Unfair, not Unconstitutional

Critics of a law that bars the awarding of federal student financial aid to students convicted of drug offenses have offered up no shortage of reasons why they think the law is unnecessary, unfair and even unconscionable. But that doesn't mean the statute is unconstitutional, a federal judge ruled Friday in dismissing a lawsuit two advocacy groups filed against the U.S. Education Department in March.

"The mere fact that that the classification itself results in some inequality or unfairness does not, in and of itself, offend the Constitution," Judge Charles B. Kornmann, of federal district court in South Dakota, wrote. "The Constitution affords no right to a higher education.... Likewise, there is no fundamental right to the receipt of federal student financial aid."

In 1998, Congress amended the Higher Education Act to deny federal student aid for one year to applicants who had been convicted of possessing a controlled substance, two years for those convicted twice, and permanently for those convicted three times. Last January, after intense lobbying by opponents of the law, Congress altered it so that it applied only to students who were convicted of drug offenses while they were in college and actually receiving financial aid.

Those changes did nothing to alter the law's basic unfairness, Students For Sensible Drug Policy and the American Civil Liberties Union argued when they filed their lawsuit in March on behalf of three students who had lost their aid. (One of the students is from South Dakota, which is why the case was filed there.) The suit asserted that the drug law violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment violated the Constitutions' double jeopardy clause by punishing convicted students a second time for their wrongdoing.

Kornmann's ruling Friday roundly rejected the groups' arguments and endorsed the Education Department's call in a May filing to dismiss the case.

To prove that it does not violated the due process clause, Kornmann said, the department need only show that Congress had a "rational basis" for enacting the law, and the law easily meets that test, he wrote. The law, the department argued, "deters drug-related offenses on college campuses and ... prevents taxpayer subsidization of such conduct. The latter justification is enough, standing alone, to survive rational basis analysis," Kornmann wrote.

(Kornmann said it was true that students "convicted of possessing small amounts of marijuana may be prevented from receiving federal student aid while those students convicted of serious sexual or other violent crimes would not suffer a similar fate." But unfairness is not the same as unconstitutional, he noted.)

Kornmann also rejected the groups' assertion that denying a student financial aid equated to a second punishment for his or her crime.

"The legislative history clearly shows that Congress did not intend to establish a criminal penalty when it enacted (the law)," Kornmann wrote, after reciting a lengthy history of the passage of the 1998 amendments to the Higher Education Act. "At the very most, [the law] was intended to be a civil sanction aimed at combating drug abuse on college campuses and rehabilitating those students who had drug convictions."

And denial of federal student aid, he wrote, is "not so severe punishment as to approach criminal sanction.... Ineligibility for federal student financial aid does not involve an 'affirmative disability or restraint' even remotely approaching the restraint of imprisonment."

Tom Angell, campaigns director for Students for Sensible Drug Policy, said in an e-mail message that group officials "obviously disagree with the decision. Educators know that it's irrational to attempt to reduce drug abuse by kicking students out of school. This bad decision reiterates the need for Congress to take action to protect the interests of students and society by repealing this unfair and counterproductive law."

An Education Department spokesman said department officials were gratified by the court's decision and would continue to carry out the law.