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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.

Blasphemy: College Reporter Quotes Us in Defense of the HEA Drug Provision

Ordinarily a lame anti-drug editorial in a college paper would escape our attention. Not this time. Nicki Croly of The State Hornet in Sacramento uses statistics from our website in defense of the HEA drug provision:

Some people would argue that this law makes it even harder for minorities to get a college education. This argument is invalid because according to www.stopthedrugwar.com, there are no statistics indicating that African-Americans use drugs at a higher rate.

Croly’s interpretation of this statistic is just plain wrong. It’s true that drug use among African-Americans is equal on average to that of Whites. But arrests, convictions, and punishments such as the denial of financial aid for college are imposed upon people of color at alarmingly disproportionate rates.

Furthermore, I highly doubt that our site mentions drug use rates among African-American without also noting the disparity with regards to arrests, convictions, and sentencing. For example, here’s a statement from our HEA talking points page:

Minorities are disproportionately affected by the HEA drug provision. While African Americans make up 13% of the population and 13% of drug users, they account for 55% of all drug convictions. The disparate racial impact of drug law enforcement will inevitably spread into the realm of higher education via this law. Accordingly, minority groups have far higher percentages of their members who are ineligible for federal
financial aid than whites. Currently, more African American men are in prison than in college.

So yes, the HEA drug provision absolutely hurts minorities more than anyone else. But that’s just one of a whole host of problems created by this counterproductive law. Here’s ten more:

  1. College education is proven to reduce drug use. Therefore, forcing students out of college obviously and undeniably increases drug use overall.
  2. The HEA drug provision only affects good students. If you’re getting bad grades you can’t get aid anyway.
  3. Students arrested for drugs get punished in court. It’s not like they’re getting away with anything.
  4. Many students misunderstand the rules and give up on college even though they’re actually eligible. Their lives are changed forever.
  5. Taking away opportunities from students sends a message that we don't want them to succeed in life. All students must be encouraged, not pushed down.
  6. Regaining eligibility by completing rehab is often impossible because it’s more expensive than school. Nor does getting busted for drugs necessarily mean that you need rehab.
  7. Most HEA victims were busted for small time marijuana possession. Casual marijuana use has nothing to do with success in college. Trust me.
  8. The HEA drug provision fails to address the most significant drug problem on college campuses: alcohol.
  9. The HEA drug provision only targets low-income students. These are the very people the HEA is supposed to help.
  10. Judges already have the authority to revoke financial aid. If a judge meets the student in court and doesn’t want to revoke aid, we should respect that decision.

The HEA drug provision causes drug abuse by driving students away from school and towards drugs. If you support the HEA drug provision, you support drug abuse.
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