Oct. 30, 2006

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.

Looking for a job?

See all 211 new postings

Browse all job listings:

Faculty: 3,532
Administrative: 1,671
Executive: 168
FEATURED EMPLOYERS

“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.

— Doug Lederman

Want it on paper? Print this page.
Know someone who’d be interested? Forward this story.
Want to stay informed? Sign up for free daily news e-mail.

Comments

Because Larry, you are completely wrong. If an African-American kid in 1970 had been arrested in Kennebunkport Maine for drunk driving, I’ll guarantee you his dad wouldn’t have been called and the incident dismissed. And if an African-American kid in 1975 had walked away from his National Guard commitment, he would have done a year at Leavenworth. To deny that George W. “Call my Daddy” Bush did not know that his family wealth was good for him is as closed-eyed as the rest of your argument. ——————————————merlin

maine drug rehab

merlin, at 6:55 am EST on November 20, 2008

Unfair but legal

Sounds to me that the court ruled correctly. There are many things in life that are unfair but legal. Until we change our hurtful, archaic laws on marijuana, this situation will continue. Case closed!

feudi pandola, at 8:00 am EST on October 30, 2006

Why do issues like these make it to court but students who have been defrauded through the financial aid system can’t even get a hearing??

kgotthardt, at 8:30 am EST on October 30, 2006

Just one more way

To block the poor and minority groups from ever getting out of poverty. A rich kid like George W. Bush could get convicted of a drug offense and still have no problem going to Yale, but for the average African-American youth... And that kind of preservation of the social order and the privilege of the rich will never be rule unconstitutional in the United States.

Ira Socol, Michigan State University, at 9:47 am EST on October 30, 2006

Unfair laws regarding student aid

George Bush, Jr might get to go to Yale, but he’d be paying out of his own pocket. As I wrote previously, if the law is unfair or archaic, CHANGE IT! By the way, don’t blame Bush for this one people. This law happened under Clinton who, as I recall, “didn’t inhale"! Hypocrisy in the political class abounds in BOTH parties.

feudi pandola, at 10:03 am EST on October 30, 2006

That’s the point

George W. Bush could not only avoid the drug conviction through expensive lawyers and knowing judges, his family would have had no problem at all not just paying his way at Yale but paying for his admission as well if he had been convicted.

I’m not blaming Bush for this, I’m simply pointing out that he is the “poster child” for the inequity.

Obviously a law like this only targets certain economic groups, and neither America’s Constitution nor America’s nature opposes economic discrimination.

So, not only are US universities not free (as they often are elsewhere in the “developed” world) and university admissions are not merit-based, but the US uses laws like this to actively separate the rich from the poor. It is one reason that the US rates quite low on any non-American “democracy scale.” (lack of opportunity to change social class)

Ira Socol, Michigan State University, at 11:51 am EST on October 30, 2006

replies

Mr. Kgotthardt, I find your comments quite interesting. As you can see, the court held that there wasn’t a legally cognizable claim. You claim that this means that the dispute “made it to court.” However, you seem to say that “making” it to court is a form of relief that is denied to people victimized by a system of financial aid. However, you did not explain why you were unable to bring a claim before a court, only to have it dismissed, so that you would be in the same boat as everyone else.

Mr. Socol, Unfortunately, many members of the “poor” and “minority” groups don’t really belong in college. While it is true that many rich people are goof-offs in college (and, most people at Yale spend far too much time socializing), this doesn’t mean that poor people are more deserving. Perhaps we should ask ourselves what makes a poor person so darn smart that he should be given a college education under more advantageous terms than his richer brethren. The fact is that many high school students goofed off too much, and did things that show a lack of respect for study, such as watching TV, drinking, and yes, getting involved with drugs.

Also, Mr. Socol, Your second post is crazy. Assuming that Mr. Bush was arrested (which a truly powerful person would have been able to avoid), you did not show how he was treated any better than a poor person in such a situation. The fact is that in most jurisdictions, a first offense drug (minor) arrest can be expunged from a record (without a conviction) after a set period of time for good behavior. This option is available to rich and poor alike. Strangely, rich people are slightly at a disadvantage, as they will have to pay for their lawyers, and poor people will not. But, the results will be the same.

(Finally, there is no indication that Mr. Bush received preferential treatment from any of these unnamed judges that he “knew.”)

Larry, at 4:25 pm EST on October 30, 2006

I see no problem with this law. If you’re caught once, it’s not as if you’re out forever — you’re inelligible for a year. Learn from your mistake and move forward.

