ORDER AND OPINION
KORNMANN, District Judge.
[¶ 1] Plaintiff Students For Sensible Drug Policy Foundation ("Foundation") and three of its members instituted suit seeking a declaration that 20 U.S.C. § 1091(r) is unconstitutional, namely in violation of the Fifth and Eighth Amendments to the United States Constitution. Plaintiffs seek an injunction prohibiting the Department of Education ("DOE") from enforcing § 1091(r). Plaintiffs have filed a motion for a preliminary injunction and a
[¶ 2] 20 U.S.C. § 1091(r) was enacted as part of The Higher Education Amendments of 1998, Pub.L. 105-244, Title IV, § 483(f)(1). Section 1091(r) suspends eligibility for federal student aid for students convicted of any drug related offense. In 2006, Congress enacted The Higher Education Reconciliation Act of 2005, re-writing § 1091(r) to clarify that the suspension provisions applied only to students who were already receiving federal student financial aid at the time of their drug conviction. Pub.L. 109-171, Title VIII, § 8021.
[¶ 3] 20 U.S.C. § 1091(r) provides:
The possession of a controlled Ineligibility substance: period is: First offense ............................. 1 year Second offense ........................... 2 years Third offense ......................... Indefinite. Ineligibility The sale of a controlled substance: period is: First offense ............................ 2 years Second offense ....................... Indefinite.
[¶ 4] The plaintiffs contend that the denial of continuing federal student financial aid based upon the conviction of a drug offense under § 1091(r) (which they have termed the HEA Aid Elimination Provision) violates the Equal Protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution because it singles out, for denial of financial aid, the category of individuals
[¶ 5] The standard for reviewing the constitutionality of a federal statute that is alleged to apply to a certain class of individuals in violation of the Equal Protection Clause is well known. "Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest." Higgins v. Carpenter, 258 F.3d 797, 799 (8th Cir.2001) (quoting City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976)). Accord Weems v. Little Rock Police Department, 453 F.3d 1010, 1015 (8th Cir. 2006).
Gonzalez v. Chertoff, 454 F.3d 813, 818 (8th Cir.2006).
[¶ 6] Persons convicted of drug trafficking or possession offenses are not a suspect class. Rem v. U.S. Bureau of Prisons, 320 F.3d 791, 795 (8th Cir.2003). The Constitution affords no right to a higher education. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 37, 93 S.Ct. 1278, 1299, 36 L.Ed.2d 16 (1973), and Plyler v. Doe, 457 U.S. 202, 223, 102 S.Ct. 2382, 2398, 72 L.Ed.2d 786 (1982). Likewise, there is no fundamental right to the receipt of federal student financial aid.
[¶ 7] Because § 1091(r) does not implicate a suspect classification or infringe on a fundamental right, the legislation must be upheld if there is a rational basis for singling out students convicted of drug offenses which is related to a legitimate federal interest. Rational basis review is highly deferential to the legislative branch. Citizens for Equal Protection v. Bruning, 455 F.3d 859, 866 (8th Cir.2006). Thus, the classification (convicted drug offenders) created by § 1091(r) is afforded a "strong presumption of validity." Id. (citing Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)).
[¶ 8] The classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993).
Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir.2004) (internal quotations and citations omitted). All that the defendant must show is that a rational reason exists for the classification. Knapp v. Hanson, 183 F.3d 786,
[¶ 9] Defendant proffers two justifications for the special treatment of students receiving federal financial aid who are convicted of drug offenses: (1) section 1091(r) deters drug-related offenses on college campuses and (2) prevents taxpayer subsidization of such conduct. The latter justification is enough, standing alone, to survive rational basis analysis. In fact, the legislative history of the 2006 amendment to § 1091(r) confirms that § 1091(r) "serves the purpose for which it was intended: to serve as a deterrent to prevent drug offenses while students are enrolled in higher education at taxpayer expense." H.R. Report No. 109-231.
