Tuesday, March 21, 2006

Don't Do Drugs, or "Be Cool and Stay in School"

So I lied about not "blawgging"--haven't you realized by now that my word is meaningless?

Anyway, interesting tidbit from the NY Times about a class action lawsuit against the Department of Education:

"Federal Aid is Focus of a Lawsuit by Students":

A student organization is suing the United States Education Department over a law that denies federal financial aid to 35,000 students a year because they were convicted of drug offenses while receiving the aid. The class-action suit, which the American Civil Liberties Union is to file on Wednesday in federal court in South Dakota on behalf of an organization called Students for Sensible Drug Policy, names the secretary of education, Margaret Spellings, as a defendant.The named plaintiffs are three students who lost financial aid after misdemeanor drug convictions. They represent 200,000 students with drug records who also lost financial help since the first version of the law was passed in 1998.

The suit contends that the law is unconstitutional because it amounts to double jeopardy, further penalizing students who were already punished by the courts. The suit also argues that the law violates the students' right to due process, and disproportionately hurts African-Americans, who are more frequently convicted of drug offenses than whites.

Interestingly, I entered college at the time the law was first implemented, and remember that FAFSA question (and remember it every year as I beg for money to fund my over-education). While I support these plaintiffs and their legal arguments, I just don't think they'll fly. Especially with this court.

First of all, it is not unconstitutional for Congress under its spending powers to enact constraints on how its money can be used. This is why those living in federally subsidized housing have to be drug free and not share the house drug-using family members at the risk of eviction. This is why you have no right to a federally funded abortion, and why federal Medicare programs are not compelled to cover abortions that are not medically necessary to protect the life of the mother or fetus. Often, this power is used for good as much as evil--this is why states and universities receiving federal aid may not discriminate on the basis of race, gender, national origin or religion. But notice, only those groups, as gender is not a suspect class, it is analyzed under "intermediate scrutiny. Forget about sexual orientation. This is why the recent FAIR v. Rumsfeld case said that the military may not be barred from recruiting on campuses that receive federal aid despite the fact that the military's "Don't Ask, Don't Tell" policies violate the school's own anti-discrimination policies. If you want federal aid, you have to play by the federal government's rules. (see why Federalism is relevant to your life?) So if Congress in its legislative judgment deems the Drug War to be a sufficient reason to attach a few strings on its financial aid so as to ensure that it doesn't subsidize the education of addicts who may further promote the sale and use of drugs--well, that's their legislative ability to do so.

Moreover, the argument about "double jeopardy" sounds just silly. It's true that you can't be prosecuted twice for the same crime (but don't watch that Ashley Judd movie for legal pointers), but it's not true that you can't have enhanced penalties. Just think of doctors who have their licensed revoked for drug use--twice punished for the same crime, yet it's in the public interest so it's okay. The same public interest argument could be made here. It's why we have enhanced penalties for hate crimes, drug-related crimes, etc.

Also, even though this law disproportionately affects blacks and minorities, the Supreme Court has in essence said "So what?" Absence an intent to discriminate (Washingtion v. Davis), disparate impact is not sufficient to strike down a law if it has a legitimate governmental interest (here, to control how federal funds are used to discourage the use and sale ofdrugs) and that the interest is furthered by means rationally related to that legislative goal. I don't even think there's a strict scrutiny test here--there's no suspect class being invidiously affected by this legislation ("drug users" doesn't cut it like race and national origin does) and so under the rational basis test, the government could do anything rationally related to the goal of curbing drug use. If they affect the rights of drug users, who just happen to be mostly black, well then, that's too bad for them.

With respect to the due process argument, I don't buy that either. There is no constitutional right to an education, and thus no right to a federally funded education. The federal government is depriving the students of a property interest to be sure, but one that they have no fundamental right to. Plus, the students arguably have sufficient notice--when they applied for financial aid, eligibility was predicated on whether or not they had been convicted for drug possession. Thus, it's not hard to figure out that any drug conviction would then cancel their eligibility and financial aid.

I'm not saying I like our drug policies. I respect the views of many of my friends who argue that our drug policies are draconian, excessively punitive, and overwhelmingly impact minorities. I don't like them either. But these arguments aren't going to work. I applaud those who try to change our drug laws, but after Gonzales v. Raich, the Supreme Court has indicated that it's willing to set aside it's anti-big government position to allow the DOJ to prosecute those who merely use (not even sell) marijuana for personal, medical purposes despite the lack of evidence that such use affects interstate commerce (see why the Commerce Clause is relevant to your life?). So despite the fact that this law is counterproductive, leading to thousands of young men and women who are denied the opportunity to change the direction of their lives because of prior drug convictions who are then fed back into the system of drug addiction addiction and welfare-dependency--I just don't think it'll change. I may be wrong. I hope I am.

I don't have complete sympathy for the college students (while I support reforming our drug policies, I don't support drug use), but I'm sympathetic to their arguments and what they're trying to achieve through this litigation. I just don't think it's going to work.


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