Kevin, at 4:35 pm EST on October 30, 2006

Kevin, Since illegal drug use (or, technically speaking, possession) in the country is quite high and illegal use of alcohol is even higher, it seems that the only thing we are really punishing students for is simply being stupid enough to get caught. Every September students come to school with tales of drinking and smoking and not getting caught. Perhaps we should be more concerned with disparate enforcement of drug laws.

Larry, at 5:40 pm EST on October 30, 2006

Find the racist in this picture...

Mr. Socol makes the racist assumption that minorities are more prone to being repeat drug-offenders after entering college than are other students (that’s the only way this law would particularly target them). Why is that the case? Are the minorities who make it to college somehow less intelligent or less capable of curbing their criminal activities and/or addictions than white students? Are they being denied drug-treatment and therapy by the universities? Do they only get one strike while everyone else gets three? In my experience, there are as many (maybe more) drug-using white students in college as there are minorities. Or is he suggesting that the minorities are just more likely to be caught and convicted? That may be true, but I’d like to see some evidence of the fact.

I for one feel that our current drug-laws are archaic and overly-punitive, and that “three-strikes” laws among the general population tend to hurt minorities more than whites. But we’re not talking about the general population—we’re talking about a select group of motivated, high-achieving minorities who do have an opportunity for advancement and equal treatment under the law. I’m not sure that three strikes in this situation is an unfair expectation.

Jack Trades, at 5:40 pm EST on October 30, 2006

Racist?

Larry and Jack Trades -

I wonder how much time either of you have spent in urban courtrooms, or rural courtrooms, or on inner city streets.

Maybe my experience is colored by years as a New York City Police Officer, but if you think the adjudication of drug offenses is not racist or classist, you have been out of America far too long. The simple differences between cocaine crimes and crack crimes in most states is but one example, the way sentences are handed down is another, the incredible disparity between the percentage of African-Americans as a percentage of US population and percentage of US Prison Population is another bit of proof.

You can look through about 5,000 research studies showing this with a simple visit to Google Scholar.

Now — Larry then argues that poor people have no more right to college than rich people. And to that I say, “absolutely.” But I say the reverse is true as well, rich people have no more right than poor people. So balancing aid is vital, and this law unbalances aid.

Jack Trades — you say, “In my experience, there are as many (maybe more) drug-using white students in college as there are minorities. Or is he suggesting that the minorities are just more likely to be caught and convicted? That may be true, but I’d like to see some evidence of the fact.” Well, I’ll refer you to the same 5,000 studies on Google Scholar. Of course minorities are more likely to fall afoul of the justice system than whites, or are you suggesting that whites are, despite all the drug use you detect, simply better people?

Ira Socol, Michigan State University, at 8:51 pm EST on October 30, 2006

Jack and Larry

Here’s one to read... ETHNICITY AND JUDGES’ SENTENCING DECISIONS: HISPANIC-BLACK-WHITE COMPARISONS DARRELL STEFFENSMEIERSTEPHEN DEMUTH

This study uses data on Pennsylvania sentencing practices to compare the sentence outcomes of white, black, and Hispanic defendants. Besides the overall more lenient treatment of white defendants, our main finding is that Hispanic defendants are the defendant subgroup most at risk to receive the harshest penalty. This pattern is held across all comparisons—i.e., for both the in/out and term-length decisions and for both drug and nondrug cases. These findings are consistent with the “focal concerns” framework on sentencing and with hypotheses drawn from the writings on prejudice and inter group hostility suggesting that the specific social and historical context facing Hispanic Americans will exacerbate perceptions of their cultural dissimilarity and the “threat” they pose.

here’s anotherFive grams of coke: Racism, moralism and White public opinion on sanctions for first time possession

Rosalyn D. LeeKenneth A. Rasinski

8 February 2006Abstract

A path-analytic model was used with a national probability sample of White Americans to examine the effects of moralism, attributions of blame, beliefs about racial group use of cocaine, beliefs about racism, and beliefs about the effectiveness of law enforcement on judgments about appropriate sanction for being caught for the first time with 5g of cocaine. As predicted severity of sanction was directly related to judgments about the morality of addicts and attributing blame for addiction to addicts. Though the predicted direct relationship between racism and severity of sanction was not found, a strong indirect relationship was found as racism operated through morality, blame, and beliefs about racial group use of cocaine. Though counter-intuitive, sentence severity was not predicted by judgments about the effectiveness of law enforcement policy. Finally, these results were significant while controlling for conservative ideology, which was found to be positively related to racism, the attribution of blame for addiction to the addict, and the belief that addiction reflects the moral character of the addict. This study produced empirical support for a relationship between a moralistic doctrine and control attitudes. This is congruent with assumptions in reviewed literature on theoretical underpinnings of substance abuse policies in the United States. Also, consistent with the literature was the finding that racist sentiments influence perceptions of morality as they relate to addiction and policies established to address drug use. Furthermore, this study provides empirical evidence that racism and moralism can influence support for policies regardless of their perceived effectiveness.

