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.