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BLUMENS ON FORMATT ED 05/16/02 7:57 PM
HOW TO CONSTRUCT AN UNDERCLASS,
OR HOW THE WAR ON DRUGS BECAME
A WAR ON EDUCATION
By Eric Blumenson* and Eva S. Nilsen**
I. A NEW PUNISHMENT: DENYING OFFENDERS AN EDUCATION
A. Public School Education
B. College and Higher Education
C. Prison Education
II. THE INDIVIDUAL AND SOCIAL COSTS OF EDUCATIONAL PRIVATION
PUNISHMENTS
III. RECLAIMING EDUCATIONAL OPPORTUNITY FOR OFFENDERS
A. Political Prospects
B. Court Challenges
1. Substantive Due Process and Equal Protection
2. Retroactive Application
3. Rights Under the Federal Disability Acts
4. Unconstitutional Punishment
The United States has been waging a highly publicized war on drugs for
a long time. Familiar scenes seem to have been with us for a lifetime:
government agents posing with bricks of cocaine piled high, helicopters
defoliating coca fields abroad, drug czars promising that our redoubled
efforts are finally turning the tide. A systematic accounting of the American
casualties of this war is harder to come by, however. Not many Americans
are aware that we now imprison two million people, six times as many as we
did in 1972, in large part as a result of the drug war that has been waged
over those three decades.1 Even fewer know that in the '90s, educational
deprivation became a weapon in the drug war, resulting in the denial of high
* Professor, Suffolk University Law School; J.D. 1972, Harvard Law School.
** Associate Clinical Professor of Law, Boston University Law School; J.D. 1977, University
of Virginia Law School; LL.M. 1980, Georgetown University Law Center.
Copyright 2002 by Eric Blumenson and Eva S. Nilsen. We thank many friends and colleagues
for their generous and thoughtful counsel, including Karen Blum, Gabriel Chin, Nora Demleitner,
Victoria Dodd, Eileen Kaufman, Simone Levine, Eric Lotke, Ken Simons, and Jeremy Travis; and
for expert research assistance, Paige Ormond, Samit Patel, Wendy Fritz, Michael Van Dam, and the
library staffs at our respective universities.
1.See infra notes 51-56.
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62 The Journal of Gender, Race & Justice [6:2002]
school or college opportunities to tens of thousands of students. While
Americans are arguably more committed than ever to the ideal of universal
education, the drug war has effectively withdrawn this commitment to many
children who are most at risk. It has done so in several related ways that we
explore in this article.
First, the drug war has combined with public school zero-tolerance
policies to remove tens of thousands of adolescents from their public
schools.2 Eighty-eight percent of public schools have zero-tolerance policies
for drugs,3 and according to one recent study approximately eighty percent
of students charged with drug or alcohol infractions are suspended or
expelled from school.4 While a small number of these students have
undoubtedly committed serious drug offenses, far greater numbers have lost
their educational opportunities based on the simple possession of drugs–
sometimes as small as one pill.5
Second, denial of higher education has been adopted as an additional
punishment for drug offenders. Under the Drug Free Student Loans Act of
1998, students who have ever been convicted of a drug offense are either
temporarily or permanently ineligible for federal college loans and grants.6
This law has led to the withdrawal from school of thousands of college
students who have no alternative means of paying for their education.7 As to
drug offenders in prison, their access to higher education had already
effectively been terminated by a 1994 law that excluded all prisoners from
Pell Grants, the federal college aid program that had engendered numerous
college programs in prison.8 For thousands of prisoners and college students,
these two laws have meant the end of the college dream.
Finally, the war on drugs has targeted massive numbers of drug users—
addicts, serious abusers, and casual users alike—and siphoned them out of
society and into prison. As is often noted, there are fewer young black men
2.See infra notes 13-34 and accompanying text.
3.See P
HILLIP KAUFMAN ET AL., U.S. DEP'T OF EDUC. & JUST., INDICATORS OF SCHOOL
CRIME AND SAFETY 129 tbl. A1 (NCES Pub. No. 2002-113/NCJ-190075, 2001), available at
http://nces.ed.gov.
4. THE NAT'L CTR. ON ADDICTION & SUBSTANCE ABUSE, MALIGNANT NEGLECT:
SUBSTANCE ABUSE AND AMERICA'S SCHOOLS 39 fig. 5A (2001) (citing National Center for
Education Statistics), available at
http://www.casacolumbia.org/publications1456/publications_show.htm?doc_id=80624. Twenty
seven percent of schools surveyed reported taking 170,000 disciplinary actions on drug and alcohol
infractions during the school year 1996-97. Id. at 39. Of these 170,000, 62% were suspensions for 5
or more days, 18% were expulsions, and 20% were transfers to alternative schools. Id.
5.See infra notes 26-31.
6. 20 U.S.C. § 1091(r) (2002).
7.See infra notes 41-45 and accompanying text.
8. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 20411,
108 Stat. 1796 (1994). The act amended 20 U.S.C. § 1070a(b)(8) (1965), which now states: "(8) No
basic grant shall be awarded under this subpart to any individual who is incarcerated in any Federal
or State penal institution." § 20411.
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How to Construct an Underclass 63
in college than are in the correctional system.9 We should also recognize that
there are so few young black men in college partly because so many are in
prison; and that a great number of them are in prison because of the drug
war.10 Whether wittingly or not, Americans have fully embraced that
tradeoff for many years now: we are more interested in segregating and
punishing drug offenders than educating them.11
The war on drugs has spawned a second front—a war on education. The
casualties of this war are all poor or lower-income people who cannot afford
to buy a private education.12 This article details the consequences of this
other war, and explores some legislative and litigation strategies for
reclaiming educational opportunity for all Americans. First, however, we
must set out in more detail the laws and policies that now deploy educational
privation as punishment in public schools, colleges, and prisons.
9. In the fall of 1997, 1,532,800 African Americans were enrolled in institutions of higher
education, compared to 2,149,900 African Americans who were under correctional supervision—
i.e., in jails, prison, or on parole or probation. These figures are reported respectively in NAT'L CTR.
FOR EDUC. STAT., DIGEST OF EDUCATION STATISTICS 2000, at 236 tbl. 207 (2000), available at
http://nces.ed.gov/pubs2001/digest/ch3.html; U.S. DEP'T OF JUST., BUREAU OF JUST. STAT.,
CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1997, at 2 tbl. 1.3 (2000), available at
http://www.ojp.usdoj.gov/bjs/.
10.See infra notes 51-56. One study concluded that "sentences for drug offenders are the
major reason for increases in prison admissions since 1980." Joan Petersilia, When Prisoners Return
to the Community: Political, Economic and Social Consequences, NAT'L INST. JUST., Nov. 2000,
available at http://www.ncjrs.org/txtfiles1/nij/184253.txt (citing Alfred Blumstein & Allen J. Beck,
Population Growth in U.S. Prisons 1980-1996, in PRISONS, 20-22 (Michael Tonry et al. eds., 1999))
[hereinafter Petersilia].
11. To that end, states in the 1990s have been shifting expenditures from building
universities to building prisons—in 1995 reducing the former by $954 million while increasing
prison construction budgets by $926 million. See J
UST. POL'Y INST., FROM CLASSROOMS TO
CELLBLOCKS: A NATIONAL PER SPECTIVE (1997); JUST. POL'Y INST., TOO LITTLE TOO LATE:
PRESIDENT CLINTON'S PRISON LEGACY, at http://www.cjcj.org/clinton/clinton.html (last visited Apr.
22, 2002) (citing NAT'L ASS'N OF STATE BUDGET OFFICERS, 1995 STATE EXPENDITURES REPORT
NASBO 77 tbl. A-6, 98 tbl. A-22 (Apr. 1996)); see also JUDITH GREENE & VINCENT SCHIRALDI,
JUST. POL'Y INST., CUTTING CORRECT LY: NEW PRISON POLICIES FOR TIMES OF FISCAL CRISIS 2
(2001) (reporting an eightfold growth of state and local prison expenditures, from $5 billion in 1978
to $40 billion in 2000, the latter comprising seven percent of all state expenditures), available at
http://www.cjcj.org/cutting/cutting-main.html; The State of Criminal Justice, A.B.A. J., Oct. 2000, at
v (reporting that the "rate of increase in aggregate per capita state spending for corrections was
almost double that of education from 1990 -1996"); John Greiner & Jack Money, Prison System
Criticized, THE SUNDAY OKLAHOMAN, Feb. 10, 2002 (quoting Oklahoma State Senator Dick
Wilkerson, Chairman of the Senate Corrections subcommittee, as condemning "the obscenity [of]
spending less than $5,000 to educate a child and more than $20,000 on a felon").
12.See infra notes 76-84 and accompanying text.
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64 The Journal of Gender, Race & Justice [6:2002]
I. A NEW PUNISHMENT: DENYING OFFENDERS AN EDUCATION
A. Public School Education
Public school zero tolerance rules represent a sea change in American
educational policy. After years of campaigns aimed at keeping children at
risk in school, the zero tolerance effort seeks instead to identify troublesome
students and get them out of school. Longstanding anxiety about student
drug abuse was only part of the impetus; more significant were the sporadic
episodes of extreme student violence that occurred throughout the 1990s.13
The effect, however, was to cast all students as objects of worry and
suspicion, and to establish systems of surveillance and discipline that
identified and removed students for any misbehavior, which often involved
drugs. School regulations reflect this progression. In 1994, Congress passed
a law limiting federal educational aid to only those states that imposed a
mandatory one-year expulsion on students bringing weapons to school.14 All
13. For example, between 1990 and 1997, there were shootings at schools in Pearl,
Mississippi; West Paducah, Kentucky; Jonesboro, Arkansas; Edinboro, Pennsylvania; and
Springfield, Oregon. ELIZABETH DONOHUE ET AL., JUSTICE POL'Y INST., SCHOOL HOUSE HYPE:
SCHOOL SHOOTINGS AND THE REAL RISKS KIDS FACE IN AMERICA (1999), available at
http://www.cjcj.org/schoolhousehype/shh2.html. As profoundly alarming as these events were, "the
number of children killed by gun violence in schools is about half the number of Americans killed
annually by lightning strikes." Id.
14. The Gun-Free Schools Act of 1994, 20 U.S.C. § 8921(b) (1994). The Act conditions
federal aid on the state's adoption of a mandatory one-year expulsion for students who bring certain
kinds of weapons to school, although it does permit the school district's chief administrator to
modify this sanction in compelling cases. Id. The law provides in part:
(1) In General. Except as provided in paragraph (3), each State receiving Federal funds
under this chapter shall have in effect a State law requiring local educational agencies
to expel from school for a period of not less than one year a student who is determined
to have brought a weapon to a school under the jurisdiction of local educational
agencies in that State, except that such State law shall allow the chief administering
officer of such a local educational agency to modify such expulsion requirement for a
student on a case-by-case basis. (2) Construction. Nothing in this subchapter shall be
construed to prevent a State from allowing a local educational agency that has expelled
a student from such a student's regular school setting from providing educational
services to such student in an alternative setting.
Id.
Although this section affords the chief administrative officer limited discretion in the
prescribed punishment, some schools districts choose not to adopt discretionary policies. Other
districts fail to abide by the discretionary policies they have adopted. See, e.g., Lyons v. Penn. Hills
Sch. Dist., 723 A.2d 1073 (Pa. 1999) (reversing the expulsion of a seventh grader for carrying a
Swiss army knife because the school board violated school department rules by denying the
superintendent of schools the right to review expulsion decisions). According to a 1998 Department
of Education study of forty-three states, only thirty-four percent of expulsions were for less than one
year. See BETH SINCLAIR ET AL., U.S. DEP'T OF EDUC., REPORT ON STATE IMPLEMENTATION OF THE
GUN-FREE SCHOOLS ACT—SCHOOL YEAR 1996-1997, at 4 (1998) (providing a compilation of
statistics for expulsions in American schools).
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How to Construct an Underclass 65
fifty states complied,15 but the great majority did so by instituting far
broader zero tolerance sanctions. According to one study, by 1998 eighty-
seven percent of public schools had promulgated zero tolerance for alcohol
and eighty-eight percent for drugs.16
The disciplinary policies in effect in many schools today apply zero
tolerance to public school students in three draconian ways. First, they are
blind to the most basic distinctions between types of offenses. In many
schools, dangerousness is irrelevant; the penalties are the same for weapons
and alcohol, sale and possession, robbery, and disorderly offenses. Offenses
that used to be resolved informally with an apology or an after-school
detention now lead to formal disciplinary hearings.17 Second, they require a
severe sanction, typically suspension or expulsion, for all of these offenses,
regardless of the circumstances of the offense or the intent, history and
prospects of the offender. Third, these policies generally mandate some
degree of information-sharing with law enforcement. This multiplies the
consequences of student misconduct in two directions: out-of-school
offenses referred to the child's school may result in suspension or other
sanctions,18 and in-school infractions referred to law enforcement agencies
may result in juvenile or criminal prosecution.19 Forty-one states and federal
law now require schools to report specified kinds of offenses to law
enforcement.20
15.See Alicia C. Insley, Suspending and Expelling Children from Educational Opportunity:
Time to Reevaluate Zero Tolerance Policies, 50 AM. U. L. REV. 1039, 1047 n.46 (2001) (citing the
laws of the fifty states and the District of Columbia).
16.See KAUFMAN ET AL., supra note 3, at 129 tbl.A1.
17. George F. Will sees zero tolerance school policies as an example of the ascendancy of
"Bureaucratic Legalism" over "Hidden Law, on which privacy and civilized life generally
depend. . . . [C]ivilized life depends on informal rules and measures—social winks, . . . preventing
such mundane conflicts from becoming legal extravaganzas or occasions for moral
exhibitionism. . . . One sound of such a society is the 'snap' of handcuffs being placed on a 12-year-
old subway snacker." George F. Will, Zero Tolerance Policies are Getting Out of Hand, BOSTON
GLOBE, Dec. 25, 2000, at A23; see also Dirk Johnson, Schools' New Watchword: Zero Tolerance,
N.Y. TIMES, Dec. 1, 1999, at A1 ("[T]he new school-conduct ethos has profoundly changed views
about what was once deemed usual, if annoying, behavior by adolescents. No longer is the
playground scrap or the kickball tussle deemed a rite of passage best settled by a teacher who orders
the combatants to their corners, hears out the two sides and demands apologies and a handshake.").
18. According to one reporter, Chicago's school zero tolerance policies are in effect twenty-
four hours a day, seven days a week. Johnson, supra note 17, at A1. Massachusetts adopted the so-
called Principal's Bill, which gave principals the power to suspend students who are charged and
expel students who are convicted of felonies so long as the principal determines that the student's
presence at school is detrimental to the general welfare of the school. Anthony J. DeMarco,
Suspension/Expulsion Punitive Sanctions from the Jail Yard to the School Yard, 34 NEW ENG. L.
REV. 565, 568 (2000).
19. Criminal prosecution is increasingly likely for juvenile offenders. From 1992 to 1995,
forty states changed their juvenile delinquency laws to make it easier for juveniles to be sentenced as
adults. PATRICK GRIFFIN ET AL., U.S. DEP'T OF JUST., TRYING JUVENILES AS ADULTS IN CRIMINAL
COURT: AN ANALYSIS OF STATE TRANSFER PROVISIONS (1998).
20. HARVARD UNIV. ADVANCEMENT PROJECT & CIVIL RIGHT S PROJECT, OPPORTUNITIES
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66 The Journal of Gender, Race & Justice [6:2002]
This blunderbuss approach has worked as intended. In Chicago,
expulsions rose from 81 to 1000 during the first three years of zero
tolerance.21 Nationally, more than 3.1 million students were suspended and
another 87,000 were expelled in the 1998 school year.22 African American
students made up a disproportionately large percentage of these expulsions
and suspensions—33%, although they comprised only 17% of students.23
The immediate consequence for these students was a total withdrawal of
public education in the many states that do not offer alternative schooling to
expelled or suspended students.24 Longer term, studies show that many of
SUSPENDED: THE DEVASTATING CONSEQUENCE S OF ZERO TOLER ANCE AND SCHOOL DISCIPLINE
POLICIES, Executive Summary at 1, 8 (2000) (citing forty one states that require school officials to
report students who violate certain disciplinary rules to law enforcement agencies), available at
http://www.law.Harvard.edu/groups/civilrights/conferences/zero/zt.report2.html [hereinafter
HARVARD REPORT]. Federally, the Gun Free Schools Act requires referral to la w enforcement when
the student has brought a firearm to school. 20 U.S.C.S. § 7151(h)(1) (2002) ("No funds shall be
made available under any title of this Act to any local educational agency unless such agency has a
policy requiring referral to the criminal justice or juvenile delinquency system of any student who
brings a firearm or weapon to a school served by such agency.").
21. APPLIED RES. CTR., FACING THE CONSEQUENCES, AN EXAMINATION OF RACIAL
DISCRIMINATION IN U.S. PUBLIC SCHOOLS 6 (2000), available at
http://www.arc.org/erase/FTC2zero.html.
22. OFFICE FOR CIVIL RIGHTS, U.S. DEP'T OF EDUC., FALL 1998 ELEMENTARY AND
SECONDARY SCHOOL CIVIL RIGHTS COMPLIANCE REPORT: NAT IONAL AND STATE PROJECTIONS
(June 2000), cited in HARVARD REPORT, supra note 20, at 1. Suspensions and expulsions continue to
rise. See, e.g., Carl Campanile, Suspension Disbelief—School Kids Are Getting Sent Home in
Droves, N.Y. POST, Nov. 1, 2001, at O25; Scott S. Greenberger, Expulsion, Suspension Rate Climbs
6 Percent; Study Says Boston Figures Remain Low, BOSTON GLOBE, Dec. 21, 2001, at B7 (reporting
"more than 1,400 Massachusetts students were expelled from school or suspended for more than 10
days during the 1999-2000 school year," a 6% increase over the previous year); Grace Murphy, SAD
6 Policy Causes Leap in Expulsions, PORTLAND PRESS HERALD, Feb.17, 2000, at 1A. It is estimated
that approximately 1.5 million students miss a large portion of school annually because of
suspensions or expulsions. Philip Daniel & Karen Coriell, Suspension and Expulsion in America's
Public Schools: Has Unfairness Resulted from a Narrowing of Due Process?, 13 HAMLINE J. PUB.
L. & POL'Y 1, 15 (1992).
23. HARVARD REPORT, supra note 20, at n. 22 (citing the OFFICE FOR CIVI L RIGHTS, supra
note 22). A second study of twelve cities found that "in disproportionate numbers, it is African
American and Latino students whose futures are wrecked by zero-tolerance." APPLIED RES. CTR.,
supra note 21, at 4; see also infra note 79.
24. While twenty-six states require school districts to provide alternative schools for these
students, eighteen states leave it to the discretion of school districts whether to provide alternative
education, and many of these offer no educational program at all. See HARVARD REPORT, supra note
20, at 3. Of the twenty-six states that do require alternative education assignments, the report cites
"anecdotal evidence illustrat[ing] that many of these schools fail to provide an adequate education.
There is little data revealing the quality of the instruction that occurs in these centers if any is given
at all." Id. The Report's Appendix III details the availability of alternative education programs in
each state. See also K
IM B
ROOKS ET AL., JUST. POL'Y INST., SCHOOL HOUSE HYPE: TWO YEARS
LATER 38 (2000); Joan M. Wasser, Zeroing in On Zero Tolerance, 15 J.L. & POL'Y 747, 761-62
(1999) (citing Department of Education statistics estimating that "fifty-six percent of students
expelled in 1996-1999, approximately 38,200 students, were not offered any form of alternative
education"). The authors note that like other states
Massachusetts does not require schools to provide expelled students with alternative
education, either home schooling, or placement in an alternative school. Probably the
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How to Construct an Underclass 67
these children will not return to school even when the sanction expires, and
those who do return are more likely than other students to fail their
courses.25
And for what? Courts and scholars have found that a majority of
suspensions are ordered for minor infractions that pose no actual threat to
anyone.26 According to numerous media reports, suspensions and expulsions
have followed the discovery of such "weapons" as key chains,27 staplers,28
and geometry compasses;29 and such "drugs" as lemon drops, Midol and
Advil.30 One student was suspended for "trafficking" in drugs by loaning her
asthma inhaler to a student in the midst of an asthma attack.31 Because intent
most disturbing finding in the Massachusetts report is that 37% of youth expelled in
1997-98 did not receive alternative education in another school or special education
program. In 75% of those cases, alternative education was not provided because the
school district chose not to do so.
BROOKS ET AL., supra, at 38.
