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Feature: Higher Education Act Drug Conviction Penalty Repeal Stymied As Democrats Choke -- Again

Submitted by Phillip Smith on (Issue #511)
Drug War Issues
Politics & Advocacy

A step toward victory turned to ashes for the broad coalition pushing for repeal of the Higher Education Act's (HEA) drug provision (also known as the "Aid Elimination Penalty") last week as, for the second time this year, key Democratic politicians refused to push it ahead. Now, the only chance to achieve repeal this session will come in conference committee, thanks to a possible tactical error by the bill's author.

Bobby Scott offers his short-lived HEA amendment this month
Earlier this year, language that would have removed the drug question from the federal financial aid form, but without repealing the underlying law, made it as far as the Senate floor as part of language approved by the Health, Education, Labor & Pensions (HELP) Committee for the years-delayed HEA reauthorization bill. Sen. Lindsey Graham (R-SC), however, offered a successful amendment to strip the language, which HELP Chairman Sen. Ted Kennedy (D-MA) as floor manager allowed to go through without a fight. Last week, House Democrats led by Rep. George Miller (D-CA), chair of the House Committee on Education & Labor and a supporter of repeal, declined to hear an amendment to their HEA bill that would have enacted repeal.

The Aid Elimination Penalty bars students with drug convictions from receiving federal financial aid for specified periods of time from their conviction dates. As originally written by Rep. Mark Souder (R-IN), it punished students for any infraction in their past. But last year, under pressure from a broad range of educational, religious, civil rights, and other groups organized into the Coalition for Higher Education Act Reform (CHEAR), Souder amended his own law so that it now applies only to offenses committed while a student is in school and receiving aid.

Under the provision, more than 200,000 students have been denied financial aid. An unknown number have been deterred from even applying because they believed -- rightly or often wrongly -- that their drug convictions would bar them from receiving aid.

Instead of going for repeal, as key Democrats had promised, the committee heard and adopted two amendments to the provision by its author, Rep. Mark Souder (R-IN), which are actually seen by advocates as likely to be positive steps. One would require schools to inform enrolling students in writing about the existence of the penalty. Another would loosen a clause in the law that currently allows students to regain their eligibility for financial aid by completing a drug treatment program, by allowing them to just pass two randomly-scheduled drug tests administered by a treatment program.

The dispute over the Aid Elimination Penalty wasn't limited to Capitol Hill committee hearings. In a move to the blunt the efforts of the penalty's foes, Souder sent out a Dear Colleague letter where he accused the 500 groups that belong to CHEAR of being "drug legalizers," an attack that did not go unnoticed.

"I wanted to make you aware of an important provision in the current law that is facing assault by a small but determined coalition of drug-legalization groups," Souder wrote in the November 1 letter. "Before you are bombarded by the talking points of such groups, I wanted to make sure everyone has the facts straight," he wrote.

Taking umbrage at Souder's characterization of their organizations, 16 groups responded with their own letter to Souder, asking him to retract his statement and requesting a meeting with him to explain directly why they oppose his law. "We, the undersigned organizations, would like to assure you that the coalition supporting repeal of the Aid Elimination Penalty ranges far beyond 'drug-legalization groups,' said the letter. "Last week, over 160 organizations signed a letter to Education & Labor Committee Chairman George Miller and Ranking Member Buck McKeon calling for full repeal, bringing the total number of groups in opposition to the penalty to more than 500. These organizations represent a broad range of interests, including the areas of addiction treatment and recovery, civil rights, college administration and admissions, criminal justice, legal reform and faith leaders. The overwhelming majority of signatories of the letter to Chairman Miller and Ranking Member McKeon do not endorse drug legalization. As just a small sampling of such organizations, we, the undersigned, want to make clear that opposition to the [anti-drug provision] is not in any way dependent on support for broad drug legalization."

The signatories to the letter were the American Federation of Teachers, the American Friends Service Committee, the Coalition of Essential Schools, College Parents of America, the Fellowship of Reconciliation, Friends Committee on National Legislation, International Nurses Society on Addictions, the National Association of Social Workers, National Council on Alcoholism and Drug Dependence, National Education Association, National Women's Health Network, National Youth Rights Association, Therapeutic Communities of America, the Union for Reform Judaism, the United Church of Christ Justice and Witness Ministries, the United Methodist Church-General Board of Church and Society, and the United States Student Association."

Souder didn't respond to that letter, but he did lash out again, this time at the Capitol Hill newspaper The Politico, whose Ryan Grim had been writing about the conflict. In a letter published in the The Politico complaining about the coverage of him calling people drug legalizers, Souder resorted to the very same tactic. "Your readers ought to know that Grim was previously employed by the Marijuana Policy Project, a drug legalization group," Souder wrote. "Grim is hardly an objective reporter." However, he did not contest any of the facts Grim reported. Grim's biography, including his past employment, is available at The Politico's web site.

Souder has clearly shown himself to be a dogged defender of his creation. If only the Democrats had shown the same fortitude in fighting to repeal it, advocates complained. "It's disheartening that a huge chorus of experts in substance abuse and education, as well as tens of thousands of students are calling for repeal, and Congress still hasn't listened," said Tom Angell, director of government relations for Students for Sensible Drug Policy, one of the point groups in the campaign.

Bill Piper, director of national affairs for the Drug Policy Alliance, was less diplomatic. "By not changing this counterproductive policy, Democrats are saying that tens of thousands of students should be kicked out of college and denied an education," he said. "The American people have moved beyond the drug war hysteria of the 1980s, but many Democrats still don't realize this," said Piper. "They're afraid reforming draconian drug laws will make them look soft on crime, even though polling shows that voters are tired of punitive policies and want change." Democrats had "chickened out," he said.

