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The American drug war has a new target. That target is not the international drug cartels or even street level drug dealers. No, the newest target of the drug war is college and graduate students. If the war on drugs never caught your interest before, because others were the targets of these Draconian policies, now may be a good time to take notice. In the fall of 1998, Congress passed and President Clinton signed into law the Higher Education Act, which contains a provision, 42 USC 1091(r)(2), that renders ineligible for federal financial aid, including federally subsidized loans, any student who is convicted of a drug law violation. This ineligibility includes possession of marijuana. So if you smoke a joint and get caught and convicted you lose your financial aid. I may be simplifying the law a little. The actual penalties are as follows: Possession of a controlled substance carries with it an ineligibility period of one year for the first offense, two years for the second offense, and an indefinite period of ineligibility for the third offense. The sale of a controlled substance carries with it an ineligibility period of two years for the first offense and an indefinite period of ineligibility for the second offense. A student whose eligibility has been suspended under this provision may resume eligibility before the end of the ineligibility period if: (a) the student satisfactorily completes a drug rehabilitation program that (i) complies with criteria set out by the Secretary of Education; and (ii) includes two unannounced drug tests; or (b) the conviction is reversed, set aside or otherwise rendered nugatory. On Capital Hill, Representative Mark Souder, Republican from Indiana, slid this new drug provision into the Higher Education Act, which was passed by an unrecorded voice vote. The result is Question 28 on the Free Application for Federal Student Aid (FAFSA), which asks: “Have you ever been convicted of selling or possessing drugs (not including alcohol or tobacco)?” Of the 4.6 million students who have filled out the application this year, approximately 460 answered with a “3″, which means they will not be eligible for funding during the entire 2000-2001 school year, or in some cases, indefinitely. Approximately 2,300 answered with a “2″, which means that they will not be eligible until later in the year, and an overwhelming 506,000 students refused to answer or left the question blank. Lisa Cain from the Office of Student Financial Assistance Programs, a branch of the Department of Education, says that it is illegal to lie on the FAFSA. So students who deny having a recorded drug conviction could be forced to repay their universities for aid they received, and are liable to the United States government for lying on a federal form. Students who lie on their aid forms can potentially face a fine of up to $10,000 or even face imprisonment. However, according to Cain, “The government does not have the capability at this time to background check all applicants’ records in order to determine if they have a drug conviction. We are relying on the students to use good judgment when answering Question 28.” Logic would dictate that if one could lose their financial aid for simple possession of marijuana, then there would be a whole host of other offenses which would also render a student ineligible for financial aid, but there are none. You could be convicted of rape, murder, armed robbery, assault, or any other violent offense, and as long as you find a college that will accept you, you are eligible for federal student aid. Supporters of the drug provision argue that illegal drug users cannot be educated, and they argue that taxpayers shouldn’t have to pay for the education of those who break the law. The first argument is a sweeping assumption, and for the most part is just not true. A sensible person cannot really believe that occasional pot use prevents an otherwise bright, hardworking student from successfully performing his/her course work. Further, the proponents of this argument fail to recognize that the misuse of alcohol, a legal drug, is by far the more common cause of student absenteeism and failing grades. The second argument has some validity because others are paying for the education of some. But how does it make sense to single out drug users, the least threatening of criminals? It doesn’t. Almost without exception, drug use is consensual and nonviolent, unlike other crimes not included under this provision. Perhaps one could reasonably argue that hard core drug dealers shouldn’t get financial aid. But a blanket ban like this does harm to those young people who are most at risk, because it only affects lower-income students whose parents can’t afford to send them to school in the first place. Should one mistake be the sole reason to deny such students a chance at a much brighter future? No. Education is a life preserver for students who have previously had a brush with the law. By slamming the doors to education we only open the doors to prisons. This is not a wise way to invest in the future. Supporters of this law point to the treatment provision as a way out for ex-convicts to redeem themselves and regain their eligibility. What these drug warriors fail to recognize is that, according to the White House Office of National Drug Control Policy, 57% of those who are in need of drug treatment in this country do not receive it. Treatment is primarily available to those who can afford to pay for it, which your typical drug law violator cannot. In fact, only 7 percent of the federal drug war budget is earmarked for treatment programs, while the vast majority goes to criminal justice programs. Both major presidential candidates have admitted to “youthful indiscretions” in the past. Al Gore has admitted to frequent marijuana smoking and George W. Bush has danced around the issue, but it is widely rumored that his indiscretions included cocaine use. Yet both support the drug war and the criminal justice approach currently in vogue. The bankruptcy of the drug war comes in part by the selective enforcement of the laws. The truth in America is that if you are rich and white and use drugs you may become president someday, but if you are poor and black you are much more likely to end up behind bars. While African-Americans make up about 13 percent of the nation’s population and about 13 percent of the nation’s drug users, they make up more than 50 percent of those incarcerated for drug law violations, and the arrest rate for African-Americans for drug offenses is six times higher than for whites. In New York state these numbers are more shocking, where 95 percent of those in prison for drug offenses are people of color. Blacks and Latinos also depend more heavily on financial assistance than their white classmates (73.7 percent of Black and 64.1 percent of Latino undergraduates receive aid compared to only 56.4 percent of whites). The result is that people of color will assume an even greater share of this law’s burden. Representative Barney Frank (D-MA) has sponsored H.R. 1053, which would repeal the provision stripping financial aid eligibility from persons convicted of drug offenses. Representative Frank has said of the provision, “There are clearly many cases in which students convicted of drug offenses should receive tough penalties, such as withholding for a period of time the disbursement of financial aid to them. There are also cases, however, where individuals are convicted of minor drug offenses and are trying to get their lives back together through education. In these cases, it seems to me to be unreasonable for us to impose an excessively rigid prohibition on an individual’s ability to receive federal financial aid. That is why my bill calls for repealing this strict ban on financial aid and returning discretion to the courts.” Representative Frank is referring to the fact that judges already have the power to strip offenders of benefits if they feel it is warranted. This bill is not likely to pass in the dwindling days of the current congress, partially because this is an election year when no incumbent wishes to be accused of being soft on crime. Representative Frank does have the support of various national organizations in his effort to repeal this provision. The American Civil Liberties Union, National Organization for Women, the United States Student Association and the National Association for the Advancement of Colored People, among others, have signed on to repeal this section of the Higher Education Act. There is also a serious movement on campuses nationwide to repeal this provision. Student governments all around the country have voted to approve a resolution to overturn this provision. These reform efforts are being coordinated by the Washington, D.C.-based group Students for Sensible Drug Policy. Peter Kempner is a student at Yeshiva University’s Benjamin N. Cardozo School of Law.

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