25. Pedro Reyes, Factors that Affect the Commitment of Children at Risk to Stay in School,
in CHILDREN AT RISK 18, 23 (Joan Lakebrink ed., 1989); see also Russ Skiba & Reese Peterson, The
Dark Side of Zero Tolerance: Can Punishment Lead to Safe Schools, 80 PHI DELTA KAPPAN 372,
376 (1999). A significant factor is whether suspended students are given the opportunity to make up
schoolwork they missed during the suspension. Some schools allow suspended students to make up
their missed work, while others believe not being able to do so should be part of the punishment.
See, e.g., Tracy Dell'Angela, Suspended Girl Sues School, CHI. TRIB., June 18, 2001, at 1. Also, if
the juvenile offender is incarcerated, he or she is unlikely ever to return to school. ROBERT J.
GEMIGNANI, U.S. DEP'T OF JUST., JUVENILE CORRECTIONAL EDUCATION: A TIME FOR CHANGE 3
(NCJ Pub. No. 150 309, 1994).
26. Hawkins v. Coleman, 376 F. Supp. 1330, 1335-37 (N.D. Tex. 1974) (finding sixty
percent of offenses punished by suspension or corporal punishment were for minor offenses). One
study estimates that about three percent of infractions underlying school removals were major
offenses, and another found most were for minor offenses, such as smoking, tardiness, truancy, and
dress code violations. Roni Reed, Education and the State Constitutions: Alternatives for Suspended
and Expelled Students, 81 CORNELL L. REV. 582, 603 (1996); see Daniel & Coriell, supra note 22, at
15; Gail Paulus Sorenson, The Worst Kind of Discipline, 6 UPDATE ON LAW-RELATED EDUC. 26, 27
(1982).
27. Georgia Pols Want 'Common Sense' to Trump 'Zero Tolerance' (Fox News television
broadcast, Jan. 21, 2002), available at http://www.foxnews.com/story/0,2933,43666,00.html
("Georgia got its taste of zero tolerance-gone-wild as dozens of children were disciplined for what
appeared to be minor infractions," including a keychain deemed a weapon) [hereinafter Fox News].
28. The student was suspended for several months for holding a stapler as if it were a gun.
See James M. Peden, Through a Glass Darkly: Educating with Zero Tolerance, 10 KAN. J.L. & PUB.
POL'Y 369, 374 (2001) (citing World News Tonight with Peter Jennings (ABC television broadcast,
Feb. 8, 2000)).
29. Jordana Hart, Creeping Violence Worries Suburban Schools; Stricter Rules Enforced to
Seize "Weapons," BOSTON GLOBE, Apr. 18, 1994, at 15 (reporting a broadening of the definition of
weapons to include a geometry compass).
30. Cara DeGette, Busted for Lemon Drops, First-Grader Suspended, DENVER POST, Nov.
19, 1997, at A01; Jessica Portner, Suspensions Spur Debate Over Discipline Codes, EDUC. WK.,
Oct. 23, 1996, at 10 (reporting that a thirteen-year old honor student received a nine-day suspension
for possession of Midol tablets in school and a seventh-grader was suspended for a day for bringing
Advil to school).
31. Margaret Graham Tebo, Zero Tolerance, Zero Sen se, A.B.A. J., Apr. 2000, at 44 (citing
"a middle schooler who shared her asthma inhaler on the school bus with a classmate who was
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68 The Journal of Gender, Race & Justice [6:2002]
is irrelevant under some zero tolerance policies, students have been
suspended for unknowingly possessing a weapon or contraband–a penalty
that is proving vulnerable to due process challenges.32 Zero tolerance may
also apply against such nebulous infractions as "disrespect" and "defiance of
authority," which are prone to import bias into the decision to discipline.33
Zero tolerance leaves school officials "unable to differentiate between good
kids who may be acting imprudently, and the unruly delinquent who can be
dangerous."34
B. College and Higher Education
Denial of a college education is now an additional sanction for drug
offenders as the result of two federal statutes: a 1998 law that suspends or
forever terminates a drug offender's eligibility for federal college loans and
grants, and (as we shall discuss below) a 1994 law making all inmates
ineligible for the Pell Grants that formerly provided the means to obtain a
college degree in prison.35
The 1998 Drug Free Student Loans Act denies federal grants, federally-
subsidized loans, and work-study funds to college students who have been
convicted of any drug offense–felony or misdemeanor, sale or possession,
heroin or marijuana (but not rape, robbery, or murder).36 However, the
experiencing a wheezing attack was suspended for drug trafficking").
32.See Seal v. Morgan, 229 F.3d 567 (6th Cir. 2000) (holding the expulsion of a student
who unknowingly brought a weapon to school grounds when his friend's knife was found in his
glove compartment was unconstitutional because not rationally related to any legitimate state
interest).
33. A.B.A., A.B.A. ZERO TOLERANCE POLICY REPORT 4 (2001), available at
www.A.B.A.net.org/crimjust/juvjus/zerotolreport.html.
34. Peden, supra note 28, at 373. Among many examples, Peden cites the case of a Virginia
middle school student who convinced a friend to give him her knife after she threatened to commit
suicide with it. Id. "[H]e put it in his locker. During the course of the day, he went to his locker to
change books and another student saw the knife in his locker and reported it to the principal. While
his school praised him for his actions, the local school board decided to suspend him because he did
not immediately turn the knife over to the school officials." Id. (citing Leonard Pitts, School Bent on
Ignoring Common Sense, MILWAUKE E J. SENTINEL, Dec. 20, 1999, at 10).
35. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, §
20411, 108 Stat. 1796 (1994), amending 20 U.S.C. § 1070a(b).
36. A 1988 law already authorized judges to deny federal college assistance at a drug
offender's sentencing, but because this discretion was rarely exercised, Congress revised the law to
make the sanction mandatory. This new law, passed as the Souder Amendment to the 1998 Higher
Education Reauthorization Act, 20 U.S.C. § 1091(r) (2002), was sponsored by Rep. Mark Souder
(R-Ind.) and former Rep. Gerald Solomon (R-N.Y.). It states as follows:
Suspension of eligibility for drug-related offenses.
(1) In general. 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 subchapter and
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How to Construct an Underclass 69
periods of ineligibility for federal financial aid vary depending upon the
number of convictions and whether they were for possession or distribution
of drugs—from one year's ineligibility for a single possession conviction, to
permanent ineligibility for a second distribution or third possession
conviction.37 Students may shorten the period of ineligibility by successfully
completing a certified rehabilitation program that includes two random drug
tests.38 A particularly draconian aspect of this law is that ineligibility can be
triggered not only by offenses committed during college, but also by those
accrued years before.39
The law's co-sponsor, Congressman Mark Souder, hopes that the law
will send "a clear message: Actions have consequences, and using or selling
drugs will ruin your future."40 Whether or not that message is getting
through, the Souder Amendment has already succeeded in crippling the
future prospects of thousands of students. In its first year—the academic
year 2000-2001—the law rendered 9,200 students ineligible to receive
federal college assistance due to prior drug convictions.41 These students
answered "yes" to the financial aid form inquiry regarding about whether
they had a previous drug conviction.42 Significantly, the 279,000 students
part C of subchapter I of chapter 34 of Title 42 during the period beginning on the
date of such conviction and ending after the interval specified in the following
table:
(2) convicted of an offense involving
—The possession of a controlled substance: Ineligibility period is:
First offense . . . . . .. . . . . .. . .1 year
Second offense . . . . . .. . . . . .2 years
Third offense. . . . . .. . . . . ... Indefinite
—The sale of a controlled substance: Ineligibility period is:
First offense . . . . . .. . . . . .. . .2 years
Second offense. . . . . .. . . . . . Indefinite
37.Id. While the statute speaks of "indefinite" ineligibility, this is construed to be a
permanent bar. 34 C.F.R. § 668.40 (b)(1)(iii) cmt. (2001); 34 C.F.R. § 668.40 (b)(2)(ii) cmt. (2001).
Some drug convictions do not disqualify a candidate: convictions that have been dismissed or
expunged, and juvenile court delinquency findings. 20 U.S.C. § 1091(r)(2)(B) (1998).
38. 20 U.S.C. § 1091(r)(2) provides an exception for rehabilitated offenders as follows:
(2) Rehabilitation. A student whose eligibility has been suspended under paragraph (1)
may resume eligibility before the end of the ineligibility period determined under such
paragraph if—
(A) the student satisfactorily completes a drug rehabilitation program that- (i) complies
with such criteria as the Secretary shall prescribe in regulations for purposes of this
paragraph; and (ii) includes two unannounced drug tests; or
(B) the conviction is reversed, set aside, or otherwise rendered nugatory.
39.See infra notes 158-69 regarding the legal infirmaties with retroactive application of the
Souder Amendment.
40. Mark Souder, Actions Have Consequences, USA TODAY, June 13, 2000, at 16A.
41. Diana Jean Schemo, Students Find Drug Law Has Big Price: College Aid, N.Y. TIMES,
May 3, 2000, at A12.
42. Free Application for Federal Student AID (FAFSA) for July 1, 2001 - June 30, 2002
BLUMENS ON FORMATT ED 05/16/02 7:57 PM
70 The Journal of Gender, Race & Justice [6:2002]
who left the question blank last year continued to obtain loans.43 However,
the Bush Administration has decided that henceforth candidates who do not
answer the question will be deemed ineligible44 – a dubious shift coming
from a President who refused to answer questions about his own drug history
on grounds it was irrelevant to his suitability for the Presidency. The number
of students who will be denied college assistance this year is expected to at
least quadruple: as of the end of 2001, 43,436 had either been rejected or
risked automatic denial for leaving question 35 blank.45 For many of them,
this will mean the difference between going to college and dropping out.46
Although in theory a student may regain eligibility by completing a
rehabilitation program, this will be an impossible burden for students who
either can't afford or can't obtain the relatively scarce placements, or who
must quit part-time jobs or miss class in order to attend meetings.47
(OMB #1845-0001). Question 35 reads: "Do not leave this question blank. Have you ever been
convicted of possessing or selling illegal drugs? If you have, answer yes, complete and submit this
application, and we will send you a worksheet in the mail for you to determine if your conviction
affects your eligibility for aid." Id.
43. Schemo, supra note 41, at 12. An unknown number of additional students may have
opted out of the federal aid pool altogether because of prior drug involvement that they, perhaps
incorrectly, thought would make them ineligible. Id. Others may have falsely answered "no" in order
to get federal aid. Id.
44. Carl M. Cannon, A Drug Law's Long Reach, NAT'L J., July 14, 2001, at 2251. Although
Department spokeswoman Lindsey C. Kozberg states that "this is a change in practice, not a policy
change" to "better reflect the legislative requirements of the statute," it is nevertheless a change that
will greatly exacerbate the law's exclusionary impact. Id. at 2252.
45. 43,000 Students with Drug Convictions Face Denial of Aid, N.Y. TIMES, Dec. 29, 2001,
at A11 [hereinafter 43,000 Students]. This constitutes a small percentage of the 9.8 million financial
aid applications processed, but a devastating blow to each of the individuals affected.
46. One magazine reports the story of "Anne":
the type of success story that makes college admissions officers smile. She had little
money growing up, but with the help of federal loans and a lot of sweat has managed to
afford an education at Ohio's Antioch College. In addition to attending school full-time,
she currently works two jobs, one of which involves teaching drama to grade-school
children. . . . But to the federal government, Anne is a campus undesirable. In early
May, police caught her with an empty one-hit pipe containing residue from the
marijuana she occasionally smokes, and now she's awaiting trial. The charge is only
misdemeanor drug possession—but if she's convicted, Anne may lose her federal Pell
Grant, which she depends on to pay for school
Jake Ginsky, Smoke a Joint, Lose Your Loan, MOTHER JONES, May 18, 2000, available at
http://www.motherjones.com/news-wire/higher-ed.html
47. America has a paucity of drug rehabilitation programs compared to the demand for them,
and the minor offenders most likely to be targets of college loan ineligibility may find an authorized
rehabilitation program out of reach. Apart from tuition that may be unaffordable to students who all
are dependent on federal aid, many treatment programs give priority to intravenous addicts, a group
unlikely to be enrolled in college, and also refuse to accept persons that are not serious substance
abusers. See Arianna Huffington, Souder Says Drug-Use Rule Never Meant as Punishment, SO.
BEND TRIB., Apr. 29, 2001, at B8 (noting that treatment is typically available only to those who can
pay for it or who have serious drug problems, and that three million people are unable to get
treatment); Simone Levine, Encountering the 1998 Amendment to the Higher Education Act: A
Guide t o Litigation (2001) (unpublished manuscript, on file with authors).
BLUMENS ON FORMATT ED 05/16/02 7:57 PM
How to Construct an Underclass 71
Those who do enroll in rehabilitation programs under the compulsion of
this law may not belong there. The law's assumption—that students with a
drug conviction have a drug problem that needs rehabilitation—ignores
statistics on the high frequency of youthful drug experimentation and the
sharp decline in drug use that follows in early adulthood.48 Over one third of
all Americans have experimented with illicit drugs, but most lose interest
without the necessity of rehabilitation or other intervention.49 Opponents of
the law object on these grounds and multiple others, including that the law is
"racially and economically discriminatory; it ignores the No. 1 substance
abuse problem on campus, binge drinking; it might steer students with old
convictions . . . into scarce rehab programs that should be reserved for true
addicts; it encourages students to lie; [and] it entails a kind of double
jeopardy not encountered in cases of more serious felonies."50
C. Prison Education
For drug offenders in prison, educational privation is the result of two
zero tolerance policies operating in tandem. Mandatory minimum drug
sentences and other get-tough laws sent them to prison, and zero tolerance
clampdowns on prisoners stripped them of access to longstanding prison
education programs.
Between 1980 and 2000, the prison population tripled.51 A large share
of this increase resulted from escalating drug arrests and prosecutions, and a
series of laws that imposed increasingly harsh sentences for virtually all drug
One twenty-three year old student at a state university, who was forced to drop out when he
lost his federal aid said, "I tried to get into drug treatment. I was working at a car wash at the time.
And I told my boss I needed a month off so I could go help myself and he fired me immediately, said
he couldn't afford to keep my job." Lost Loans, Lost Future?: Students Lose Aid Because of Past
Drug Offenses (ABC News television broadcast, Apr. 28, 2001), available at
http://204.202.137.115/sections/DailyNews/tuition.drugsolo428.html (quoting Josh Gerstein).
48. Social scientists consider experimentation with a wide range of lawful and unlawful
behaviors to be a natural part of the process of maturity. AM. ACAD. OF CHILD & ADOLESCENT
PSYCHIATRY, TEENS: ALCOHOL AND OTHER DRUGS NO. 3, at
http://www.aacap.org/web/aacap/publications/factsfam/teendrug.htm (last visited May 1, 2002).
49.According to the 1998 survey on drug abuse conducted by the Substance Abuse and
Mental Health Services Administration (SAMHSA), 35.8% of Americans over 12 have used an
illicit drug (not including tobacco or alcohol) at some time in their life, and an estimated 13.6 million
Americans were current users of illicit drugs in 1998. SAMHSA, 1998 NATIONAL HOUSEHOLD
SURVEY ON DRUG ABUSE, tbl. 3B (1999), available at
www.samhsa.gov/OAS/NHSDA/98SummHtml/TOC.htm. With approximately 216 million of the
U.S. population over 13 in 1998, according to the U.S. Census Bureau, these figures indicate that
approximately 82% of those who have violated the drug laws no longer do so.
50. Carl M. Cannon, A Drug Law's Long Reach, NAT'L J., July 14, 2001, at 2252 (citing the
complaints of the organizations Students for Sensible Drug Policy and the Drug Reform
Coordination Network).
51. BUREAU OF JUST. STAT., U.S. DEP'T OF JUST., CORRECTION STATISTICS
http://www.ojp.usdoj.gov/bjs/glance/d-incrt.htm (posted Feb. 3, 2002) (stating that the incarceration
rate rose from 139 per 100,000 to 478 per 100,000, an increase of 343.88%).
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72 The Journal of Gender, Race & Justice [6:2002]
crimes and mandatory minimum sentences for many of them.52 Of the two
million Americans in prison today,53 approximately one quarter are there for
drug offenses;54 in federal prisons, the proportion is now 62%.55 Today,
72% of first-time admittees to state prison are non-violent offenders—a
figure that suggests a prison population that is less committed to a life of
crime and more educable than was formerly the case.56
Yet prisoners as a class are substantially undereducated: almost one-
half lack a high school education,57 and one in five are completely
illiterate.58 What then could be a better use of five or 10 year's confinement
52. Arrests: In 1999, there were approximately 1,532,200 non-alcohol drug arrests, 80% of
which were possession offenses and 20% of which were sale or distribution offenses. BUREAU OF
JUST. STAT., U.S. DEP'T OF JUST., SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2000, at 352 tbl.
4.1, 393 tbl. 4.29 (Kathleen Maguire & Ann Pastore eds., 2001) [hereinafter DEP'T OF JUST.,
SOURCEBOOK].
Prosecutions: Federal drug prosecutions rose sharply from 1980 to 1992 before reaching a
plateau. In 1981, when President Reagan took office, there were 8,775 federal drug prosecutions.
The Bush and Clinton administrations each averaged just under 26,000 drug prosecutions a year,
with the number rising to 28,585 in the election year of 1992. Drug Prosecution Said to Level Off,
BOSTON GLOBE, Oct. 20, 1996, at A16 (citing Transactional Records Access Clearinghouse,
Syracuse University).
Prisoners: The number of drug offenders in prison increased by 478% between 1985 and
1995, compared to a rise of 119% for all offenses. MARC MAUER, RACE TO INCARCERATE 152
(1999). This reflected an exploding increase in prisoners admitted for drug offenses during that
decade—a 1040% increase between 1986 and 1996. BARRY HOLMAN, NAT'L C
TR. ON I
NST. &
ALTERNATIVES, MASKING THE DIVIDE: HOW OFFICIALLY REPORTED PRISON STATIST ICS DISTORT
THE RACIAL AND ETHNIC REALITIES OF PRISON GROWTH 17 (2001), available at
www.ncianet.org/ncia/mask.pdf.
53. In 2000 there were 1,933,503 prisoners and 4,565,059 others on parole or probation,
which amounts to one in every 32 adults who were under the supervision of the criminal justice
system. DEP'T OF JUST., SOURCEBOOK, supra note 52, at 488 tbl. 6.1. An inmate population of 2
million was projected to arrive by late 2001. ALLEN J. BECK & JENNIFER C. KARBERG, PRISON AND
JAIL INMATES AT MIDYEAR 2000, BUREAU OF JUST. STAT. BULLETIN (2001), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim00.pdf, at 2. "If recent incarceration rates remain
unchanged, an estimated 1 of every 20 persons (5.1%) will serve time in a prison during their
lifetime." BUREAU OF JUST. STAT., U.S. DEP'T OF JUST., CRIMINAL OFFENDER STATISTICS, available
at http://www.ojp.usdoj.gov/bjs/crimoff.htm (last revised Feb. 28, 2002).
54. DEP'T OF JUST., SOURCEBOOK, supra note 52, at 519 tbl.6.39 (compiling 1997 statistics).
55.Id.
56. OPEN SOC'Y INST., THE AFTER PRISON INITIATIVE, available at
http://www.soros.org/crime/TAPI.htm (updated Feb. 1, 2002) (72% figure); WILLIAM J. SABOL &
JAMES P. LYNCH, URBAN INST., CRIME POLICY REPORT: DID GETTING TOUGH ON CRIME PAY? 8
(1997). Prison admittees now comprise a more socially integrated group—more likely to have some
education, employment history, and families.
57. A survey of inmates in 1996 showed 46.5% had less than a high school education." TASK
FORCE ON YOUTH IN THE CRIMINAL JUSTICE SY STEM, A.B.A, YOUTH IN THE CRIMINAL JUSTICE
SYSTEM, CORRECTION, 2001, at 5 n.77 (2001). Among those entering state prisons, over 70% have
not completed high school, and 16.4% have no high school education at all. BUREAU OF JUST. STAT.,
U.S. DEP'T OF JUST., SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1995, at 567 (Kathleen
Maguire & Ann L. Pastore eds., 1996) [hereinafter DEP'T OF JUST., SOURCEBOOK 1995].
