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April 19, 2007 - Associated Press (US)

Court Asked To Revive Challenge To Student Loan Restrictions

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PIERRE, S.D. (AP) -- A federal appeals court has been asked to reinstate a lawsuit that seeks to strike down a law denying federal financial aid to students convicted of drug offenses.

The lawsuit, filed by the American Civil Liberties Union on behalf of students who lost their eligibility for college loans, argues that the federal law violates the constitutional ban on double jeopardy by subjecting students to a second criminal punishment after they have already served a court-imposed sentence.

In the past six years, the law has prevented more than 200,000 students or would-be students from getting grants, loans or other financial assistance, according to the ACLU.

U.S. District Judge Charles Kornmann of Aberdeen dismissed the lawsuit in October, ruling that the law does not violate the Constitution's provisions requiring equal protection and prohibiting double jeopardy.

Kornmann said Congress had a legitimate interest in creating a class of students who could not get financial aid because the government sought to deter drug use on campuses and prevent taxpayer subsidization of drug use.

The ACLU failed to prove that the ban on financial aid amounts to a criminal penalty that would violate the prohibition on double jeopardy, the judge said.

Congressional records show no intent to establish a criminal penalty, and Congress at most wanted to impose a civil penalty aimed at combatting drug use and encouraging the rehabilitation of drug-using students, he said.

In written arguments filed this week with the 8th U.S. Circuit Court of Appeals in St. Louis, the ACLU asked that the case be sent back to Kornmann.

The appeals court has not set a date for possible oral arguments in the case, which was filed on behalf of three students who lost the ability to get financial aid after convictions for possession of small amounts of marijuana.

The ACLU argues that in determining whether the financial aid ban is an unconstitutional second criminal punishment, Kornmann should be required to look at congressional discussion and action on previous proposals and laws dealing with the same subject.

"All we ask is that the court review all the relevant evidence," Adam Wolf, an ACLU lawyer handling the case, said Tuesday.

The judge last year looked only at the legislative history of the 1998 law and a 2006 amendment passed by Congress. The intent of Congress when it failed to pass previous measures is not relevant in determining whether the law is intended as a criminal punishment, he said.

Wolf said Congress initially passed a law in 1988 that allowed judges to include a ban on student-aid eligibility as part of a criminal sentence for a drug conviction. However, few judges suspended student aid.

Congress then tried for a number of years to require the denial of financial aid for students convicted of drug offenses, Wolf said. A law eventually was passed in 1998 to prevent anyone from getting student aid for certain periods after drug convictions, and the provision was enforced beginning with the 2000-2001 school year.

The 2006 amendment applies the ban only to students receiving financial aid at the time of their drug offenses. For example, a student convicted for the first time of possession is ineligible to get financial aid for one year, but eligibility can be regained earlier if the student completed a rehabilitation program.

"It's a second criminal punishment in that Congress intended to criminally punish the students who had already paid their debts to society as imposed by the sentencing court," Wolf said.

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