Drug Provision to Higher Ed Act Makes College Aid Go Up in Smoke

A 1998 amendment to the Higher Education Act has denied or delayed aid for more than 150,000 students and now politicians on both sides of the aisle want reform.

By Rebecca Tuhus-Dubrow

As any recent applicant for federal financial aid knows, there’s one question on the FAFSA that requires no calculator or old tax forms: “has the student ever been convicted of possessing or selling illegal drugs?” A yes could make you ineligible for aid, even if the conviction resulted from smoking a joint before SAT prep. The provision, tacked onto the form by a 1998 amendment to the Higher Education Act, has denied or delayed aid for more than 157,000 applicants to date. (This number doesn’t even take into account the many students who are discouraged by this question from applying for aid in the first place.)

Since taking effect in the fall of 2000, this law has achieved an unpopularity approaching the farcical. In Congress, defenders of the amendment as it’s currently enforced are about as hard to find as opponents of supporting our troops. It certainly doesn’t reflect well on a law when its own author suggests suing the federal government over its current implementation. But, in an unprecedented move, the drug provision’s author, Rep. Mark Souder (R-Indiana) has offered just such counsel. He has also sponsored a bill that, he says, would clarify the amendment’s original intent so as not to apply retroactively. Another bill, sponsored by Rep. Barney Frank, Democrat from Massachusetts, shoots for full repeal. At this point, it seems like the only question is whether this amendment will be reformed or entirely excised—and when.

More than 180 organizations have called for the provision’s full repeal, including the ACLU, the NAACP, the National Council for Higher Education, and the Association of Jesuit Colleges and Universities. The Washington-based organization Students for Sensible Drug Policy (SSDP) was formed largely in reaction to the provision, and now has 124 chapters at universities throughout the country. According to Scarlett Swerdlow, SSDP’s executive director, “The drug provision just doesn’t make any sense. Taking a student who has made a mistake with drugs, or has a problem with drugs, out of school only increases the likelihood that they’re going to continue to have problems.” Statistics from the Federal Bureau of Prisons confirm that the relationship between recidivism rates and education is, not very surprisingly, inverse.

Contrary to some public perceptions, the drug provision does not permanently revoke aid from everyone with a besmirched record. Different periods of postponement are mandated depending on the number and nature of the offenses. A single offense for possession, for example, spells a delay of one year for college aid. But if you’ve been convicted of more than two charges of possession or more than one for sale, the delay is indefinite. (Those who merely possessed, however, can regain eligibility by completing a federally approved rehab program.)

The Higher Education Act, enacted in 1965, was instituted with a noble goal: to “expand postsecondary education opportunities, particularly for low-income individuals.” The Act continues to fund Pell Grants, work-study programs, and loans. The impact of the drug provision ends up being discriminatory to the very people the Act itself is supposed to help, argues Joe Racalto, a spokesperson for Rep. Frank, because “it directly targets those families that can’t afford education.”

It’s also racist, says Students for Sensible Drug Policy’s Swerdlow. African-Americans and Hispanics end up with a disproportionate percent of drug convictions. Who gets convicted of drug charges is at best arbitrary and at worst discriminatory. SSDA ‘s website states that while African-Americans make up 13% of the population and 13% of drug users, they account for 55% of all drug convictions – which means that a far higher percentage of African-Americans end up ineligible for financial aid.

Unlike, say, murder (which, incidentally, activists point out, would not disqualify FAFSA applicants), drug charges are discretionary—not typically reported to the police, with arrests depending more on chance and circumstances and location of the offense. If you’re like me, your college had no shortage of white, middle-class potheads who gave new meaning to the term “higher education” and paid for their infractions with nothing more than brain cells.

Marisa Garcia, a sociology major at Cal State Fullerton, had never heard of the drug provision when, the day before her nineteenth birthday, cops pulled her over and found a pipe with marijuana residue in her car. She went to court, pled guilty, and paid a fine. Preparing to enter her freshman year at the time, she soon learned the implications of her misdemeanor. Since her family depends on financial aid, “at that point, I was just so devastated I didn’t know what do to. I was going to drop out of college.”

