What About the Children Who Want to go to College?

As a graduating law student, I spend a lot of time thinking about my student loan debt. While the thought of how much money I owe the government occasionally paralyzes me with fear, I’ve grown to appreciate the fact that I qualify for many forms of financial aid and have to overcome virtually no obstacles when it comes to asking for educational loans.

Students with drug convictions, both adults and juveniles, have significant trouble obtaining financial aid. Had I been misfortunate enough to have picked up a marijuana or drug conviction during my time in school, it would have been significantly more difficult for me to secure student loans. Few students are aware that if convicted of a drug offense, they become ineligible for federal financial aid (grants, loans, and work-study) for certain periods of time, depending on the nature of the offense and when it happened. The following chart summarizes financial aid eligibility for drug convictions:

Offense Possession of Illegal Drugs Sale of Illegal Drugs
First 1 year of ineligibility from date of conviction 2 years ineligibility from date of conviction
Second 2 years ineligibility from date of conviction Indefinite period of ineligibility
Third Indefinite period of ineligibility Indefinite period of ineligibility

Students with drug convictions may be able to regain eligibility if they successfully complete an approved drug rehabilitation program or pass two unannounced drug tests, in which case they will not have to wait the full term of years to receive aid again. Regardless, if they are convicted of a drug offense while receiving federal aid, they may be held liable for returning the aid they received. The nature of financial aid distribution means that if someone were convicted on October 1, 2014 of a drug offense, then they would have to return proportional tuition and living expenses for the rest of October, November, and December, and any yearly aid that was distributed at the beginning of the school year. All these complications affect anyone receiving aid, regardless of his or her age.

But this is a column about the children. So I want to focus on those we’ve already become well acquainted with: justice-involved kids. I already discussed how justice-involved youth interact with marijuana prohibition through the juvenile courts, and now I want to consider how a marijuana conviction can continue to affect a child, even after they become an adult. Today we will consider the story of Luis, another fictional youth whose story is not unlike many I have encountered working in juvenile court.

Luis was a kid trying to do his best in some rough circumstances. He attended high school and graduated with his diploma just before his 18th birthday. He had been accepted to and planned to attend a great four-year state college, and he was very much looking forward creating a career for himself. Luis’s family was emotionally supportive of him and his college plans, but they weren’t going to be able to contribute financially. While Luis knew he was eligible for financial aid, he also knew making some extra money whenever he could was a good idea. So he started selling pot to some local college kids. One day, Luis was caught giving a friend half an ounce. Luis was arrested and brought into juvenile court.

Luis was lucky in that he was charged only with “giving a gift less than an ounce,” a misdemeanor under California law. He receives only probation. However, his college plans are now in jeopardy, since he is no longer eligible for financial aid. He is now faced with two options: he can either wait a full year to be eligible for financial aid again or pursue early reinstatement by way of a treatment program or random drug testing. Both options may, in the long run, still allow Luis to pursue his degree, but they both come at the high cost of time. Even if he pursues early reinstatement, random drug testing may not necessarily be expedient, and rehabilitation programs are often 45 days or longer. Any period of time preventing a prospective new college student from beginning their studies can be discouraging, especially if it’s a delay caused by an interaction with the justice system.

I gave the example of a misdemeanor marijuana crime for Luis’s story, but anyone convicted of a “drug offense” is subject to federal financial aid suspension. But what counts as a drug offense? It’s very unclear. When filling out the FAFSA (Free Application for Federal Student Aid), applicants are asked if they have ever “been convicted for the possession or sale of illegal drugs for an offense that occurred while you were receiving federal student aid?” A U.S. Department of Education regulation states that a “conviction means only a conviction that is on a student’s record,” however “record” is never defined. Under California law, simple possession of marijuana is only an infraction which does not appear on criminal records. A marijuana infraction may therefore technically affect student aid, but since it does not appear on a student’s criminal record, students arguably aren’t obligated to report it on their FAFSA applications since it does not meet the Department of Education’s definition of “conviction.” Juvenile convictions pose similar confusions, since juvenile courts do not technically “convict,” rather they “find petitions to be true” or juveniles “admit petitions.” Further, the same Department of Education regulation which authorizes the suspension of financial aid for any student convicted of offenses under federal or state law involving the possession or sale of illegal drugs further defines “illegal drugs” as those defined by section 802(6) of the Controlled Substances Act. Section 802(6), unsurprisingly, includes marijuana. More precisely, it includes all drugs labeled schedule I, II, III, IV, or V; marijuana is a schedule I drug. So it’s a reasonable assumption that the Department of Education intended to include marijuana offenses in suspension eligible offenses.

The question for California, and Californian students, therefore becomes: will legalizing recreational marijuana for adult use change anything? In the case of simple possession, it’s possible that it will. If adult use becomes legal, then no adult will be charged with simple possession again, since it will no longer be a state crime. But which “adults” will be included in any “recreational adult use” laws? Most likely, Californians will follow suit with Colorado and Washington (and soon Oregon and Alaska) and legalize for adults over 21. This means that adults under 21 and juveniles will still not be able to legally possess marijuana, and that if caught, may face possession charges. These possession charges, likely infractions, would be subject to the same level of confusion as simple possession infractions today. Convictions other than simple possession will likely remain suspension eligible, since as misdemeanors and felonies they are convictions under the Department of Education’s definition, and marijuana will continue to be an illegal drug as determined by the Controlled Substances Act. It appears as though the only solutions, when it comes to federal financial aid, may be national legalization or rescheduling marijuana out of the Controlled Substances Act.

It is worth mentioning that students who do not qualify for federal financial aid may still be able to qualify for state financial aid. I won’t go down the rabbit hole of what federalist issues are implicated if California were to pick up the tab for students disqualified from federal aid, but suffice to say that it is a possibility, albeit a complicated one. It is further worth mentioning that state financial aid is traditionally significantly smaller than federal aid. Therefore, were California to provide aid to students ineligible for federal aid due to marijuana convictions, a much larger amount of state aid may be necessary.

Next time I will be returning focus to our juvenile children, and examining the consequences marijuana possession can have for kids in the context of schools.

Clare McKendry for Drug Law and Policy – Follow us on Twitter @DrugLawPolicy