Feature:
Plaintiffs
Wanted
--
ACLU
to
File
Lawsuit
Challenging
Federal
Ban
on
Financial
Aid
for
College
Student
Drug
Offenders
12/2/05
The American Civil Liberties Union Drug Law Reform Project is preparing to file a class action lawsuit challenging the constitutionality of a federal law barring students with drug convictions from receiving financial aid -- and it's looking for a few good plaintiffs. The legal move comes after seven years of struggle by a broad-based coalition to get Congress to repeal the law. While Congress this year is moving to adopt a "fix" to limit the law's scope, that isn't enough for opponents who seek outright repeal. Impatient with Congress's glacial pace, now those foes are taking the battle to the federal courts.
Since the provision began to bite 5 1/2 years ago, a broad coalition of student, academic, civil rights and justice reform organizations known as the Coalition for Higher Education Act Reform (CHEAR) organized by DRCNet with the ACLU as a key partner, has been fighting to repeal the drug provision. With Rep. Souder and his allies up against the likes of coalition members the American Council on Education and the National Association of Student Financial Aid Administrators, this year reformers are on the verge of winning a partial victory. Rep. Souder retreated from the law he authored, saying he had never intended the provision to apply to old drug convictions, but only to students who committed drug offenses while in college receiving aid. The so-called "Souder fix" is now pending in Congress. It will limit the provision's reach to include only students whose offenses occurred while they were in school and receiving federal financial aid. But with drug arrests at an all-time high -- more than 1.5 million last year -- that will still leave thousands or tens of thousands of students in the lurch every year, barred for receiving financial aid for offenses as trivial as simple marijuana possession. "We support the proposed legislation, but it is not a complete solution, and we don't even know if it is going to pass this year," said the ACLU Drug Law Reform Project's Adam Wolf, who is heading preparations for the lawsuit. But with Congress fiddling around with partial fixes, it is time to go to court, Wolf told DRCNet. "What really needs to happen is that the government needs to see it cannot deny an education to someone just because he or she has a drug conviction." While the lawsuit is not yet filed, the ACLU will likely challenge the HEA drug provision on three grounds, said Wolf. "First, it is unlawfully retroactive in that it punishes people for conduct that occurred prior to the enactment of the HEA," he explained. "Second, we are looking at a claim for violation of equal protection under the law. Third, the denial of student loans is a form of double jeopardy in that students are punished twice -- once by the court, and once by the denial of loans for violating the drug laws. In enacting the law, legislators were very clear about this. They said people like this need to be punished as part of our nation's effort in fighting the war on drugs." CHEAR's Chris Mulligan is pleased the ACLU is moving forward on the legal front. "We have been going through the legislative process," he told DRCNet, "and Congress is considering some potential changes, but repeal of the law is not really on the table in Congress. Regardless of whether Congress acts to reform the drug provision, people are still going to have their lives ruined because of this policy." "We have people who were already punished once, and denying them financial aid acts as a second, illegal punishment," Mulligan continued. "And where is equal protection under the law when only those students poor enough to need financial aid are punished?" "Congress has failed to listen to the growing chorus of student voices demanding repeal of this discriminatory and counterproductive law," said Scarlett Swerdlow, executive director of Students for Sensible Drug Policy (SSDP). "Far too many students have had their education held hostage by drug war politics. It's time to stand up and take our aid back." CHEAR, DRCNet and SSDP are doing what they can to find potential plaintiffs for the lawsuit. "We're very excited about this development because it provides us with a useful tool in articulating that the drug provision just hasn't been dealt with and is fundamentally flawed," Mulligan said. "We've sent some people who said they were willing to be plaintiffs over to the ACLU, and we're trying to reach out to others right now, including Perry Fund scholarship applicants." With the Perry Fund contact database numbering in the hundreds, the program is likely to be a major source of plaintiffs for the suit. But ACLU is looking for more in order to strengthen the class action lawsuit, Wolf said Wednesday. If you have been or will be affected by the HEA drug provision, call the ACLU Drug Law Reform Project toll-free at 1-866-4-HEA-FIX or email Wolf at [email protected] -- let him know you heard about it from DRCNet and let us know too.
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