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Lawsuit: Drug-Based Ban on Financial Aid Hurts Minorities

Lawsuit: Drug-Based Ban on Financial Aid Hurts Minorities
By Charles Dervarics

For three Midwest college students, a conviction on a minor drug offense may lead to a landmark legal debate with implications for student financial aid policy nationwide.

The American Civil Liberties Union and a student organization have filed a class-action lawsuit on behalf of the students to overturn a federal law that revokes Pell Grants and other financial aid to students with drug convictions.

Although the U.S. Congress recently eased some of the restrictions contained in the law, the organizations say the provision is unconstitutional and discriminates against minority and low-income students.

“The only option students have left is to take action in court,” says Kris Krane, executive director of Students for Sensible Drug Policy (SSDP), a Washington, D.C.-based student group that, along with the ACLU, filed the lawsuit against the U.S. Department of Education and its secretary, Margaret Spellings. No court date has been set.

In the suit, Students for Sensible Drug Policy Foundation v. Spellings, the groups claim the denial of financial aid is unconstitutional, since it is in essence a second punishment on top of any legal sanctions imposed by a judge. The suit also contends that the provision violates the equal protection guarantee of the U.S. Constitution by singling out only one group — drug offenders — for unfair treatment.

“While any non-drug offender, from a murderer to a shoplifter, can receive financial aid, an individual who is caught with any amount of a controlled substance, including a small amount of marijuana, is automatically denied aid by the federal government,” reads the suit.

According to SSDP, about 200,000 college students have lost access to financial aid, including federally backed loans that have low interest rates, because of the policy. Most of those affected have been low- to moderate-income students, because student drug offenders from more affluent backgrounds can afford tuition without financial aid, the groups say.

Because of discriminatory enforcement of drug laws, the provision in the higher education statute also “disproportionately affects people of color,” SSDP says. African-Americans make up 12 percent of the population and 13 percent of drug users, but more than 62 percent of drug convictions, according to the lawsuit, which cited U.S. Department of Justice statistics.

More than 250 organizations, from the NAACP to the National Association for Equal Opportunity in Higher Education (NAFEO), have favored repealing the provision, which was part of the 1998 reauthorization of the Higher Education Act.

In a statement responding to the suit, the Education Department said it will “carefully review” the complaint but added that it supports efforts to curb illegal drug use.

“Congress sought to discourage illegal drug use by the nation’s youth by passing this restriction on federal student aid in 1998,” the statement read. “The department supports Congress’ efforts to decrease illegal drug use and protect the health and safety of all our nation’s students, from preschool to adult.”

Rep. Mark Souder, R-Ind., chief sponsor of the 1998 provision, defended the policy, saying revoking student aid for drug offenders “is the least that the taxpayers should expect.”

The law denies students aid for varying periods of time depending on the offense. A person guilty of drug possession loses aid for one year for a first offense and two years for a second offense. A third offense brings an indefinite suspension of aid.

For drug sales, a first-time offense brings a two-year ban on financial aid. A second distribution offense carries an indefinite suspension.
“This law creates an unfair and irrational barrier to education and singles out working-class Americans,” says Adam Wolf, staff attorney with ACLU’s Drug Law Reform Project.

Congress made a minor change to the drug provision this past winter, restricting the financial aid penalty to only those students convicted of a drug offense while in college. Previously, the government could deny aid to students with drug convictions even if they committed the offenses before they enrolled in higher education.

But that change is largely insignificant, says Tom Angell, SSDP’s campaign director. The ban on aid did not apply to minors with juvenile drug convictions, so the only people who benefit from the change are non-traditional older students, Angell says.

The lawsuit is the latest chapter in a heated debate to abolish the 1998 law. Recently, the Education Department released a state-by-state breakdown of students denied financial aid because of drug convictions, but only after SSDP sued for the data. Initially, the department planned to charge a $4,100 fee to process SSDP’s Freedom of Information Act request, but the group challenged the fee as an impediment to public access.

Federal legislation to completely revoke the drug provision, largely favored by Democrats, is stalled in the Republican-controlled House of Representatives. There is no companion bill as yet in the Senate.

The new lawsuit was filed in U.S. District Court in Aberdeen, S.D., home state of Kraig Selken, one of three students lending their name to the legal action. According to the suit, Selken was on course to graduate from Northern State University in June 2007 when he pled guilty last year to possessing a small amount of marijuana in a house he shared with two other students. SSDP says Selken is unlikely to finish his last year of school because he has relied on financial aid.

Nathan Bush, a University of Wisconsin student who is also part of the lawsuit, was in the back seat of a car that was pulled over by police in June 2005, the lawsuit states. Bush pled guilty to a misdemeanor charge after a small amount of marijuana was found in the vehicle. The third student, Alexis Schwab of Ball State University, was denied a federally backed college loan after her drug conviction and will be forced to take out loans at a substantially higher interest rate.

In all three cases, the students have completed their court-imposed sentences but remain ineligible for financial aid.

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