COURT ASKED TO REVIVE CHALLENGE TO STUDENT LOAN RESTRICTIONS

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.