SMOKE A JOINT AND YOUR FUTURE IS MCDONALD'S

A federal law passed in a burst of drug war fervor denies financial
aid to the country's neediest students.

May 20, 2002 - America loves a happy ending: The prisoner on the
brink of release decides it's time to straighten out and go to
college; the addict gets himself off drugs and becomes a community
leader; the teenager grows up and gets responsible. Rebounding from a
troubled past is a great American tradition, rewarded even with the
highest post in the nation: President George W. Bush is a former
alcoholic turned born-again Christian turned world leader.

Chris Berry wanted to be the subject of one of those stories. A
factory worker in his 20s with a wife and four kids, he was caught
and convicted of possession of marijuana several times before he
decided it was time to go to college and get on with his life. But he
needed financial aid to afford an education; and this, unfortunately,
was where his plans went awry. Thanks to a provision in the Higher
Education Act -- a federal law governing the funding of public
colleges and universities, as well as student financial aid -- Berry
discovered that he was ineligible for federal aid because of his
prior drug convictions.

Despite the setback, Berry was able to scrabble together a $2,000
loan from the nonprofit group Students for a Sensible Drug Policy,
and he entered Mountain Home Arkansas College last year. But the
money ran out after a year, and so did his time in college. "I'm not
a student right now," he complains. "I just can't afford to go to
school."

The federal law that foiled Berry in his plan to restart his life is
called Drug-Free Student Aid Provision, a piece of legislation passed
four years ago in the hysteria of the war on drugs. It is a textbook
case of knee-jerk lawmaking, a measure that was ill-conceived and
poorly implemented. Not only does it fail to affect the population it
was supposed to address, but it unfairly affects struggling minority
and low-income students. The provision singles out drug users and
gives a free pass to those convicted of other crimes. And most
importantly, the legislation effectively thwarts young adults who are
trying to clean up their lives and get an education, throwing up
barriers that stop them from accomplishing their goals.

There was some outcry when the law was passed in 1998, but it wasn't
until the 2001-2002 school year that the provision was put into
effect and students began losing their aid. Now, as its impact
finally becomes evident, students and civil libertarians are taking a
public stand against the law and organizing protests to get rid of
it. Meanwhile, the financial aid officers at a handful of
universities have reimbursed students affected by the law, and their
colleagues around the country are looking for ways to follow suit.

Last month, Yale University became the fourth private university to
announce that it would begin reimbursing students who lost their
financial aid because of the Higher Education Act. A bill that would
repeal the provision, proposed by Rep. Barney Frank, D-Mass., has
gained some momentum; and Rep. Mark Souder, R-Ind., who wrote and
sponsored the law, is now backing a bill to change his own
legislation.

"I think the law is mean-spirited and short-sighted," says Barbara
Hubler, director of financial aid at San Francisco State University.
"We're out here trying to improve students; education is a way to
help people become better citizens. It shouldn't be a bureaucracy
that throws up obstacles and frustrates their attempts to move ahead
with their lives."

The battle against the Drug-Free Student Aid provision is, in effect,
one more protest against laws quickly cobbled together in an
unrealistic drive to purge the country of drugs. In the quest to
ensure that no one, particularly not young Americans, touches drugs,
Congress managed to pass sweeping and draconian measures that fail to
differentiate between degrees of drug use and abuse, or between
victims and villains. Opponents of the financial aid provision, like
the opponents of drug conspiracy laws and the harsh sentencing of
drug offenders, are questioning the effectiveness and fairness of
broad rules that have tended to punish many in hopes of sending a
message to the few, and are now derailing an educational system once
known for its inclusiveness.

The measures proposed to change or eliminate the Drug-Free Student
Aid provision, even if they are passed, will not help the thousands
of students already denied financial aid under the measure. It is not
likely to influence the many students who, when denied aid, gave up
on higher education altogether. In fact, this year's freshmen, unless
they are enrolled at a university that has taken a stand against the
measure, will be widely affected by the rule.

The provision may seem like a relatively small piece of legislation,
reaching only a fraction of all college students, but its
implications are far-reaching. The message it sends about our
nation's priorities is ominous: As the ACLU's director of drug policy
litigation, Graham Boyd, sums it up, "The government is creating two
classes of people: One class to whom we want to give an education and
succeed in life, and another class of low-income drug users who we
want to relegate to a life of working at McDonalds."

The Drug-Free Student Aid provision was tacked on to the Higher
Education Act of 1998 as part of Souder's aggressive anti-drug
agenda. The law was intended to be both an incentive and punishment
for currently enrolled students who were battling drug problems:
Students who were receiving aid but had strayed from the straight and
narrow would lose that money unless they could prove that they'd
cleaned themselves up. "We wanted to ensure that students who were
receiving taxpayer subsidizations were not breaking the law,"
explains Seth Becker, Souder's press secretary. The provision passed
quickly, with support from both sides of Congress.