58. HAIGLER ET AL., U.S. DEP'T OF EDUC., LITERACY BEHIND PRISON WALLS: PROFILES OF
BLUMENS ON FORMATT ED 05/16/02 7:57 PM
How to Construct an Underclass 73
than education? Prior to the 1990s, few questioned the value and importance
of prison education programs, at least publicly. Politicians had not yet
stricken rehabilitation from their political lexicon, and most prison
administrators were content with both the opportunities afforded motivated
prisoners and the institutional benefits to be gained from having prisoners
who were occupied with homework, classes, discussions and planning for
the future.59 Most prisoners could choose from a variety of education
opportunities, including grammar and high school courses, vocational
training, and classes from community college offerings within the prisons.60
A smaller number of inmates who wanted to study at the college and
graduate school level could enroll in diverse offerings made available to
prisons by colleges and universities.61 For inmates who did not have the
means to pay for the classes, the federal government offered financial
assistance in the form of Pell Grants.62 Opportunities for advanced education
in prison reached their zenith in 1990, with 1,287 prison higher education
programs across the country educating approximately 40,000 students.63
In the midst of these proliferating programs and an ever-expanding,
increasingly educable prison population, Congress gutted federal college aid
for prisoners, resulting in the near demise of the college programs. In 1994 it
THE PRISON POPULATION FROM THE NATIONAL ADULT LITERACY SURVEY 124 (NCES Publication
No. 94-102, 1994). The report finds nineteen percent of adult inmates completely illiterate and forty
percent functionally illiterate. Id.
59. In a 1993 Senate Judiciary Committee survey, ninety-three percent of prison wardens
strongly supported prisoner education programs. PETER ELIKANN, THE TOUGH-ON-CRIME MYTH:
REAL SOLUTIONS TO CUT CRIME 151 (1996). According to one study, "participation in college
programs [is a] better predictor of positive institutional behavior than participation in conjugal
visitation programs." Jon Marc Taylor, Deny Pell Grants to Prisoners? That Would Be A Crime, 9
CRIM. JUST. 19, 55 (1994) (citing R. Davis, Education and the Impact of the Family Reunion
Program in a Maximum Security Prison, J. OFFENDER COUNSELING, SERV. & REHABILITATION 153
(1988)). For arguments supporting the training of prisoners for the increasingly demanding
workplace they will encounter upon their release, see Richard A. Tewksbury & Gennaro F.Vito,
Improving the Educational Skills of Jail Inmates: Preliminary Program Findings, 58 FED.
PROBATION 55 (1994); Ahmad Tootoonchi, College Education in Prisons: The Inmates'
Perspectives, 57 FEDERAL PROBATION 34 (1993).
60. For many years prisons offered, and sometimes required, basic education classes, first
through eighth grade, and later through twelfth grade. See Michael K. Greene, Show Me the Money,
24 CRIM. & CIVIL CONFINEMENT 173, 177 (1998). Even with these requirements, however, many
who completed twelfth grade were not ready for college. The community college system filled this
gap by offering basic skills courses and vocational education. Students who wished to pursue their
education by taking college courses leading to an advanced degree were able to do so once they
attained the necessary basic reading and writing skills.
61. See generally R. Tewksbury, et al., Opportunities Lost: The Consequences of Eliminating
Pell Grant Eligibility for Correctional Education Students, 31 J. OFFENDER REHAB. 43 (2000).
62. Pub. L No. 102-32, 106 Stat. 481 (1992) amending the Higher Education Act of 1965,
made Pell grants available to all financially-needy students including prisoners unless the latter were
"serving under sentence of death or any life sentence without eligibility for parole or release." Id. §
(8)(A).
63. BUREAU OF JUST. STAT., U.S. DEP'T OF JUSTICE, CENSUS OF STATE AND FEDERAL
CORRECTIONAL FACILITIES 1990 (NCJ-137003, 1992).
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74 The Journal of Gender, Race & Justice [6:2002]
enacted the Violent Crime Control Law Enforcement Act, which eliminated
Pell grants for state and federal prisoners.64 Perhaps this was inevitable in an
era when politicians outdid one another denouncing rehabilitation and
promoting more punitive approaches to imprisonment, such as chain gangs,
three-strikes-and-you're-out laws and striped uniforms. 65 Congressmen
denounced a "taxpayer rip-off" that rewarded prisoners for their crimes with
a college education.66 Senator Kay Bailey Hutchinson alleged that providing
Pell Grants to "carjackers, armed robbers, rapists, and arsonists"
shortchanged 100,000 non-criminal students who were denied Pell Grants
because of lack of funds.67 This was extreme hyperbole: at that time
prisoners received only .7% percent of Pell Grants issued (300,000 prisoners
out of 4.3 million recipients), a similar proportion of Pell dollars ($45
million out of $6.3 billion); and all eligible applicants received aid.68
The elimination of Pell Grants for prisoners marked the end of prison
college programs for most prisoners. Without federal financial aid, demand
for college programs declined dramatically (the 1995 national student exit
rate from such programs was 70%)69 and consequently so did the programs
64. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, §
20411, 108 Stat. 1796 (1994). The act amended 20 U.S.C. § 1070(a)(b), which now states: "(8) No
basic grant shall be awarded under this subpart to any individual who is incarcerated in any Federal
or State penal institution." § 20411. Congress subsequently created a Youthful Offenders Grant
program, which provided some post-secondary educational grants to youthful offenders beginning in
1998. Improving America's Schools Act of 1994 Pub. L. No. 103-382, 108 Stat. 3518 (1994).
Compared to Pell Grants, however, this program dispensed a much smaller amount of aid, and only
gives to young inmates under twenty-six with less than five years to serve. Peter Schmidt, College
Programs for Prisoners, Long Neglected, Win New Support, CHRON. HIGHER EDUC., Feb. 8, 2002,
at 26. The Department of Education also awards approximately $15 million in grants to assist states
in establishing and operating programs designed to develop the life skills necessary for reentry,
pursuant to the National Literacy Act as amended. National Dropout Prevention Act of 1991, Pub. L.
No. 102-103, § 313, 105 Stat. 508 (1991). See Office of Correctional Education website, available at
http://www.ed.gov/offices/OVAE/AdultEd/OCE/index.html.
65. CAL. PENAL CODE § 667 (1996) (providing for life in prison upon third felony
conviction); Sheryl Stolberg, Schools Out For Convicts, L.A. TIMES, Sept. 14, 1995, at A1 ("In
Alabama and Arizona, chain gangs are back. In Texas, weightlifting has been banned. . . . In
Mississippi, convicts will soon wear striped uniforms. In the long-running debate over whether the
purpose of prisons is to rehabilitate or to punish, the pendulum has swung clearly in the direction of
punishment.").
66. COMMUNITY RESOURCES FOR JUSTICE, RETURNING INMATES: CLOSING THE PUBLIC GAP
(2001). Massachusetts Governor William Weld told 60 Minutes that inmates "are in prison to be
punished, not to receive free education." 60 Minutes (CBS television broadcast, May 5, 1991); see
also Michael K. Greene, Show Me The Money! Should Taxpayer Funds Be Used To Educate
Prisoners Under the Guise of Reducing Recidivism?, 24 NEW ENG. J. ON CRIM. & CIV.
CONFINEMENT 173 (1998) (arguing against government funding of prison education); Taylor, supra
note 59, at 23 (reporting Congressional debate on H.R. 1158).
67. 139 CONG. REC. S15746 (1993) (Congressional debate on Pell Grant eligibility, Nov. 16,
1993).
68. Taylor, supra note 59, at 23-24.
69. Richard Tewksbury & Jon Marc Taylor, The Consequences of Eliminating Pell Grant
Eligibility for Students in Post Secondary College Education Programs, 60 FED. PROBATION 60, 61
(1996). The percentage of prison inmates in post secondary education was cut in half over four
BLUMENS ON FORMATT ED 05/16/02 7:57 PM
How to Construct an Underclass 75
themselves (from an average of 6.1 different post-secondary schools
operating in each state's prisons in 1994-95 to only 3.4 a year later).70 At the
same time, non-college prison education programs folded as states decided
they could no longer afford to fund them.71 In 2002, "only 9% of prisoners
are [enrolled] in full-time job training or education programs."72
II. THE INDIVIDUAL AND SOCIAL COSTS OF EDUCATIONAL PRIVATION
PUNISHMENTS
If one deliberately set out to construct an underclass, an especially
effective method would be to inflict ignorance, even illiteracy, on an
already-disadvantaged population. To impose such a severe disability would
insure systematic disadvantages throughout life on those least able to
overcome them. The uneducated are primed for unemployment or marginal
employment,73 and all that often comes with it: impoverishment, criminal
victimization and temptation, poorer health, shorter lives, political
powerlessness, and despair. Disproportionate numbers succumb to alcohol
or drug abuse. Educational privation is also an excellent way to make a
years, from 7.3% in 1994 to 3.8% in 1998. Schmidt, supra note 64, at 26.
70. Tewksbury & Taylor, supra note 69, at 61; see also Schmidt, supra note 64, at 26
("Higher education programs for prisoners have becoming increasingly scarce over the past
decade, . . .Congress declared prisoners ineligible for Pell Grants in 1994, and many state
legislatures have withdrawn tax-dollar support for such programs.").
71. At least 25 states reduced vocational and technical training programs after Pell Grants
were eliminated for prisoners. R. Worth, A Model Prison, THE ATLANTIC MONTHLY, Nov. 1995, at
38; see also Fox Butterfield, Getting Out: A Special Report, N.Y. TIMES, Nov. 29, 2000, at A1
("[M]any prison rehabilitation programs were eliminated [including] classes, vocational training and
halfway houses. . . . The money saved went to building more prisons.") [hereinafter Butterfield,
Getting Out]. More recently, sudden and severe budgetary shortfalls have simultaneously led to the
closing of some prison education programs and some prisons, as states seek ways to reduce the share
of state expenditures devoted to corrections. Nationally, this share is approximately seven percent of
state budgets. Judith Greene & Vincent Schiraldi, Cutting Correctly: New Prison Policies for Times
of Fiscal Crisis, JUST. POL'Y INST., Feb. 2001, at 1. Illinois, for example, is saving $5.4 million by
eliminating classes for 25,000 inmates and also closing Joliet Correctional Center. Id. at 3; see also
Fox Butterfield, Tight Budgets Force States to Reconsider Crime and Penalties, N.Y. TIMES, Jan.
21, 2002, at A1 (reporting efforts to close prisons or otherwise reduce correctional budgets in
California, Ohio, Illinois, Michigan, and Washington); Robert Ellis Gordon, My Life as a Prison
Teacher, CHRISTIAN SCI. MONITOR, Mar. 12, 2001, at 9 (reporting that in Washington state, a "no-
frills" approach to incarceration led to the dismantling of the community-college system, "once a
model for the nation. . . . Even high school degrees are no longer offered to those convicts who want
them").
72. Butterfield, Getting Out, supra note 71, at A1 (quoting James Austin, Director of the
George Washington University Institute on Crime, Justice and Corrections).
73. Not surprisingly, an A.B.A. study found a positive correlation between high school
education and employment, with drop-outs at risk for both unemployment and arrest. TASK FORCE
ON YOUTH IN THE CRIM. JUST. SYS., A.B.A. CRIM. JUST. SEC., YOUTH IN THE CRIMINAL JUST ICE
SYSTEM: GUIDELINES FOR POLICYM AKERS AN D PRACTITIONERS 27 (2001), available at
http://www.abanet.org/crimjust/pubs/reports/index.html [hereinafter YOUTH IN CRIMINAL JUSTICE
SYSTEM]. The study also noted that 45.5% of all jail inmates in 1996 had less than a high school
education. Id.
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76 The Journal of Gender, Race & Justice [6:2002]
person feel fungible and insignificant. It is a formula for subtracting self-
esteem and substituting the disdain of others.74
Of course, the legislators, policy experts, and officials who remove
many thousands of students from the classroom each year are not doing so in
order to produce these dire consequences. They are surely aiming at other
goals, including drug-free schools and colleges. But while drug-free schools
remain a fantasy, their policies are contributing to an uneducated underclass
that just gets larger, more despairing, and more entrenched. This underclass
now includes five million young adults between sixteen and twenty-four
who are both out of school and out of work, with few skills and fewer
prospects.75 It includes most ex-prisoners, half of whom lack a high school
education,76 and most of whom are jobless one year after release.77 And it
includes Black Americans and other racial minorities who have never
remotely attained the standard of well-being common throughout the
developed world.78
To a large degree, these are the groups most burdened by educational
privation sanctions–the already disadvantaged who are the very people most
damaged by the withdrawal of the primary means of advancement,
education. These are policies that by definition affect only the needy: those
who cannot afford to obtain a private education. Moreover, they are policies
that inevitably burden minority students far more than white students.
Consider the impact of each of the three policies on African Americans in
particular:
74. As the Supreme Court observed in ruling unconstitutional the denial of education to an
undocumented alien, illiteracy "will handicap the individual . . . each and every day of his life,"
exacting an "inestimable toll . . . on [his] social, economic, intellectual, and psychological well-
being. . . ." Plyler v. Doe, 457 U.S. 202, 222 (1982).
75. Bob Herbert, On the Way to Nowhere, N.Y. TIMES, Sept. 3, 2001, at 15. He adds:
"[M]ost lack basic job skills as well as solid literacy and numbers proficiencies, and they are neither
working nor looking for jobs. They are not in vocational training. They are not in manufacturing.
They are not part of the information age. They are not included in the American conversation." Id.
76. A survey of inmates in 1996 showed 46.5% had less than a high school education.
YOUTH IN THE CRIMINAL JUSTICE SYSTEM, supra note 73, at 5.
77. Petersilia, supra note 10. ("One year after release, as many as 60 percent of former
inmates are not employed in the legitimate labor market.").
When the California state legislature investigated the prospects of its own ex-prisoners, it found
between seventy and eighty percent were jobless one year after release and fifty percent were
illiterate. Butterfield, Getting Out, supra note 71 (citing a report issued a year before by the
California State Legislative Analyst's Office). Butterfield concludes that "[b]ecause states sharply
curtailed education, job training and other rehabilitation programs inside prisons, the newly released
inmates are far less likely than their counterparts two decades ago to find jobs, maintain stable
family lives or stay out of the kind of trouble that leads to more prison." Id.
78. The United Nations Human Development Index combines longevity, education, and per
capita income to formulate a rough scale of well being. According to this index, the United States
ranks sixth among the countries of the world, but white Americans alone would rank first and black
Americans alone would rank thirty-first, next to Trinidad and Tobago. United Nations Dev.
Programme, Human Development Report (1993), at 18 & figs. 1.12-13, cited in Cass R. Sunstein,
The Anticaste Principle, 92 MICH. L. REV. 2410 (1994).
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How to Construct an Underclass 77
•African American students are removed from public
school at twice the rate of white students,79 a disparity one
federal district court has attributed to "institutional
racism."80
•The withdrawal of education programs from prisons
likewise hits African Americans hardest because their
incarceration rate is nine times that of whites.81
•The law denying college loans to students with drug
convictions badly discriminates because it exactly
reproduces the disproportionate percentage of African
Americans convicted of these offenses. A statistical study
in the mid-'90s found that African Americans comprise
13% of all monthly drug users, but 55% of those convicted
of drug possession and 74% of those sentenced to prison
for drug possession.82 Similarly, Black juvenile drug
offenders are two-and-a-half times more likely than their
white classmates to be adjudicated as adults and end up
with a drug conviction.83 This discriminatory effect is
79.See supra note 23 and accompanying text; see also T
HOMAS M. SMITH ET AL., THE
CONDITION OF EDUCATION 1997, at 156 (1997) (finding that 19.8 % of all African American
students were suspended at least once over a four-year period compared to 9.7 % of their white
student counterparts; and that 25% of all African American students nationally are suspended at least
once over a four-year period), available at http://nces.ed.gov/pubs/ce/97388.pdf); Herbert, supra
note 75, at 15 (citing a 1999 report showing thirteen percent of white sixteen to twenty-four year
olds were idle compared to twenty-one of blacks and Hispanics in same age group, excluding the
350,000-360,000 under-twenty four year olds in prison).
80. Hawkins v. Coleman, 376 F. Supp. 1330, 1335-37 (N.D. Tex. 1974) (finding that
"institutional racism" resulted in African Americans being suspended more often, and for longer
periods, than white students at all grades of the Texas schools—and in sixty percent of cases, for
minor and non-violent infractions).
81. HOLMAN, supra note 52, at 15 (reporting an African American incarceration rate nine
times that of whites, and a Latino incarceration rate almost four times that of whites). For all crimes,
blacks and Latinos now comprise seventy percent of the nation's inmates, although only twenty five
percent of the nation's population. Id. A majority of the Black and Latino inmates sent to prison
during those years were sentenced for non-violent drug offenses. Cindy Rodriguez, Latino Prison
Count Called Inaccurate, BOSTON G
LOBE, June 7, 2001, at A3. A Department of Justice
extrapolation from current rates of incarceration for all crimes predicts that "an estimated 28% of
black males will enter State or Federal prison during their lifetime, compared to 16% of Hispanic
males and 4.4% of white males." U.S. DEP'T OF JUST., BUREAU OF JUSTICE STATISTICS, CRIMINAL
OFFENDER STATISTICS, at http://www.ojp.usdoj.gov/bjs/crimoff.htm (last modified Nov. 14, 2001).
82. MARC MAUER & TRACY HULING, YOUNG BLACK AMERICANS AND THE CRIMINAL
JUSTICE SYSTEM: FIVE YEARS LATER 11-12 (1995) (compiling statistics from 1992 and 1993). From
1986 to 1996, "the rate of prison admission for drug offenses increased sixfold for African
Americans while the rate of white admissions doubled." HOLMAN, supra note 52, at 17. The number
of black (non-Hispanic) women incarcerated in state prisons for drug offenses multiplied more than
eightfold from 1986 to 1991. MAUER & HULING, supra at 20. The net effect is that by 1993 Blacks
and Hispanics accounted for almost 90 % of those sentenced to state prisons for drug possession. Id.
at 1-2, 13.
83. E. Poe-Yamagata & M. Jones, And Justice for Some: Differential Treatment of Minority
Youth in the Justice System, BUILDING BLOCKS FOR YOUTH: WASHINGTON, D.C. (2000). In 1997,
BLUMENS ON FORMATT ED 05/16/02 7:57 PM
78 The Journal of Gender, Race & Justice [6:2002]
compounded by the fact that those who require federal
college aid are disproportionately minorities.84
The bleak consequences of withdrawing educational access sweep well
beyond those directly deprived. They extend to the entire society. A robust
economy as well as our democratic survival requires a well-educated
population. As the Supreme Court has stated, "Some degree of education is
necessary to prepare citizens to participate effectively and intelligently in
our open political system if we are to preserve freedom and
independence."85 Another predictable outcome of educational deprivation is
an increase in crime. There is a demonstrated correlation between the lack of
secondary education and criminal behavior,86 a connection aggravated by
expulsions that produce unsupervised free time, bleak future prospects,87
and feelings of unjust treatment.88 One study concludes that "school
0.7% of white juveniles and 1.8% of African American juveniles charged with drug offenses were
adjudicated as adults. Id. An Illinois study found African Americans comprise 15.3% of the state's
juvenile population but 88% of the juveniles in adult prisons for drug crimes. Id. (citing JUST. POL'Y
INST., DRUGS AND DISPARITY: THE RACIA L IMPACT OF ILLINOIS' PRACTICE OF TRANSFERRING
YOUNG DRUG OFFENDERS TO ADULT COURT (2001), available at
http://www.buildingblocksforyouth.org/illinois/illinois.pdf. The transfers for adult prosecution were
pursuant to an Illinois law that provides for automatic transfer of fifteen and sixteen year old drug
offenses. 705 ILL. COMP. STAT § 405/5-130(4)(a) (2002).
84. When selective service non-registrants were barred from receiving post secondary federal
assistance, the Supreme Court rebuffed challenges to the law based on Fifth Amendment and Bill of
Attainder grounds. Selective Service Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841
(1984). At that time, a majority of the recipients of most such assistance programs were minorities,
even though minorities comprised only 14.3% of college students. Id. at 878 n.20 (1984) (Marshall,
J., dissenting).
85. Wisconsin v. Yoder, 406 U.S. 205, 221 (1972).
86. Young white men who lack a high school diploma are more than five times as likely to
be incarcerated than those who graduated. Anne Morrison Piehl, Economic Issues in Crime Policy
68 (1994) (unpublished Ph.D. dissertation, Princeton University) (on file with authors). Piehl
examined the higher conviction rates of less educated adolescents to determine whether they were
committing more crimes or simply more likely to get caught. Id. She found that "more schooling is
associated with lower probabilities of committing illegal activities . . . [as well as] lower conviction
rates for those people involved in crime. . . . [T]here is potential for affecting crime rates through
education programs, either broadbased efforts or targeted to a criminally active population." Id. at
70, 96; see also YOUTH IN THE CRIMINAL JUSTICE SYSTEM, supra note 73, at 5 ("[I]n 1996, 45.5% of
all jail inmates in the United States had less than a high school education.").
87. The correlation between lack of education and criminal behavior among men "is
consistent with an economic model of crime in which education is associated with better legal sector
opportunities." Piehl, supra note 86, at 81.
