Drug-Free Schools and Communities Act (DFSCA) and Drug and Alcohol Abuse Prevention Regulations

Part 86, the Drug and Alcohol Abuse Prevention Regulations (Education Department General Administrative Regulations [EDGAR]), requires that, as a condition of receiving funds or any other form of financial assistance under any federal program, an institution of higher education (IHE) (1) must certify that it has adopted and implemented a program to prevent the unlawful possession, use, or distribution of illicit drugs and alcohol by students and employees. If audited, failure to comply with the Drug and Alcohol Abuse Prevention Regulations may cause an institution to forfeit eligibility for federal funding.(2)

In order to be able to certify its compliance with the regulations, an IHE must adopt and implement a drug prevention program to prevent the unlawful possession, use, or distribution of illicit drugs and alcohol by all students and employees both on school premises and as part of any of its activities. Creating a program that complies with the regulations requires an IHE to do the following:

1. Annually notify each employee and student, in writing, of standards of conduct; a description of appropriate sanctions for violation of federal, state, and local law and campus policy; a description of health risks associated with AOD use; and a description of available treatment programs.
2. Develop a sound method for distributing annual notification information to every student and staff member each year.
3. Conduct a biennial review on the effectiveness of its AOD programs and the consistency of sanction enforcement.
4. Maintain its biennial review material on file, so that, if requested to do so by the U.S. Department of Education, the campus can submit it.(3)

DFSCA Biennial Review Information

The regulations do not specify a date by which the biennial review must be completed and on file—they simply require that a campus complete a review every two years. Since the regulations went into effect in an even-numbered year (1990), long practice has held that campuses conduct a biennial review by the end of each even-numbered calendar year.

Periodically, the U.S. Department of Education may direct its Higher Education Center to analyze a random sample of biennial review material from colleges and universities nationwide. The Center will contact campuses included in the sample directly when an analysis is to be conducted.

Minimum Requirements

The Drug-Free Schools and Campuses Regulations (4) require at a minimum that each institution distribute the following in writing to all students and employees annually:

• Standards of conduct that clearly prohibit, at a minimum, the unlawful possession, use, or distribution of illicit drugs and alcohol on school property or as part of any school activities
• A description of the applicable legal sanctions under federal, state, or local law for the unlawful possession or distribution of illicit drugs and alcohol
• A description of the health risks associated with the use of illicit drugs and the abuse of alcohol
• A description of any drug or alcohol counseling, treatment, rehabilitation, and re-entry programs that are available to employees or students
• A clear statement that the institution will impose disciplinary sanctions on students and employees (consistent with federal, state, or local law), and a description of those sanctions, up to and including expulsion or termination of employment and referral for prosecution, for violations of the standards of conduct (5)

The law further requires an institution of higher education to conduct a biennial review of its program:

• To determine its effectiveness and implement changes if they are needed
• To ensure that the sanctions developed are enforced consistently

In addition to the aforementioned minimum set of requirements, campuses may have additional obligations under state law. Equally important may be recent court decisions in lawsuits brought against IHEs by college and university students and employees.(6) Consultation with an attorney knowledgeable in this area is highly recommended.

Notes

1 EDGAR Part 86.1, titled "What Is the Purpose of the Drug-Free Schools and Campuses Regulations?" and 20. U.S.C. 1145g.

2 EDGAR Part 86.301.

3 EDGAR Part 86.103 (a).

4 Also known as Part 86 of the Education Department General Administrative Regulations (EDGAR), 34 CFR Parts 74, 75, 76, 77, 79, 80, 81, 82, 85, 86, 97, 98, and 99.

5 See 20 U.S.C. 1145g and EDGAR Part 86.100 (a) (2), (3), (4), (5). A disciplinary sanction may include the completion of an appropriate rehabilitation program.

6 For a discussion of some of the leading cases is this area, see Robert D. Bickel and Peter F. Lake, "Reconceptualizing the University's Duty to Provide a Safe Learning Environment: A Criticism of the Doctrine of In Loco Parentis and the Restatement (Second) of Torts," 20 Journal of College and University Law 261 (Winter 1994); also see John H. Robinson and Catherine Pieronek, "The Law of Higher Education and the Courts: 1994 in Review," 22 Journal of College and University Law 267 (Winter 1996).