deal with discrimination claims, but you do see this a lot with regular federal judges, as they typically hear far more social security disability appeals than disability discrimination cases.

  3. Remember student loans are generally not dischargeable in bankruptcy proceedings. Undue hardship (really high standard) or permanent disability are basically the only ways out.
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    • Twitchy Woman

      I’m completely aware of this. My point is that this is an offensive way to characterize disability and that “undue hardship,” given the fact that she was induced to take on the loans by a rehab agency that had a duty to help her find employment and should have known that the degrees weren’t likely to lead to a job, might actually be a better case for why she’s entitled to discharge.

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