Back to Bankruptcy’s Equitable Roots: Recalibrate the Dischargeability of Student Loans Through a Modified Eighth Circuit Approach


The relief available to student debtors under the United States Bankruptcy Code (Bankruptcy Code) is governed by § 523(a)(8). Under § 523(a)(8), a debtor may have their student loan debt discharged only if preventing the discharge of the student loan debt would impose an “undue hardship” on the debtor and the debtor’s dependents(Undue Hardship Exception). Because Congress has not provided a definition of “undue hardship,” the judiciary has been tasked with creating judicial standards to delineate the Undue Hardship Exception.

This Note proceeds in three segments. Parts I and II provide the legislative histories of the Bankruptcy Code and of § 523(a)(8), respectively. The Note will contextualize the nature of § 523(a)(8) by the various amendments to the Bankruptcy Code and the general principles upon which bankruptcy law is founded.

Part III opens by describing Congress’s failure to provide a definition for the Undue Hardship Exception. Then Part III discusses the various Undue Hardship Exception tests. The judiciary’s consequent attempt to construct an adequate standard for the Undue Hardship Exception begins chronologically with the misguided Johnson Test. The Bryant Poverty Test follows with its laudable, yet flawed, effort to inject an element of objectivity to help address the Johnson Test’s shortcomings. The current standard followed by a majority of the circuits, the Brunner Test, is then examined in depth. This section closes with the current Eighth Circuit’s minority approach of the Totality of the Circumstances Test.

Part IV proposes a new standard for the federal judiciary to utilize in determining whether a student loan debtor has satisfied the Undue Hardship Exception. With an emphasis on bankruptcy’s equitable nature, this Note’s proposed test modifies the Totality of the Circumstances Test in three principal ways. Each modification is provided an explanation and analysis that helps demonstrate why the proposed test is superior to both the Brunner Test and the Totality of the Circumstances Test.

Finally, the Note concludes with a brief summary of the inadequacies of the Brunner Test and the Totality of the Circumstances Test that this Note’s proposed approach attempts to remedy. As a result, this Note advocates for the uniform adoption of the proposed approach throughout the federal judiciary to provide the much-needed relief by American debtors.


Bankruptcy law, Student loans, Discharging student loans, Undue hardship, Brunner test, Bryant poverty test



Terry Ha (Washington University School of Law)



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