Fresh out of prison on a nonviolent drug conviction and determined never to go back, Richard Kelly was stunned to learn that the federal government was an obstacle to his earning a college education to start a new life.
Like thousands of other low-income people, Mr. Kelly was tripped up by Question 35 on the student financial-aid form: "Have you ever been convicted of possessing or selling illegal drugs?" Applicants who respond positively, as Kelly did, can be denied federal financial aid.
"An individual goes to prison, pays his debt to society, and then what? He comes out and tries to better himself, and the same government chooses to take away his opportunity to get an education?" asks Kelly, shaking his head. "I thought this country was supposed to be about opportunity."
Behind the wording of Question 35 lies a tale of an inadvertent legislative move that has led to finger-pointing between lawmakers and the Department of Education. It was originally designed as a tool to hold students accountable for their behavior while receiving federal aid. But because of confusion over wording, it may be denying aid to thousands of previous offenders like Kelly. And that has opened up a racially volatile debate about the nation's war on drugs.
Movement to repeal afoot
A product of a 1998 amendment to the Higher Education Act, the ban on financial aid to students with drug convictions has galvanized campuses across the country, which are fueling a movement to repeal it. Congressman Barney Frank has introduced a bill that has the backing of more than 80 student government associations, a host of national financial aid associations, and civil rights groups.
"It's unprecedented. You can commit rape, murder, arson, and still be eligible for financial aid," says Shawn Heller, national director of Students for Sensible Drug Policy in Washington, D.C. "It also only applies to lower-income students. It does nothing about drug users in middle and upper incomes."
Even the bill's author, Congressman Mark Souder (R ) of Indiana, is backtracking, insisting he never meant to punish previous drug offenders like Kelly.
His office contends the Department of Education misinterpreted the law. Last year, he even introduced a bill to clarify his earlier amendment, but it failed in committee.
"He's an evangelical Christian who believes in redemption and forgiveness," says Angela Flood, Representative Souder's spokesperson. "Do you really think he's going to hold people accountable for a crime they committed as a kid, if they're going to college to change their lives?"
Despite that, the bill Souder authored states: "A student who has been convicted of any offense under any federal or state law involving the possession or sale of a controlled substance shall not be eligible to receive any grant, loan, or work assistance under this title..." It then sets out a schedule. After the first possession conviction, a student is ineligible for aid for one year, a second conviction, for two years, and after a third, aid is denied indefinitely. The penalties are harsher for dealing. After the second conviction, aid is indefinitely denied.
In 1999, the Department of Education went through the process of promulgating the regulations to enforce the bill. They were published with a 60-day comment period. At no time while the regulations were being developed or during the public comment period did Souder weigh in with comments, according to the department's records.
"We are bound by what the law states, and we are doing what we are required to do to enforce it," says Education Department spokesperson Lindsey Kozberg. "This is a discussion that if the congressman would like to have, we would look forward to having it."
Meanwhile, students like Kelly are being denied aid. But critics contend that even if it is modified, the law should be repealed because it unfairly targets low-income students and is racially inflammatory.
"Studies show that rates of drug use are equivalent in white and black communities, but minority neighborhoods are disproportionately targeted by law enforcement," says Corey Barbour, legislative director of the US Student Association. "This introduces the racial bias we know exists in the law-enforcement and judicial systems into higher education, compounding the inequities that already exist there."
How applications have been handled
Last year, the department ended up only partially enforcing the new law because the wording of the question was deemed too confusing. Of the 9.9 million applications for financial aid submitted, 279,000 left the question blank. Department officials opted to process those as if the answer was "no." In the end, 9,114 students who admitted to a drug conviction were denied aid for part or all of the school year.
This year, the question is more straightforward and comes with a warning: "Do not leave this question blank." The department has put school financial-aid officers on notice that if students refuse to answer the question, they will be denied aid.
Kelly, who over 20 years of drug addiction racked up 13 counts of misdemeanor possession and one felony conviction, is hoping to be eligible for aid next year. But it remains unclear whether he will be. Meanwhile, he's in college and got help to pay for his tuition from the Exodus Transitional Community, a group dedicated to helping ex-offenders get on their feet after prison.
"Education's opportunity, and where there's greater opportunity, there's less crime," says Kelly. "This shouldn't be happening."
(c) Copyright 2001. The Christian Science Monitor