Ira Socol, Michigan State University, at 8:51 pm EST on October 30, 2006

reply to Mr. Socol

Mr. Socol, After law school, I was a law clerk for two years in an “urban” court. I have practiced primarily in cities. I spent two semesters in law school in an “urban” criminal justice clinic. I am married to a public defender. Do have I enough street cred for you yet?

Now that we got that out of the way, let me agree with you, in part. Substantively, the laws do have an disparate impact on people on the basis of race (which might be a proxy for class.) That is, since black people are using “crack” and there are harsher penalties for possession of crack, then black people in New York feel the brunt of this war on drugs. Procedurally, however, the laws regarding the various times of cocaine are applied rather uniformly between people regardless of race – once an arrest is made.

This doesn’t mean that judges are “racist.” It means, that legislatures made a judgment, perhaps based on race, perhaps based on “morals” or perhaps based on stupidity, and judges, have followed the law. (Only recently, in the wake of Booker, have constitutional challenges to drug disparities been seriously entertained.)

Strangely, you then provide a counterexample (in a rural area) where you claim – with no basis – that black people arrested in Maine would be treated worse than a similarly-situated white person? Where do you get this from? Would a different law be applied? Would the prosecutor deviate from his usual procedure of offering some form of “deferred” prosecution for a first offender just because the defendant was black? Do you know something about the prosecutor there at the time that I don’t? Now, although I wasn’t practicing in 1972 (and neither were you in 1976, or 2006), my experience is that, when it comes to low-level drug crimes, prosecutors will rarely deviate from their policies – which everyone is familiar with.

This has the effect of converting most low-level drug prosecutions into, what many term to be “assembly-line” justice. In theory, people could be sentenced to drug time, so most defendants will take such agreements. Only in the odd situation where the police have a real credibility problem do such cases go to trial.

Perhaps, Mr. Socol, if you were to actually provide the basis for your belief that prosecutors will deviate from their policies just because of some vague class unity we could further explore your rather novel theory of criminal practice – wholly different than the substantive theory you first referred to. Providing vague social science articles (which have nothing to do with first-time possession arrests) doesn’t illuminate the subject any more. Moreover, since legislatures have already determined that crack is less “moral” than a powder form (and most legislatures agree about this for whatever reasons), the article appears to concede that it is unable to analyze any procedural differences in the way first-time non-crack possessors are treated.

Larry, at 7:15 am EST on October 31, 2006

You may have been there...

but you have missed the view, Larry.

If we start with a city like New York, we see radically different policing styles in black vs white neighborhoods (this is more economic the race-based) to begin with. Wealthy white neighborhoods are not stocked with Street Narcotics Teams for example, because drug use behind closed doors is considered differently than drug use on the street. In addition “lifestyle” police contacts are much rarer among the middle and upper classes than among the lower, and I have yet to see a wealthy NYPD precinct where commanders were not fully aware of their wealthy/powerful citizenry.

Now, NYC (and New York State) do have a “high-rights” environment — and thus people appear before judges with attentive attorneys and get “reasonably fair” courtroom treatment, but in western Michigan (where I can currently watch this process) no such protections apply. I have seen many sentencings without a defense attorney being present, and have seen radically different sentencing based (apparently) on race.

But to get back to your assertion that I do not know about the impact of powerful parents on police/prosecutor activity. You must be kidding. Everyone who has sat in a courtroom (or watched the aftermath of young adult arrests) understands that money buys justice — if you spend enough (as in OJ) you can overcome even determined (if incompetent) prosecution. If you cannot — well, simply look at the number of innocents on death row — those ain’t the rich folks Larry.

