WikiLeaks Document Release
                http://wikileaks.org/wiki/CRS-RS21824
                                                February 2, 2009



                         Congressional Research Service
                                        Report RS21824
 Student Eligibility: Drug Convictions and Federal Financial
                             Aid
                 Charmaine Jackson and Laura Monagle, Domestic Social Policy Division

                                                October 10, 2007

Abstract. The Higher Education Amendments (HEA) of 1998 added a provision to the Higher Education Act
of 1965, as amended, to suspend eligibility for federal student assistance (grants, loans, or work assistance under
Title IV of the HEA) for any student who is convicted of a state or federal offense for the sale or possession
of a controlled substance. This provision was amended by the Deficit Reduction Act of 2005 (DRA) to apply
only to students who were convicted for the sale or possession of a controlled substance that occurred while
the student was enrolled in postsecondary education and receiving Title IV student aid. DRA did not change
the criteria pertaining to the period of ineligibility due to a conviction for the sale or possession of a controlled
substance. It remains that the period of ineligibility is determined by the recency of the conviction, the number
of prior convictions, and whether the conviction was for selling or possessing a controlled substance. A student
is considered indefinitely ineligible after the third conviction for possession and after the second conviction for
selling a controlled substance. Participation in an eligible rehabilitation program enables a student to reestablish
eligibility. This report includes a description of the drug conviction provision and a brief discussion of selected
reauthorization issues.
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                                        Prepared for Members and Committees of Congress
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                                        ¢
                                        The Higher Education Amendments (HEA) of 1998 added a provision to the Higher Education
                                        Act of 1965, as amended, to suspend eligibility for federal student assistance (grants, loans, or
                                        work assistance under Title IV of the HEA) for any student who is convicted of a state or federal
                                        offense for the sale or possession of a controlled substance. This provision was amended by the
                                        Deficit Reduction Act of 2005 (DRA) to apply only to students who were convicted for the sale
                                        or possession of a controlled substance that occurred while the student was enrolled in
                                        postsecondary education and receiving Title IV student aid. DRA did not change the criteria
                                        pertaining to the period of ineligibility due to a conviction for the sale or possession of a
                                        controlled substance. It remains that the period of ineligibility is determined by the recency of the
                                        conviction, the number of prior convictions, and whether the conviction was for selling or
                                        possessing a controlled substance. A student is considered indefinitely ineligible after the third
                                        conviction for possession and after the second conviction for selling a controlled substance.
                                        Participation in an eligible rehabilitation program enables a student to reestablish eligibility. This
                                        report includes a description of the drug conviction provision and a brief discussion of selected
                                        reauthorization issues. This report will be updated as warranted by major legislative or other
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                                        relevant developments.




                                           
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                                             Background ............................................................................................................................... 1
                                                 Eligibility ............................................................................................................................ 1
                                                 Rehabilitation...................................................................................................................... 2
                                             Estimated Impact....................................................................................................................... 3
                                             Deficit Reduction Act................................................................................................................ 5
                                             Reauthorization Issues .............................................................................................................. 5
                                             Singling Out Drug Abuse .......................................................................................................... 5
                                             Severity of Crimes..................................................................................................................... 6


                                        
                                        Table 1. Estimated Number of Ineligible Federal Student Aid Applicants by Location of
                                          Postsecondary Institution: Award Years 2000-2001 Through 2006-2007 .................................... 3
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                                        Author Contact Information ............................................................................................................ 6




                                           
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                                        T       he Higher Education Amendments (HEA) of 1998 (P.L. 105-244) added a provision,
                                                Section 484(r), to the Higher Education Act of 1965 to suspend eligibility for federal
                                                student aid (grants, loans or work assistance under Title IV of the HEA) to students who
                                        were convicted for the sale or possession of a controlled substance. Although the provision was
                                        not scheduled to go into effect until two years after the reauthorization, debate regarding the
                                        implementation of the provision immediately ensued. Many policymakers questioned the
                                        appropriateness of denying financial assistance to individuals who had already been convicted of
                                        a crime and paid their debt to society. Other policymakers questioned the Department of
                                        Education's (ED) interpretation of the bill's language and their subsequent implementation of the
                                        policy. The debate has continued since the last reauthorization of the HEA.


