A decade ago, Congress approved an amendment to the Higher Education Act (HEA) authored by arch-drug warrior Rep. Mark Souder (R-IN). That amendment, variously known as the HEA drug provision or the Aid Elimination Penalty, denied loans, grants, even work study jobs to would-be students with drug convictions. Since its inception, more than 200,000 would-be students have been denied aid, and an unknown number have simply not applied, believing rightly or wrongly that they would not be eligible.

The fund reflects the goals and views of its namesake, New York City Police Officer John William Perry, a Libertarian Party and ACLU activist who often spoke out against the war on drugs. In addition to wearing the NYPD uniform, Perry was also a lawyer, athlete, actor, linguist, and humanitarian. He was filing his retirement papers at One Police Plaza when the planes struck the World Trade Center on September 11, 2001. He rushed at once to the scene, where he died attempting to help others.

The Perry Fund has its goal not only providing educational opportunities to those denied them by the provision, but also to raise the issue of the provision's unfair and counterproductive consequences, and ultimately, to repeal the Souder amendment entirely. Although some progress has been made it scaling back the drug provision, it is still on the books. Two years ago, in response to a rising clamor for repeal from the Coalition for Higher Education Act Reform (CHEAR), Rep. Souder himself offered an amendment that would restrict the loss of aid eligibility to people who were already in school and receiving aid when arrested.

Efforts to win outright repeal as part of HEA reauthorization faltered this year when House Democrats failed to act when push came to shove. However, future applicants will have the opportunity to regain eligibility by passing two unannounced drug tests administered by a treatment program. Depending on how this is implemented, it could create a shorter and less expensive way for students to regain their financial aid.

"We regret that the Perry Fund remains necessary because Congress has not fully repealed its ill-conceived anti-financial aid law," said David Borden, executive director of DRCNet and founder of the Fund. "Along with helping a few deserving students each year, the fund also makes a statement -- we don't just think this is a bad law, we're actually handing out scholarships to individuals targeted by the government's drug war. We don't believe people should lose their financial aid because of drug convictions," he said.

With only partial reforms, there is still a sizable pool of potential HEA drug provision victims. This semester, the Perry Fund is helping two of them.

Brandi McClamrock

"I was in school, and my roommate was dealing pot, and I helped her and one of her customers out by giving him a couple of bags," said McClamrock. "My roommate was setting me up; she had been busted and the cops offered her a deal: If she could get them somebody bigger, they would drop the charges. The cops raided my house and arrested me and charged me with three felonies, even though it was all less than an ounce."

After two years of court dates and legal expenses, McClamrock pleaded guilty to misdemeanor charges of possession with the intent to distribute. She escaped without jail time, but had to serve two years of unsupervised probation. But the consequences of her marijuana conviction were just beginning to be felt.

"I started getting turned down for jobs because of my criminal record," she said. "I've been waiting tables because I couldn't get a job in my field, so I decided to go back to school in health care management at my local community college. I can't afford to pay for college -- I can barely pay my own bills -- but when I filled out the FAFSA, they denied me."

That was a huge disappointment, said McClamrock. "I had no idea they weren't going to let me have financial aid because of that. I'm 25 years old, my criminal record is holding me back, and now I can't even go back to school? Even when I'm trying to better myself and my prospects?"

Fortunately for McClamrock, an advisor suggested she look online for scholarships she could apply for, and she found the Perry Fund. While the amount she received from the Fund was only in the hundreds of dollars, it was critical. "It was absolutely the difference between me being in school and not being in school," she said. "This is a really good thing."

Matt Daigle

"I was ineligible for assistance for two years," he said. "I took a full semester off to work, then paid for one class last semester, but now I can afford to go back. One of the counselors at the college went online and found the Perry Fund, and it was really a big help. I only have one more semester of ineligibility for financial aid, and this is keeping me in school until then," said a pleased Daigle.

"The Fund is really a big help for a lot of people," he said. "The way that law is, they want to punish you. They want you to be a better person, but then they make it more difficult to do that. The Perry Fund lets you know there are people backing you up, and I'm grateful for that."

"These students have been sent to jail or prison, they've paid fines, they've paid lawyers, they've spent countless hours resolving their legal situations," said Borden. "Why, after all of that punishment already handed down, should they continue to get treated differently?"

"It's not just that we oppose having drug prohibition, which I do, and John Perry also did very strongly," Borden continued. "But this is also a second punishment of people who have already been punished by the criminal justice system. Staying in school to finish your education is almost by definition a positive step. It's foolish to make that more difficult."

Outright repeal -- not more limited reform -- is necessary for another reason, too, said Borden. "As long as this law is on the books, large numbers of people will continue to mistakenly assume they are permanently ineligible for financial aid. Many people just assume the worst, and having this law on the books just winds up pushing people to the margins. We get emails almost every day from people who think they aren't eligible when they are."

The Hawaii State Teachers Association (HSTA) and the administration of Republican Gov. Linda Lingle are locked in battle over whether the teachers will honor provisions of a contract signed last year that requires random drug testing of teachers. Although the union membership approved the contract in a vote last year, the union is now balking at what it says are constitutionally questionable drug testing provisions.

drug testing lab

HSTA officials said last week that they had not understood the legal issues surrounding random drug testing when they negotiated the contract last year. "Today, both parties know much more about the legal issues surrounding drug testing that were not known at the time of the initial agreement," said HSTA executive director Mike McCartney in a July 17 letter to Department of Education superintendent Pat Hamamoto. "We cannot knowingly agree to procedures that violate the state and federal constitutions. Any agreement of this type would subject the state and all of us to unnecessary litigation," McCartney wrote.

The Lingle admistration called foul, with Gov. Lingle herself issuing a statement the next day saying: "HSTA leaders have made a mockery of the collective bargaining process."

That same day, the state filed a complaint against the HSTA with the Hawaii Labor Relations Board. But the HSTA wasn't backing down.

Volcano National Park, Hawaii Island

"You can randomly test pools of people if you have reason to test them," said Takabayashi told the Honolulu Advertiser this week. "But if you take 100 people and you test them for no reason at all, then that would be against each individual's constitutional rights."

"They're trying to redefine what random is," complained Jim Halvorson, state deputy attorney general. "The problem with what they are saying is that it doesn't comply with the contract," said Halvorson. "The contract provision says all teachers."

But Takabayashi said the union has been advised by its lawyers that random drug testing of all teachers would violate the Fourth Amendment's proscription on warrantless searches and seizures. "We want to make sure that whatever method is agreed to, it can withstand the constitutional challenge we know we're going to get," Takabayashi said. "For example... we're proposing testing those who have excessive absences. Or maybe those caught for DUI. What I'm telling you is that there needs to be reason for putting them in a pool to be tested. Not just everyone in general."

Hawaii's teachers got themselves into this mess by agreeing to a contract with random drug testing in the first place. Now, the battle is on to see if they can get out of the agreement they signed.

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

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."