Garcia’s mother—a single parent who raised her and her three brothers on her paychecks from the Los Angeles County Housing Authority—wouldn’t let that happen. And she was afraid that if Marisa postponed school for a year, she would never return. (Her fears may have been well-founded. According to statistics released by the U.S. Department of Education, 36% of those who left four-year institutions after their first year did not return within five years; 50% leaving two-year institutions did not return within five years.)

Marisa claims she smoked only occasionally to alleviate her headaches. She says she did investigate the option of a rehab program, because “I figured, I don’t feel that I have a drug problem, but if I can get my aid reinstated by going into rehab, it’s worth looking into.” She called about ten rehab programs in her area, nine of which were six-month live-in programs. “They cost more than my tuition. And the only way to be eligible to receive aid from the state to help pay for the programs [I would have to] be so poor that I would have to quit my job—because I made too much money at my minimum-wage job.” She was employed at a flower-shop, where she still works, now full-time as manager, to pay for her education in lieu of financial aid. Her mother also contributed by refinancing the house and charging books to her credit card.

Marisa also notes the collateral damage of the law. “I know people who have gotten drug convictions and feel, ‘Well, I can’t go to college anyway.’ They don’t even really apply. There’s no way to really track how many people it’s scaring away.”

This retroactive character of the law is universally maligned. Souder has blamed its “misapplication” on the Clinton administration. (For the record, the law reads, “A student who has been 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…”) His proposed “Souder fix” would modify the provision so that it applies only to students currently attending school. Souder’s office refused to comment (a spokesperson said they don’t talk to “politically affiliated publications.”) But Alexa Marrero, a press secretary representing Rep. John Boener, who has worked with Souder on this issue, says the original intent of the law was not to rob people who had made one mistake of a second chance at improving their lives. The idea, rather, was to prevent students from funding a drug habit with tax dollars, and to serve as a disincentive to illegal drug activity. “If higher education is going to be a way out, this actually builds on that by putting another disincentive within higher education,” she says.

Even if the amendment gets its “Souder fix,” opponents will still cry double jeopardy. Rep. Frank’s spokesperson Joe Racalto says the law means “two punishments—one from the court, another from the Department of Education.” If truly necessary, this type of recourse was already available before the provision went into effect: since 1988, judges have been granted the discretion to revoke financial aid in individual cases.

For these reasons, many agree that the Souder fix is, in the words of an SSDP line, “a 10% solution to a law that’s 100% flawed.” A Congressional Advisory Committee on Student Financial Assistance recently published a report that simply deemed the question “irrelevant” and recommended jettisoning it. Rep. Frank has gathered almost twenty original co-sponsors for his bill to repeal it, but no Republicans have signed on. Last session, he garnered seventy co-sponsors, but likewise, they were all Democrats. Without Republican fertilization, of course, the bill has no future.

As Congress dallies, campus activism bustles. In addition to lobbying, SSDP chapters have urged their schools to reinstate aid for victims of the drug provision. At Hampshire, Swarthmore and Yale, these efforts have succeeded. Another front is state aid: although the drug provision technically disqualifies students only from federal aid, a number of states use the FAFSA to process applications, rendering some students de facto ineligible for state aid. Certain SSDP chapters aim to disentangle eligibility for state and federal aid. The SSDP chapter in New Mexico, in collaboration with the Commissioner of Higher Education, is developing a waiver form, to debut in fall 2005, which would allow students spurned by the feds to entreat New Mexico for financial assistance anyway.

Marisa Garcia started a chapter of SSDP on her campus, but her crammed work and school schedule severely limits the time she can devote to it. “I realized that I broke the law,” she says, “and I was willing to pay the price, which was having to pay a fine and having a misdemeanor on my record for the rest of my life. But I don’t think I should be punished twice. Especially punished in such a way—how does that help anybody?”

Illustration: Matt Bors

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