88. The Harvard Report states that the rigidity and harshness of zero tolerance policies
"further alienate students from school and exacerbate the behaviors they seek to remedy." HARV ARD
REPORT, supra note 20, at 3, 9. "This damage is particularly acute for children who are already
considered 'at risk' for school failure and often has the effect of pushing them out of school
completely." Id. Another study shows that "schools that rely heavily on zero tolerance policies
continue to be less safe than schools that implement fewer components of zero tolerance. [R]esearch
has suggested that misuse of school security measures such as locker or strip searches can create an
emotional backlash in students." R.J. Skiba & R.L. Peterson, School Discipline at the Crossroads, 66
EXCEPTIONAL CHILD. 335, 337 (2000).
It is possible that high school zero tolerance policies for minor infractions replicate the
BLUMENS ON FORMATT ED 05/16/02 7:57 PM
How to Construct an Underclass 79
personnel may simply be dumping problem students out on the streets, only
to find them later causing increased violence and disruption in the
community . . . [W]e face serious questions about the long-term negative
effects of one of the cornerstones of zero tolerance, school exclusion."89 As
for prisoners, numerous studies show that prison education programs reduce
recidivism rates,90 in some cases by a factor of four.91 A Rand study
criminogenic effects that have been found to flow from "invoking the criminal justice system for
relatively minor behavior [which may] increase rather than reduce crime through its effect on the life
prospects or psychology of the arrested individual." Philip B. Heymann, The New Policing, 28
FORDHAM URB. L.J. 407, 418 (2000).
89. Skiba & Peterson, supra note 25, at 376.
90. Among the studies reporting this finding are MILES D. HARER, FED. BUREAU OF
PRISONS, PRISON EDUCATION PROGRAM PART ICIPATION AND RECIDIVIS M: A TEST OF THE
NORMALIZATION HYPO THESIS (1995) (reporting that inmates who actively participate in education
programs have significantly lower likelihood of recidivating), available at
http://www.bop.gov/orepg/edrepabs.html; DAVID CLARK, N.Y. DEP'T OF C
ORR. SERV., ANALYSIS
OF R
ETURN R
ATES OF THE I
NMATE C
OLLEGE P
ROGRAM P
ARTICIPANTS (Aug. 1991); MILES D.
HARER, FED. BUREAU OF P
RISONS, RECIDIVI SM A
MONG F
EDERAL P
RISON R
ELEASES IN 1987: A
PRELIMINARY R
EPORT 4 (1994) (reporting that the more educational programs successfully
completed for each six months confined, the lower the recidivism rate); Mary Ellen Batiuk, The
State of Post-Secondary Education in Ohio, 48 J. CORR. EDUC. 70 (1997) (comparing an overall
recidivism rate that was forty percent for Ohio inmates with an eighteen percent rate for those who
completed the Associate Degree program); Mary Ellen Batiuk et al., Crime and Rehabilitation:
Correctional Education as an Agent of Change-A Research Note, 14 JUST. Q. (1997) (concluding
that college education increases the likelihood of post-release employment, which in turn reduces the
risk of recidivism); Piehl, supra note 86, at 83. Cf. M. S. BRUNNER, OFFICE OF JUVENILE JUST. &
DELINQUENCY PREVENTION, REDUCED RECID IVISM AND INCREASED EMPLOYMENT OPPORTUNITY
THROUGH RESEARCH-BASED READING INSTRUCTION 1, 6 (NCJ Publication No. 141324, 1993)
(reporting twenty percent reduction in juvenile recidivism through reading instruction programs).
These studies demonstrate that prison education programs are far more efficacious than researchers
thought three decades ago, when a seminal survey of mid-century studies found little impact. See
Robert Martinson, What Works? Questions and Answers About Prison Reform, PUB. INT., Spring
1974, at 22, 24.
91. A City University of New York research study found that 7.7% of women inmates at
New York State's Bedford Hills Correctional Facility who took prison education courses returned to
jail, compared to 29.9% of those who did not. Michelle Fine et al., The Impact of College in a
Maximum Security Prison (2001), available at http://www.gc.cuny.edu/studies/studies_index.htm.
Another study of Texas inmates found that prison college program graduates had less than a 15% re-
arrest rate, compared to a general Texas re-arrest rate of 60%. C. Tracy & C. Johnson, Review of
Various Outcome Studies Relating Prison Education to Reduced Recidivism, Windham School
System: Huntsville, TX 7 (1994). A similar finding nationally is reported in Alexandra Marks, One
Inmate's Push to Restore Education Funds for Prisoners, CHRISTIAN SCI. MONITOR, Mar. 20, 1997
at 3, available at 1997 WL 2799990; see also J. Chase & R. Dickover, University Education at
Folsom Prison: An Evaluation, 34 J. CORR. EDUC. 3, 92-96 (1983) (reporting recidivism rates within
three years of release of 55% for the state's general prison population and 0% for those who had
completed a baccalaureate degree in prison); Dennis J. Stevens & Charles S. Ward, College
Education and Recidivism: Educating Criminals Meritorious, 48 J. CORR. EDUC. No. 3 106-111
(1997) (comparing recidivism rates of inmates generally with inmates who received prison college
degrees in Alabama, 35% and 1% respectively; Maryland, 46% and 0%; New York, 45% and 26%;
and Texas, 36% and 10%); Jon M. Taylor, Post Secondary Correctional Education: An Evaluation
of Effectiveness and Efficiency, 43 J. CORR. EDUC. 132 (1992) (reporting one study of a Canadian
prison college program that produced a recidivism rate of 14% compared to 52% of the matched
group of non-student prisoners, and another study showing that inmates at the New Mexico State
Penitentiary who took college courses had an average recidivism rate of 15.5% compared to 68% of
the entire inmate population).
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80 The Journal of Gender, Race & Justice [6:2002]
concluded that education is the most cost-effective crime prevention
program available, and other studies confirm that investment in prisoner
education more than pays for itself .92 The exploding incarceration rate and
the termination of prison education programs were intended to "get tough"
on criminals. But given the consequences–a multiplying recidivism rate93 at
a time when an unprecedented 600,000 prisoners are returning to society per
year94–these policies are proving particularly tough on America.95
James Gilligan, a psychiatrist who directed the Massachusetts Prison Mental Health Service, reports
that:
the most successful of all [anti-recidivism programs], and the only one that had been
100 percent effective in preventing recidivism, was the program that allowed inmates to
receive a college degree while in prison. Several hundred prisoners in Massachusetts
had completed at least a bachelor's degree while in prison over a 25-year period, and
not one of them had been returned to prison for a new crime.
James Gilligan, Reflections from a Life Behind Bars: Build Colleges, Not Prisons, CHRON. HIGHER
EDUC., Oct. 16, 1998, at B7.
92. PETER W. GREENWOOD ET AL., DIVERTING C
HILDREN FROM A L
IFE OF C
RIME:
MEASURING COSTS AND BENEFITS 37-41 (1996) (citing the Rand study). Another study conducted
by the Correctional Education Association for the U.S. Department of Education Office of
Correctional Education studied more than 3,600 inmates who had been released for at least three
years in Maryland, Minnesota, and Ohio. It found that "simply attending school behind bars reduces
the likelihood of re-incarceration by twenty-three percent. Translated into savings, every dollar spent
on education returns more than two dollars to the citizens in reduced prison costs." STEPHEN
STEURER ET AL., THE THREE STATE RE CIDIVISM STUDY (2001), available at
http://www.research.umbc.edu/~ira/Recid_Study.doc. A third study examined the return on public
investment in vocational and educational programs in Florida prisons, concluding that those who
completed certain educational programs produced a return of $3.53 per $1.00 invested. FLA. DEP'T
CORR., RETURN ON INVESTMENT FOR CORRECTIONAL EDUCATION IN FLORIDA (1999), available at
http://www.dc.state.fl.us/pub/taxwatch/index.html.
93.See Butterfield, Getting Out, supra note 71, at A1 ("In 1977, only 788 inmates who had
been released on parole were returned to prison in California, compared with 90,000 in 1999.");
Outside the Gates, TIME, Jan. 13, 2002, at 57, 58 ("The more people you lock up, the more you must
one day let out. For 40% of those now in state prisons, that day arrives in the next 12 months. . . .
The result is that each day this year, an average of 1,726 men and women–mostly men–will walk out
of penal institutions having spent more time behind bars, with less preparation for their return to
society and slimmer chances of success there, than those who came before them."); Petersilia, supra
note 10 at 1 ("Fully two-thirds of all parolees are rearrested within 3 years. In 1980, they constituted
17 percent of all admissions, but they now make up 35 percent.").
94. Petersilia, supra note 10, at 1.
95. Jeremy Travis, an expert on the subject of prisoner-reentry, believes that our almost
exclusive focus on incarceration and punishment not only produces prisoner recidivism but also
threatens community dissolution in a variety of ways:
[T]he fact that we have increased fourfold the rate of removal, imprisonment, and
reentry over the past generation has significantly weakened the capacity of
communities to do the work that communities should do: raise children, provide a
healthy environment for families, provide jobs for young and old, and sustain a vibrant
civic life. . . . [I]s it possible that a weakening of community capacity through a policy
of mass incarceration will actually result in higher crime rates? Two researchers at the
City University of New York, Dina Rose and Todd Clear, are testing this proposition
and have found, in one study, that crime rates went up after a certain tipping point was
reached.
BLUMENS ON FORMATT ED 05/16/02 7:57 PM
How to Construct an Underclass 81
In other ways too numerous and too obvious to detail here, the creation
and continuation of an alienated, uneducated underclass inflicts deep
wounds on our national interests. It is sufficient to restate the Supreme
Court's query in its opinion striking down the exclusion of undocumented
aliens from public school: "It is difficult to understand precisely what the
state hopes to achieve by promoting the creation and perpetuation of a
subclass of illiterates within our boundaries, surely adding to the problems
and costs of unemployment, welfare and crime."96
Unhappily, the educational privation laws we have surveyed are but one
element in a comprehensive legal onslaught against ex-offenders. Federal
and state laws hobble rehabilitation and reintegration in countless other ways
as well.97 For example, if you were once convicted of selling a vial of crack,
long after you complete your sentence you will continue to bear what the
law calls "civil disabilities" (and what prisoners call "the mark of Cain")98
that may put many of the material and psychological essentials of life
beyond reach.99 You will be ineligible for food stamps, federal health care
benefits, and other federal assistance. 100 In some states, you will be
Jeremy Travis, Prisoner Reentry Seen Through a Community Lens, Address at the Neighborhood
Reinvestment Corporation Training Institute 2 (Aug. 23, 2001), available at
http://www.urban.org/community/prisoner-reentry-speech.pdf [hereinafter Prisoner Re-entry].
96. Plyler v. Doe, 457 U.S. 202, 230 (1982).
97.See O
FFICE OF THE PARDON ATTORNEY, U.S. DEP'T OF JUST., CIVIL DISABILITIES OF
CONVICTED FELONS: A STATE-BY-STATE SURVEY app. B (1996) (listing each state's civil disability
laws).
98. Webb Hubbell, The Mark of Cain, S.F. CHRON., June 10, 2001, at D1.
99. For descriptions, analyses, and critiques of the burgeoning "civil disabilities" imposed on
offenders even after completion of their sentence, see JEREMY TRAVIS, COLLATERAL DAMAGE: THE
SOCIAL C
OST OF M
ASS I
NCARCERATION (Mayeda Chesney-Lind & Marc Mauer eds., 2001)
[hereinafter TRAVIS]; Gabriel Chin, Effective Assistance of Counsel and the Consequences of Guilty
Pleas, 87 CORNELL L. REV. 697 (2002); Nora Demleitner, Preventing Internal Exile: The Need for
Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL'Y R
EV. 153 (1999);
Kathleen M. Olivares et al., The Collateral Consequences of a Felony Conviction: A National Study
of State Legal Codes 10 Years Later, 60 FED. PROBATION 10 (1996).
100. Federal law imposes a lifetime ban on food stamps and federally funded public
assistance for drug felons unless a state elects otherwise. 21 U.S.C. § 862a (2002). A recent study
reports that 22 states now impose the ban in full and 20 others in part, placing an estimated 92,000
women and 135,000 children at risk in the affected states. PATRICIA ALLARD, THE SENTENCING
PROJECT, LIFE SENTENCES: DENYING WELFARE BENEFITS TO WOMEN CONVICTED OF DRUG
OFFENSES (2002), available at http://www.sentencingproject.org/allard/lifesentences.pdf. Federal
law also imposes a mandatory ineligibility for federal health care benefits for those convicted of
distribution offenses. 42 U.S.C. § 1320a-27a (1999). Grants, licenses, contracts, and some other
federal benefits are restricted as to drug offenders under 21 U.S.C. § 862. Section (a) provides that,
in the discretion of the court, individuals convicted of a first federal or state drug trafficking offense
may be rendered ineligible for all federal benefits for up to five years after conviction, and second
offenders for up to ten years; third offenders are permanently ineligible as a mandatory sanction. Id.
Under section (b), in the discretion of the court, individuals convicted of a first federal or state drug
possession offense may be rendered ineligible for all federal benefits for up to one year, and second
offenders for up to five years; and third offenders are mandatorily ineligible permanently. Id.
Section (b) sanctions may be waived if a person declares himself to be an addict and undergoes
treatment or is declared rehabilitated. Id.
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82 The Journal of Gender, Race & Justice [6:2002]
prohibited from driving101 or voting;102 in some, you will be unable to
watch your child's soccer game because school grounds are off-limits to ex-
felons.103 Finding a job, never easy for ex-offenders, will be that much
harder thanks to a welter of state and federal laws that foreclose numerous
occupations104 as well as military service105 and public office.106 Under
some circumstances you will be effectively ineligible for public housing. 107
If you are an alien, you are likely to be deported.108 In short, you will be
101.See 23 U.S.C. § 159 (1998) (denying ten percent of federal highway funds to states
which do not suspend offender's licenses of drug felons).
102. Thirty-two states bar voting by offenders on parole or probation, and at least twelve
states bar an ex-felon from voting for life. Lifetime voting bans in Alabama, Florida, Iowa,
Mississippi, New Mexico, Virginia and Wyoming have resulted in the permanent
disenfranchisement of one quarter of their black male citizens. Prisoner Re-entry, supra note 95, at
5. Currently four million Americans are barred from voting, of whom approximately one third are
African Americans (thirteen percent of the adult black male population). Id.
103. Hubbell, supra note 98, at D1 ("[S]ome states, including California, have passed laws
banning ex-felons from school grounds.").
104. See, e.g., 18 U.S.C. §§ 3563(b)(6), 3583(d), 5F1.5(a) (authorizing the sentencing court
to place occupational restrictions as a condition of probation); 21 U.S.C. § 862(d), § 5F1.6
(limitations on federal licenses to drug offenders); 29 U.S.C. §§ 504, 1111 (ineligibility from listed
positions in labor unions or employee benefit plans). In California, parolees are barred from working
in law, real estate, medicine, nursing, physical therapy, and education; in Colorado, from working as
dentists, engineers, nurses, doctors, pharmacists, or real estate agents. Petersilia, supra note 10. Most
jobs requiring federal or state licenses are off limits. Former Deputy Attorney General and former
prisoner Webb Hubbell offers the following as a partial list of jobs unavailable to him as an ex-felon:
It is highly unlikely that I could ever obtain a custom broker's license, an export license,
a merchant marine license, or even a locomotive engineer's license. . . . I cannot
become a director, officer, employee or controlling stockholder of any federally insured
institution such as a bank or a savings and loan. I cannot be an adviser, officer or
director of a labor organization for 13 years after my conviction. . . . The Securities and
Exchange Commission prohibits me from becoming an investment adviser for 10 years.
The secretary of Health and Human Services can bar me from working in any aspect of
health care if federal, state or local dollars are involved. I couldn't even sweep the floors
of a nursing home. . . . Any job that requires a state license is probably out. . . . Other
occupations most likely closed to me include: certified public accountant, physician,
dentist, insurance agent, nurse, real estate broker, pharmacist, landscape architect, law
enforcement officer, teacher, day-care worker, veterinarian, bartender, dietitian,
engineer, barber, cosmetologist, mortician, speech pathologist, social worker. . . .
Hubbell, supra note 98, at D1.
105. 10 U.S.C. § 504 (2001).
106. Twenty-five states restrict felons from public office. Olivares et al., supra note 99, at
10.
107. 42 U.S.C. § 13661(a) (1998) provides that if you were previously evicted from
federally-assisted housing by reason of drug related criminal activity, you are ineligible for
admission to any federally-assisted housing for three years. Under a separate provision you may be
evicted from public housing for the drug violation of a guest of family member, even if unknown to
you. Dep't of Housing & Urban Dev. v. Rucker, 122 S. Ct. 1230 (2002) (interpreting 42 U.S.C. §
1437d(l)(5) (1994), redesignated in 1998 as d(l)(6)).
108. § 237(a)(2)(B); 8 U.S.C. § 1227(a)(2)(B) (1999). Deportation of criminal offenders rose
from 7,338 in 1989 to 56,011 in 1998. TRAVIS, supra note 99, at 11 (citing Peter H. Schuck & John
BLUMENS ON FORMATT ED 05/16/02 7:57 PM
How to Construct an Underclass 83
branded as a kind of untouchable—a caste status that any layman (but not
the law) would recognize as an extra layer of punishment. This is the
humiliating and overwhelming plight that confronts the 13 million
Americans with felony convictions, and to a lesser degree the 47 million
Americans with some kind of criminal history on file with state or federal
criminal justice agencies.109 Ex-offenders re-entering society with $200, the
shirt on their back, and virtually no socially recognized identity, scarcely
have a chance without some help in obtaining housing, a job, educational
opportunities, medical care, and counseling.110 What is needed, for their
sake and ours, are reintegration programs, not exclusionary policies that
promote desperation and failure.
III. RECLAIMING EDUCATIONAL OPPORTUNITY FOR OFFENDERS
Each year that educational privation sanctions remain in place does
irreparable damage to our most vulnerable citizens and to ourselves as a
nation. We believe that there are reasonable prospects for reform, however,
particularly as the relatively sorry state of American education is now near
the top of the public agenda. Given the dire consequences of consigning
many thousands of children and adult offenders to an uneducated underclass,
we have reason to hope that politicians, educators, policy experts and courts
will sooner or later devise more effective and humane sanctions than
educational privation. We first survey the prospects for political reform and
then turn to some possible court challenges.
A. Political Prospects
Reversing high school zero tolerance exclusions is a formidable
undertaking, not least because school administrators will be reluctant to
abandon a policy that efficiently rids the classroom of troublemakers, and
also removes students who are most likely to score poorly on the
standardized tests increasingly used to evaluate their schools.111
Williams, Removing Criminal Aliens: The Pitfalls and Promises of Federalism, 22 HARV. J. L. &
PUB. POL'Y 367, 384-85 (1999).
109. TRAVIS, supra note 99, at 5
110. The N.Y. Times reports the story of one man that no doubt reflects the experience of
hundreds of thousands of other emerging prisoners. Butterfield, Getting Out, supra note 71, at A1.
Steve Butler, forty-four, was "released from prison after serving a one-year sentence for possession
of cocaine. Records show he was given his $200 and a bus ticket back to Los Angeles, where he had
been arrested. But Mr. Butler was homeless at the time of his arrest, with no family here, so the first
night after getting off the bus, he said, he went back to sleeping on the same skid-row street just east
of downtown where he had lived before. With no education, job skills or hope, he said, he used some
of his money to buy dope to make himself feel better." Id.
111. The American Federation of Teachers, the nation's largest teachers' union, has been one
of the most enthusiastic supporters of mandatory expulsions of students who bring weapons or drugs
to school. See Wasser, supra note 24, at 749-50. For more on the national debate among school
administrators and critics on the merits of zero tolerance, see Johnson, supra note 17 at A20; Paul
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84 The Journal of Gender, Race & Justice [6:2002]
Nevertheless, there are increasing signs that the zero tolerance approach is
vulnerable. In Georgia, after dozens of students were suspended for
possessing innocuous items deemed "weapons" (such as a Tweety Bird
wallet with a long keychain attached, and a broken axe found during a
random search of students' cars), Republican and Democratic leaders in the
legislature introduced a bill to make suspensions and expulsions
discretionary. A January 2002 newspaper poll showed that ninety-six
percent of Georgians agree.112 The American Bar Association (ABA) has
adopted a similar position, voting in February 2001 to oppose school zero
tolerance policies that fail to take into account the circumstances or nature of
the offense or the accused's age and history.113 Moreover, the first
comprehensive national study of public school zero tolerance policies
strongly recommended that they be discontinued. The Harvard University
study found that zero tolerance produces "devastating consequences,"
including educational privation, teacher-student confrontation and distrust,
and unjustifiable criminalization of children. "Policymakers, educators and
parents should be very concerned with the long-term implications of denying
educational opportunities to millions of children, particularly when the
effectiveness of these policies in ensuring school safety is highly
suspect."114
The denial of college loans to drug offenders has also generated
opposition, particularly from students and educators on college campuses.