                                            
                                        Campus crimes, including the sale and use of illegal drugs, were among the topics discussed
                                        during the debates over the 1998 HEA amendments. During the discussion, studies were
                                        introduced that illustrated that, although campus crime rates in general were decreasing, the
                                        number of drug-related incidents on campuses was increasing.1 In various reauthorization
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                                        hearings2 and in committee reports,3 Congress expressed concern about the increasing number of
                                        drug and alcohol-related incidents occurring on college campuses. During the reauthorization
                                        discussions, Representative Souder stated that the country was facing an epidemic of drug abuse,
                                        and proposed the provision on student eligibility as an "important first step" in dealing with this
                                        epidemic.4 Congress ultimately added the provision to eliminate student eligibility for financial
                                        assistance for those who were convicted of drug-related crimes, as a part of P.L. 105-244.5


                                            ¢
                                        The legislation specifies that any student who is convicted6 of a state or federal offense for the
                                        sale or possession of a controlled substance7 shall not be eligible to receive any federal student
                                        assistance under Title IV of the HEA. The period of ineligibility depends upon whether the
                                        conviction was for the sale or possession of a controlled substance, the recency of the conviction,
                                        and the number of prior convictions. A student becomes indefinitely ineligible8 if he/she has more
                                        than two convictions for possession or more than one conviction for selling a controlled
                                        substance. Once a student is deemed indefinitely ineligible, the student must successfully
                                        complete an approved drug rehabilitation program (to be further discussed later), or the
                                        1
                                          Chronicle of Higher Education, March 21, 1997.
                                        2
                                          See H.R. 6, The Higher Education Amendments of 1998, Campus Crime and Regulatory Reform, Hearing before the
                                        Subcommittee on Postsecondary Education, Training, and Lifelong Learning of the Committee on Education and the
                                        Workforce, http://www.securityoncampus.org/congress/h105113.html.
                                        3
                                          H.Rept. 105-481; S.Rept. 105-181; and conference report H.Rept. 105-750.
                                        4
                                          1998 reauthorization debate on Representative Souder's amendment.
                                        5
                                          A similar provision was proposed by Representative Solomon (H.R. 2116) during the debate on the 1992 HEA
                                        amendments, but was not included in reauthorization.
                                        6
                                          The conviction can be a misdemeanor or a felony.
                                        7
                                          For the purposes of this section, "controlled substance" has the meaning given the term in Section 102(6) of the
                                        Controlled Substances Act (21 U.S.C. § 802(6)).
                                        8
                                          According to the program regulations (34 C.F.R. § 668.40) indefinite means that the student permanently loses
                                        eligibility for Title IV financial assistance unless the student completes a rehabilitation program or has the conviction
                                        removed.




                                              
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                                        conviction must be removed from the student's record, in order for the student's eligibility to be
                                        reinstated. The period of ineligibility begins on the date of such charge and ends after the interval
                                        noted in the following:

                                        Possession of a controlled substance--ineligibility period for the first, second, and third offense
                                        is

                                               ·   First offense: one year from the date of the conviction;
                                               ·   Second offense: two years from the date of the conviction;
                                               ·   Third offense: indefinite.
                                        Sale of a controlled substance--ineligibility period for the first and second offense is

                                               ·   First offense: two years from the date of the conviction;
                                               ·   Second offense: indefinite.
                                        According to the 2006-2007 Federal Student Aid Handbook (Volume 1, Student Eligibility), any
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                                        convictions that occurred prior to the student turning 18, unless the student was tried as an adult,
                                        or any convictions that were overturned, reversed, or otherwise removed from the student's
                                        record are not used in determining eligibility.9

                                        
                                        A student who is indefinitely ineligible for federal financial assistance must complete a drug
                                        rehabilitation program in order to reacquire eligibility. According to the program regulations (34
                                        C.F.R. § 668.40), an eligible rehabilitation program is one that meets the following requirements:

                                               ·   Has received or is qualified to receive funds directly or indirectly under a federal,
                                                   state or local government program;
                                               ·   Is administered or recognized by a federal, state or local government agency or
                                                   court;
                                               ·   Has received or is qualified to receive payment directly or indirectly from a
                                                   federally or state licensed insurance company; or
                                               ·   Is administered or recognized by a federally or state licensed hospital, health
                                                   clinic or medical doctor.
                                        In addition, the rehabilitation program must include at least two unannounced drug tests.

                                        Participation in a rehabilitation program reduces ineligibility to the preceding applicable period.
                                        For example, if a student has been convicted three times for possession of a controlled substance,
                                        participation in a rehabilitation program reduces the ineligibility period to the equivalent of two
                                        convictions (e.g., two years from the date of the most recent remaining conviction). A person can
                                        participate in a rehabilitation program for any of the convictions, not just those resulting in
                                        indefinite ineligibility. In addition, future convictions will make the student ineligible again.


                                        9
                                            The handbook can be accessed at http://www.ifap.ed.gov/sfahandbooks/attachments/0607FSAHBkVol1.pdf.




