Feature: Move to Undo Higher Education Act Drug Provision Passes Senate Committee

The Senate Committee on Health, Education, Labor and Pensions (HELP) passed legislation Wednesday that among other things would remove the infamous "drug question" from the Free Application for Federal Student Aid (FAFSA), the form used by tens of millions of students each year to apply for college financial aid, leaving opponents of the drug conviction/financial aid ban optimistic of winning repeal this year.

The Higher Education Access Act of 2007, budget reconciliation legislation that at the time of this publishing did not yet appear to have a bill number, includes language stating that "The Secretary shall not require a student to provide information regarding the student's possession or sale of a controlled substance on the Free Application for Federal Student Aid (FAFSA) or any other financial reporting form described in section 483(a)." While the drug provision itself would remain on the books, the mechanism currently used for enforcing it -- and the only obvious mechanism for enforcing it -- would be eliminated by order of Congress.

The provision, in effect since the 2000-2001 school year, bars students with drug convictions from receiving college financial aid for specified periods of time. Since then, more than 200,000 would-be students have been barred from receiving federal financial aid after answering "yes" to the drug question.

Until last year, the provision authored by ardent drug warrior Rep. Mark Souder (R-IN) applied to any drug conviction. But following a campaign by students and more than 330 health, civil rights, criminal justice, education, and religious organizations organized under the umbrella of the Coalition for Higher Education Act Reform (CHEAR), and extensive criticism of the law in the mainstream media, Souder and others moved to have it scaled back to apply only to offenses committed while the applicants were in school and receiving federal Title IV aid. Buoyed by the Democratic takeover of Congress in last November's elections, which put repeal supporters in charge of key Congressional committees, reformers continued to lobby for outright repeal of the provision this year.

That's not quite what happened in the Senate HELP Committee Wednesday. Instead of repealing the provision outright, the committee voted to remove the drug question from the FAFSA. The measure passed easily as part of the education bill sponsored by the chairman and ranking member of HELP, powerful Sens. Edward Kennedy (D-MA) and Michael Enzi (R-WY).

"We're thrilled that the committee has acted to make sure that students with drug convictions will no longer be automatically stripped of their aid and will be able to stay in school and on the path to success," said Tom Angell, government relations director at Students for Sensible Drug Policy, an organization whose very existence was inspired by the HEA drug provision. "While it would be more appropriate to simply erase the penalty from the law books altogether, we support the committee's effort to make sure that students with drug convictions can get aid just like anyone else."

"CHEAR is ecstatic," said David Guard, a spokesman for coalition. "It's looking likely that our nine years of hard work are about to pay off in a big way." The HEA drug provision had always been Rep. Souder's baby and Souder's alone, according to Guard. "This has always basically been one moralizing man's crusade," he said. "While we've managed to put together a really broad-based coalition, Souder has mostly been out there alone on this one."

The Senate is one thing, but repealing or changing the law also requires action in the House of Representatives. According to SSDP's Angell, the prospects look very good there indeed.

"We fully expect the HEA reauthorization bill in the House will include full repeal," he said, citing the support of key committee members who support it led by House Education and Labor Committee chairman Rep. George Miller (D-CA), and including Reps. Bobby Scott (D-VA), Danny Davis (D-IL), Dennis Kucinich (D-OH), and Rob Andrews (D-NJ).

If repeal language survives the process in the House, as seems likely, it will still require action in a joint congressional conference committee. Such a committee will have to reconcile any differences between the House and Senate legislation, including the difference between repeal and mere removal of the question from the form. Also, repeal language on the House side is more likely to appear in the HEA reauthorization bill, not in budget reconciliation as happened in the Senate.

"It's a little confusing right now how all that is going to play out," said Angell. "Will there be one conference for the reauthorization bill and one for the budget? We don't know yet," he said. But in either case, Angell was fairly optimistic that outright repeal could be achieved. "We think the Senate HELP committee has expressed its intent to not see this penalty enforced anymore, so with full repeal language in the House, we'll be in a good position to really, finally achieve repeal."

But that's getting a little bit ahead of the game. While chances are good for HEA drug provision repeal this year, it isn't a done deal yet, and there is always Souder lurking in the wings. "There is still a lot of work to be done," said Angell. "We have to make sure there are no hostile amendments on the floor, and Souder is still on the committee. He's sure to offer an amendment, and we need to be arming our allies in Congress with the information they need to defeat that amendment."

Nevertheless, reformers consider the situation to be highly promising. If repeal happens this year, it will be the first time that a federal drug law has been repealed since 1970. Let's hope that's a harbinger of other good things yet to come.