An organization attempting to repeal this law, Students for a Sensible Drug
Policy, has established 130 chapters on college campuses, and more at high
schools throughout the country.115 Sixty-six student governments, the
H.B. Shin, Suspensions Go Through the Roof; Schools Tossed Out Record 26,820 Kids, N.Y. DAILY
NEWS Nov. 5, 2000, at 6.
112. Fox News, supra note 27. Only four percent wanted zero tolerance sanctions to remain
mandatory or become stricter. The report states that co-sponsor Sen. Richard Marable expects Senate
Bill 335 to "go through the process as fast . . . as any can. . . ." Id.
113. In its report to the A.B.A.'s House of Delegates, the Criminal Justice Section strongly
opposed zero tolerance measures applied to schools. "It has redefined students as criminals, with
unfortunate consequences." A.B.A., FINAL REPORT, BI-PARTISAN WORKING GROUP ON YOUTH
VIOLENCE 1 (2000), available at www.abanet.org/crimjust/jurjus/zerotolreport.html.
114. HARVARD REPORT, supra note 20, at 1, 3 (2000), available at
http://www.law.Harvard.edu/groups/civilrights/conferences/zero/ zt.report2.html; see also Skiba &
Peterson, supra note 25, at 376. Skiba finds that without providing services to suspended or expelled
students
school personnel may simply be dumping problem students out on the streets, only to
find them later causing increased violence and disruption in the community. In sum, we
lack solid evidence to support the effectiveness of harsh policies in improving school
safety, and we face serious questions about the long-term negative effects of one of the
cornerstones of zero tolerance, school exclusion.
Id.
115. The figure is as of January 28, 2002. The chapters are listed on the SSDP website,
which is available at http://www.ssdp.org /chapters. Another opposition group is the Coalition for
HEA Reform, the web site of which is http://www.raiseyourvoice.com.
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How to Construct an Underclass 85
American Council on Education, and the National Association of Student
Financial Aid Administrators have urged repeal,116 along with such civil
rights organizations such as the NAACP, ACLU and NOW,117 and even
DEA Administrator Asa Hutchinson.118 Some colleges and organizations are
providing substitute loans to students affected by the law. 119
In Congress, Rep. Barney Frank, D-Mass., has introduced HR 786, a
bill to repeal the law that has attracted fifty co-sponsors to date.120
Separately, a subcommittee of the House Education and Work Force
116. STUDENTS FOR A SENSIBLE DRUG POLICY, NATIONAL AGENDA (2001), available at
http://www.ssdp.org (discussing support from student organizations); 43,000 Students, supra note
45, at A11 (reporting support from the American Council of Education). The president of Hampshire
College, Gregory S. Prince, Jr., felt compelled to state the obvious when he asked, "[W]hy would
you want to exclude people from the education stream when trying to keep them in the stream is the
most important thing to do?" Ariana Huffington, Souder Says Drug-Use Rule Never Meant as
Punishment, SO. BEND TRIB., Apr. 29, 2001, at B8.
117. Additionally, the A.B.A. may soon draw attention to the defects that the Souder
amendment shares with other collateral consequences of criminal convictions. Its Task Force on
Collateral Consequences is about to complete a proposed revision of the A.B.A. standards on the
imposition of collateral consequences. CIVIL DISABILITIES OF CONVICTED PERSONS, 4 A.B.A.
STANDARDS FOR CRIMINAL JUSTICE Chap. 23 (1986). It appears the new standards will "conceive
collateral consequences as essentially a form of discrimination against convicted persons. . . ."
Margaret Colgate Love, Deconstructing the New Infamy, 16 CRIM. JUST. 30, 31 (2001). In both its
previously published standards and in those that are forthcoming, the A.B.A. strongly recommends
that to ensure truth in sentencing any consequences to criminal convictions be codified and
considered by the sentencing judge. Id. The standards oppose the mandatory approach to sanctions
and oppose any retroactive imposition. Id.
118. After his nomination to be DEA Administrator, Hutchinson said he favored
allowing convicted drug offenders to remain eligible for federal student loans.
Hutchinson said many offenders who left prison years ago are now finding that they
cannot get financial aid "even though they've turned their lives around. And what you're
doing is punishing those people," Hutchinson said. "There is some unfairness in that."
Such financial aid, he said, is an important component in letting drug offenders "get
back to leading useful, productive lives."
Josh Meyer, New DEA Chief Suggests "Compassionate" Policy, L.A. TIMES, Aug. 2, 2001, available
at http://www.mapinc.org/ssdp/v01/n1410/a09.
119. Hampshire, Swarthmore, Yale, and Western Washington Universities have established
funds to lend money to students whose financial aid has been cut off due to this law. Yilo Zhao, Yale
Takes a Stand with Policy on Drugs and Financial Aid, N.Y. TIMES, Apr. 13, 2002, at A27.
Additionally, in March 2002, activists launched the John W. Perry Fund, an organization that will
raise money to provide scholarships to students denied aid under the Souder provision. See The John
W. Perry Fund, at http://www.raiseyourvoice.com/perryfund/ (last visited Apr. 22, 2002).
120. Last year, Congressman Frank's bill (then HR 1053) was co-sponsored by fifty
members of Congress and had the support of such groups as the ACLU, NAACP, NOW, the
American Public Health Organization, and the Coalition for HEA Reform. Cannon, supra note 44, at
2253. Frank argued that:
these low-income students are, in effect, being thrown out of school for doing what
George Bush and Al Gore have done. Now, people might not be enamored with either
Bush or Gore, but I don't think anybody would say that America was disserved by them
completing their college education.
Huffington, supra note 47, at B8.
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86 The Journal of Gender, Race & Justice [6:2002]
Committee surveyed post-secondary educators to create an agenda for
regulatory relief, and as a result now includes possible repeal of the Souder
amendment as issue 49 on its financial aid agenda.121 Even Congressman
Souder, the primary sponsor of the law, is seeking to reduce its scope. He
says he never intended the law to be used to punish people for convictions
incurred prior to the student's receipt of federal funds, and last year offered
an amendment to limit the law's application to drug offenses that occur while
the offender is receiving federal college assistance. After winning a House
vote, Souder's revision died in the Senate.122 With all sides pledging to
continue reform efforts, some degree of change in the law is likely.
Advocates for prison education press for the restoration of prison
educational programs, but so far with little success. In 2000 Rep. Bobby
Scott, D-Va., attempted to reinstate Pell Grants for prisoners, but his bill was
defeated amidst concerns about the rising cost of college education, which is
increasing the Pell Grant budget for non-prisoners. 123 At the state level,
concern over the release of unprecedented numbers of unprepared prisoners
has led some legislators to favor rehabilitation and reentry programs,
including the reinstatement of some prison education programs.124
Meanwhile, prison education advocates are researching and publicizing
alternative sources of funding that might permit some inmates to obtain
secondary and post-secondary degrees while in prison.125
121. COMM. ON EDUC. & THE WORKFORCE, FED UP INITIATIVE: REGULATORY RELIEF
PROPOSALS (2001), available at
http://edworkforce.house.gov/issues/107th/education/fedup/regschart.htm. The agenda describes the
rationale for considering repeal, as suggested by the survey, as follows: "There are regulations and
statutory requirements that have no bearing on a student's propensity for educational success. These
regulations add complexity to the student aid application and process without providing any
significant social benefit." Id.
122. Cannon, supra note 44, at 2253.
123. The bill was introduced in the House of Representatives of the 106th Congress on Nov.
14, 2000, as H.R. 5632, 106th Cong. (1999).
124.See Peter Schmidt, College Programs for Prisoners, Long Neglected, Win New Support,
CHRON. HIGHER EDUC., Feb. 8, 2002, at A26. Schmidt reports that Vermont is likely to institute new
prison education programs to facilitate prisoner re-entry, and notes that prison educational
opportunities could expand through distance education utilizing technologies such as the internet and
interactive television. Id. "Even as many such programs teeter on the brink of oblivion, sentiment
seems to be growing among criminal-justice experts and some state lawmakers that they provide
benefits that make them worth keeping." Id.
125. Jon Marc Taylor, a Missouri prisoner, writer, and long-time campaigner for prison
education, provides a painstaking roadmap to alternative funding in a three part series, Jon Marc
Taylor, Piecing Together a College Education Behind Bars Part I, 2 CELL DOOR Issue 4 (2000),
available at www.celldoor.com; Jon Marc Taylor, Piecing Together a College Education Behind
Bars Part II, 3 CELL DOOR Issue 1 (2001), available at www.celldoor.com; Jon Marc Taylor,
Piecing Together a College Education Behind Bars Part III, 3 CELL DOOR Issue 2 (2001), available
at www.celldoor.com. For additional information of prisoner education options, see EUR. PRISON
EDUC. ASS'N, available at http://users.tibus.com/epea/sections.htm (last visited May 7, 2002);
OFFICE CORR. EDUC., available at http://www.ed.gov/offices/OVAE (last visited May 7, 2002);
CORR. EDUC. ASS'N, available at http://www.ceanational.org (last visited May 7, 2002); Books
Through Bars, http://www.booksthroughbars.org (last visited May 7, 2002) (an organization that
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How to Construct an Underclass 87
B. Court Challenges
Opponents of educational privation laws should also challenge them in
court. For public school students who have been removed from school, there
are a number of legal grounds that might be invoked against the denial of
their right to a public education—a right that is guaranteed by all state
constitutions and one which could yet be recognized, to at least to a limited
degree, in the federal constitution.126 These potential legal claims transcend
the drug war that is the subject of this symposium—they seek to reclaim a
public education for all children, including those expelled for non-drug
offenses—and we shall devote a subsequent article solely to these
constitutional theories.
Aspiring college students should also consider litigation, but they will
have less to work with than adolescents expelled from high school: whatever
constitutional right to education exists is unlikely to apply to advanced, post-
secondary education.127 Moreover, suits seeking to restore Pell Grants and
other educational opportunities to prisoners have been unsuccessful to
date.128 However, we believe the Souder Amendment's denial of financial
supplies books to prisoners).
126. The Supreme Court has repeatedly and explicitly left unresolved the question whether
the Constitution affords a limited right to a "minimally adequate education." See San Antonio Indep.
Sch. Dist. v. Rodriguez, 411 U.S. 1, 36-37 (1973); Papasan v. Allain, 478 U.S. 265, 284-86 (1986).
127.But see Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 879
n.22 (1984) (Marshall, J., dissenting).
[W]here our prior cases have focused particularly on the extraordinary importance to
the individual of elementary and secondary education, our concern that burdening
access to education creates permanent class distinctions and political disadvantage is
equally relevant here. Postsecondary education is the necessary prerequisite to pursuit
of countless vocations, both professional and technical.
Id.
128. In Tremblay v. Riley, 917 F. Supp. 195 (W.D. N.Y. 1996), the court found the law
denying Pell grants to prisoners constitutional, rejecting claims that it violated (1) the ex post facto
prohibition; (2) procedural due process, because any property rights in the Pell grants were
extinguished by the law; (3) the Eighth Amendment bar on cruel and unusual punishment, finding
that the law does not impose punishment; and (4) equal protection and substantive due process
finding the law rationally related to the government's interests in allocating scarce resources,
increasing funding for law-abiding students, and eliminating fraud in the administration of Pell
grants to prisoners. See also Johnson v. Galli, 596 F. Supp. 135, 139 (D. Nev. 1984) (declaring
prisoners do not have a constitutional right to rehabilitation or vocational programs); Nicholas v.
Riley, 874 F. Supp. 10, 11-12 (D.C. Cir. 1995) ("Plaintiff's arguments regarding potential
correlations between the provision of educational resources and reduced recidivism, while not
without arguable merit, are beyond the ken of the Court's inquiry."); Garza v. Miller, 688 F.2d 480,
486 (7th Cir. 1982) ("[T]here is no constitutional mandate to provide educational, rehabilitative, or
vocational programs . . . [to prisoners]."); Russell v. Oliver, 392 F. Supp. 470, 474 (W.D. Va. 1975)
(stating that there is "[n]o federal constitutional right to vocational training . . . for inmates in a
correctional system"). Courts have also rejected prisoners' suits claiming a right to rehabilitation.
Marshall v. United States, 414 U.S. 417, 421 (1974) (drug rehabilitation is not a fundamental right);
French v. Heyne, 547 F.2d 994, 1002 (7th Cir. 1976) ("[P]risoners possess no abstract right to
rehabilitation and . . . the failure to provide rehabilitative programs does not constitute cruel and
unusual punishment. . . ."); Landman v. Royster, 333 F. Supp. 621, 644 (E.D. Va. 1971) ("Even now
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88 The Journal of Gender, Race & Justice [6:2002]
aid to drug offenders remains untested and may well be vulnerable to the
following constitutional and statutory approaches.
1. Substantive Due Process and Equal Protection Violations
With neither a fundamental constitutional right nor a suspect
classification implicated by the laws denying college aid to offenders,129
equal protection or substantive due process challenges to these laws will
confront the least favorable standard of judicial review: "rational basis"
review. The rational basis standard affords the law a "strong presumption of
validity,"130 a presumption that can be overcome only by a showing either
that (1) the law does not have a legitimate governmental purpose, or (2)
there is no rational relation between that purpose and the means the law
utilizes to achieve it.131 This test affords great deference to the legislature
(as is evident when compared to the more exacting review applied to laws
that do affect a fundamental right or suspect class—"strict scrutiny,"
requiring that the governmental purpose be "compelling" and the means
"narrowly tailored" to achieve it without unnecessary burdens on the suspect
class or the constitutional right.)132 Yet even the deferential rational basis
test is not toothless,133 and perhaps is discerning enough to recognize the
blindness and futility involved in denying educational access to people at
risk who are trying to turn their lives around.
What, then, is the purpose of the Souder amendment? The only purpose
that the law seems to achieve is the imposition of further punishment on
no court has required that states adapt their penal system to the goal of rehabilitation.").
129. A statute will be subject to "strict scrutiny" only if it (1) impinges on a fundamental
right or (2) discriminates against a "suspect class"—a class defined on the basis of race, national
origin, alienage, or will trigger heightened but only "mid-level" scrutiny, if the class is defined by
gender or illegitimacy. See, e.g., Lyng v. Int'l Union, 485 U.S. 360, 370 (1988); Plyler v. Doe, 457
U.S. 202, 216-17 (1982); Rodriguez, 411 U.S. at 16-17. Although denying college loans to
offenders affects only financially needy students, the Supreme Court has decided that classifications
either based on wealth, or having different effects on the wealthy and the poor, are not "suspect
classifications" triggering strict scrutiny. Kadrmas v. Dickenson Pub. Sch., 487 U.S. 450, 458
(1988); Harris v. McRae, 448 U.S. 297, 322-23 (1980); Maher v. Roe, 432 U.S. 464, 470-71 (1977).
130. FCC v. Beach Communications Inc., 508 U.S. 307, 313, 315 (1993).
131. A rational basis challenge must "'negative every conceivable basis which might support
it,' . . . whether or not the basis has a foundation in the record." Heller v. Doe, 509 U.S. 312, 320-21
(1993). But the relationship of the classification to its goal cannot be so "attenuated as to render the
distinction arbitrary or irrational." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447
(1985); see also Vacco v. Quill, 521 U.S. 793, 807 (1997); Romer v. Evans, 517 U.S. 620 (1996);
Hodel v. Indiana, 452 U.S. 314, 331-32 (1981); Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71
(1978); McGowan v. Maryland, 366 U.S. 420 (1961).
132. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n.6 (1986).
133. Mathews v. Lucas, 427 U.S. 495, 510 (1976); see also Romer, 517 U.S. at 632 (noting
that "even in the ordinary equal protection case calling for the most deferential of standards, we
insist on knowing the relation between the classification adopted and the object to be attained. The
search for the link between classification and objective gives substance to the Equal Protection
Clause").
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How to Construct an Underclass 89
drug offenders, yet this is the one rationale that cannot be asserted in defense
of the law. If the denial of loans is conceded to be punishment, then it is an
unconstitutional ex post facto punishment as applied against anyone whose
offense occurred prior to its passage, and arguably multiple punishment in
violation of the double jeopardy bar as well.134 As punishment, ineligibility
would have to be issued by a sentencing judge,135 and also noted as part of
all guilty plea colloquys.136 Only by maintaining the fiction that the denial
of loans is a non-punitive "collateral consequence" or "civil disability" can
the Souder amendment avoid invalidation on these grounds.
In legislative debate and commentary, one finds an array of other
rationales for the Souder amendment, all so poorly served by this law that
they are hard to take seriously. Congressman Goodling argued for the law as
a way to "ensure safety on our nation's campuses [by keeping] them drug-
free."137 There are, however, three problems with this rationale. First, if
campus safety is the goal, is there any rational basis for believing that a
person once convicted of marijuana possession poses more risks than
convicted murderers, arsonists, rapists, and other violent criminals
untouched by this law? Or than those previously convicted of driving while
intoxicated, who continue to be eligible because the law specifically exempts
alcohol-related convictions138? Second, if the goal is to remove either drugs
or drug offenders from campus, the Souder amendment by its terms does
neither. Drug offenders can go to college so long as they can afford the
134. U.S. CONST. art. I, § 9, cl. 3 (ex post facto prohibition); U.S. CONST. amend. V (double
jeopardy); Hudson v. United States, 522 U.S. 93, 99 (1997) ("The Clause protects only against the
imposition of multiple criminal punishments for the same offense . . . when such occurs in
successive proceedings."); Kansas v. Hendricks, 521 U.S. 346 (1997) (ex post facto bar only applies
to laws imposing criminal punishments).
135. Punishment issued by Congress rather than the judiciary constitutes a bill of attainder in
violation of U.S. CONST. art. I, § 9, cl. 3. Nixon v. Adm'r of General Serv., 433 U.S. 425, 468, 472
(1977); United States v. Brown, 381 U.S. 437, 442 (1965) (finding that a bill of attainder bar is
designed to safeguard "against legislative exercise of the judicial function, or more simply—trial by
legislature"). In Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 847 n.3
(1984), the Supreme Court found that denial of federal aid for higher education to those who had not
registered for military service was not an unconstitutional bill of attainder, in part because it found
the denial not to be punishment.
136. Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969) (collateral consequences are
civil and, therefore, need not be part of the plea colloquy).
137. 144 CONG. REC. H2510, 2516 (daily ed. Apr. 29, 1998); see also Josh Gerstein, Lost
Loans, Lost Futures?, Students Lose Aid Because of Past Drug Offenses, ABC NEWS, Apr. 28, 2001,
available at www.abcnews.com.
138. Illegal drugs are controlled substances as defined by the Controlled Substances Act, 21
U.S.C. 801(6), §102(6)(2002), and do not include alcohol or tobacco. See also Dep't of Educ. Regs.,
34 C.F.R. § 668.4 § 3 (2002). According to a report issued in February 2002 by the National Center
on Addiction and Substance Abuse at Columbia University, eighty-one percent of high school
students have used alcohol, compared to forty-seven percent who have used marijuana, and almost
thirty-three percent of high school students say they binge drink at least once a month. According to
Susan Foster, the center's vice president and director of policy research and analysis, "Alcohol is far
and away the top drug of abuse for American kids." Underage Drinking in U.S. Is on the Rise, N.Y.
TIMES, Feb. 26, 2002.
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90 The Journal of Gender, Race & Justice [6:2002]
tuition. Finally, as to those less affluent ex-drug offenders who are excluded,
this rationale conclusively presumes that they all present a safety risk. It is
worth remembering that of all drug arrests, roughly one-third are for nothing
more than possession of marijuana,139 and eighty percent are for drug
possession rather than distribution.140 Yet the law imposes a period of
ineligibility on every person ever convicted of a drug misdemeanor or felony
who has not completed a formal rehabilitation program, without regard to
the nature of the offense, her current sobriety, or her conduct and
achievements since conviction.
This same extreme overbreadth undermines another rationale
Congressman Souder offered for the law, that tax dollars should not be
wasted on students who are in college to use drugs rather than to learn.141 It
is hardly rational to presume without inquiry that everyone who once used
drugs continues to do so, even after apprehension and punishment, and even
after a college has found them suitable for admission. Nor can the Souder
amendment be justified as a measure to deter drug crimes, insofar as many
of those currently sanctioned by the law committed their offenses prior to its
enactment.142 No deterrent effect is even possible in these cases, and even
when applied prospectively it is hard to envision a significant group of drug
offenders whose conduct will change as a result of this additional sanction.
139. The FBI's 1995 figures were: 1,476,100 arrests for drug abuse violations. Thirty-four
point one percent of these arrests were for marijuana possession—more than the combined total
number of arrests for murder, manslaughter, robbery, arson, vagrancy, rape, and all sex offenses
including prostitution. FED. BUREAU OF I
NVESTIGATION, UNIFORM CRIME REPORTS FOR THE
UNITED STATES 1995, at 207-08 (2002).