As in all things American justice is unfairly applied. The $100 speeding ticket that is “cigar-lighting money” for Jeanine Pirro’s husband is (with the insurance increase) bankrupting for the single mother who must drive to her $5.50 an hour job at Wal-Mart. The top lawyer who is a phone call away for those who worry about “the death tax” is an impossibility for those making under $20,000 a year. I just watched, in an East Lansing courtroom — those who showed up on “football Saturday alcohol violations” with lawyers get $50 civil infractions, those who did not got $200 misdemeanor fines.

So, I’m sure for someone who is or knows lawyers this system all seems fair, but to those of us who don’t — well, we see something different.

Ira Socol, Michigan State University, at 8:46 am EST on October 31, 2006

procedural v. substantive unfairness

Mr. Socol, I agree that white and black (or, if you prefer, rich and poor) neighborhoods are policed differently. I agree that this is unfair and, in light of this law, it has an unfortunate effect upon higher education. But that isn’t the issue.

The issue is whether a validly arrested person will be treated differently by the court system based on their race. Whether New York is a “high rights” environment is a matter of perspective. There are attentive attorneys everywhere. I would need to have more details on the sentencing you describe before passing judgment upon them. (Quite frankly, while you are definitely, an intelligent person, you probably lack the background to pick up on the legal nuances that are fly fast and furious during many routine criminal proceedings. Unfortunately, all of the players in the game are so used to doing parts of it, that a lot gets reduced to abbreviations.)

Your example of the OJ trial conflicts with the rest of your argument. First of all, OJ was arrested, indicted, and tried for an offense much more serious than most drug offenses. A truely powerful person would not have been arrested. While the trial captured the imagination of non-lawyers, most of it was rather routine: a jury was called upon to decide questions of credibility of witnesses. In most drug proceedings, none of these issues are in play. When the parties and the litigants actually do wish to litigate these issues, trials are held, and credibility becomes an issue. There are acquittals and convictions.

Whether or not there are “innocent” people on death row is a matter of perspective. Some people say the number is high. Some say the number is low. I don’t how this proves your point about how, in the 1970s, a younger George W. Bush received preferential treatment from a judge on a drug arrest in Maine. Perhaps if you could show that the judge had discretion, and normally exercised that discretion against black people, then I could believe you. But, seeing that the treatment of *first-time* drug possessors in most jurisdictions is rather uniform, I really think you are relying on lay sources, which have no role in academic study of our system of criminal justice. (I generally do not read things written by non-lawyers, and so this board is an exception.)

Secondly, like it or not, many sentences effect people differently. This doesn’t mean that they are unfair. To an uneducated person, community service for a drug offense won’t bother them much. But to a high school grad, preparing for college, this sentence can have a life-altering effect. Sure, from this perspective it may be substantively unfair, but it is not unconstitutional, nor does it demonstrate PROCEDURAL unfairness. This probably explains why we see something different.

Larry, at 10:41 am EST on October 31, 2006

What a Bleeding Heart!

Ira Socol, it is about time someone took a stand against the citizens of the us supporting drug users. If you play, you pay! Let them get a job and work their way through school for a year to two. May teach them a very valuable lesson!

Get out of the Ivory Tower and look around now and then, you may be surprised.

Bill Jenkins, at 10:00 pm EST on November 2, 2006

Mr. Socol’s comments are defensible and normal

Mr. Jenkins, It doesn’t matter whether Mr. Socol is a “bleeding heart” or not. His views on the “drug war” and its impact upon people are not only proper, but within the mainstream. As you can see, I disagree with him regarding whether certain laws are constitutional or not, and just why certain things are unfair.

Moreover, Mr. Socol’s argument (unsupported) is that there is judicial application of drug laws. Therefore, you did not address the argument of “you play, you pay.”

Where I agree with Mr. Socol, is that there is a disparate impact of the “drug war,” and there is hardly any lessons to be learned, when it effects people, based on characteristics they can’t control, so differently.

Quite frankly, very few people could ever work they way though school, anyway. Your comment that this is possible, puts you in an ivory tower of sorts.