[¶ 10] Plaintiffs do not contest that the two purposes identified by defendant are legitimate governmental interests. Plaintiffs contend, however, that this court must determine whether the actual effects of § 1091(r) are contrary to the goals of the HEA as originally enacted in 1965 and whether denying federal financial aid to students who are convicted of drug offenses is rationally related to the goals of the HEA. I reject this contention outright. Plaintiffs' argument would constrict the ability of all future legislatures to add to or change a statute once enacted. Congress is not subject to a legislative form of stare decisis. The question is not whether § 1091(r) is rationally related to the original purposes of the 1965 HEA but instead whether 1091(r) is rationally related to the purpose of § 1091(r) or, for that matter, rationally related to any purpose. The statutory classification of student drug offenders "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Citizens for Equal Protection v. Bruning, supra.
[¶ 11] Plaintiffs contend that they should be allowed to conduct discovery to determine whether, in fact, either threatened or actual withholding of federal student financial aid deters student drug offenses. In other words, plaintiffs seek an opportunity to conduct discovery which may show that discriminating against students who are convicted of drug offenses while receiving federal student financial aid does not in fact deter drug use by students. Plaintiffs further contend that they should be allowed to develop the record to show that federal student financial aid recipients are not using student aid to subsidize drug use. Such a showing, plaintiffs contend, would demonstrate that it was not rational for Congress to believe that denying federal student financial aid to convicted drug offenders would further Congress' interests in curtailing drug abuse on campuses or preventing federal subsidization of drug use.
[¶ 12] As long as defendant identifies any "plausible" reason to treat student drug offenders differently from other students, "the Court's scrutiny must end." Knapp v. Hanson, 183 F.3d 786, 789 (8th
Gilmore, 406 F.3d at 939-40. Rational basis analysis is proper on a motion to dismiss — the court need not allow further factual development. Knapp v. Hanson, 183 F.3d at 789, Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir.2004).
[¶ 13] All that is required to be shown here is that the relationship of the classification (different treatment for students committing drug offenses) to its goal (deterring drug related conduct on campus or the use of tax dollars to subsidize such conduct) is not so attenuated as to render tie classification arbitrary or irrational. Nordlinger v. Hahn, 505 U.S. at 11, 112 S.Ct. at 2332. Defendant "has no obligation to produce evidence to sustain the rationality of a statutory classification." Heller v. Doe, 509 U.S. at 320, 113 S.Ct. at 2643. I find that the classification at issue here is rationally related to the goals of Congress.
[¶ 14] It is true, as pointed out by plaintiffs, that students convicted of possessing small amounts of marijuana may be prevented from receiving federal student financial aid while those students convicted of serious sexual or other violent crimes would not suffer a similar fate. However, the mere fact that the classification results in some inequality or unfairness does not, in and of itself, offend the Constitution. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970). "[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy decisions made in areas that neither affect fundamental rights nor proceed along suspect lines." United States v. White Plume, 447 F.3d 1067, 1075 (8th Cir.2006) (the ongoing debate about the psychological effects of marijuana versus its medicinal value was a sufficiently rational reason to include it on Schedule I).
[¶ 15] Section 1091(r) implicates Congress' power under the Spending Clause of the United States Constitution, Art. I, § 8, cl. 1. Congress' power to legislate under the spending clause includes the power to fix the terms upon which it will disburse federal funds. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981). Congress has determined that it will not disburse federal student financial aid to students convicted of drug offenses. I find that Congress' classification of those students eligible for federal student financial aid as set forth in 20 U.S.C. § 1091(r) does not violate the Equal Protection Clause.
[¶ 16] Plaintiffs also allege that § 1091(r)'s suspension of eligibility for education loans and other federal student financial aid to students convicted of drug offenses is a punishment prohibited by the Double Jeopardy Clause of the Fifth Amendment. The Double Jeopardy Clause prohibits "the imposition of multiple criminal punishments for the same offense" when the punishments are imposed in successive proceedings. Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 493, 139 L.Ed.2d 450 (1997). "The
[¶ 17] Plaintiffs assert that resolution of the Double Jeopardy question turns on facts which must be taken as true at this stage of the litigation, thus defeating the motion to dismiss. I reject this assertion. "Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction." Id. The Supreme Court in Hudson set forth a two part inquiry: First, I must determine whether the legislature, in establishing the penalizing mechanism of § 1091(r), "indicate[d] either expressly or impliedly a preference for one label or the other." If the legislature "has indicated an intention to establish a civil penalty," I must inquire "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, 118 S.Ct. at 493. The determination must be made based upon the statute on its face. Hudson, 522 U.S. at 100, 118 S.Ct. at 493. Resolution of the motion to dismiss plaintiffs' double jeopardy claim is a legal issue, Morse v. Commissioner of Internal Revenue Service, 419 F.3d 829, 834 (8th Cir.2005), which can be accomplished without resort to facts outside the record.