140.See DEP'T OF JUST., SOURCEBOOK, supra note 52, at 352 tbl. 4.1, 393 tbl. 4.29.
141. Souder's remarks on the subject of drug use in college vividly reveal the overheated and
unfounded stereotypes that fueled the enactment of his amendment: "A college degree, if you're
taking drugs, isn't worth a whole lot. You're likely to be messed up for the rest of your life." Cannon,
supra note 50, at 2252. Such severely debilitating ongoing drug addiction undoubtedly afflicts a
miniscule percentage of the offenders affected by this law.
Congressman Souder also argued that "[t]axpayers have a right to know that students who
have a drug-abuse problem aren't using tax dollars to go through school." Phil Zabriskie, The New
Anti-War Protesters, ROLLING STONE, Oct. 26, 2000, at 1. To the degree that the remark implies a
further rationale–the conservation of federal loan money for more suitable students—it is worth
noting that the loans to ex-drug offenders are so small a percentage of the total as to have almost no
effect on the grants available to others. In Nyquist v. Mauclet, 432 U.S. 1 (1977), the Supreme Court
rejected a similar rationale offered to justify the denial of scholarships to aliens. The Court found
that although funding education for non-aliens who can vote is a compelling state interest, the
ineligibility of aliens had too insubstantial an impact to serve this interest. Id. Although this decision
utilized strict scrutiny because the law burdened a suspect class (aliens), the Court's objection to the
mismatch between means and ends would seem to fail the rational basis test as well.
142. Congress commissioned no study and considered no evidence of the law's deterrent
value, but some supporters and opponents debated the Souder amendment's deterrent value. One
sponsor, Rep. Gerald Solomon, R-N.Y., described college aid ineligibility as "the best way to
combat illegal drug use at the source—by sending a message to college students and high school
seniors applying for college that illegal drug use is intolerable." Cannon, supra note 50, at 2252; see
also 144 CONG. REC. H2510, 2516 (Apr. 29, 1998) (statement by Rep. Barney Frank, D-Mass.,
"[a]nyone who thinks this law will deter drug use isn't paying attention").
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How to Construct an Underclass 91
Few enough drug offenders consider the consequences of apprehension; this
group would not only calculate the risks, but do so according to an
implausible psychology that is deterred by Higher Education Act (HEA)
ineligibility but not by the long prison sentences and steep fines already on
the books.
One problem these arguments must address is that the rational basis test
allows for a substantial degree of under- and over-inclusiveness.143 Unlike
strict scrutiny, rational basis review does not demand that a law utilize the
most precise means to its end. At one point the Supreme Court did apply an
"irrebutable presumption" doctrine requiring that when criteria presume a
fact that is not universally true (for example, physical incompetence due to
pregnancy), affected individuals must have an opportunity to show that
presumption untrue in their case.144 But the Court has virtually gutted that
doctrine, so that such overbroad laws must either be struck down as
unconstitutional or upheld as reasonable in light of the effectiveness of the
classification and the costs of precision:
[T]he question raised is not whether a statutory provision precisely
filters out those, and only those, who are in the factual position
which generated the congressional concern reflected in the
statute. . . . The question is whether Congress, its concern having
been reasonably aroused by the possibility of an abuse which it
legitimately desired to avoid, could rationally have concluded both
that a particular limitation or qualification would protect against its
occurrence, and that the expense and other difficulties of individual
determinations justified the inherent imprecision of a prophylactic
rule.145
This rational basis criterion grants deference, but does not confer
immunity on imprecision no matter how extreme. The constitutionality of an
under- or over-inclusive statute is necessarily a matter of degree. As the
mismatch becomes increasingly pronounced, the legal instrument becomes
increasingly unfair and futile—and by what indicator are we to judge
instrumental rationality if not by the effectiveness of the means chosen?
Thus, numerous cases have struck down the blanket exclusion of felons from
143. The Court has said that "[i]n the area of economics and social welfare, a State does not
violate the Equal Protection Clause merely because the classifications made by its laws are
imperfect." Weinberger v. Salfi, 422 U.S. 749, 769 (1975) (citing Dandridge v. Williams, 397 U.S.
471 (1970); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911)).
144. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) (striking down a compelled
leave of absence for pregnant public school teachers as a violation of substantive due process); see
also Vlandis v. Kline, 412 U.S. 441 (1973); Stanley v. Illinois, 405 U.S. 645 (1972).
145. Weinberger v. Salfi, 422 U.S. 749, 777 (1975). The Court stated that there is "no basis
for our requiring individualized determinations when Congress can rationally conclude not only that
generalized rules are appropriate to its purposes and concerns, but also that the difficulties of
individual determinations outweigh the marginal increments in the precise effectuation of
congressional concern which they might be expected to produce." Id. at 785.
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92 The Journal of Gender, Race & Justice [6:2002]
particular occupations as not rationally related to any legitimate state goal.
For example, an Alabama exclusion from towing contracts of persons
convicted of a crime of force, violence, or moral turpitude was struck down
on equal protection grounds as "totally irrational."146 Several federal courts
struck have down blanket exclusion of ex-offenders from government
positions as too unrelated to legitimate state interests, one noting "the
punitive effects across-the-board 'felon bans' can have on individuals
seeking to rehabilitate themselves."147 When the New York City Transit
Authority dismissed an employee convicted of manslaughter pursuant to a
policy requiring the dismissal of anyone convicted of a felony, a federal
court found the policy unconstitutionally overbroad: "Before excluding ex-
felons as a class from employment, a municipal employer must demonstrate
some relationship between the commission of a particular felony and the
inability to adequately perform a particular job."148 On the other hand,
courts have repeatedly upheld exclusions of ex-offenders from specified
occupations when the kind of offense poses particular risks in that field:
arsonists may be excluded from fire departments, for example.149 All of
146. Lewis v. Alabama Dep't of Pub. Safety, 831 F. Supp. 824, 825-28 (M.D. Ala. 1993)
(finding no rational basis because the exclusion did not allow consideration of the nature,
circumstances, age, or seriousness of the crime in relation to the job sought, nor the degree of the
offenders rehabilitation).
147. Butts v. Nichols, 381 F. Supp. 573, 580 (S.D. Iowa 1974) (holding an exclusion of ex
felons from most civil service jobs unconstitutional on equal protection grounds); see also Kindem
v. City of Almeda, 502 F. Supp. 1108, 1111-13 (D.C. Cal. 1980) (holding unconstitutional a ban on
hiring ex-felons for city jobs; "it has not been demonstrated that the sole fact of a single prior felony
conviction renders an individual unfit for public employment, regardless of the type of crime
committed or the type of job sought."); Davis v. Bucher, 451 F. Supp. 791 (D.C. Pa. 1978) ("[A]
regulation which bars former users and addicts from city employment, without any consideration of
the merits of each individual case, [is] overbroad and irrational in violation of the Equal Protection
Clause."); Hyland v. Fukuda, 402 F. Supp. 84, 93-94 (D. Haw. 1975) (state violates equal protection
and due process by excluding a person convicted of armed robbery from work as a corrections
officer without allowing him to demonstrate his fitness for employment). Cf. Harvey Prager, 422
Mass. 86, 91 (1996) (regarding ex-offender ineligibility for bar membership, "no offense is so grave
as to preclude a showing of present moral fitness"); Smith v. Fussenich, 440 F. Supp. 1077, 1080-81
(D. Conn. 1977) (striking down a state law excluding ex-felons from private detective or security
guard work as lacking rational basis because the "across-the-board disqualification fails to consider
probable and realistic circumstances in a felon's life, including the likelihood of rehabilitation, age at
the time of conviction, and other mitigating circumstances related to the nature of the crime and
degree of participation.").
148. Furst v. N.Y. City Transit Auth., 631 F. Supp. 1331, 1338 (E.D. N.Y. 1986). A
Massachusetts superior court held likewise in a recent suit brought by two plaintiffs whose
respective manslaughter and armed robbery convictions barred them for life from Health and Human
Services jobs involving "potential unsupervised contact with program clients." Cronin et al. v.
O'Leary, No. 00-1713-F (Mass. Sup. Ct. Aug. 9, 2001) (Memorandum of Decision and Order on
Plaintiff's Motion for Partial Summary Judgment).
149. Carlyle v. Sitterson, 438 F. Supp. 956, 963 (D.N.C. 1975). For other examples of the
kind of occupational exclusions that have been upheld, see FW/PBS, Inc. v. City of Dallas, 837 F.2d
1298, 1304-05 n.22 (5th Cir. 1988) (upholding five year exclusion from sexually oriented businesses
for those convicted of sex or obscenity crimes); Darks v. City of Cincinnati, 745 F.2d 1040, 1043-44
(6th Cir. 1984) (denying felons a dance hall license); Schanuel v. Anderson, 708 F.2d 316, 319 (7th
Cir. 1983) (finding ex-felon may be disqualified from obtaining detective license for ten years
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How to Construct an Underclass 93
these cases are essentially applications of a 1957 Supreme Court ruling that
the due process and equal protection clauses prohibit a state from imposing
occupational qualifications unless they have a rational connection with the
applicant's fitness or capacity for that occupation.150 Their holdings have
real bite when applied to the Souder amendment—a much broader law that
excludes misdemeanants as well as felons, and excludes them from learning
opportunities rather than from sensitive occupations like law on which
others depend.
The rational basis test has also been sufficient to strike down other
"civil disabilities" that, like this one, seem primarily designed to burden ex-
offenders who have already paid for their crimes. In one such case, the
Supreme Court struck down a Kansas recoupment law on equal protection
grounds, finding no rational basis for denying indigent criminal defendants
the exemptions from wage garnishment afforded to all other debtors.151 The
Court said:
It is in the interest of society and the State that. . .a defendant, upon
because the public trust might be undermined by assigning the guarding of persons and property to
ex-offenders); Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st Cir. 1970) (upholding exclusion of
felons from police work even if pardoned).
150. Schware v. Bd. of Bar Examiners, 353 U.S. 232 (1957) (arrest record, use of aliases,
and former Communist party membership insufficient to exclude applicant from bar membership on
character grounds). In Schware, the Court said that a state
cannot exclude a person from the practice of law or from any other occupation in a
manner or for reasons that contravene the Due Process or Equal ProtectionClause of the
Fourteenth Amendment. . . . A State can require high standards of qualification, such as
good moral character or proficiency in its law, before it admits an applicant to the bar,
but any qualification must have a rational connection with the applicant's fitness or
capacity to practice law.
Id. at 238-39. For a recent example of an occupational qualification found insufficiently rational, see
Craigmiles v. Giles, 110 F. Supp. 2d 658 (2000), striking down on equal protection and substantive
due process grounds a requirement that casket-sellers hold a Tennessee funeral director's license.
151. James v. Strange, 407 U.S. 128 (1972). The Kansas law exempted many categories of
property from recoupment against civil judgment debtors (including limits on wages subject to
garnishment), but did not afford many of these exemptions to indigent criminal debtors, whose
wages could be entirely garnished to reimburse the state for their legal expenses. Id. at 135.
Although the case concerned reimbursement for court-appointed counsel, the Court explicitly
decided the case on equal protection-rational basis review, not right to counsel grounds. Id. at 134
In its opinion, the Court cited its decision six years earlier in Rinaldi v. Yeager, 384 U.S. 305
(1966), striking down a statute requiring only indigent defendants who were sentenced to
imprisonment to reimburse the State the costs of a transcript on appeal.
In Rinaldi, as here, a broad ground of decision was urged, namely, that the statute
unduly burdened an indigent's right to appeal. The Court found, however, a different
basis for decision, holding that "to fasten a financial burden only upon those
unsuccessful appellants who are confined in state institutions . . . is to make an
invidious discrimination" in violation of the Equal Protection Clause. Rinaldi affirmed
that the Equal Protection Clause "imposes a requirement of some rationality in the
nature of the class singled out."
Id. (internal citations omitted).
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satisfaction of the criminal penalties imposed, be afforded a
reasonable opportunity of employment, rehabilitation and return to
useful citizenship. . . . [T]he Equal Protection Clause 'imposes a
requirement of some rationality in the nature of the class singled
out.' This requirement is lacking where, as in the instant case, the
State has subjected indigent defendants to such discriminatory
conditions of repayment. . . . State recoupment laws,
notwithstanding the state interests they may serve, need not blight
in such discriminatory fashion the hopes of indigents for self-
sufficiency and self-respect. The statute before us embodies
elements of punitiveness and discrimination which violate the
rights of citizens to equal treatment under the law. 152
Statutes burdening ex-offenders extend well beyond the areas of college
assistance, occupational ineligibility, and garnishment laws, as we have
noted. We can expect many years of litigation regarding the constitutionality
of the multitude of "civil disabilities" that are now imposed, each of which
will inform the disposition of others yet to be resolved.153
152.Id. at 139-42.
153. At this point, examples of this developing case law include, inter alia: (1) Drug felon's
ineligibility for food stamps: upheld as a rational means of deterring drug felonies and reducing food
stamp fraud, which the legislative record showed often takes the form of trading food stamps for
drugs. Turner v. Glickman, 207 F.3d 419, 425 (7th Cir. 2000). (2) Automatic registration of sex
offenders. Cf. People v. Adams, 581 N.E.2d 637 (Ill. 1991) (finding sex offender registration
rationally furthers the state's interest in safety), with Doe v. Attorney Gen., 715 N.E.2d 37 (Mass.
1999) (Doe No. 5) (finding sex offender registration requirement unconstitutionally overbroad under
the Massachusetts Constitution, for conclusively presuming that particular offenses posed a risk to
public safety). In Doe No. 5, the Massachusetts Supreme Judicial Court found that even persons
convicted of child rape might no longer present a risk of reoffense, and therefore "the general
legislative category does not adequately specify offenders by risk so as to warrant automatic
registration of every person convicted under that statute." Id. at 44; see also Doe v. Attorney Gen.,
686 N.E.2d 1007 (Mass. 1997) (Doe No. 3) (holding unconstitutional a sex-offender registration
requirement placed on anyone previously convicted of indecent assault and battery, because the
conviction does not establish that the offender "is a threat to those persons for whose protection the
Legislature adopted the sex offender act"). In both cases, the Court required an individualized
hearing at which the ex-offender could demonstrate he no longer posed a threat, and perhaps for that
reason framed its decisions as a matter of procedural due process under the Massachusetts
Constitution. See Doe, 715 N.E.2d at 45 and Doe, 686 N.E.2d 1007. Although cases invalidating
irrefutable presumptions test the borderline between procedural and substantive due process, they are
best understood as reflecting substantive due process concerns. In the Doe cases, the court's
objection was to the over breadth in a regulation that conclusively presumed these ex-offenders to
pose a continuing risk—and thus to the substantive irrationality of the criteria, not the procedure by
which the criteria was found to apply to the plaintiff. (3) Prohibition on firearm possession by felon.
United States v. Harris, 537 F.2d 563 (1st Cir. 1976) (found rationally related to government's
interest in assuring public safety). Cf. U.S. v. Jester, 1389 F.3d. 1168 (7th Cir. 1998). (4) State
disenfranchisement of felons: found constitutional because the Fourteenth Amendment, Section 2,
specifically excludes disenfranchisement of criminals from its guarantee. (5) Driving license
suspension. Cf. People v. Lindner, 535 N.E. 2d 829 (Ill. 1989) (finding revocation for convicted sex
offenders unconstitutional because there is no rational relationship between sex offenses and safe
driving), with Rushworth v. Registrar of Motor Vehicles, 596 N.E. 2d 340 (Mass. 1992) (holding
five year suspension for drug traffickers upheld as rationally related to state's interest in deterring
drug crimes and promoting safe driving).
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How to Construct an Underclass 95
Developing case law will also guide litigants toward the most promising
specific doctrinal claims. Here we have challenged the rational basis of the
Souder amendment in light of its purported goals, but have not addressed the
variety of substantive due process and equal protection frameworks in which
a rational basis challenge might be pursued, nor some more specific
objections that would flow from each.154 An equal protection claim, for
example, could identify the burdened and unaffected classes in a number of
ways. To contrast ex-drug offenders with non-offenders questions the
rationality of the sanction at the most general level, as does a substantive due
process argument. However, one might also argue that the sanction
irrationally distinguishes among classes of ex-offenders: why are drug
offenders singled out for ineligibility, while arsonists, rapists and drunk
driving offenders remain untouched? Does imposing this additional sanction
on top of the court's sentence serve some permissible governmental interest
in drug cases that it would not in alcohol-related crimes? This kind of
comparison may help establish that this classification was unconstitutionally
"drawn for the purpose of disadvantaging the group burdened by the law."155
According to the Supreme Court, the Equal Protection Clause "must at the
very least mean that a bare . . . desire to harm a politically unpopular group
cannot constitute a legitimate governmental interest."156 A third equal
protection claim juxtaposes economic classes: affluent ex-drug offenders are
unaffected, but needy ex-offenders lose access to higher education. The
Souder Amendment thereby "lays an unequal hand on those who have
committed intrinsically the same quality of offense,"157 and the government
We also note that a very recent Supreme Court case may inform civil disabilities doctrine
(although not itself a civil disability case because the sanction was triggered by criminal conduct
rather than conviction). In Dep't of Hous. & Urban Dev. v. Rucker, 122 S. Ct. 1230 (2002), the
Supreme Court upheld "one-strike-and-you're-out" federal housing regulations, which require the
eviction of families from federally-assisted housing if anyone, including a guest, uses drugs on the
premises, whether or not known to the tenant.
154. The Fifth Amendment due process clause has been construed to include an equal
protection component. Richardson v. Belcher, 404 U.S. 78, 81 (1971).
155. Romer v. Evans, 517 U.S. 620 (1996).
156. United States Dep't of Agric. v. Moreno, 413 U.S 528, 534 (1973) ("Of course Congress
may not invidiously discriminate among such claimants on the basis of a 'bare congressional desire
to harm a politically unpopular group.'"). On the other hand, when confronted with a New York
Transit Authority regulation that prohibited the employment of methodone users in drug treatment
programs, but disciplined employees found drinking on the job on an individual basis that might
allow them to retain their jobs, the Court found no equal protection violation. "[T]he fact that the TA
has the resources to expend on one class of problem employees does not by itself establish a
constitutional duty on its part to come up with resources to spend on all classes of problem
employees." N.Y. City Transit Auth. v. Beazer, 440 U.S. 568, 591 n.37 (1979).
157. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Skinner concerned Oklahoma's
Habitual Criminal Sterilization Act, a law that authorized courts to order sterilization of any
defendant who had been convicted of three felonies involving moral turpitude. Id. at 536. While
larceny was such a crime, the Act excluded embezzlers from its application. Id. at 537. The Supreme
Court held Oklahoma's Habitual Criminal Sterilization Act unconstitutional as a violation of the
Equal Protection Clause:
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should be required to demonstrate what legitimate governmental interest is
furthered by targeting only the needy for this additional deprivation.
2. Challenge to Retroactive Application
The Department of Education applies the Souder amendment to every
applicant who has ever been convicted of a drug offense. This means that an
offender who was convicted before the statute's enactment may now suffer
an additional, retroactive sanction she could not have anticipated. If, for
example, she waived trial and pled guilty to a third marijuana possession
misdemeanor a decade ago, she did so without knowing that it would
permanently foreclose federal college aid. By enforcing the Souder
Amendment retroactively, the Department of Education has injected an
additional element of unfairness as well as greatly expanded its scope.
Were the ineligibility sanction recognized as criminal punishment (as
we argue it should be in the next section), the Constitution's prohibition on
ex post facto laws would prevent its application to convictions occurring
before its enactment.158 If the courts deem this sanction to be a non-punitive
"civil disability," however, the legality of its retroactive enforcement
requires a more complicated analysis. In the past decade, the Court has
treated the retroactivity of civil burdens largely as a matter of statutory
interpretation, holding that while Congress has the constitutional power to
legislate retroactively, it will be presumed not to have done so "absent a
clear indication. . .that it intended such a result."159 The Court has explained
When the law lays an unequal hand on those who have committed intrinsically the same
quality of offense and sterilizes one and not the other, it has made as an invidious a
discrimination as if it had selected a particular race or nationality for oppressive
treatment. . . . Sterilization of those who have thrice committed grand larceny with
immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination.
Id. at 541.
