A student group that filed suit seeking to declare the Higher Education Act's (HEA) drug provision unconstitutional moved last Friday to win a preliminary injunction barring the Department of Education (DOE) from enforcing it until the case is resolved. If issued this month, such an injunction would open the way for thousands of potential students barred from receiving financial aid under the provision to submit their federal student financial aid forms (FAFSAs) in time for the coming academic year.
That same day, the department fought back, filing a motion to dismiss the class action lawsuit filed by Students for Sensible Drug Policy, three named students, and the American Civil Liberties Union (ACLU) Drug Policy Reform Project. In a preview of its legal strategy, the department argued that "the challenged statute is constitutional."
The lawsuit, SSDP v. Spellings, targets DOE Secretary Margaret Spellings because it is the department that enforces the HEA drug provision. Authored in 1998 by one of Capitol Hill's most resolute drug warriors, Rep. Mark Souder (R-IN), the provision denies federal title IV financial aid for specified periods to students convicted of drug offenses, no matter how trivial. Since the law went into effect, more than 180,000 students have been denied financial aid because they had a drug offense.
Under rising pressure from educators, financial aid administrators, civil libertarians and civil rights groups, students, and drug reform groups like SSDP organized into the Coalition for Higher Education Act Reform, Souder moved last year to block outright repeal of the law. He shepherded through Congress a "partial fix" that limits the provision to students whose offenses occurred while they were receiving financial aid. That change goes into effect this summer.
But a partial fix was not good enough for SSDP and the ACLU. After seeking and finding students to act as plaintiffs, the groups filed suit in US District Court in the Northern Division of South Dakota in March. Though not a party to the lawsuit, the John W. Perry Fund, a scholarship program created by DRCNet Foundation that assists students losing their financial aid because of drug convictions, played a key role in the effort -- two of the three student plaintiffs were located by DRCNet as a result of their contacting the Fund last year.
Kraig Selken of Northern State University in Aberdeen, South Dakota, is one of them. Selken was arrested for simple marijuana possession last October after police found a joint in the home he shared with two other students. He did three days in jail with 57 days suspended if he sought treatment. Under the HEA drug provision, students can have their federal aid reinstated if they attend a treatment program that includes random drug tests, but Selken's program didn't offer that and the court didn't order it, so he is out of luck on keeping his student loan.
Now, the legal sparring over the law keeping Selken from his studies is getting underway. "As usual, the federal government wants to silence students' voices and prevent us from challenging drug war policies that hurt our generation," said SSDP executive director Kris Krane. "We will have our day in court, we will win, and we will make sure that no student ever again has to worry about losing his or her access to education because of a minor drug conviction."
"The Department of Education wants the lawsuit to go away," concurred Adam Wolf, the ACLU Drug Law Reform Project attorney trying the case. "They don't want any dialogue about the aid elimination penalty in the HEA or its harmful effects. But our opposing argument shows our claims are meritorious and the court should strike down the law as unconstitutional."
The lawsuit argues that the HEA drug provision unconstitutionally punishes people twice for the same offense, violating the double jeopardy clause of the US Constitution's Fifth Amendment. They also charge the penalty irrationally designates a class of people, low- to middle-income students with drug convictions, as unworthy of educational aid, violating the equal protection guarantee of the Fifth Amendment's Due Process Clause.
The groups don't want to let another academic year slide by before blocking the law, thus the motion for a preliminary injunction and the call for a quick ruling, said SSDP campaigns director Tom Angell. "We want to make sure the Department of Education doesn't ruin the academic careers of any more students while this case moves forward," Angell said.
"The same day the government filed its motion to dismiss, we filed a motion for preliminary injunctive relief and asked the court to rule expeditiously," said Wolf. "By filing the motion when we did, we will ensure that the briefs are all before the court prior to the deadline for students to fill out their FAFSAs for the coming academic year. The deadline for that is the end of June. We're hoping the court will rule quickly and restore people's ability to receive student aid and continue their education."