Under the rule, any student who has been convicted of the possession
or sale of a controlled substance is temporarily -- or perhaps
permanently, depending on the offense -- ineligible for any federal
grants, loans or work assistance. Students with one drug possession
conviction lose their aid for one year from the date of conviction;
with two convictions, they lose two years; and upon a third offense
they may lose their aid forever.

Sanctions are even stricter if students are caught selling drugs: A
first offense is punished with a two-year aid loss, and a second
conviction gets you indefinitely barred. There is one caveat: If a
student completes a federally approved drug rehabilitation program,
and then passes two unannounced drug tests, he or she could get the
aid reinstated.

But in their rush to get the law on the books, Congress failed to
conceive of a reasonable strategy to enforce the provision. The lack
of an implementation procedure has resulted in far more students
being affected by the law than anyone, even Souder, ever intended.
This glitch is compounded further by the inherent unfairness of the
law: It specifically targets minority students of lower income, and
ignores any financial aid applicants who have committed crimes
unrelated to drugs.

Even though the provision was intended to deny aid to currently
enrolled students who are convicted of drugs, it has had the effect
of punishing new students who have sinned in the past. What the law
didn't take into consideration is that the Department of Education
has no way of knowing when recipients of financial aid get in trouble
with the law. Indeed, college financial aid officers have no means of
tracking the arrests and convictions of their students.

Under the circumstances, applicants for aid are required to
self-report their past drug convictions when they sign up for support
for the first time. The outcome of this system is that the only
students who can be identified as having drug convictions are new
applicants who haven't even begun to receive aid (and who also
haven't been savvy enough to lie about their drug histories when
filling out their application).

Both opponents and proponents of the provision agree that this is an
unfair way to ferret out drug offenders; because of the way the law
is being used, it is no more than a belated punishment for crimes
that happened long before the student applied for college. But the
sides disagree on how many students have lost their aid because of it.

The Department of Education's numbers fail to clearly illustrate the
impact of this provision. It's possible, in the strictest sense, to
say that only 1,019 students have lost their aid since 1991 because
of a past drug conviction. But this ignores thousands more students
who are dropping out of the financial aid process halfway through,
thanks to the way the application is formatted. Since 1991, some
59,543 students have either left the question about drug convictions
blank on their applications or failed to return worksheets that
grilled them about their drug convictions, thereby making them
ineligible.

No one is tracking these students to find out why they gave up, but
it's probably a fair assumption that many of them had drug
convictions they didn't want to reveal and so simply decided not to
bother. Similarly, no one is tracking what happens to students who
are denied financial aid: Do they continue on to college anyway, find
other forms of financial aid and take on second jobs? Or do they just
drop out altogether?

There is no national data on these questions, but an informal survey
of some local colleges and universities in the San Francisco Bay Area
unearthed some disturbing trends. At San Francisco State University,
for example, 48 students were turned down for financial aid last year
because of their prior drug convictions; of those 48, says financial
aid director Hubler, only 4 students ultimately enrolled in school.
At City College of San Francisco, 10 students were turned down; a
slight majority continued on to school and the rest disappeared. (The
more prestigious University of California at Berkeley and Stanford
University didn't recall any students who had been denied financial
aid.)

"One could theorize from the numbers that students are being denied
aid and then not enrolling," says Hubler. "And another group of
students with convictions surely looked at the application and said,
'I'm not even going to apply for financial aid.' We have no idea how
many of those students there are."

Although it's possible to go through drug rehab to reclaim
eligibility, it's a circuitous and insulting process that could deter
many students. Students who already have gone through Narcotics
Anonymous, for example, are informed that the program doesn't meet
federal standards. Their only option is to enter drug rehab again.
Students convicted of a minor possession -- say, having a small
amount of marijuana -- have to go through the same measures as a
heroin addict. Some, if not most, approved drug-rehab programs are
both expensive and time-consuming.

Only one of the 48 students at SF State who were denied federal aid
bothered to go through rehab, which deeply concerns financial aid
administrators. Jorge Bell, the associate dean of financial aid at
City College, observed several students drop out rather than undergo
rehab. "There might be some students out there who are deciding not
to continue their education because of this extra hoop," he says.
"Financial aid is so important, if you have to wait for your aid --
or even just wait weeks to go through a drug rehab program -- you may
give up altogether."

The Drug-Free Student Aid provision also imposes class and racial
biases, in addition to an oddly arbitrary rating of various types of
crime. For example, the measure, because it concerns only
drug-related transgressions, does not apply to rapists, batterers or
armed robbers, among others.

Student groups, infuriated at being singled out as lurking enemies in
the war on drugs, have organized against the provision. "Are you
telling us that drug laws in the United States aren't deterrent
enough?" asks Shawn Heller, national director of Students for
Sensible Drug Policy, which is coordinating students across the
nation to protest the legislation.

"It's drug war politicking," he says. "Souder wants to go back to his
district and say 'I'm tough on drugs and I created laws that buckle
down on users.' But if he wanted to do anything about drug problems
on campus, he'd give additional funds for local programs that
actually reduce drugs on campus. It's another zero tolerance law in
which you take discretion away from judges and people who deal with
these problems on a daily basis, and give it to the federal
government instead."

