Drug Related Convictions & the FAFSA: The Aid Elimination Provision

In 1998, the Higher Education Act (HEA) was reauthorized with what, at the time, was a little known or debated provision called the Aid Elimination Penalty (also known as the Drug-Free Student Loan Amendment). Added by then Indiana Representative Mark Souder (R), the Aid Elimination Act automatically disqualified students who had any drug convictions (except juvenile convictions) including misdemeanor marijuana possession from receiving federal financial aid regardless of when the conviction occurred. Specifically, the amendment states:

A student who is convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance shall not be eligible to receive any grant, loan, or work assistance under this title during the period beginning on the date of such conviction and ending after the interval specified...

The intervals originally set forth for aid ineligibility depended on the whether the charge was the possession or  sale of a controlled substance and whether it was the person's first, second or third offense. For possession, the period of ineligibility is one year for the first offense, two years for the second offense and indefinitely for the third offense. For sale, ineligibility for financial aid lasts two years for the first offense and indefinitely for the second offense.

Additionally, the amendment states that

A student whose eligibility has been suspended under paragraph 1 (see above) may resume eligibility before the end of the eligibility period determined under such paragraph if 

(A) the student satisfactorily completes a drug rehabilitation program that - 

     (i) complies with such criteria as the Secretary shall prescribe in regulations for purposes of this paragraph; and

    (ii) includes two unannounced drug tests; or

(B) the conviction is reversed, set aside or otherwise rendered nugatory.

So, why was this provision added?

Former Rep. Mark Souder, who authored the Aid Elimination Penalty, was huge proponent of the so-called "War on Drugs." Souder had previously supported foreign drug war adventures in places like Colombia and Mexico and was a staunch opponent of softening marijuana laws even for medical uses. In 1998, as amendments were being added to the original Higher Education Act of 1965, Souder included the Aid Elimination Penalty in these changes. Interestingly, the amendment only refers to drug convictions; convicted murderers, rapists, burglars, child molesters and other criminals are still eligible for financial aid without conditions.  Though the provision was added as an attempt to curb drug use among young people, the Government Accountability Office recently indicated that it could find no evidence that the penalty "actually helped to deter drug use."

Since the provision was added over 10 years ago, 200,000 students have been denied aid because of the provision; it has been estimated that thousands of other prospective college students did not even apply for aid because they believed their application would be denied. Additionally, the amendment has been found to especially hurt low- and middle-income families as students from wealthy families often attend college without public aid. Additionally, due to the discriminatory enforcement of drug laws, the Aid Elimination Penalty tends to keep people of color out of school at a much higher rate than the general public.

Due in  large part to external pressure, the law was actually scaled back in 2006 such that only people who were convicted of a drug related offense while receiving financial aid would be stripped of their ability to receive federal money for their schooling. The law was further amended in 2008. During the Higher Education Reauthorizaton process, Congress made it much easier for those convicted of drug-related offenses to regain their financial aid eligibility. Now in order to regain their aid eligibility, students would have to pass two unannounced drug tests administered by a government-approved treatment program without having to complete the program itself which the law initially required. 

Still, more than 325 groups and organizations including the National Education Association, the ACLU and Students for a Sensible Drug Policy (SSDP) have called for the law's repeal, but with little progress made. In 2008, the ACLU along with SSDP sued for an injunction against the law calling it "unconstitutional because it violates the Fifth and Eight Amendments to the United States Constitution." Groups such as these are of the opinion that the law allows students to be effectively punished twice for the same transgression. Also, some believe that forcing students with drug convictions out of school makes them more likely to abuse drugs or engage in criminal activity and less likely to become productive taxpaying citizens. The Court, however, ruled against the SSDP stating the denial of financial aid based on prior drug convictions did constitute cruel or unusual punishment and did not violate double jeopardy laws. As it stands today, the Aid Elimination Penalty, albeit in its amended form, is still on the books with groups like the SSDP continuing to fight for its complete repeal.

Citations:

Students for Sensible Drug Policy: http://ssdp.org/campaigns/the-higher-education-act
1998 Amendments to the Higher Education Act of 1965: http://www2.ed.gov/policy/highered/leg/hea98/sec483.html