                                              
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                                        Upon completion of the rehabilitation program the student self-certifies that he/she has in fact
                                        completed the course.


                                              
                                        It is estimated that more than 180,000 students have been denied federal financial aid or had the
                                        receipt of federal aid delayed since the adoption of this provision.10 According to data released by
                                        the organization Students for Sensible Drug Policy, this has represented fewer than .25% of all
                                        federal financial aid applicants since the provision was enacted.11 However, at least two states,
                                        California and Texas, have had a large number of students who have been declared ineligible as a
                                        result of this provision (see Table 1).

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                                        ykcutneK                    240,060,1                 287,2                             %62.0




                                        10
                                           See "Harmful Drug Law Hits Home: How Many College Students in Each State Lost Financial Aid Due to Drug
                                        Convictions?," Students for Sensible Drug Policy, http://www.ssdp.org/states/ssdp-state-report.pdf.
                                        11
                                           These data are contained in a report entitled, "Harmful Drug Law Hits Home: How Many College Student in Each
                                        State Lost Financial Aid Due to Drug Convictions?" These data were released to the organization Students for Sensible
                                        Drug Policy in response to a Freedom of Information Act request. The report is available at https://www.ssdp.org/
                                        states/ssdp-state-report-pdf.




                                               
                                                                  
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                                        Largely in response to the confusion and contention surrounding the provision, the Deficit
                                        Reduction Act of 2005 (DRA) (P.L. 109-171) was enacted to change the manner in which the
                                        provision was being implemented. The amended provision specifies that only those convictions
http://wikileaks.org/wiki/CRS-RS21824




                                        for the sale or possession of a controlled substance that occur while the student is enrolled in
                                        postsecondary education and receiving Title IV student aid would disqualify a student from
                                        receiving federal student aid. The DRA did not change the provisions pertaining to the period of
                                        ineligibility due to a conviction for the sale or possession of a controlled substance. It remains
                                        that the period of ineligibility depends upon whether the conviction was for the sale or possession
                                        of a controlled substance, the recency of the conviction, and the number of prior convictions.


                                        £ 
                                        Title IV of the HEA may be considered in the upcoming reauthorization. There are several
                                        legislative proposals to modify the existing drug conviction provision. Since its initial enactment,
                                        issues have continued to arise, including how the provision should be implemented, what types of
                                        penalties, if any, should be imposed, who should be penalized, and whether there are other crimes
                                        that are more deserving of disqualifying a student from receiving financial aid. The following
                                        section presents a brief analysis of selected issues that may be considered during the
                                        reauthorization discussions.


                                                                              
                                        In the discussions surrounding the addition of this provision to the student eligibility requirements
                                        during the 1998 reauthorization, the increased incidence of drug usage on college campuses was
                                        continually referenced. Many policymakers expressed concern about the growing number of
                                        drug-related crimes that were reported each year by institutions across the country. Largely in
                                        response to this increasing problem, Congress included this provision for eligibility. However,
                                        critics assert that drugs are unfairly being singled out. Representative Frank is reported to contend
                                        that singling out drugs as the only crime for which a student can lose financial aid eligibility
                                        treats drug convictions more harshly than rape, arson or armed robbery.12 Supporters maintain



                                        12
                                             Greg Winter, "Furor Over Student Aid Ban for Long-Ago Drug Offenses," New York Times, March 13, 2004.




                                               
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                                        that robbery, rape and arson are less likely to occur on a college campus than drug-related crimes,
                                        thus justifying the focus on drug-related crimes.

                                        The implications of limiting the loss of financial aid eligibility to students convicted of drug-
                                        related crimes might be considered during reauthorization. If it was the intent of Congress to deter
                                        certain illegal behaviors occurring on college campuses when this provision was included, crimes
                                        such as alcohol abuse on college campuses may arise as an issue.


                                        ¢  
                                        As noted above, the existing provision does not distinguish between a misdemeanor or felony
                                        drug-related conviction. At present all convictions, whether or not the conviction warranted jail or
                                        prison time and regardless of the amount of time served, result in a loss of eligibility. The separate
                                        ineligibility periods and the allowable number of convictions for selling versus possession of a
                                        controlled substance acknowledges a difference between those who use and those who sell.
                                        Similarly, Congress may debate the difference between a felony and a misdemeanor drug
                                        conviction in relation to suspending eligibility for student aid.
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                                        Charmaine Mercer                                    Laura L. Monagle
                                                                                            Information Research Specialist
                                                                                            lmonagle@crs.loc.gov, 7-7351