View from the Hill

In many jurisdictions, a non-violent drug crime such as simple possession is a misdemeanor.  First-time offenders rarely receive jail time.  Yet a conviction for possession of a controlled substance could have a substantial impact on a young person’s future, especially if they have designs on attending college.

The Higher Education Act (HEA) was signed into law over three decades ago by President Lyndon Johnson.  Its purpose was to open the door to a college education for students to whom it had previously been closed. It establishes federal financial aid programs such as Perkins Loans, Pell Grants, Supplemental Educational Opportunity Grants, PLUS Loans and Work-Study Programs. The Act is periodically reviewed and updated by Congress to ensure adequate funding and access to college for millions of Americans.

In 1998 a provision was placed in the Higher Education Act Reauthorization bill by Rep. Mark Souder (R-IN) in the House and by Sen. Judd Gregg (R-NH) in the Senate.  Added to all applications for federally funded student aid was a question that concerned past convictions for drug-related offenses, whether they were violent or non-violent.  An affirmative answer would delay or deny federal financial aid to people convicted of state or federal drug offenses.  A conviction for simple possession carries a one-year ban on aid; a second conviction extends that to two years; a third conviction leads to indefinite loss of eligibility.  A first conviction for drug sales means two years ineligibility for aid. Failing to answer the question also makes a student ineligible.

Originally, under the Clinton administration, a blank answer to the drug conviction question on the FAFSA was considered a “no.” This was re-interpreted under the Bush administration so that anyone leaving the question blank was assumed to have been convicted of a drug offense, leading to an increase in the number of students denied aid.

The FAFSA website has a special section to explain the provision (  The original 1998 provision consisted of two questions.  Now there is an entire worksheet, consisting of eleven questions.  Not all need be answered- some are “if then” questions. (i.e. the requirement to answer is conditional on the answer to previous questions.)

By some estimates, The 1998 revision to the HEA has since blocked over 160,500 potential students from college opportunities due to drug convictions hindering their Free Application for Federal Student Aid (FAFSA)

This provision was a catalyst for the creation of Students for Sensible Drug Policy (SSDP), which has since grown from five campuses in 1998 to nearly 200 today.  SSDP also founded the Coalition for Higher Education Act Reform (CHEAR), a coalition of associations dedicated to the cause. The chief concern of many groups in CHEAR is over the application of the act to non-violent crimes of drug possession.  Many guilty of such crimes, such as simple possession of a narcotic, suffer from addiction, which is a disease according to the American Medical Association.  As a result, SSDP and members of CHEAR believe that thousands of students are being denied a future as a result of a disease that is treatable.

“Putting up roadblocks on the path to education does nothing to solve our nation’s drug and crime problems; it only makes them worse,” said Kris Krane, former Executive Director of SSDP.  “Forcing students convicted of drug charges to drop out of school makes them more likely to continue abusing drugs and engaging in criminal activity, and less likely to become productive taxpaying citizens, thus reducing the nation’s economic productivity and leading to more reliance on costly social programs down the line.”

More than 325 organizations have called for the full repeal of the penalty, including the National Education Association, the National Association of Student Financial Aid Administrators, the NAACP, the Evangelical Lutheran Church, the Presbyterian Church, the United Methodist Church, and the United States Student Association.

“The Drug Policy Alliance would like to completely repeal the HEA Aid Elimination Penalty because it is counterproductive and discriminatory,” said Bill Piper, National Policy Director of the Drug Policy Alliance and also a founding member of CHEAR.  “It makes no sense to kick students out of school.”

Rep. Sounder has been by far the biggest proponent of the measure in Congress and remains so to this day.  In 2006, after a concentrated advocacy effort led by SSDP and CHEAR, Rep. Souder agreed to amend the provision as part of the Budget Reconciliation Act. This amendment removed the penalty’s retroactive impact, so students with drug convictions on their record that occurred prior to receiving financial aid would no longer be disqualified (Originally, the law was interpreted to include any and all drug convictions, regardless of when they took place.)

The penalty now only applies to students receiving aid at the time of their conviction. In 2008, fearful that the entire penalty would be repealed as part of HEA Re-authorization, Sounder again amended the provision. This time he made it easier for students to regain their eligibility, removing the requirement that they complete a government approved treatment program. Students now must pass two unannounced drug tests administered by a government approved treatment program.

The question on the FAFSA regarding drug offenses asks about convictions for possessing or selling illegal drugs (not including alcohol and tobacco) if the offense occurred during a period of enrollment for which a student was receiving federal student aid (grants, loans, and/or work-study). When answering this question, students need not include convictions that have been removed from their record. Also, convictions that occurred before one turned 18 need not be disclosed, unless the offender was tried as an adult.

In every Congress since 2000, Rep. Barney Frank (D-MA) has introduced the Removing Impediments to Students Education Act, which would repeal the penalty. The bill has never gained a hearing nor a Senate companion, but it did garner over 80 cosponsors last Congress. Other members of Congress on the side of Frank are  Ron Paul (R-TX), Bobby Scott (D-VA), Danny Davis (D-IL), Steve Cohen (D-TN), and Donna Edwards (D-MD).

The Government Accountability Office, Congress’s own research arm, recently indicated that it could find no evidence that the penalty “actually helped to deter drug use.” Even the congressionally-created Advisory Committee on Student Financial Assistance recommended that Congress remove the drug question from the financial aid application, calling it “irrelevant” to aid eligibility.

Currently, the House version of the Student Aid and Fiscal Responsibility Act includes a provision that would repeal the penalty for all students convicted of drug possession offenses, so that it would only apply to those convicted of drug distribution. Mark Souder introduced an amendment in the Education & Labor Committee to have this language stripped, but it was defeated by a 27 – 20 vote. Still to be determined is the Senate SAFRA language.

There are also concerns over the demographics of those who are impacted by the legislation.  “The penalty hurts only students from low- and middle-income families – the same people the HEA was intended to assist,” said Krane.  “Students from wealthy families can afford to pay for tuition without public aid and can frequently afford lawyers to avoid drug convictions in the first place.”

The next vote on amending the Higher Education Act could take place on September 16, 2009, after this article was submitted for publication.

The author wishes to thank Kris Krane for his help in completing this article.

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