Civil libertarians argue that this law is an example of blatant
discrimination, based on income and race. By definition, they say,
the law is designed to penalize the less fortunate college
applicants: Students who can pay for college with their own (or more
likely, their parents' own) money, are unaffected by the law, while
needy students are subjected to unfair scrutiny and the loss of an
education. The law also unfairly targets minority citizens, by virtue
of the deep racial inequality of the nation's war on drugs: Sixty-two
percent of those with drug convictions are African-American, even
though they make up only 12 percent of the population and 13 percent
of all drug offenders.

"It's well documented that drug war enforcement is heavily skewed
towards blacks," says the ACLU's Boyd. "Since the Drug-Free Student
Aid provision is more about who gets convicted by the system than it
is about the drug offense, it's much more likely that you'll lose
your funding if you are black than white.

"It's extending the racial injustice that you see on the street
corner into colleges, and the consequences are profoundly unfair,
since education is extremely important."

Because the provision is a federal law, only prestigious, private
institutions have the freedom to financially assist students who have
lost their aid to it, thanks to the private money on hand. At public
universities -- where more students are likely to have been affected
by the law in the first place -- the financial aid offices are bound
by their reliance on public funding. But that has not stopped many of
them from speaking out against the provision.

A handful of the private institutions have used their freedom to defy
the provision by reimbursing students who have lost their aid, or
offering them special scholarships. Last year, three private
universities, Hampshire, Swarthmore and Western Washington
University, took this action. In April, Yale University, where
students have protested the law, joined in. Although no students at
Yale have ever lost aid because of the drug provision, any who do in
the future will be reimbursed by Yale's private scholarship funds.
(The student does have to agree to participate in a drug rehab
program, however).

Yale spokesman Tom Conroy is careful not to condemn the law, pointing
out that Yale historically has guaranteed all students the financial
aid they require for their education, regardless of reason. Still,
the provision's opponents are thrilled by Yale's action, and hope
that if one private Ivy League school takes action, the rest will
fall in line. Opponents of the law are further delighted by the
symbolism in the defiance by Yale, alma mater of George W. Bush.

"Yale's decision is tremendously important for political reasons,"
says Boyd. "Because it is an elite institution, which many of our
elected leaders actually attended, it sends the message that this is
a law that is so fundamentally unfair that the universities are
effectively opting out."

Still other universities have shown some interest in taking action
against the measure. The Students for Sensible Drug Policy (SSDP)
held a national conference about the provision last year, explaining
how financial aid officers could reimburse students who lost their
aid. Administrators from 50 colleges, including Yale, attended. The
SSDP also has organized student action groups at more than 200
colleges around the nation, including strong chapters at Harvard and
Wesleyan, to push their schools to follow Yale's lead.

Some schools, which have yet to lose a student due to the provision,
appear to be waiting to see what happens (or if any other
universities stick their neck out first). At Stanford University, one
financial aid administrator explained that the university would
consider a similar action "if the situation were to arise here."

In the meantime, there's a chance that the law could simply go away.
In February 2001, Barney Frank introduced a bill to Congress that
would repeal the law. Since then, 66 cosponsors from both parties
have signed on. But as Frank's secretary Peter Kovar complains,
"There's been no action on the bill, and frankly it's an uphill fight
with the Republican administration."

Meanwhile, in December, Souder submitted an amendment to his bill
that would restrict the disqualification of students for drug
offenses to "those students who committed offenses while receiving
student financial aid." The amendment is slowly working its way
through the committee process, but it still doesn't address the
question of how, exactly, the Department of Education would find
those students in the first place. (Souder's press secretary Becker
suggests that maybe there could be some kind of "reporting mechanism
between legal agencies" that would track student drug convictions,
but he's noticeably vague on the details.)

This piece of panicked legislation, like others that emerged during
the war on drugs, is likely to be slow to change. Nearly 20 years
after the national hysteria about crack, for example, we still have
laws on the books that will put a person in jail for decades for
possessing even the tiniest amount of crack, or throwing a party
where drugs are used. The Drug-Free Student Aid provision, which is
so flawed that even the congressman who wrote it wants it to change
it, may not disappear any faster.

The nation's war on drugs has consumed vast amounts of funding -- for
the criminal justice system, interdiction and heavy-handed propaganda
designed to bring national drug use to a halt. But education, with
its psychological and financial benefits, is widely acknowledged to
be perhaps the best deterrent of all. Isn't it ironic, then, that
this piece of legislation would deny even a small amount of financial
aid to those with troubled pasts who are now trying to improve their
lives.

The proponents of the provision argue that public money shouldn't be
going to students who are using drugs. By this backhanded reasoning,
we must be satisfied with the fact that the money we save keeping
kids out of college can be put to better use building jails, where
these same kids, hopeless and unsupported, will eventually end up.