By Janelle Brown

May 20, 2002 | America loves a happy ending: The prisoner on the brink of release decides it's time to straighten out and go to college; the addict gets himself off drugs and becomes a community leader; the teenager grows up and gets responsible. Rebounding from a troubled past is a great American tradition, rewarded even with the highest post in the nation: President George W. Bush is a former alcoholic turned born-again Christian turned world leader.

Chris Berry wanted to be the subject of one of those stories. A factory worker in his 20s with a wife and four kids, he was caught and convicted of possession of marijuana several times before he decided it was time to go to college and get on with his life. But he needed financial aid to afford an education; and this, unfortunately, was where his plans went awry. Thanks to a provision in the Higher Education Act -- a federal law governing the funding of public colleges and universities, as well as student financial aid -- Berry discovered that he was ineligible for federal aid because of his prior drug convictions.

Despite the setback, Berry was able to scrabble together a $2,000 loan from the nonprofit group Students for a Sensible Drug Policy, and he entered Mountain Home Arkansas College last year. But the money ran out after a year, and so did his time in college. "I'm not a student right now," he complains. "I just can't afford to go to school."

The federal law that foiled Berry in his plan to restart his life is called Drug-Free Student Aid Provision, a piece of legislation passed four years ago in the hysteria of the war on drugs. It is a textbook case of knee-jerk lawmaking, a measure that was ill-conceived and poorly implemented. Not only does it fail to affect the population it was supposed to address, but it unfairly affects struggling minority and low-income students. The provision singles out drug users and gives a free pass to those convicted of other crimes. And most importantly, the legislation effectively thwarts young adults who are trying to clean up their lives and get an education, throwing up barriers that stop them from accomplishing their goals.

There was some outcry when the law was passed in 1998, but it wasn't until the 2001-2002 school year that the provision was put into effect and students began losing their aid. Now, as its impact finally becomes evident, students and civil libertarians are taking a public stand against the law and organizing protests to get rid of it. Meanwhile, the financial aid officers at a handful of universities have reimbursed students affected by the law, and their colleagues around the country are looking for ways to follow suit.

Last month, Yale University became the fourth private university to announce that it would begin reimbursing students who lost their financial aid because of the Higher Education Act. A bill that would repeal the provision, proposed by Rep. Barney Frank, D-Mass., has gained some momentum; and Rep. Mark Souder, R-Ind., who wrote and sponsored the law, is now backing a bill to change his own legislation.

"I think the law is mean-spirited and short-sighted," says Barbara Hubler, director of financial aid at San Francisco State University. "We're out here trying to improve students; education is a way to help people become better citizens. It shouldn't be a bureaucracy that throws up obstacles and frustrates their attempts to move ahead with their lives."

The battle against the Drug-Free Student Aid provision is, in effect, one more protest against laws quickly cobbled together in an unrealistic drive to purge the country of drugs. In the quest to ensure that no one, particularly not young Americans, touches drugs, Congress managed to pass sweeping and draconian measures that fail to differentiate between degrees of drug use and abuse, or between victims and villains. Opponents of the financial aid provision, like the opponents of drug conspiracy laws and the harsh sentencing of drug offenders, are questioning the effectiveness and fairness of broad rules that have tended to punish many in hopes of sending a message to the few, and are now derailing an educational system once known for its inclusiveness.

The measures proposed to change or eliminate the Drug-Free Student Aid provision, even if they are passed, will not help the thousands of students already denied financial aid under the measure. It is not likely to influence the many students who, when denied aid, gave up on higher education altogether. In fact, this year's freshmen, unless they are enrolled at a university that has taken a stand against the measure, will be widely affected by the rule.

The provision may seem like a relatively small piece of legislation, reaching only a fraction of all college students, but its implications are far-reaching. The message it sends about our nation's priorities is ominous: As the ACLU's director of drug policy litigation, Graham Boyd, sums it up, "The government is creating two classes of people: One class to whom we want to give an education and succeed in life, and another class of low-income drug users who we want to relegate to a life of working at McDonalds."

Next page | It targets minority students of lower income, and ignores the ones who committed crimes unrelated to drugs.

The Drug-Free Student Aid provision was tacked on to the Higher Education Act of 1998 as part of Souder's aggressive anti-drug agenda. The law was intended to be both an incentive and punishment for currently enrolled students who were battling drug problems: Students who were receiving aid but had strayed from the straight and narrow would lose that money unless they could prove that they'd cleaned themselves up. "We wanted to ensure that students who were receiving taxpayer subsidizations were not breaking the law," explains Seth Becker, Souder's press secretary. The provision passed quickly, with support from both sides of Congress.

Under the rule, any student who has been convicted of the possession or sale of a controlled substance is temporarily -- or perhaps permanently, depending on the offense -- ineligible for any federal grants, loans or work assistance. Students with one drug possession conviction lose their aid for one year from the date of conviction; with two convictions, they lose two years; and upon a third offense they may lose their aid forever.

