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.