In the House committee last week, Rep. Bobby Scott (D-VA) spoke eloquently about the injustice of the HEA drug provision, but then withdrew his amendment to kill it, noting that the Chair was not prepared to hear amendments that would have financial implications.

"Denying students aid for drug-related charges is simply bad policy," said Scott. "It increases long-term costs to society. It unfairly targets poor and minority students -- minority students because they are traditionally profiled for drug offenses, and poor students because those are the ones that need financial aid to attend school. It only does drug offenses. It doesn't do anything against armed robbery, rape or arson. And so it's somewhat bizarre in its application and it creates a double jeopardy for students who have already paid their debt to society."

Scott then asked that a list of the more than 500 organizations supporting repeal be entered into the congressional record, and then he withdrew his motion. "Unfortunately, Mr. Chairman, as you've indicated, you're not considering amendments that would have to be scored financially and because of that, Mr. Chairman, I will withdraw this amendment at the end of the debate, because we do not have an offset."

Then, after Chairman Miller -- to advocates' consternation -- congratulated Souder for his persistence in scaling back the law, Souder introduced the pair of amendments mentioned above. "Without objection, both of these amendments will be accepted," Miller said, accepting them without having written copies before the members. "It's just a testimony to the extent to which we trust Mr. Souder's word here."

While activists are disheartened -- to put it mildly -- by the performance of the Democrats, they still see some faint hope for action later this session, and it could come because Souder, by introducing his amendments, will open the bill to discussion in conference committee. "Souder may have screwed up here," said SSDP's Angell. "Because the House version now has language modifying the penalty, that automatically makes it a topic for the conference committee."

While activists want outright repeal, they are pleased with this year's Souder amendments. "If Congressman Souder keeps working year after year to keep chipping away at his aid elimination penalty, he will end up doing our work for us," said Angell. "We encourage Souder in his continuing effort to scale back his own creation."

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Giordano (not verified)

Souder could dress up the Aid Elimination Penalty in a yellow tutu and make it dance on stage and it would still be a monstrously ugly violation of decency and common sense.

Had Congress applied the basic legal concepts of fairness and equity from the beginning, Souder’s vindictive and biased student aid Penalty would have been shredded as soon as it surfaced. What a waste of human potential.


Fri, 11/23/2007 - 7:04pm Permalink
Anonymous (not verified)

suck eggs for the GOP. If the GOP don't want it the Democrats will kill it after lying to their constituents by bringing a good bill up.


Fri, 11/23/2007 - 7:29pm Permalink
rita (not verified)

Democrats are not the only politicians involved, here, and there is certainly enough blame to go around. Personally, I have yet to see even ONE American politician who wasn't a self-serving, arrogant hypocrite. The whole idea of punishing people for victimless activities is unAmerican, inhumane and socially and financially irresponsible. Adding life-long financial sanctions compounds the evil.

No other felony convictions carry the punishments that keep on punishing. Only drug felons are prohbited from receiving federal aid for education or housing and from receiving food stamps; and, in Arizona, at least, drug felons are prohibited from working in any capacity around children or vulnerable adults -- drug law violations (victimless crimes) are ranked in the same category as abuse and theft.

There is no way to reform these policies or the war that spawned them; a war whose only measure of success is the number of criminals it creates. The so-called "war on drugs" is, in reality, a war which our government is waging against its own citizens, for no other reason than "because they can." I think it's way past time to demand that those we trust to run this country stop destroying it.

Sat, 11/24/2007 - 6:10am Permalink
borden (not verified)

In reply to by rita (not verified)

Hi, Rita. Thanks for bringing up the housing and food stamps issues. We are currently working to expand the coalition effort to include those problems as well. The hiring practices issue is harder, as in most cases it involves the choices of private employers, though we're interested in that too. We get email all the time from people who can't find jobs because of having criminal records. It's a huge national problem that is beginning to get some attention. There's money being made on the criminal record searches too; I've probably had to block 20 or 30 different Google ads offering them, in just a few months.

David Borden, Executive Director the Drug Reform Coordination Network
Washington, DC

Sat, 11/24/2007 - 9:31am Permalink
Anonymous (not verified)

Souder is laughing at us....again. The complete criminalization of the US population is a distinct possibllity since common sense is not really so ...common. It's about control...of everything.Where there's war ,there's always war criminals.Guess who's one of them.

Sat, 11/24/2007 - 12:14pm Permalink
Anonymous (not verified)

as someone who works with college students, it is frustrating to see this type of values-based nonesense continue, while students who commit sexual assault often walk away without any consequences. things like sexual assault will always be problematic to address, but continuing to take these types of steps against drug users and tying it to money is absurd.

It is bad enough that there is still such a punitive approach to drugs as opposed to education. Its a JOKE that a policy like this targets financial aid as the consequence. I wonder how many current members of the legislature will need to worry about a FAFSA when their kids go to school. I am guessing 0.

Sun, 11/25/2007 - 1:37am Permalink
Anonymous (not verified)

When will our little clique of reform leaders realize the Democrats are giving them to the same verbal blow jobs the religious right has been receiving from the Republicans?

I'll be in New Orleans next week to see just what our leaders consider to be the "new bottom line," and whether it will be drawn in pencil or ink.

Thu, 11/29/2007 - 4:50pm Permalink

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