Sanctions are even stricter if students are caught selling drugs: A first offense is punished with a two-year aid loss, and a second conviction gets you indefinitely barred. There is one caveat: If a student completes a federally approved drug rehabilitation program, and then passes two unannounced drug tests, he or she could get the aid reinstated.

But in their rush to get the law on the books, Congress failed to conceive of a reasonable strategy to enforce the provision. The lack of an implementation procedure has resulted in far more students being affected by the law than anyone, even Souder, ever intended. This glitch is compounded further by the inherent unfairness of the law: It specifically targets minority students of lower income, and ignores any financial aid applicants who have committed crimes unrelated to drugs.

Even though the provision was intended to deny aid to currently enrolled students who are convicted of drugs, it has had the effect of punishing new students who have sinned in the past. What the law didn't take into consideration is that the Department of Education has no way of knowing when recipients of financial aid get in trouble with the law. Indeed, college financial aid officers have no means of tracking the arrests and convictions of their students.

Under the circumstances, applicants for aid are required to self-report their past drug convictions when they sign up for support for the first time. The outcome of this system is that the only students who can be identified as having drug convictions are new applicants who haven't even begun to receive aid (and who also haven't been savvy enough to lie about their drug histories when filling out their application).

Both opponents and proponents of the provision agree that this is an unfair way to ferret out drug offenders; because of the way the law is being used, it is no more than a belated punishment for crimes that happened long before the student applied for college. But the sides disagree on how many students have lost their aid because of it.

The Department of Education's numbers fail to clearly illustrate the impact of this provision. It's possible, in the strictest sense, to say that only 1,019 students have lost their aid since 1991 because of a past drug conviction. But this ignores thousands more students who are dropping out of the financial aid process halfway through, thanks to the way the application is formatted. Since 1991, some 59,543 students have either left the question about drug convictions blank on their applications or failed to return worksheets that grilled them about their drug convictions, thereby making them ineligible.

No one is tracking these students to find out why they gave up, but it's probably a fair assumption that many of them had drug convictions they didn't want to reveal and so simply decided not to bother. Similarly, no one is tracking what happens to students who are denied financial aid: Do they continue on to college anyway, find other forms of financial aid and take on second jobs? Or do they just drop out altogether?

There is no national data on these questions, but an informal survey of some local colleges and universities in the San Francisco Bay Area unearthed some disturbing trends. At San Francisco State University, for example, 48 students were turned down for financial aid last year because of their prior drug convictions; of those 48, says financial aid director Hubler, only 4 students ultimately enrolled in school. At City College of San Francisco, 10 students were turned down; a slight majority continued on to school and the rest disappeared. (The more prestigious University of California at Berkeley and Stanford University didn't recall any students who had been denied financial aid.)

"One could theorize from the numbers that students are being denied aid and then not enrolling," says Hubler. "And another group of students with convictions surely looked at the application and said, 'I'm not even going to apply for financial aid.' We have no idea how many of those students there are."

Next page | "Are you telling us that drug laws in the United States aren't deterrent enough?"

Although it's possible to go through drug rehab to reclaim eligibility, it's a circuitous and insulting process that could deter many students. Students who already have gone through Narcotics Anonymous, for example, are informed that the program doesn't meet federal standards. Their only option is to enter drug rehab again. Students convicted of a minor possession -- say, having a small amount of marijuana -- have to go through the same measures as a heroin addict. Some, if not most, approved drug-rehab programs are both expensive and time-consuming.

Only one of the 48 students at SF State who were denied federal aid bothered to go through rehab, which deeply concerns financial aid administrators. Jorge Bell, the associate dean of financial aid at City College, observed several students drop out rather than undergo rehab. "There might be some students out there who are deciding not to continue their education because of this extra hoop," he says. "Financial aid is so important, if you have to wait for your aid -- or even just wait weeks to go through a drug rehab program -- you may give up altogether."

The Drug-Free Student Aid provision also imposes class and racial biases, in addition to an oddly arbitrary rating of various types of crime. For example, the measure, because it concerns only drug-related transgressions, does not apply to rapists, batterers or armed robbers, among others.

Student groups, infuriated at being singled out as lurking enemies in the war on drugs, have organized against the provision. "Are you telling us that drug laws in the United States aren't deterrent enough?" asks Shawn Heller, national director of Students for Sensible Drug Policy, which is coordinating students across the nation to protest the legislation.

"It's drug war politicking," he says. "Souder wants to go back to his district and say 'I'm tough on drugs and I created laws that buckle down on users.' But if he wanted to do anything about drug problems on campus, he'd give additional funds for local programs that actually reduce drugs on campus. It's another zero tolerance law in which you take discretion away from judges and people who deal with these problems on a daily basis, and give it to the federal government instead."