[¶ 18] Congress did not label the sanctions at 1091(r) as either civil or criminal. There is no language as to "penalty." The statute speaks in terms of "suspension" and "eligibility." A student may regain eligibility early by completing a drug abuse treatment program that complies with criteria established by the Secretary of Education. Where the authority to strip eligibility is conferred on the appropriate administrative agency, prima facie evidence exists "that Congress intended to provide for civil sanction." Hudson, 522 U.S. at 103, 118 S.Ct. at 495. It would seem that the same rule would apply where the authority to reinstate eligibility is conferred upon an administrative agency. In any event, there is no indication in the statute that a criminal penalty was contemplated.
The second step of the Hudson analysis is to determine whether § 1091(r) is punitive either in purpose or effect. Hudson, 522 U.S. at 99, 118 S.Ct. at 493. The second step necessarily requires a two-part inquiry. I will first address whether § 1091(r) is punitive in purpose.
[¶ 20] Plaintiffs argue
[¶ 21] Plaintiffs spent the greater portion of at least three briefs setting forth the legislative history of various other laws or proposed laws eliminating eligibility for federal student aid benefits beginning in 1990. Plaintiffs contend that these laws, most of which failed to pass, were the precursor to § 1091(r) and, therefore, the legislative history in conjunction with the prior proposed legislation is relevant. I reject this contention outright. Again, plaintiffs are attempting to impose some form of stare decisis on Congress.
[¶ 22] Section 1091(r) was added by § 483 of the Higher Education Amendments of 1998, Pub.L. 105-244, 112 Stat. 1581, 1736. The Higher Education Amendments of 1998 began as H.R. 6 in the House of Representatives. H.R. 6 was comprehensive legislation aimed at extending the authorization for and improving the federal student aid programs under the Higher Education Act of 1965.
CONFERENCE REPORT ON H.R. 6, HIGHER EDUCATION AMENDMENTS OF 1998, 144 Cong. Rec. H9151-02, H9155 (Remarks of Rep. Peterson, Sept. 28, 1998).
[¶ 23] Section 483, the provision at issue in this lawsuit, was added by the Souder Amendment while H.R. 6 was in conference. Representative Souder, in arguing for his amendment, stated:
HIGHER EDUCATION AMENDMENTS OF 1998, 144 Cong. Rec. H2510-08, H2580 (Remarks of Rep. Souder, Proceedings and Debates of the 105th Congress, Second Session Wednesday, April 29, 1998) (emphasis supplied).
HIGHER EDUCATION AMENDMENTS OF 1998, 144 Cong. Rec. H2510-08, H2516 (Remarks of Representative Goodling, April 29, 1998) (emphasis supplied).
[¶ 24] The remarks made by Rep. Goodling tie in with other provisions of H.R. 6 which included requirements that institutions eligible to participate in federal student financial
[¶ 25] The debate on H.R. 6 further included the following remarks relevant to the provision under consideration here:
HIGHER EDUCATION AMENDMENTS OF 1998, 144 Cong. Rec. H2860-03, H2869 (Remarks of Rep. Solomon, May 6, 1998) (emphasis supplied).
HIGHER EDUCATION AMENDMENTS OF 1998, 144 Cong. Rec. H2860-03, 112871 (Remarks of Rep. Goodling, May 6, 1998) (emphasis supplied).
[¶ 26] H.R. 6 was sent to the Senate floor where amendments to the House bill were debated. The Souder Amendment and the Foley Amendment were not opposed.
HIGHER EDUCATION AMENDMENTS OF 1998 144 Cong. Rec. 57815-01, S7856 (Remarks of Senator Warner, July 9, 1998).
[¶ 27] The Senate and House sent the bill to a joint committee to resolve remaining differences in their respective versions of the bill. The bill returned to the floor of the House where, once again, the provision at issue here was mentioned:
CONFERENCE REPORT ON H.R. 6, HIGHER EDUCATION AMENDMENT S OF 1998, 144 Cong. Rec. H9151-02, H9155 (Remarks of Rep. Peterson, Sept. 28, 1998).
