Information and Due Process of Law: Does the Mode of Information Influence the Property Rights of Participants in the Federal Student Loan Program?
This study examined the laws, policies and practices of the Federally Guaranteed Student Loan Program in relation to the theory of the mode of information as set out by Mark Poster (1990). The research question focused on the relationship of information to due process. The role of information was delineated by Poster’s “mode of information” theory.
The mode of information consists of three elements. The first is the monitoring and surveillance of people and populations through electronic records. The second is the utilization of these records to constitute the individual based on a norm. The third is utilization of this information to discipline or punish the person or population.
The study found a relationship between how information is utilized within the student loan program and due process issues related to the offset of income tax refunds. Regarding the monitoring and surveillance element, the study found that the regulatory principles of due diligence had been compromised by the information processes and policies of student loan guarantors and the Department of Education. The practice of reasonable due diligence is the accepted standard for valid administrative record keeping. The efforts of the Department and USAFunds to circumvent application of the Fair Debt Collection Practices Act constituted the core of the compromise of the principles of due diligence.
Regarding the element of constituting the individual as norm and the element of discipline and punishment, the study found that information was used to define the individuals who had defaulted on loans as “deadbeats.” Discipline and punishment has been applied by the removal of available forms of relief and procedural due process to the point of creating a bill of attainder upon defaulting consumers within the federal student loan program.