Civil libertarians argue that this law is an example of blatant discrimination, based on income and race. By definition, they say, the law is designed to penalize the less fortunate college applicants: Students who can pay for college with their own (or more likely, their parents' own) money, are unaffected by the law, while needy students are subjected to unfair scrutiny and the loss of an education. The law also unfairly targets minority citizens, by virtue of the deep racial inequality of the nation's war on drugs: Sixty-two percent of those with drug convictions are African-American, even though they make up only 12 percent of the population and 13 percent of all drug offenders.

"It's well documented that drug war enforcement is heavily skewed towards blacks," says the ACLU's Boyd. "Since the Drug-Free Student Aid provision is more about who gets convicted by the system than it is about the drug offense, it's much more likely that you'll lose your funding if you are black than white.

"It's extending the racial injustice that you see on the street corner into colleges, and the consequences are profoundly unfair, since education is extremely important."

Because the provision is a federal law, only prestigious, private institutions have the freedom to financially assist students who have lost their aid to it, thanks to the private money on hand. At public universities -- where more students are likely to have been affected by the law in the first place -- the financial aid offices are bound by their reliance on public funding. But that has not stopped many of them from speaking out against the provision.

Next page | This piece of panicked legislation, like others that emerged during the war on drugs, is likely to be slow to change

A handful of the private institutions have used their freedom to defy the provision by reimbursing students who have lost their aid, or offering them special scholarships. Last year, three private universities, Hampshire, Swarthmore and Western Washington University, took this action. In April, Yale University, where students have protested the law, joined in. Although no students at Yale have ever lost aid because of the drug provision, any who do in the future will be reimbursed by Yale's private scholarship funds. (The student does have to agree to participate in a drug rehab program, however).

Yale spokesman Tom Conroy is careful not to condemn the law, pointing out that Yale historically has guaranteed all students the financial aid they require for their education, regardless of reason. Still, the provision's opponents are thrilled by Yale's action, and hope that if one private Ivy League school takes action, the rest will fall in line. Opponents of the law are further delighted by the symbolism in the defiance by Yale, alma mater of George W. Bush.

"Yale's decision is tremendously important for political reasons," says Boyd. "Because it is an elite institution, which many of our elected leaders actually attended, it sends the message that this is a law that is so fundamentally unfair that the universities are effectively opting out."

Still other universities have shown some interest in taking action against the measure. The Students for Sensible Drug Policy (SSDP) held a national conference about the provision last year, explaining how financial aid officers could reimburse students who lost their aid. Administrators from 50 colleges, including Yale, attended. The SSDP also has organized student action groups at more than 200 colleges around the nation, including strong chapters at Harvard and Wesleyan, to push their schools to follow Yale's lead.

Some schools, which have yet to lose a student due to the provision, appear to be waiting to see what happens (or if any other universities stick their neck out first). At Stanford University, one financial aid administrator explained that the university would consider a similar action "if the situation were to arise here."

In the meantime, there's a chance that the law could simply go away. In February 2001, Barney Frank introduced a bill to Congress that would repeal the law. Since then, 66 cosponsors from both parties have signed on. But as Frank's secretary Peter Kovar complains, "There's been no action on the bill, and frankly it's an uphill fight with the Republican administration."

Meanwhile, in December, Souder submitted an amendment to his bill that would restrict the disqualification of students for drug offenses to "those students who committed offenses while receiving student financial aid." The amendment is slowly working its way through the committee process, but it still doesn't address the question of how, exactly, the Department of Education would find those students in the first place. (Souder's press secretary Becker suggests that maybe there could be some kind of "reporting mechanism between legal agencies" that would track student drug convictions, but he's noticeably vague on the details.)

This piece of panicked legislation, like others that emerged during the war on drugs, is likely to be slow to change. Nearly 20 years after the national hysteria about crack, for example, we still have laws on the books that will put a person in jail for decades for possessing even the tiniest amount of crack, or throwing a party where drugs are used. The Drug-Free Student Aid provision, which is so flawed that even the congressman who wrote it wants it to change it, may not disappear any faster.

The nation's war on drugs has consumed vast amounts of funding -- for the criminal justice system, interdiction and heavy-handed propaganda designed to bring national drug use to a halt. But education, with its psychological and financial benefits, is widely acknowledged to be perhaps the best deterrent of all. Isn't it ironic, then, that this piece of legislation would deny even a small amount of financial aid to those with troubled pasts who are now trying to improve their lives.

The proponents of the provision argue that public money shouldn't be going to students who are using drugs. By this backhanded reasoning, we must be satisfied with the fact that the money we save keeping kids out of college can be put to better use building jails, where these same kids, hopeless and unsupported, will eventually end up.

salon.com

Back to Legalization.net