I’ve posted before about 20 U.S.C. § 1091 entitled “Student Eligibility” and its restrictions on Federal Student Aid based on marijuana and drug convictions.

The ACLU has recently taken up the cause, filing an appeal recently of a Federal District Court’s denial to have that section declared unconstitutional. From the press release:

“The law’s purpose is to impose a second criminal punishment on students who have already served their sentences, which makes it unconstitutional,” said Adam Wolf, an attorney with the ACLU Drug Law Reform Project.  “Judges must assess, not ignore, lawmakers’ intentions.  All we ask is that the court consider the evidence.”

The legal basis for the challenge is that the intent of the Act is punitive in nature – and therefore violates the Double Jeopardy clause of the U.S. Constitution. The brief does an excellent job of quoting from the Congressional Record to back the assertion that the legislative intent was indeed punitive:

“[T]oday’s bill is intended to impose some accountability on those who use controlled substances.”

Users of controlled substances “get off scot-free…[W]e can begin to send the message to illegal drug users that they are no longer immune…”

“A couple of years ago we passed a user-accountability law…Unfortunately, we wound up with provisions that allowed judges to make a decision on a case-by-case basis…”

Goodness! Judges allowed to make case by case decisions on whether a marijuana conviction should be denied student aid? How about trying to imagine what America would look like right now, if we took college degrees away from everyone that had ever experimented with marijuana. (see, e.g., the 2002 Time/CNN Poll showing 47% of Americans have used marijuana, on page 3 of this article)

The legal hurdle for the Government’s lawyers, of course, is that they must argue that the denial of student aid is not intended to be punitive, or they risk that part of the law being struck down as an unconstitutional double punishment.

Common sense tells us that it is.  And kudos to the ACLU for the good work in proving it. It will be interesting to see where this leads.

  • Harry

    Didn’t this case lose in district court? Did they appeal? Or is there a new suit, different than the one they filed with SSDP last year?

  • It is an appeal from the Federal District Court’s previous denial of the same motion.

    At the very least I worded that poorly, and I have corrected the entry to make that more clear.

    Thanks for the question (or I probably wouldn’t have noticed that).