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Higher Education: Federal Court Dismisses Challenge to HEA Drug Provision

A federal court judge in Aberdeen, South Dakota, last Friday dismissed a lawsuit challenging the constitutionality of the Higher Education Act's drug provision, which bars students from receiving federal financial assistance if they receive a drug conviction while in college. The suit had been filed by three individual students -- two recruited by DRCNet -- backed by Students for Sensible Drug Policy and the ACLU Drug Law Reform Project.

Under the HEA drug provision, nearly 200,000 students have been denied financial aid. As originally passed, the drug provision applied to any drug conviction, but under rising attack from educators, students, and civil rights groups, the act's sponsor, Rep. Mark Souder (R-IN) drafted a "fix" limiting it to drug offenses committed while students are in college. Souder's partial reform to the law passed earlier this year as part of a larger educational package. But that reform does not satisfy the act's opponents, who seek a total repeal.

In the lawsuit, the ACLU argued that the HEA violated the Fifth Amendment on two counts. First, the group argued, by singling out drug law violators, the act violated the amendment's due process clause. Second, the HEA drug provision amounted to double jeopardy by penalizing a student twice for the same offense.

But federal Judge Charles Kornmann didn't agree. In his decision granting a government motion to dismiss, he rejected both Fifth Amendment arguments. Still, Kornmann agreed that the provision is unfairly. "It is true," he wrote, "as pointed out by the plaintiffs, that students convicted of possessing small amounts of marijuana may be prevented from receiving federal student financial aid while those students convicted of serious sexual or violent crimes would not suffer a similar fate. However, the mere fact that the classification results in some inequality does not, in and of itself, offend the Constitution."

"This decision is flat wrong. It's completely irrational to attempt to reduce drug abuse by kicking students out of school. Putting up roadblocks on the path to education only causes more drug abuse," said Kris Krane, SSDP's executive director. "It's unfortunate that students won't yet have our day in court, but we will soon be heard in the halls of Congress. On November 17, hundreds of SSDP members will take our concerns directly to lawmakers' doorsteps when we gather in Washington, DC for our national lobby day. The Removing Impediments to Students' Education (RISE) Act, which would repeal the penalty, already has 71 cosponsors."

At last report, a decision had not been made as to whether to appeal the decision.

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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Federal aid or loans to students

Funding the college tuition of students is not a Constitutionally enumerated power of the federal government. Frankly, I would like to see the federal government completely refrain from sending any "federal" (read taxpayers') money to ANY schools, states, students, artists, scientists, or to foreign countries as "aid" none of that falls under the Constitutional limits of government.

I see the argument on the behalf of students who have had a drug incident, but the point remains all of this is outside the legal (Constitutional) purview of the federal government. Stopping all this federal "aid" would leave more money in the pockets of the citizenry and students could get loans from banks or family if their own income didn't cover the cost of college tuition. Tho it is far more likely under such a scenario that they would not need such help, as they would be able to fund their own education if they get a job. Lots of people in my generation worked their own way thru college. Why should it be any different for this generation?

This (denial of government funding for students who got involved with drugs) is not an issue which I am willing to support -- even tho in my book it is the unalienable right of any person to ingest any intoxicant s/he wants, government (or busybodies) should have no say in the matter (it is strictly a property rights issue -- one owns one's own body and no one else, especially not government, has any right to determine what one may or may not do with or to one's own body).

martin holsinger's picture

federal court decision

I agree that the judge was chicken to deny the constitutional issues, but isn't it a wee bit disingenuous to argue that "'Putting up roadblocks on the path to education only causes more drug abuse,'" meanwhile ignoring the dubious validity of the current paradigm, which is that any illegal drug use is abuse?
I certainly don't agree with that, and would have a hard time keeping a straight face making the SSDP's anti-drug abuse argument!

Anonymous, above, takes up the common Libertarian fallacy that all tax revenue comes from individual taxpayers. The fact is that a percentage of federal revenue comes from taxes on corporations and from tariffs. Due to free trade and the undue influence of large corporations, this percentage has been dropping. This trend needs to be reversed. Those who are benefitting the most from our system ought to make proportional contributions to the mechanism that has helped them. Overall, I believe, as long as we have an economic system, it is reasonable for the government to act as an advocate for the underprivileged and use the tax mechanism redistributively to help out those who are less fortunate.

And then there's the question of the propriety of this entire economic/social model, but that's a question for another day!


Mr. Holsinger wrote:
"Anonymous, above, takes up the common Libertarian fallacy that all tax revenue comes from individual taxpayers. The fact is that a percentage of federal revenue comes from taxes on corporations and from tariffs."
And you think those corporations do not pass along the cost of those taxes to the consumers in the price we pay for goods and services? If so, you are either very naive or willfully blind.

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