Larry, at 6:20 am EST on November 6, 2006

Take it up with your tormentor

I was doing some research on financial Aid. I gave/going to give interviews to multiple people whether they are Japanese, Chinese, Black or White. Let it go man. Some liked the program, and some was definitely against it. But none of them lied about going before some committee, or taking it to the Hill. You are so upset, relax man, no race is going to take over or change the way things was and the way things are going to be. Its cool, if you don’t like to people that don’t look like you to succeed. Everyone is entitled to their own beliefs. Just like I believe that you had some one of a different race either “so-called” out do, reject, tease, or do something to you to remind you of your childhood. Weird as it sounds, I have a classmate named John Faust that I talk to on social issues, and he still doesn’t like the idea of integrated schools. He only attends UNCW because it’s the closest school to his family that provides the classes he needs to further his experience in Marine Biology. He thinks it does not matter whether someone receives financial help or not, in the end what they learned will either help or hurt them. Because of that he respects me because I work hard in school. But you are so bent on the assistance presently, that you can not see that it will catch up in the end whether someone deserved the help or not. Now if you want someone to listen to you passionately, write your concerns to Trent lot. No, I’m no traitor; I’m a black guy no more no less. Now this comment I’m about to make might upset first you but, the financial comment might ease you up a little, I think. My Father is a Caucasian Canadian male, my Mother is a Caucasian woman from Jersey, Wales and they love me just like their blood kids. And no my real mother did not give up on me, and yes I know who my father is, I’ll meet them when my time finally comes. Oh yeah almost forgot (this should make you a little, little satisfied), my parents didn’t let me apply for the Pell Grant. I wanted to because we are not fabulously rich, and it was a lot of things (for school purposes) that I needed. My dad was adamant about leaving that for people who truly needed it. I suck at (hold on to your stool ira) basketball and most sports except for a vast variety of water sports, so a scholarship was out of the question. He thinks books, a notepad and paying close attention should be enough. Eventually I agreed, after basically moved in the school library. So there you go some people out there who respect certain issues. Be careful though, you are starting to sound a little sub-human your self by thinking that your fellow neighbor don’t “really” need, and possibly deserve assistance. If you want to talk about people exploiting help, jump on the welfare issue. Denying education to anyone is not in style anymore, catch up. Yes I know you didn’t say that or anything close to that. But I’m just as guilty of being ignorant ira. I had referred this exact site to others, and I have to admit I was kind of off. I even talked to my roommate about it, and he was like “what, dude I don’t care.” So I took it up with my class and some were at first like “that bothered you?” So tah-da that’s another one for you, I gave you power by getting upset. I hope you know people that will find my reply funny, well my class found yours not ha funny, but some not all, was like: ira should of had take that energy and really present it to someone with power. Oh yeah sorry to offend any one who is tight with this guy, and if you think like him its ok, an opinion is yours to have and you should defend it. At least he cares about the economy; all that money wasted in education has contributed in America’s incredible deficit. Well bye now Ira.

anti-south-nostalgia, Put It Elsewhere ira at UNCW, at 7:30 pm EST on November 25, 2006

Jobs Related to Unfair, not Unconstitutional

or search for jobs directly.

Senior Administrative Assistant — International Security Studies
Yale University

General Purpose
Reporting to the Administrator of International Security Studies (ISS), provide high-level, ... see job

Biological Safety Manager
University of North Carolina, Chapel Hill

This position will lead the Biological Safety Section of the EHS organization and be the University’s Biosafety Officer. This ... see job

Assistant Professor (Non-Tenure-Eligible) — Corporate Communication
Ithaca College

Job Description: Ithaca College’s Roy H. Park School of Communications Department of Strategic Communication ... see job

Special Education: Learning Disabilities ASSISTANT PROFESSOR (TENURE-TRACK)
American University

American University is an independent liberal-arts university located in Washington, DC with 12,000 students. The faculty are ... see job

Instructor / Senior Instructor / CPNP
University of Colorado at Denver and Health Sciences Center-Downtown Denver

Posting Description: University of Colorado at Denver Instructor/Senior Instructor / CPNP Department of ... see job

Developmental Math Instructor
South Texas College

South Texas College Job Announcement # 2010 – 3019 Position pending Board Approval of FY10 Budget Job Title: Faculty ... see job

Lecturer
University of California, Los Angeles

The UCLA Center for Community Learning is currently recruiting for an instructor to teach Civic Engagement 180, “Access to ... see job

Adjunct Faculty, Dept. of Political Science (Part-Time)
Bridgewater State College, MA

BSC is one of the largest and most exciting centers for higher education in the commonwealth. Here in our idyllic setting, ... see job

Assistant Professor, Human Behavioral Genetics
University of California, Irvine

School of Social Sciences Department of Cognitive Sciences Human Behavioral Genetics Position: Assistant Professor, ... see job

Part-Time Health Science Instructor
Central Michigan University

PART-TIME TEMPORARY FACULTY FOR HEALTH SCIENCE COURSES Central Michigan University seeks qualified part-time temporary ... see job