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If Republicans and Democrats can agree on one priority for reauthorizing the law governing higher education, it’s cutting down the lengthy application for federal student aid. Student advocacy groups hope that a FAFSA simplification push will include eliminating a question about drug convictions while receiving federal aid -- and a corresponding section of federal law denying aid to students with such convictions.

At least one Democrat on the Senate education committee plans to reintroduce legislation soon to eliminate the question, a statutory remnant of some of the most punitive steps taken by Congress during the War on Drugs.

Data from the Department of Education show that about 1,000 students each year lose full or partial access to Title IV aid because of a drug-related conviction. Organizations supporting the change, however, argue those numbers don’t capture how many students never apply for aid because they expect they won’t qualify.

“Our research has shown there’s a drastic deterrent and discouraging factor by the question even being on the FAFSA,” said Julie Ajinkya, vice president for applied research at the Institute for Higher Education Policy.

Access to federal aid has a huge bearing on whether students are able to attend and succeed in college, Ajinkya said. And because drug convictions disproportionately affect students of color -- who, research shows, use illicit substances at comparable rates to white peers but are disproportionately charged with drug-related offenses -- the denial of federal aid poses a racial equity issue, she said.

Question No. 23 on the FAFSA, which asks about student drug convictions, was originally added in 1998. At the time, lawmakers voted to deny federal aid to students who had ever been convicted of a drug-related offense.

Restrictions on student aid come into effect whether an applicant is convicted of a felony or a misdemeanor, whether the offense involved the sale or merely the possession of a drug, and apply to convictions under both state and federal law. That means no or limited funding from Pell Grants, Supplemental Educational Opportunity Grants and Federal Work-Study as well as federal student loans.

After the restrictions took effect, tens of thousands of students began losing access to federal grants and loans each year. A 2005 Government Accountability Office report found that in the 2003-04 academic year, more than 41,000 FAFSA applicants were ineligible for aid because of drug-related offenses. Of those, 29,000 would otherwise have been eligible for federal student loans and 18,000 would have been eligible for Pell Grants. (Because the FAFSA does not collect data on students’ race, GAO was unable to determine how minority groups in particular were affected by ineligibility issues.)

The George W. Bush administration in 2005 proposed narrowing eligibility restrictions and Congress the next year changed the law to only deny Title IV funds to applicants who were convicted of a drug offense while they were receiving student aid. Representative Mark Souder, the Indiana Republican who first introduced the student aid ban for applicants with drug convictions, wrote the revision to the law. But the Department of Education’s numbers indicate that thousands of students have continued to lose out on aid in the intervening years. During the 2016-17 student aid cycle, 1,032 FAFSA applicants were deemed fully ineligible because they had a drug-related conviction or failed to answer the question about convictions. Another 254 received a partial suspension of eligibility.

Aid Eligibility Status 2013-2014 2014-2015 2015-2016 2016-2017
Partial Suspension of Eligibility 257 242 273 254
Eligibility Suspended for Full Award Year (Due to conviction) 572 474 564 657
Eligibility Suspended for Full Award Year (Left question blank) 535 504 308 375
Total 1364 1220 1145 1286

Policy observers like Jared Bass, senior counsel for education and strategy at New America's education policy program and a former Department of Education official, have noted the inconsistencies involved in attaching aid eligibility to one type of crime, regardless of the severity of the offense and with many different laws from state to state. A student going to college in a state like California, where marijuana is legal for recreational purchase, for example, could still lose federal aid eligibility if convicted of a drug offense in a state like Texas. And a student convicted for crimes such as burglary and not incarcerated would still be eligible for federal aid, while a student convicted of a nonviolent drug offense would not. "That's still time you're not taking classes and not enrolled in school," said Bass. While students lose federal aid, they are still eligible for state or institutional aid programs. And individuals who lose access to federal aid can restore their eligibility sooner by completing a drug rehabilitation program.

“That’s highly problematic,” Bass said.

Applicants are required to self-report -- there is no federal database of such convictions. A first offense for possession means a one-year period of ineligibility; a second offense results in two years of ineligibility; and a third offense means a student loses access to aid indefinitely. For convictions involving the sale of a controlled substance, a first offense leads to two years of ineligibility for student aid, and a second means an indefinite loss of eligibility.

Senator Bob Casey, a Pennsylvania Democrat who sits on the Senate education committee, in 2016 introduced the SUCCESS Act to eliminate the statutory language restricting aid as well as the drug offense question on the FAFSA.

“Forcing students to drop out of college for committing a youthful mistake does nothing to reduce drug abuse or crimes on campus,” Casey said in a statement. “Repealing the Aid Elimination Penalty will reduce recidivism, over-criminalization, and tax-payer burdens by stopping the suspension of college aid for young people who made a mistake but want to get their lives back on track.”

With reauthorization of the Higher Education Act standing its best chance of passage in years, lawmakers could see some movement on small tweaks to federal law, like Casey's bill, that can be difficult to advance without a larger legislative vehicle. Casey’s office is still seeking a GOP co-sponsor for its legislation this time around but in 2016 the legislation counted Senator Orrin Hatch, a Utah Republican, among its co-sponsors, as well as Senator Sheldon Whitehouse, a Rhode Island Democrat.

Thirty-eight advocacy groups and individual researchers concerned with equity in higher ed recently urged Senate education leaders to reinstate Pell Grant eligibility for incarcerated students as part of reauthorization of the Higher Education Act. Those groups are also backing an elimination of the drug offense question on the FAFSA as part of efforts to expand access to postsecondary education.

Those groups drew a link between the Pell Grant and FAFSA issues to recent “ban the box” campaigns on college campuses. Institutions like the State University of New York and lawmakers in states like Louisiana and Maryland have dropped requirements from admissions applications asking students to declare prior felony convictions.

Marc Cohen, president of the State University of New York Student Assembly and a student trustee on the SUNY Board of Trustees, said the assembly passed a resolution in support of “ban the box” because of research showing those policies affect historically marginalized communities.

“Now instead of admissions, we're talking about financial aid, and the same logic applies,” he said.

Students for Sensible Drug Policy was originally formed in response to the FAFSA question on student drug convictions. The group won a significant victory in 2006 when the aid restrictions were scaled back by Congress. Executive Director Betty Aldworth said HEA reauthorization is a chance to push for its complete elimination.

SSDP believes the ongoing opioid crisis, which has drawn bipartisan interest in crafting a federal solution, should add even more relevance to the FAFSA issue. And the group says that rehabilitative resources should go to individuals actually struggling with drug abuse, Aldworth said.

She said the vast majority of college students caught using drugs don’t have a problem with abuse. Having them go through a rehabilitation program to restore student aid eligibility is a misuse of resource, she said. But for students possibly dealing with legitimate drug problems, losing the ability to pay for college hurts their chances of succeeding, Aldworth said.

“What we do know for sure is one of the most critical factors for any person who is teetering on that edge between occasional use and chronic misuse of drugs is having solid connections and hope for the future,” she said.

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