Student financial aid: Under federal law, anyone with a federal or state conviction involving the possession or sale of a controlled substance, including Operation of a Motor Vehicle While Under the Influence of a Controlled Dangerous Substance, (including marijuana) is prohibited from receiving federal financial aid for post-secondary education for specified periods of time. This also directly affects the students to receive federal grants, loans, and/or work assistance.

The McCollum Amendment to the Anti-Drug Act, 21 U.S.C. § 862, allowed federal and state courts to suspend eligibility for federal student loans to an individual convicted for illegally possessing or distributing a controlled substance as part of the individual’s criminal sentence.

However, The 1998 Amendment To The Higher Education Act (HEA) established an Aid Elimination Provision which requires the Department Of Education (DOE) to deny student aid for one year to applicants convicted of possessing a controlled substance if convicted while the student was receiving financial aid, for two years to applicants twice convicted of possessing a controlled substance while students receiving financial aid, and permanently to applicants convicted three or more times of possessing a controlled substance while students receiving financial aid.

Any conviction for possessing a controlled dangerous substance will result in the denial of student aid, regardless of whether the conviction occurred was a misdemeanor or felony. A student convicted of operating a vehicle while under the influence of an illegal drug or other narcotic also is subject to the HEA amendment. Approximately 40,000 to 60,000 students per year are denied student aid as a result of HEA Elimination provision.

The Department of Education provides financial aid to approximately 63% of all College students in the form of Pell Grants, Perkins Loans, Stafford Loans, Federal Educational Opportunity Grants, and work-study allowances. Students who apply for federal financial aid must first complete the Free Application for Federal Student Aid (“FAFSA”). The FAFSA form asks 103 questions. While the bulk of the FAFSA questions relate to information about the students’, and their families’, income, assets, and debts, one particular question, number 31, is different. The HEA Aid Elimination Provision requires the DOE to deny student aid for one year to applicants convicted of possessing a controlled substance while students receiving financial aid, for two years to applicants twice convicted of possessing a controlled substance while students receiving financial aid, and permanently to applicants convicted three or more times of possessing a controlled substance while students receiving financial aid. Applicants who either report that they have a drug conviction or those applicants who do not answer the question about drug convictions are automatically ineligible to receive federal higher education assistance in the academic year for which they sought aid.

The HEA Aid Elimination Provision allows students to regain eligibility before the prescribed time periods have concluded through enrollment in specified drug-treatment programs. However, access to these programs is often extremely limited. Additionally, the costs to attend some of the approved programs exceed the cost of tuition or are otherwise unaffordable to most students. To compound the problem, if the student is fortunate to reside within an area where these programs are offered, most drug-treatment facilities do not accept occasional users, but are limited to accepting full blown addicts who are in imminent need of rehabilitation.

Students convicted for possession are automatically ineligible for aid for one year from the date of the first offense, two years from the date of the second offense, and indefinitely if convicted three or more times. Students barred from receiving aid can regain eligibility prior to the designated terms only by completing a federally approved drug rehabilitation program, of which there is a severe and well-documented shortage, even if they are not addicted to drugs.

The aid elimination provision refuses financial aid to students convicted of a drug offense while in school and receiving aid. Prior to the provision’s enactment, judges had only the ability to revoke student aid as part of the sentence for a drug conviction. However, the provision was almost never enforced. As a result, in 2000, Congress added the aid elimination provision to the HEA in order to make denial of Financial Aid mandatory in all cases involving drugs. This can include convictions for Operating a Vehicle while under the influence of a Controlled Dangerous Substance (CDS).

While our congressmen believe that increasing the punishment for drug related offenses will be a sufficient deterrent to stop students from using any drugs, the fact remains that students who are forced to drop out of school due to financial limitations are far more likely to continue to use drugs. Of course, this becomes a benefit to no one. The best way to ensure that students who are convicted of very minor violations of possession or DUI DWI related offenses become productive members of society is by providing them with continued access to higher education. The law is just non-productive and lacks logic on all levels. The students who can afford their school tuition are entirely immune from the law, while students who lack the financially ability to independently afford school, the same people the Higher Education Act was designed to help, risk losing access to education. Surely, once a student loses his or her seat in school, it is unlikely that that student will ever return to education. Taking away financial aid for school tuition form student with minor drug convictions is counterproductive.

If you are a student who has been charged with a drug offense or an offense of operating a motor Vehicle while under the influence of a drug or narcotic, (DWI or DUI) including marijuana, you need the advice of a qualified attorney.