Lawsuit over Denial of Federal Financial Aid to College Students with Drug Convictions

by Dave Kopel on March 22, 2006

Students for Sensible Drug Policy and the American Civil Liberties Union have filed a lawsuit alleging that the federal law which denies federal financial aid to any student with a drug law conviction is unconstitutional. Personally, I think the federal law is atrocious, and would vote to repeal it. But I think the prospects for victory in court are very slim. The SSDP press release points out several good policy arguments, but raises only two legal points:

The law punishes individuals twice for the same infraction. Affected students have already been dealt with by the criminal justice system. Taking away their access to education after they’ve already paid their debt to society is unnecessary. This violates the “double jeopardy” clause of the Fifth Amendment.

Commenters are welcome to correct me if I’m wrong, but I don’t think that the Fifth Amendment has ever been interpretted to prohibit governments from choosing to make persons with criminal convictions ineligible for welfare programs, including student aid for higher education.
Second, SSDP argues:

Putting up roadblocks on the path to education does nothing to solve our nation’s drug and crime problems; it only makes them worse. Forcing students convicted of drug charges to drop out of school makes them more likely to fall into drug abuse or commit crimes (thus becoming costly burdens on the criminal justice system) and less likely to become productive taxpaying citizens (thus reducing the nation’s economic productivity). Congress has no rational basis to attach student aid eligibility to drug convictions, especially since murderers, rapists, burglars, and arsonists can still receive financial aid. This violates the equal protection guarantee of the Fifth Amendment’s “due process” clause.

The first half of the paragraph is really a policy argument. The second half — that it is irrational to deny aid to a person with a misdemeanor marijuana conviction, while giving aid to a person with a felony rape or arson conviction — seems more plausible. In an article in the Journal of Contemporary Law, I have argued for taking the rational basis test seriously. But whether courts will do is uncertain.


1 Hans Bader 03.22.06 at 1:38 pm

Why on earth should we subsidize the college tuitions of people who have proven through their past actions that they are likely to spend their time taking drugs rather than studying?

The limit on financial aid that the ACLU is challenging in its baseless lawsuit is directly linked to the very educational purpose underlying the financial aid program, and is thus a sensible exercise of Congress’s authority under the spending clause to keep federal funds from being wasted.

I am a critic of the war on drugs, which fills jails with people who are not dangerous and leaves less jail space for violent criminals.

But I am not a critic of this modest provision, which does not criminalize drug use, but rather avoids subsidizing those who engage in it.

2 David Wilson 03.22.06 at 2:26 pm

Yes, there has been litigation over whether government treatment of convicts outside the criminal justice system is “Double Jeopardy,” for instance, preventing those with violent felonies from owning handguns. For the most part, courts have ruled that the person is being classified under a regulation, not punished again.

3 KipEsquire 03.22.06 at 3:12 pm

The courts have been fairly clear on this: double jeopardy refers only to multiple trials, not multiple punishments.

4 jkj9s 03.22.06 at 4:07 pm

Mr. Bader seems to be assuming that those convicted of a drug offense are necessarily still active drug users when they apply for financial aide. Take a young person who was arrested with a joing at the age of 18 while taking some time off before college to work – this person would be ineligible for finacial aide. Take another young person who gets tanked at a high school graduation party, drives drunk, kills someone, gets convicted of manslaughter and serves some time – this kid would be eligible for a subsidized education.
Both young people could be equally reformed, equally sober, and equally likely to take their education seriously.
That isn’t to say that this lawsuit isn’t a stinker, but lets not assume that repealing the law would mean a bunch of hippies smoking dope on the public dime.

5 Mac 03.22.06 at 4:25 pm

The second argument boils down to the premise that “Congress has no rational basis” for making the law. If that objection sticks, then most of the whole Federal Code should be repealed.

6 gasman 03.22.06 at 8:14 pm

I agree that painting this group, convicted drug crimes, with such a broad brush is perhaps poor public policy. The difficulty lies in whether the state can write a better law that is appropriatly discriminant in determining good candidates for federal funds versus poor candidates for the public largess.

But poor public policy in properly enacted law does not mean it is unconstitutional. The legislature is well within its bounds to make this law and the only redress is petition of the legislature to reconsider this.

People want the constitution to be about ‘Fair’. Anything that seems unfair is perceived to be unconstitutional, and that if only we read the constitution with the secret decoder glasses worn by revisionists we will see the truth.

When bad but constitutional law is made, the only redress is back to the lelislative branch.

7 Deoxy 03.23.06 at 9:54 am

“The second argument boils down to the premise that “Congress has no rational basis” for making the law. If that objection sticks, then most of the whole Federal Code should be repealed.”


That’s so unbelievably true.

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