CONFERENCE REPORT ON H.R. 6, HIGHER EDUCATION AMENDMENT S OF 1998 144 Cong. Rec. H9151-02, H9161-62 (Remarks of Rep. Ewing, September 28, 1998).
[¶ 28] Section 1091(r) was amended by section 8021 of the Higher Education Reconciliation Act of 2005, which was part of the Deficit Reduction Act of 2005, enacted on February 1, 2006, Pub.L. 109-471. Section 8021 added the language to § 1091(r)(1) that limited the suspension of student aid "for conduct that occurred during a period of enrollment for which the student was receiving any grant, loan, or work assistance." Section 8021 did not appear in the proposed legislation until S. 467 was proposed on December 18, 2005, in response to H.R. 4261. Neither party cited any statements or remarks in support of or in resistance to section 8021.
[¶ 29] Pub.L. 109-171 was entitled the "Deficit Reduction Omnibus Reconciliation Act of 2005." The bill was debated at length on the Senate floor. Senate debate makes it clear that Pub.L. 109-171 was first and foremost a deficit reduction bill. See 151 Cong. Rec. S12079-04, S12085 (Remarks of Senator Gregg, Nov. 1, 2005). Part of the discussion centered on the provision for increased grant assistance to low and middle income students in obtaining
[¶ 30] The legislative history clearly shows that Congress did not intend to establish a criminal penalty when it enacted § 1091(r). At the very most, § 1091(r) was intended to be a civil sanction aimed at combating drug abuse on college campuses and rehabilitating those students who had drug convictions.
[¶ 31] As set forth above, I must inquire "further whether the statutory scheme was so punitive in effect as to transform what was clearly intended as a civil remedy into a criminal penalty." Hudson, 522 U.S. at 99, 118 S.Ct. at 493. Plaintiffs must show by "clearest proof" that the suspension of eligibility provision of § 1091(r) is "so punitive in form and effect as to render [it] criminal despite Congress' intent to the contrary." Hudson, 522 U.S. at 104, 118 S.Ct. at 495 (quoting United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 2148, 135 L.Ed.2d 549 (1996)). Hudson set forth "useful guideposts" in making this determination:
Hudson, 522 U.S. at 99-100, 118 S.Ct. at 493 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963)).
[¶ 32] Ineligibility for federal student financial aid does not involve an "affirmative disability or restraint" even remotely approaching the restraint of imprisonment. Hudson, 522 U.S. at 104, 118 S.Ct. at 496 (citing Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960)) (prohibition from participating in the banking industry is "certainly nothing approaching the `infamous punishment' of imprisonment.").
[¶ 33] Ineligibility for the receipt of federal funds has never historically been regarded as punishment. The Supreme Court has "long recognized that revocation of a privilege voluntarily granted . . . is characteristically free of the punitive criminal element." Hudson, 522 U.S. at 104, 118 S.Ct. at 495-96 (quoting Helvering v. Mitchell, 303 U.S. 391, 399 n. 2, 58 S.Ct. 630, 633 n. 2, 82 L.Ed. 917 (1938) (disbarment)).
[¶ 34] Ineligibility for federal student aid does not require scienter. Ineligibility is automatic upon conviction of a controlled substances offense. In that respect, the behavior to which the ineligibility applies is already a crime. Those two factors are of little weight where the "regulatory scheme applies only to past conduct, which was, and is, a crime." Smith v. Doe, 538 U.S. 84, 105, 123 S.Ct. 1140, 1154, 155 L.Ed.2d 164 (2003) (holding that sex offender registration does not violate the Double Jeopardy Clause).
[¶ 35] Certainly, one of the goals of Congress was to deter drug use on college campuses. The 2006 amendment to § 1091(r) limits ineligibility to those whose
[¶ 36] Taking into account the Hudson factors, plaintiffs have not shown by the "clearest proof" that the federal student financial aid ineligibility provision in § 1091(r) amounts to a criminal penalty which violates the Double Jeopardy Clause.
[¶ 37] Based upon the foregoing,
[¶ 38] IT IS ORDERED:
1. The defendant's motion (Doc. 18) to dismiss is granted. The plaintiffs' complaint is dismissed with prejudice and without costs.
2. The plaintiffs' motion (Doc. 19) for a preliminary injunction is denied.
3. The plaintiffs' motion (Doc. 20) for class certification is denied.