Skinner, however, involved an acknowledged fundamental right, procreation, and, therefore,
the Court applied "strict scrutiny" review. Id. at 541. A Court hearing a challenge to the Souder
amendment would have to decide whether the less demanding "rational basis" standard is also
unsatisfied by a dual system of sanctions that discriminates between rich and poor defendants whose
offenses are identical. Unfortunately, the Court has already found that denying federal aid to higher
education for those who fail to register for the Selective Service rationally promoted the
government's legitimate goals of draft registration and the fair allocation of resources. Selective
Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 859 n.17 (1984). The Court noted,
however, that ineligibility was not based on any criminal offense but on a continuing failure to
register, so that a substantial increase in registrations could be expected to result from the threat of
ineligibility. Id. at 855.
158. U.S. CONST. art. I, § 9, cl. 3 (ex post facto prohibition); Kansas v. Hendricks, 521 U.S.
346 (1997) (ex post facto clause bars retroactive criminal punishments); Lindsey v. Washington, 301
U.S. 397, 401-02 (1937) (retroactive removal of possibility of early release without parole violates
ex post facto clause). If recognized as punishment, the ineligibility sanction would also abridge a
variety of other constitutional guarantees. See supra notes 134-36.
159. INS v. St. Cyr, 533 U.S. 289 (2001); Landgraf v. USI Film Products, 511 U.S. 244
(1994). In Landgraf, the Court noted that the Constitution contains no blanket ban on retroactive
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How to Construct an Underclass 97
this presumption as a matter of fairness:
Elementary considerations of fairness dictate that individuals
should have an opportunity to know what the law is and to
conform their conduct accordingly; settled expectations should not
be lightly disrupted. For that reason, the "principle that the legal
effect of conduct should ordinarily be assessed under the law that
existed when the conduct took place has timeless and universal
appeal." . . . Requiring clear intent assures that Congress itself has
affirmatively considered the potential unfairness of retroactive
application and determined that it is an acceptable price to pay for
the countervailing benefits.160
Additionally, the legislature's "responsivity to political pressures poses
a risk that it may be tempted to use retroactive legislation as a means of
retribution against unpopular groups or individuals."161 As others have
noted, both of these reasons suggest a more robust restriction on retroactive
civil burdens than the mere requirement that Congress clearly indicate its
intent to inflict unfairness or retribution.162 But even the Court's interpretive
default rule should be fully sufficient to severely limit the reach of the
application of civil laws as it does criminal punishments, Landgraf, 511 U.S. at 268, but "the
presumption against retroactivity applies far beyond the confines of the criminal law." Id. at 272.
160. See Landgraf, 511 U.S. at 265, 272-73. The Court also noted that "it will frequently be
true . . . that retroactive application of a new statute would vindicate its purpose more fully. That
consideration, however, is not sufficient to rebut the presumption against retroactivity." Id. at 268.
161.Id. at 266. When the retroactive legislation imposes a criminal sanction, Landgraf
observes that the ex post facto clause "restricts governmental power by restraining arbitrary and
potentially vindictive legislation." Id. at 267 (citing Weaver v. Graham, 450 U.S. 24, 28-29 (1981));
see also James v. United States, 366 U.S. 213, 247, n.3 (1961) (retroactive punitive measures may
reflect "a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty
against specific persons or classes of persons."); Charles B. Hochman, The Supreme Court and the
Constitutionality of Retroactive Legislation, 73 HARV. L. REV. 692, 693 (1960) (a retroactive statute
"may be passed with an exact knowledge of who will benefit from it.").
162. Daniel Kanstroom asks,
Can it be seriously maintained that a constitutional court really addresses such problems
by requiring the legislature to be clear about it? Indeed, a legislature that is truly aiming
at an unpopular group may be, if anything, more likely to be meticulously clear than
one which retroactively deprives a more empowered group (such as the Landgraf
defendants) of something arguably of value.
Daniel Kanstroom, St. Cyr or Insincere: The Strange Quality of Supreme Court Victory, GEO.
IMMIGR. L. J. (forthcoming 2002). He urges that the due process clause be construed as including
some of the norms against retroactivity that, on the criminal side, are found in the ex post facto
clauses—an approach utilized by Judge Weinstein in Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y.
1997). Id. The Supreme Court has indeed noted the due process implications of retroactive civil
laws, stating that "[t]he Due Process Clause also protects the interests in fair notice and repose that
may be compromised by retroactive legislation; a justification sufficient to validate a statute's
prospective application under the Clause 'may not suffice' to warrant its retroactive application."
Landgraf, 511 U.S. at 266 (citing Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 (1976)); see
also Stephen R. Munzer, A Theory of Retroactive Legislation, 61 TEX. L. REV. 425, 471 (1982) (rule
of law entitles "persons to have their behavior governed by rules publicly fixed in advance.").
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Souter amendment to offenses occurring after its enactment in 1998. There
is no reason to doubt that the presumption would apply here, because
retroactive enforcement of HEA ineligibility to drug offenders produces
precisely the unfairness the presumption is designed to prevent.163 The
Court continues to apply the presumption zealously, most recently last year
in INS v. St. Cyr,164 a case striking down the retroactive elimination of
discretionary deportation relief for offenders. Moreover, the Court's criterion
for rebutting the presumption is a demanding one: as described in St. Cyr,
laws "will not be construed to have retroactive effect unless their language
requires this result. . . . Cases where this Court has found truly 'retroactive'
effect adequately authorized by statute have involved statutory language that
was so clear that it could sustain only one interpretation."165
The Souder amendment lacks any such explicit statement regarding its
application to convictions accrued prior to enactment. On the contrary, its
language creates ambiguity by limiting the act to "a student who has been
convicted of any offense," not "a person."166 This might reasonably be
construed to exempt those whose convictions occurred prior to their
163. When applied retroactively, the Souder amendment seems a good illustration of both
the unfairness and the retribution decried in St. Cyr; it attaches unanticipated and severe
consequences to the guilty pleas of a group of offenders distinguished not by their dangerousness or
malevolence but by their political unpopularity. The targeted group is politically disempowered as
well because many of them have lost the vote as a result of their convictions. St. Cyr, 533 U.S. at
289.
We also note that according to the Supreme Court's definition, the Department of Education is
clearly applying the Souder Amendment retroactively. In INS v. St. Cyr, the Court stated that a law
has retroactive effect when it "attaches a new disability, in respect to transactions or considerations
already past." St. Cyr, 533 U.S. at 321 (citing Landgraf, 511 U.S. at 269). In St. Cyr, as in many
cases involving HEA ineligibility, the defendant had pled guilty prior to the enactment of a law
imposing an additional disability to those convicted of the offense. Id. at 323-24. The Court said,
Plea agreements involve a quid pro quo between a criminal defendant and the
government. . . . Now that prosecutors have received the benefit of these plea
agreements, agreements that were likely facilitated by the aliens' belief in their
continued eligibility for § 212(c) relief, it would surely be contrary to "familiar
considerations of fair notice, reasonable reliance, and settled expectations" . . . to hold
that IIRIRA's subsequent restrictions deprive them of any possibility of such relief.
Id; see also Miller v. Florida, 482 U.S. 423 (1987) (holding a law retroactive if it "changes the legal
consequences of acts completed before its effective date.").
164. In St. Cyr., 533 U.S. at 289, an alien had pled guilty to a crime with the expectation that
he could apply for discretionary relief from deportation. Prior to St. Cyr's deportation proceeding,
Congress passed legislation eliminating such relief. Id. at 293. Although the government claimed
that repeal was purely prospective because it would affect only subsequent deportation proceedings,
the Court found that the repeal had been applied retroactively to St. Cyr and ruled in his favor. Id. at
321-26. The Court held that the law could not be applied retroactively to reach St. Cyr's pre-
enactment conviction absent a clear indication of such intent from Congress, which was lacking. Id.
165.St. Cyr, 533 U.S. at 315-17 (citing Bowen v. Georgetown Univ. Hospital, 488 U.S. 204,
208 (1988) and Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997), for first and second points
respectively).
166. 20 U.S.C. § 1091(r) (2001) (italics added).
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How to Construct an Underclass 99
enrollment at college, especially since under HEA regulations a "regular
student" is defined as someone "enrolled or accepted for enrollment at an
institution for the purpose of obtaining a degree . . . or other recognized
educational credential. . . ."167 In fact, as noted above this is largely what
Congressman Souder intended by the language he crafted. He says he never
expected his law to be applied retroactively, but only to students who violate
the drug laws while in college:
The Clinton administration interpreted [the law] either through
malicious intent or incompetence to mean that if you ever
committed three drug crimes, when you were 15 years old and you
applied to college when you're 28, you can't get a loan. Congress
would never have passed that . . . and its ridiculous . . . I'm an
evangelical Christian. I believe people change.168
In 2001 Souder tried to persuade the Department of Education to apply
the law in this more restrictive way, but he was unsuccessful and denounced
the administration for a "simply shocking" enforcement policy.169 It is
difficult to believe any Court would find that the act unambiguously
mandates retrospective application when even its author says that the
Department of Education is misconstruing that issue.
3. Rights Under the Federal Disability Acts
Drug addiction is among the disabilities protected against
discrimination by both the Americans with Disabilities Act (A.D.A.) and the
Rehabilitation Act of 1973,170 and recently the Ninth Circuit found that
167. 34 C.F.R. § 600.2 (2002); see also 34 C.F.R. § 668.2 (2002) (section concerning drug
offenders, which incorporates by reference the definition of "regular student" in § 600.2).
168. The O'Reilly Factor: Interview with Rep. Mark Souder (Fox television broadcast, Jan.
16, 2001); see also Clarence Page, College Loans are Casualties in Drug War, CHI. TRIB., Apr. 29,
2001, at C19 (Rep. Souder "intended to penalize students for drug violations committed while they
are students, not for their prior offenses.").
169. 43,000 Students, supra note 45, at A11.
170. Regarding drug addiction as a disability under the two laws, see generally Thompson v.
Davis, 282 F.3d 780 (9th Cir. 2002) (holding that prior drug addiction is a disability protected by the
A.D.A., and that this protection extends to parole decisions), citing 28 C.F.R. § 35.104 (2000) ("The
phrase physical or mental impairment includes . . . drug addiction. . . ."); Buckley v. Consol. Edison,
127 F.3d 270, 272-73 (2d Cir. 1997) (recovering drug addict is a "qualified individual with a
disability" under the A.D.A.), vacated, 155 F.3d 150 (2d Cir. 1998) on other grounds; Teahan v.
Metro-North Commuter R.R. Co., 951 F.2d 511, 517 (2d Cir. 1991) ("[S]ubstance abuse is a
'handicap' for purposes of the Rehabilitation Act."); Davis v. Bucher, 451 F. Supp. 791, 796 (D.
Penn. 1978) (finding drug addicts substantially impaired in performing major life activities and
therefore handicapped under the Rehabilitation Act).
Title II of the A.D.A. provides that "no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132
(2001). The Rehabilitation Act of 1973, amended in 1978, states that "[n]o otherwise qualified
individual with a disability in the United States, as defined in section 705(20) of this title, shall,
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100 The Journal of Gender, Race & Justice [6:2002]
denial of parole based on a history of drug addiction violates the A.D.A.171
Arguably, the Souder provision similarly violates the two statutes by
denying college aid to individuals on the basis of this disability.
Of course, under the Souder provision what triggers HEA ineligibility is
a drug conviction, not drug addiction per se. A plaintiff will have to show
that the former serves as proxy for the latter, so that the law effectively
denies a public benefit "by reason of the disability."172 But it is not difficult
to establish that (1) the Souder provision on its face presumes every drug
offender is a drug addict, and (2) this is enough to come within the ambit of
both the A.D.A. and the Rehabilitation Act.
The Souter provision equates drug offenders with drug addicts because
it requires even minor misdemeanants to undergo a certified drug
rehabilitation program in order to restore eligibility.173 Explaining this
requirement, Congressman Souder has said that if you take drugs, "you're
likely to be messed up for the rest of your life [s]o the best thing we can do
for education is to get somebody clean. . . ."174 The law's assumption that
drug offenders are addicts, even if invalid, confers "disabled" status upon
those students denied loans. As noted, a person whose drug addiction
substantially limits a major life activity qualifies as disabled under both the
A.D.A. and the Rehabilitation Act (although separate provisions exclude
current users from the Acts' protections)175—but so does a person who is
mistakenly identified as such. Both acts define "disability" as:
(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;
(B) a record of such an impairment; or
solely by reason of her or his disability, be excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any Executive agency or by the United
States Postal Service. . . ." 29 U.S.C. § 794 (2001).
171.Thompson, 282 F.3d at 780.
172.See supra note 170. Under either law, to prove that HEA ineligibility constitutes
disability discrimination, the plaintiff must allege that he or she: (1) is an individual with a disability;
(2) is otherwise qualified to receive the benefit of some public entity's program, but (3) was denied
the benefit (4) by reason of the disability. See Thompson, 282 F.3d at 783-84.
173. 20 U.S.C. § 1091(r)(2) (2001).
174. Cannon, supra note 50, at 2252.
175. 42 U.S.C. § 12210(a) (1994) restricts the A.D.A.'s coverage by providing that "the term
'individual with a disability' does not include an individual who is currently engaging in the illegal
use of drugs, when the covered entity acts on the basis of such use," but subsection (b) specifically
enumerates as "disabled" any individual who "(1) has successfully completed a supervised drug
rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been
rehabilitated successfully and is no longer engaging in such use; (2) is participating in a supervised
rehabilitation program and is no longer engaging in such use; or (3) is erroneously regarded as
engaging in such use, but is not engaging in such use. . . ." In 1978 the Rehabilitation Act was
similarly amended to exclude current drug users from its protection, with almost identical language.
29 U.S.C. § 705(20)(C) (2001).
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How to Construct an Underclass 101
(C) being regarded as having such an impairment.176
Because the Souder provision considers every past drug offender to be
an addict in need of rehabilitation, affected students should argue that they
are "regarded as having such an impairment." (Those with a record of drug
addiction will also come within protected class "B".) Once it is established
that the Souder law regards all offenders as addicts, and delays or denies
federal funds unless they complete a rehabilitation program, it follows that
this law violates the A.D.A. and Rehabilitation Act by imposing a "denial of
benefits . . . by reason of the plaintiff's disability."
4. Unconstitutional Punishment
We noted earlier that if denying college aid to drug offenders were
deemed criminal punishment, it would be unconstitutional on a number of
grounds: as legislative punishment it would constitute a bill of attainder; as
multiple punishment it would abridge the double jeopardy clause; and if
applied retroactively, it would be an ex post facto law.177 Construed as
punishment, educational deprivation might also implicate the Eighth
Amendment's ban on cruel and unusual punishment. These claims should be
considered as part of any legal challenge, even though the doctrinal terrain is
quite steep: recent Supreme Court cases have often, but not always, allowed
Congress to escape all of these constitutional strictures simply by
characterizing its sanctions as "civil disabilities" rather than punishment.178
176. 42 U.S.C. § 12102(2) (1994) (A.D.A. definition). The Rehabilitation Act defines
disability in substantially identical language. 29 U.S.C. § 705(20)(B) (2001); see also 42 U.S.C. §
12210(b)(3) (1994) (including within A.D.A. protection any individual who is "erroneously regarded
as engaging in such use, but is not engaging in such use").
177.See supra notes 134-36.
178. The courts have occasionally policed the civil/criminal borders, but most often have
been willing to defer to whatever description Congress has applied to its statute. Some cases have
come close to making a Congressional decision to dispense with procedural protections self
justifying: for example, a recent Seventh Circuit case found that when Congress authorizes an
agency rather than court to impose a sanction, that sanction "is presumptively civil . . . because
agency enforcement mechanisms do not contain the same procedural safeguards that criminal
proceedings do." Turner v Glickman, 207 F.3d 419, 429 (7th Cir. 2000) (citing Helvering v.
Mitchell, 303 U.S. 391, 402 (1938)). For examples of restraints and sanctions the Supreme Court has
found non-punitive and unencumbered by criminal procedural protections, see Hudson v. United
States, 522 U.S. 93 (1997) (holding Double Jeopardy Clause does not bar subsequent criminal
prosecution of bankers who suffered monetary penalties and occupational debarment because the
latter were civil sanctions); Kansas v. Hendricks, 521 U.S. 346, 361 (1997) (rejecting double
jeopardy and ex post facto challenges to "civil commitment" of a convicted sexual predator directly
following completion of his sentence, on grounds the commitment was not punishment for his past
offense but protection against future dangerousness); United States v. Ursery, 518 U.S. 267 (1996)
(holding forfeiture is remedial, not punitive, for purposes of double jeopardy clause); United States
v. Salerno, 481 U.S. 739 (1987) (pretrial detention of dangerous defendants is non-punitive, remedial
restraint designed to protect the community); United States v. Ward, 448 U.S. 242 (1980) ($5,000
civil penalty for each water pollution violation not punitive and thus reporting requirement does not
violation the privilege against self-incrimination).
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This is an ominous trend, because all of the fundamental criminal procedural
guarantees in the Bill of Rights will be at risk if a semantic fig leaf is all its
takes to place a sanction beyond their reach. At this point, the vexing and
vague borders separating civil disabilities from criminal punishment vary
according to which constitutional guarantee is at issue,179 and have been the
subject of numerous scholarly examinations.180 Here we can sketch only
some of the issues that pertain to the Souder amendment in particular.
Recent Supreme Court cases have placed numerous "collateral
consequences" of conviction outside the Bill of Rights' criminal procedural
guarantees, yet two important features of the Souder Amendment might
distinguish it from these precedents. First, it is significant that Congress
initially enacted college loan ineligibility in 1988 as a punishment for drug
offenders, to be issued by the sentencing court in its discretion.181 Evidently
Occasionally, however, the Court has looked past the legislature's designation to find a
purportedly civil statute "punitive" and therefore requiring at least some of the criminal procedural
protections. See United States v. Bajakajian, 524 U.S. 321 (1998) (holding amount of forfeiture
violated Eighth Amendment bar on excessive fines); Dep't of Revenue of Montana v. Kurth Ranch,
511 U.S. 767 (1994) (state marijuana tax is punishment to which double jeopardy clause applies);
Austin v. United States, 509 U.S. 602 (1993) (holding that the Eighth Amendment's Excessive Fines
Clause applies to in rem civil forfeitures of drug-offense-related property because it is at least partly
punitive); United States v. Halper, 490 U.S. 435 (1989) (finding violation of double jeopardy after
previously convicted defendant was subjected to civil fine for Medicaid fraud that was so large as to
constitute punishment); see also Kansas v. Crane, 122 S. Ct. 867 (2002) (holding that confinement
of a sexual predator is civil rather than criminal only if accompanied by a finding that the individual
lacks some capacity to control himself).
179. Kurth Ranch, 511 U.S. at 767 (finding the Double Jeopardy Clause but not other
criminal procedural guarantees applicable to a punitive marijuana tax); Austin, 509 U.S. at 607-10
(holding that civil forfeiture is non-criminal punishment, and therefore Eighth Amendment
restrictions on excessive punishment apply but criminal procedural protections do not). Professor
Carol Steiker discerns a cacophony of doctrines associated with different constitutional provisions
and observes that "[o]n the rare occasion when the Court has attempted to define punishment more
globally, it has resorted to a list of "factors . . . for which it has been unable to offer an underlying
rationale." Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil
Procedural Divide, 85 GEO. L.J. 775, 781 (1997).
180. See, e.g., Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve
Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42
HASTINGS L.J. 1325 (1991); Susan R. Klein, Redrawing the Civil-Criminal Boundary, 2 BUFF.
CRIM. L. REV. 679 (1999); Steiker, supra note 179.
181. The "McCollum Amendment" authorizes both federal and state courts to deny certain
federal benefits, including HEA loans and grants, to individuals convicted of drug offenses. 21
U.S.C. § 862 (2002) (formerly 853(a)). This ineligibility sanction remains one of the sentences that
may be issued by a federal judge under the United States Sentencing Guidelines. See U.S.S.G. §
5F1.6 ("The court, pursuant to 21 U.S.C. § 862, may deny the eligibility for certain Federal benefits
of any individual convicted of distribution or possession of a controlled substance."). These features
undoubtedly mark the sanction as punishment for reasons Justice Thomas offered in his opinion for
the Court holding a forfeiture to be punishment:
We have little trouble concluding that the forfeiture of currency ordered by § 982(a)(1)
constitutes punishment. The statute directs a court to order forfeiture as an additional
sanction when 'imposing sentence on a person convicted of' a willful violation of §
5316's reporting requirement. The forfeiture is thus imposed at the culmination of a
criminal proceeding and requires conviction of an underlying felony, and it cannot be
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How to Construct an Underclass 103
dissatisfied with the courts' sporadic imposition of this punishment,
Congress subsequently decided to make the sanction mandatory for all drug
offenders, but did so by removing it from the courts and imposing it by
legislation. One obvious question, then, is this: Does transferring the power
to impose this sanction from a sentencing court to Congress change its
nature, or is this just what the Constitution's Bill of Attainder clause is
designed to prevent? That clause prohibits Congress from singling out any
individual or group182 and "meting out summary punishment for past
conduct."183 It guarantees that the judiciary, not the legislature, will impose
punishment.184
imposed upon an innocent owner of unreported currency, but only upon a person who
has himself been convicted of a § 5316 reporting violation.
