Drug War Flunks Out

Drug War Flunks Out

Students for Sensible Drug Policy and the ACLU are challenging a draconian Education Department rule that blocks student drug offenders from receiving federal aid.


Kraig Selken is a model student. A history major at Northern State University in South Dakota, Selken has maintained a GPA above 3.0 and was looking forward to a career as a teacher after his graduation in June 2007. But last October his hopes became a casualty of the “war on drugs” after he pled guilty to a misdemeanor for possessing a small amount of marijuana. Thanks to a provision of the Higher Education Act (HEA), Selken was automatically made ineligible for the financial aid he needs to pay for college and will not be able to complete his last year unless he finds some other way to cover the cost.

On March 22 Selken joined Students for Sensible Drug Policy (SSDP), a national organization committed to drug-law reform, and two other student plaintiffs in a federal class-action lawsuit, brought with the assistance of the ACLU’s Drug Law Reform Project. The suit charges that the HEA drug provision violates the due process and the double jeopardy clauses of the Fifth Amendment. By singling out drug offenders for punishment and stripping them of educational assistance on top of their criminal penalties, the lawsuit claims, the government is trampling on students’ constitutional rights. “I want to complete my education and help end an unconstitutional and nonsensical policy,” says Selken, “both for my own benefit and for the thousands of other students impacted by the provision.”

SSDP says that according to government figures, more than 180,000 people have been temporarily or permanently denied financial aid since the HEA provision went into effect in 2000. Drug crimes are the sole offense for which students lose eligibility. Murderers, rapists and child molesters are all eligible. Marisa Garcia is not. Ticketed for possessing a pipe containing marijuana residue just before the start of her freshman year at California State University, Fullerton, Garcia was stripped of her financial aid. Like Garcia, the vast majority of drug offenders are convicted of possessing a small amount of marijuana, and advocates believe this is also true of those denied financial aid by the HEA provision.

Since those who don’t require financial aid are unaffected, and since those most in need of financial aid have fewer resources to mount an effective defense against criminal charges, the provision clearly discriminates against lower-income students–a rather ironic inequity, given that the intent of the HEA when it was passed in 1965 was to open higher education to those with lower incomes. During the HEA’s 1998 reauthorization, however, drug warrior Representative Mark Souder added the drug provision in committee; it mandated denial of financial aid for at least a year and up to a permanent ban, depending on the severity of the offense.

In 2000 the Education Department moved to enforce the provision by adding the question “Have you ever been convicted of possessing or selling illegal drugs?” to the Free Application for Federal Student Aid (FAFSA). In the face of mounting opposition, Souder soon claimed that the Education Department had misconstrued the law’s original intent. As an evangelical Christian who believes in forgiveness, he declared that the law should apply only to convictions received while in college, not to earlier convictions. As part of the 2005 HEA reauthorization, the provision was modified accordingly. Unfortunately, the reform actually helps very few people, since the vast majority of college students start their university career around the age of 18 and juvenile offenses are not considered to be past convictions anyway. Frustrated by the flawed legislation, SSDP and its fellow student plaintiffs decided to move ahead with their class-action lawsuit against the Education Department.

Education Secretary Margaret Spellings was “not available” to comment on the lawsuit or any of its claims. Her department has been equally forthcoming in making information about who is affected by the HEA provision available to the public. Responding to inquiries from legislators and the media, SSDP filed a Freedom of Information Act request with the department in December 2004 for a state-by-state breakdown of students who answered the FAFSA drug question the “wrong” way. After months of sometimes farcical bureaucratic stonewalling, SSDP was presented with a bill of more than $4,000 to conduct what should have been a simple database search–a mark-up on product worthy of the Cali cartel and one far beyond the means of a struggling nonprofit. Though its FOIA request was intended to reveal the activity of government and served no commercial purpose, the student group was denied a fee waiver. “As SSDP’s campaign could directly benefit those who would profit from the deregulation or legalization of drugs,” a department official explained in his final rejection letter, “I cannot conclude…that SSDP has no commercial interest in the disclosure sought.”

“I guess the suggestion is that if people know how many students in every state are affected by the HEA provision, the drug war will end,” says SSDP campaigns director Tom Angell, whose organization filed a separate federal lawsuit against the Education Department with the aid of Public Citizen to secure a fee waiver for its FOIA request. In response to the lawsuit, the department finally relented, agreeing in late March to waive the fee and provide the data by the end of the month. After handing over incomplete spreadsheets on March 31, the government finally sent the full data on April 12. Should the drug war end as a result, SSDP promises to donate any ensuing profits to repairing the damage caused by decades of foolish drug-control policies.

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