In a rare scaling back of a punitive federal drug law, Congress has decided to restrict the range of a provision of the Higher Education Act that takes financial aid for college away from students who have drug convictions. Currently, the provision applies to any drug arrest, no matter how trivial in nature or far in the past. While the new form of the law will still apply to minor offenses, and to past offenses committed while in school, it will no longer count drug offenses committed at a time when the applicant was not in school and receiving federal aid.
Authored by leading congressional drug warrior Rep. Mark Souder (R-IN), the HEA drug provision blocks students with drug convictions from receiving financial aid for specified periods. According to the latest figures from the US Department of Education, the provision has so far stopped at least 175,000 potential college students from receiving financial aid, as well as an unknown number who, knowing or believing that they would be denied aid, did not bother to even fill out the application form.
Since the provision began to bite 5 1/2 years ago, a broad coalition of student, academic, civil rights, justice reform and addiction recovery groups organized known as the Coalition for Higher Education Act Reform (CHEAR), organized by DRCNet, has been fighting to repeal the drug provision. With Rep. Souder and his allies up against the likes of the NAACP and the American Council on Education, Souder retreated from the law he authored, saying he had never intended the provision to apply to old drug convictions, only to students who committed drug offenses while in college receiving federal aid. But the six years it took Souder to get his "fix" enacted suggest his efforts were less vigorous than his media campaign.
The so-called "Souder fix" is what passed Congress, leaving CHEAR members pleased but not exactly thrilled. "We are partially excited to see that Congress has enacted this partial fix," said CHEAR campaign director Chris Mulligan. "But there is unfortunately still plenty of work to be done. College students caught with a joint are still going to lose their financial aid and have to leave school, and that's no good," he told DRCNet.
"It is certainly significant that Congress has recognized there is something wrong with this law and enacted changes to it, and students all around the country deserve credit for forcing Congress to act," said Tom Angell, communications director for Students for Sensible Drug Policy, one of the key players in the coalition. "That said, we are disappointed that Congress didn't completely repeal the HEA drug provision," he told DRCNet.
While Angell said SSDP would continue to fight for repeal on Capitol Hill, he said he thought the best shot at outright victory would come through the courts. The ACLU Drug Policy Project announced just weeks ago that it was seeking potential plaintiffs in a lawsuit challenging the HEA drug provision, most likely on equal protection and retroactivity grounds. "We will come back next session and continue to work this in Congress, but at this point, it seems like our most realistic option is to file a lawsuit," Angell said.
That message was reiterated by outgoing SSDP executive director Scarlett Swerdlow in a statement Wednesday. "After seven years of political rhetoric and empty promises, Congress has finally acted to help some students affected by this terrible policy," said Swerdlow. "But this partial reform is like slapping a band-aid on a gaping wound. Tens of thousands of students will continue to be yanked out of school every year because Congress failed to listen to our concerns. The only option outraged students have left is to take action in the courts."
DRCNet executive director David Borden was not so quick to give up on Congress. "The Higher Education Act still has to come back for reauthorization next year, and an education conference committee will be a friendlier venue than the budget group headed by Sen. Judd Gregg (R-NH), no friend to repealing or reforming the drug provision," Borden said. "The Senate actually passed a further reaching rollback of the provision, but discussion of it got crowded out by the weekend's frenetic schedule, and they defaulted to the House version. We have a strong argument for saying this issue should be revisited next year in that context -- it's not like they looked at this in HEA reauthorization as is supposed to happen and the Souder fix is what they decided on." The previous Senate version would have eliminated questions about drug possession from the federal financial aid form.
And rather than taking the steam out of the effort for full repeal, the partial reform won this week could make the coalition's work easier, Borden argued. "Souder can no longer pose as the reformer," he said. "We're the reformers. That won't be ambiguous anymore."
While Borden conceded that a partial reform presents political challenges to pressing further, he argued that Wednesday's vote could be more a springboard to full repeal than an obstacle in its path. "We just won a partial victory," he said. "Even if it's not everything we want, it is a positive indicator of the potency of this issue and our efforts, not a negative one -- this is an occasion for encouragement, not discouragement." Borden continued, "How often does Congress scale back a punitive drug law? Not very often. This is a mildly historic occasion."
The battle for full HEA drug provision repeal is far from over. Now defenders of the measure will have to defend it on two fronts: the legal and the political. And the Coalition for Higher Education Act Reform is not going away.