United States v. Bajakajian, 524 U.S. 321, 328 (1998).
The punitive goals of the legislation were also evident in Congressional debate. The House
sponsor, Rep. McCollum, described the legislation as designed to make "a user accountable. . . . We
need to put on the books something besides jail time which is not practical, to say to that young
person, if you use and make that choice you are going to be held accountable, you are going to have
to pay a price that is greater than you will want to pay." 134 CONG. REC. H7074-02 (statement of
Rep. McCollum) (daily ed., Sept. 7, 1988). Rep. Traficant said "it is time to stop turning the other
cheek and start . . . taking an eye for an eye." 134 CONG. REC. H10,710 (daily ed. Oct. 21, 1988)
(statement of Rep. Traficant). In the Senate debate on the 1988 bill, Senator Gramm described
federal aid ineligibility as a necessary adjunct to existing penalties because there was then too much
"crime without punishment for people who are using drugs." 134 CONG. REC. S15,966 (daily ed.
Oct. 14, 1988) (statement of Sen. Gramm). He endorsed the bill as a way to strike at the "real drug
kingpin . . . the drug user who "ha[s] put a drug thug at the door of every high school in
America. . . ." 134 CONG. REC. S15,762 (daily ed. Oct. 13, 1988) (statement of Sen. Gramm). Other
senators endorsed the bill as an attack on "drug users [who are] the ones to blame." 134 CONG. REC.
S17,303 (daily ed. Oct. 21, 1988) (statement of Sen. Dole) or on "greed soaked mutants who deal in
illegal drugs." 134 CONG. REC. S15,978 (daily ed. Oct. 14, 1988) (statement of Sen. Heflin).
182. Doe v. Selective Serv. Sys., 557 F. Supp. 937, 942-43 (D. Minn. 1983) (bill of attainder
ban violated if a statute "clearly singles out an ascertainable group based on past conduct . . . [and]
legislatively determines the guilt of this ascertainable group"); United States v. Lovett, 328 U.S. 303,
315-16 (1946).
183. Landgraf, 511 U.S. at 266 (citing United States v. Brown, 381 U.S. 437, 456-462
(1965)); see also Communist Party of the United States v. Subversive Activities Control Bd., 367
U.S. 1, 87 (1961).
184. Cummings v. Missouri, 18 L.Ed. 356 (1866) (defining a bill of attainder as a legislative
act that inflicts punishment without a judicial trial).
The primary challenge for a bill of attainder claim against the Souder Amendment is an
unfavorable precedent. See Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841
(1984) (upholding a law denying HEA assistance to students who had failed to register with the
Selective Service Board). There the Court found the sanction non-punitive and therefore outside the
scope of the Bill of Attainder clause. Id. at 858. There are several important differences in the
contours of the two sanctions, however.
In Selective Service, the Court described its method of determining whether a sanction is
punishment for purposes of the Bill of Attainder prohibition as consisting of three necessary
inquiries. First, does the statute fall within the historical meaning of legislative punishment? Id. at
852. Second, does the statute, viewed in terms of the type and severity of burdens imposed,
reasonably further non-punitive legislative purposes? This further test is necessary "to ensure that the
Legislature has not created an impermissible penalty not previously held to be within the
proscription against bills of attainder." Id. at 854. Third, does the legislative record evince a
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This sequence is also helpful in establishing either of the Supreme
Court's alternative grounds for finding a violation of the Double Jeopardy
Clause.185 The first examines Congressional intent: a finding that Congress
expressly or impliedly intended to use the sanction as punishment
conclusively establishes that it is punishment to which the double jeopardy
clause's ban on multiple punishment applies.186 On this issue the Supreme
Court has stated that examining a parallel predecessor statute is "worth a
volume of logic" in revealing Congressional intent.187 In this case the 1998
congressional intent to punish? Id. at 852-53. Under this three-fold test, a number of statutes
excluding identified groups from certain occupations and professions has been found to constitute
punishment in violation of the Bill of Attainder Clause. Id. at 852.
The Court found that law did not constitute a bill of attainder on three bases, at least two of
which cut the other way in the Souder Amendment case. Selective Service, 468 U.S. at 852-59. First,
the sanction denied the offender a mere non-contractual benefit which was not a disability
historically associated with punishment. Id. at 853. The Souder Amendment, however, authorizes
imposition of a sanction that was previously a punishment under the McCollum bill. Second, the
Selective Service law sanctioned innocent as well as willful nonregistrants, "yet punitive legislation
ordinarily does not reach those whose failure to comply with the law is not willful." Id. at 855. The
Souder Amendment, however, only applies to those convicted of a drug crime that requires scienter.
Finall y, in the Selective Service case eligibility could be restored "at any time simply by registering
late" because the statute gave "nonregistrants 30 days after receiving notice that they are
ineligible . . . to register for the draft and qualify for aid. . . . Conditioning receipt of Title IV aid on
draft registration is plainly a rational means to improve compliance with the registration
requirements." Id. at 853. The Souder Amendment does not permit immediate restoration, although
it does allow offenders to eventually become eligible by undertaking a much more arduous process:
completion of a certified rehabilitation program.
185. In Hudson, the Court reiterated the two-stage procedure first enunciated in United
States v. Ward, 448 U.S. 242 (1980).
A court must first ask whether the legislature, "in establishing the penalizing
mechanism, indicated either expressly or impliedly a preference for one label or the
other." Even in those cases where the legislature "has indicated an intention to establish
a civil penalty, we have inquired further whether the statutory scheme was so punitive
either in purpose or effect," as to "transform what was clearly intended as a civil
remedy into a criminal penalty."
Hudson, 522 U.S. at 99 (citing Ward, 448 U.S. at 248-49).
186. See, e.g., Turner, 207 F.3d at 427 ("If we determine that Congress intended the statute
to be a criminal punishment of those convicted of drug-related felonies, our inquiry is at an end and
the statute would constitute criminal punishment for purposes of the Double Jeopardy Clause.").
The double jeopardy clause has been construed to prohibit multiple punishments as well as multiple
prosecutions. See generally Kurth Ranch, 511 U.S. at 768 n.1 (citing North Carolina v. Pearce, 395
U.S. 711 (1969)). Although some justices on the Supreme Court would limit its scope to the latter.
Compare the concurrences of Justices Stevens and Scalia in Hudson, 522 U.S. at 111 (Stevens J.,
concurring, citing Ursery, 518 U.S. at 267, and Hendricks, 521 U.S. at 346 as recent double jeopardy
decisions that have "recognized that double jeopardy protection is not limited to multiple
prosecutions") and 106 (Scalia J., concurring).
187. Kennedy v. Mendoza-Matinez, 372 U.S. 144, 169 (1963). In Kennedy, the Supreme
Court relied heavily on a predecessor statute to find that Congress intended its law revoking the
citizenship of certain draft evaders as punishment:
[T]he objective manifestations of congressional purpose indicate conclusively that the
provisions in question can only be interpreted as punitive. A study of the history of the
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How to Construct an Underclass 105
education sanction is virtually identical to the admittedly punitive 1988 law
(except for its elimination of judicial discretion), and Congress appears to
have enacted the later enactment primarily as a way to insure that the
punishment was uniformly rather than sporadically imposed.188 In fact, the
government has used the 1998 law to impose HEA ineligibility on many
earlier drug offenders who at sentencing had already been subject to, but
avoided, the same sanction pursuant to the earlier statute. In doing so it has
routinely transgressed a central guarantee of the Double Jeopardy Clause,
which according to the Supreme Court "protects against the possibility that
the Government is seeking the second punishment because it is dissatisfied
with the sanction obtained in the first proceeding."189
Despite this clear history, a court so inclined could rely on the absence
of punitive language in the statute, and the assignment of the sanction to an
executive agency,190 to find that Congress intended the Souder Amendment
to be a non-punitive, regulatory measure. If so, the court must then
undertake a second inquiry: whether the HEA ineligibility provisions are "so
punitive in form and effect as to render them criminal despite Congress's
intent to the contrary."191 This determination is to be made according to the
indicia the Supreme Court first enunciated in Kennedy v. Mendoza-
predecessor of § 401(j), which 'is worth a volume of logic,' N.Y. Trust Co. v. Eisner,
256 U.S. 345, 349 (1921), coupled with a reading of Congress' reasons for enacting §
401(j), compels a conclusion that the statute's primary function is to serve as an
additional penalty for a special category of draft evader. . . . The Senate and House
debates, together with Attorney General Biddle's letter, brought to light no alternative
purpose to differentiate the new statute from its predecessor.
Kennedy, 372 U.S. at 169-70, 183; see also id. at 183 n.35 ("The relevance of such history in
analyzing the character of a present enactment is illustrated by the Court's approach in Helwig v.
United States, 188 U.S. 605, 613-19 (1902) wherein at considerable length it reviewed and relied
upon the character of previous relevant legislation in determining whether the statute before it,
which imposed an exaction upon importers who undervalued imported goods for duty purposes, was
a penalty.").
188. Rep. Souder intended his law to carry the punitive message that "actions have
consequences, and using or selling drugs will ruin your future," and his co-sponsor Rep. Solomon
hoped the law would show "college students and high school seniors applying for college that illegal
drug use is intolerable." Sounder, supra note 40, supra note 142. In Fleming, the Court observed
that where the legislature's concern is "the activity or status from which the individual is barred, the
disqualification is not punishment even though it may bear harshly upon one affected. The contrary
is the case where the statute in question is evidently aimed at the person or class of persons
disqualified." Fleming, 363 U.S. at 614.
189. United States v. Halper, 490 U.S. 435, 451 n.10 (1989). The Court has since
"disavowed" Halper on other grounds that do not undermine the vitality of this principle. See
Hudson, 522 U.S. at 93.
We also note that if found to be punishment, this retroactive application would violate the ex
post facto prohibition. The ex post facto clause bars infliction of a greater punishment than was
provided by law at the time the defendant committed the crime. Lynce v. Mathis, 519 U.S. 433, 441
(1997); Calder v. Bull, 3 U.S. 386 (1798).
190.See supra note 178.
191.Hudson, 522 U.S. at 104 (citing Ursery, 518 U.S. at 290). According to the Supreme
Court, meeting the burden requires the "clearest proof" of the statute's punitive effect. Id. at 100.
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Martinez,192 and a reasonable case can be made that these factors
collectively support a finding that the Souder Amendment is clearly punitive
in its effect, as we elaborate in the margin.193 The Court has made only a
few such findings, but it is notable that the grounds in some of those cases
were no stronger than those that could be asserted here. For example, the
Supreme Court made such a finding regarding a sanction that shared many
of the indicia of punishment present in the Souder Amendment. In Dept. of
Revenue of Montana v. Kurth Ranch, the Court held a state tax levied on the
possession and storage of illegal drugs following the Kurths' criminal
192. 372 U.S. 144, 168-69 (1963) (holding that forfeiture of citizenship for draft evasion in
wartime was effectively a criminal punishment requiring all procedural guarantees afforded criminal
defendants). The Kennedy factors are not exhaustive, Ward, 448 U.S. at 249, nor should any
individual factor be considered controlling. Hudson, 522 U.S. at 101.
193. The "Kennedy factors" were reaffirmed in Hudson, 522 U.S. at 99-100. These factors
and their application to the Souder Amendment are:
(1) Whether the sanction involves an affirmative disability or restraint: This is the factor that
cuts most strongly against a finding that HEA ineligibility is punishment for double jeopardy
purposes. The Supreme Court has already described that sanction as the "mere denial of a non-
contractual government benefit" that involves no affirmative disability or restraint, albeit in a bill of
attainder case. Selective Service Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 852
(1984) (citing Fleming, 363 U.S. at 603).
(2) Whether the sanction has historically been regarded as a punishment: As noted supra note
181, since the 1988 enactment of the McCollum amendment, HEA ineligibility sanction has been
utilized as a criminal punishment and continues to be included in the U.S. Sentencing Guidelines.
This distinguishes the historical record from that which the Court examined in 1984, when it held
that withdrawal of financial aid to education had no historical pedigree as punishment in Selective
Serv. Sys., 468 U.S. at 853, found as much in 1984.
(3) Whether the sanction comes into play only on a finding of scienter: A drug conviction is
required to trigger ineligibility, and under the overwhelming majority of state and federal drug laws
mens rea is a material element of the crime. The Supreme Court recently reaffirmed that "[t]he
existence of a scienter requirement is customarily an important element in distinguishing criminal
from civil statutes." Hendricks, 521 U.S. at 362.
(4) Whether the sanction's operation will promote the traditional aims of punishment,
including retribution and deterrence: As noted, proponents supported both the 1988 and 1998 bills
on the basis of their retributive and deterrent benefits. Supreme Court doctrine views retribution as a
clear indication of punitive intent, but has recently given mixed signals on the significance of a
statute's deterrent purpose. In Bennis, 516 U.S. at 452, the majority found that civil statutes may also
aim to deter, and that the forfeiture statute at issue served "a deterrent purpose distinct from any
punitive purpose." Yet in subsequent forfeiture case, the Court found that the statute's deterrent
purpose has "traditionally been viewed as a goal of punishment." Bajakajian, 524 U.S. at 385.
(5) Whether the behavior to which the sanction applies is already a crime: The sanction only
applies to those who have been convicted of a drug crime.
(6) Whether an alternative purpose to which it may rationally be connected is assignable to
the sanction: We have noted other purported goals of the Souder Amendment, such as the promotion
of safe campuses, but whether HEA ineligibility is a rational means for realizing those goals is
doubtful. See supra notes 137-42.
(7) Whether the sanction appears excessive in relation to the alternative purpose assigned:
Those challenging the Souder provision will argue that it makes a college education unavailable to
many people convicted of no more than possession of a small amount of marijuana, a grossly
excessive and punitive sanction in light of any legitimate governmental purpose.
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How to Construct an Underclass 107
conviction was effectively a second punishment for the same offense
because, inter alia, the tax was disproportionately high, had a deterrent
purpose, was "imposed on criminals and no others" and "only after the
individual [was] arrested for the precise conduct that gives rise to the tax
obligation," was levied by the same sovereign that criminalized the activity,
and the revenue it produced could have been obtained in other ways.194
There is a second distinctive characteristic of the HEA ineligibility
statute that should be at the forefront of any legal argument: withdrawing
educational access to an offender is a truly extraordinary sanction in that it
constitutes a deliberate and devastating roadblock to rehabilitation. To strip a
person of an education is nothing less than an assault on her potential and
dignity as a human being, and as a contributing member of the community.
As this reality takes its toll on both offenders and society, we can hope that
punishment by educational deprivation will eventually be recognized not
only as punishment, but as a particularly unacceptable form of punishment—
one that is literally both cruel and unusual.195 When the Supreme Court
found another exclusionary sanction, revocation of citizenship,
unconstitutional under the Eighth Amendment, it condemned that sanction
as constituting "the very antithesis of rehabilitation, for instead of guiding
194. Dep't of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 780-83 (1994). In addition
to these factors, which parallel aspects of the Souder Amendment, the two cases each include one
unique factor. In Kurth Ranch, the Court found that Montana's tax departed radically from typical
tax laws by taxing contraband goods which might have been destroyed before the tax was imposed.
Id. at 781. In the HEA ineligibility case the same sanction was previously applied as a criminal
sentence for the same activities.
The discussion in Kennedy is also helpful here. Kennedy, 372 U.S. at 144. There the court
found unconstitutional a law revoking the citizenship of certain draft evaders, distinguishing the
sanction at issue from truly civil citizenship revocation laws: "The [truly civil] statutes . . . provided
loss of citizenship for noncriminal behavior instead of as an additional sanction attaching to behavior
already a crime, and congressional expression attending their passage lacked the overwhelming
indications of punitive purpose which characterized the enactments here." Id. at 170 n.30.
195. Unlike the constitutional prohibitions on double jeopardy, ex post facto laws and bills
of attainder, all of which are expressly limited to criminal cases, the Eighth Amendment limits both
civil and criminal sanctions. According to a Supreme Court case holding that the Excessive Fines
Clause applies to civil forfeiture
[t]he purpose of the Eighth Amendment, putting the Bail Clause to one side, was to
limit the government's power to punish. The Cruel and Unusual Punishments Clause is
self-evidently concerned with punishment. The Excessive Fines Clause limits the
government's power to extract payments, whether in cash or in kind, "as punishment for
some offense." "The notion of punishment, as we commonly understand it, cuts across
the division between the civil and the criminal law." . . . Thus, the question is not, as the
United States would have it, whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or
criminal, but rather whether it is punishment. . . . For this reason, the United States'
reliance on Kennedy v. Mendoza-Martinez and United States v. Ward is misplaced. The
question in those cases was whether a nominally civil penalty should be reclassified as
criminal and the safeguards that attend a criminal prosecution should be required. . . . In
addressing the separate question whether punishment is being imposed, the Court has
not employed the tests articulated in Mendoza-Martinez and Ward.
Austin v. United States, 509 U.S. 602, 609-10, 610 n.6 (1993) (citations omitted).
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108 The Journal of Gender, Race & Justice [6:2002]
the offender back into the useful paths of society it excommunicates him and
makes him, literally, an outcast."196 So does any law specifically designed to
exclude offenders from an education.
CONCLUSION
We conclude with a final comment on the utility of mounting these
legal challenges. While retroactive enforcement may be quite vulnerable to
legal attack, we do not underestimate the difficulty of prevailing on the more
sweeping claims, nor the importance of asserting them nevertheless. For two
decades now, court decisions have often tended to reduce social realities into
doctrinal categories that obscure constitutional values and define away
fundamental injustices. We have argued that denial of federal college
benefits to drug offenders is punishment in violation of several constitutional
guarantees, but that challenge may be blocked if courts choose to define
such sanctions as "civil disabilities" that are not "punishment." Similarly, we
believe an equal protection claim should be brought to reclaim the equality
of opportunity that is so dependent on educational access, but we recognize
that many judges now view the equal protection clause as having little to say
about caste or subjugation.197 Laws that create an uneducated underclass
may be of no constitutional significance to those judges who share Justice
Thomas' view that "there is a moral and constitutional equivalence between
laws designed to subjugate a race and those that distribute benefits on the
basis of race in order to foster some current notion of equality."198 Those
consigned to the underclass by deliberate educational privation confront a
body of constitutional law that in various ways has grown ill-suited to the
democratic and egalitarian values it is assumed to serve. The ultimate defeat,
196. Trop v. Dulles, 356 U.S. 86 (1958). In Trop, the government argued that a serviceman
who deserted in wartime had forfeited his citizenship. Finding that this was a punishment that "strips
the citizen of his status in the national and international political community," the Court held the
sanction unconstitutional.
[T]he existence of the death penalty is not a license to the Government to devise any
punishment short of death within the limit of its imagination. The basic concept
underlying 8th Amendment is nothing less than the dignity of man. While the state has
the power to punish, the Amendment stands to assure that this power be exercised
within the limits of civilized standards. . . .
Id. at 99, 100. Trop was the first case applying the Eighth Amendment bar to a sanction that did not
include physical punishment. Nor must the sanction issue from a sentencing court. See Estelle v.
Gamble, 429 U.S. 97, 103 (1976) (applying the Eighth Amendment to deprivation suffered during
imprisonment).
197. Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410 (1994). Sunstein
argues for an "anti-caste" interpretation of the Fourteenth Amendment and decries its replacement by
the purely formal "notion that the law forbids unreasonable distinctions [that] . . . sometimes requires
identical treatment in cases in which distinctions make sense, and ignores inequality when inequality
is present. Sometimes the cause of equality requires people who are differently situated to be treated
differently, and this is a major gap in constitutional doctrine." Id. at 2455.
198. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (1995) (Thomas J., concurring).
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How to Construct an Underclass 109
however, would be to allow that legal system to deter its victims from even
seeking justice. One project well suited to law reviews such as this one, and
to committed academicians and practitioners generally, is to seek ways to
reconnect legal doctrine to these values, and reclaim some legal space for
their concerns.199
199. No one has expressed this hope more eloquently than Charles Black, responding to
those who found the Supreme Court's desegregation decisions constitutionally unjustified.
It seems that what is being said is that, while no actual doubt exists as to what
segregation is for and what kind of societal pattern it supports and implements, there is
no ritually sanctioned way in which the Court, as a Court, can permissibly learn what is
obvious to everybody else and to the Justices as individuals. But surely, confronted
with such a problem, legal acumen has only one proper task–that of developing ways to
make it permissible for the Court to use what it knows. . . .
Charles Black, The Desegregation Decisions, 69 YALE L.J. 421, 427-28 (1960).