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All Eyes on Congress to Undo Ineffective, Unfair Barrier to Education

Jag Davies,
Drug Law Reform Project
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June 18, 2008

After four decades of the disastrous “War on Drugs,” Americans have come to expect senseless, ruthless public policies, but Congress’ ban on financial aid for students with a drug conviction takes the cake.

A student who commits murder, rape, or any other serious crime may still be eligible for financial aid. Yet, thanks to the “Aid Elimination Penalty” provision slipped into the 1998 reauthorization of the Higher Education Act (HEA) without debate or a recorded vote, a student convicted of any drug offense — even possessing a single joint of marijuana — automatically loses federal financial aid eligibility. To date, more than 200,000 students have been denied federal loans, grants, and work-study because of the HEA’s little-known penalty. Since most states use federal financial aid guidelines to determine eligibility for state-based financial aid, the provision has also resulted in a majority of states withholding aid to students convicted of a drug law violation.

Ironically, the original intent of the HEA, passed over forty years ago, was to make education a reality for low-income would-be students. The HEA’s Aid Elimination Penalty achieves the exact opposite, since only working class and economically disadvantaged students are eligible for financial aid in the first place. To make matters worse, the vastly disproportionate rate of arrest, conviction and prison time for drug offenses for African Americans and Latinos also guarantees that the unfair effect of the penalty will be amplified for minority groups.

Education is a wise investment for America — it’s one of the smartest ways to spend our tax dollars, easily paying for itself by vastly increasing the ability of people to support themselves. Furthermore, education is proven to be one of the most effective tools to keep young people out of trouble with drugs. If we really care about the health and well-being of students, we should do everything in our power to keep them in the classroom. With college tuitions rising faster than inflation and the number of well-paying jobs shrinking, it’s senseless to disempower would-be students already in danger of being forced to society’s margins.

This past April, the U.S. Court of Appeals for the Eighth Circuit ruled that the aid penalty does not violate the double jeopardy clause of the Fifth Amendment to the U.S. Constitution, which protects individuals from multiple punishments for the same offense. Although the legislative history demonstrates that the proponents of the penalty clearly intended it as an additional punishment for students convicted of drug offenses, the court did not find that there was enough evidence to show that the provision was in fact an additional criminal penalty, as opposed to a civil sanction. Civil sanctions do not implicate double jeopardy protections.

This puts the ball squarely in Congress’ court to clean up the mess it created. It is our sincere hope that even though the court has turned its back on hundreds of thousands of would-be students, Congress will not.

Thankfully, the House and Senate are both currently considering legislation to repeal the Aid Elimination Penalty. In February, Rep. Barney Frank (D-Mass.) introduced legislation in the House of Representatives that would remove the penalty, and in March, Senator Chris Dodd (D-Conn.) introduced a similar bill in the Senate that would effectively eliminate the penalty by restoring the pre-1998 standard of judicial discretion — allowing judges to once again determine if and when denial of financial aid would be an appropriate punishment. HEA reauthorization is currently working its way through Congress and a final deal could be worked out any week now. Considering the hesitancy of the current Congress to risk appearing “soft on drugs,” however, the onus is on us to tell our elected leaders that this legislation is a no-brainer.

Please urge your member of Congress to co-sponsor and support this historic legislation by sending a personalized message to your representatives and senators today.

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