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Drug-Free Schools & Communities Act Amendments of 1989

University of Connecticut
Research Memo

Law/Act: Drug-Free Schools and Communities Act Amendments of 1989 (amends the Higher Education Act)
Public Law Citation: Public Law No. 101 – 226
U.S. Code Citation: 20 U.S.C. §1011i
Code of Federal Regulations Citation: 34 CFR § 86.1 et seq.
Responsible Regulator: Department of Education
UConn Responsible Officer
Version 1.0 Effective Date:

PURPOSE OF THE ACT

The purpose of the Drug and Alcohol Abuse Prevention regulations is to implement section 22 of the Drug-Free Schools and Communities Act Amendments of 1989, which added section 1213 to the Higher Education Act. These amendments require that, as a condition of receiving funds or any other form of financial assistance under any federal program, an institution of higher education (IHE) must certify that it has adopted and implemented a drug prevention program as described in regulations.[1]


GENERAL REQUIREMENTS

As a condition to receiving federal funds or financial assistance, IHEs must develop and implement a program to prevent the unlawful possession, use, or distribution of illicit drugs and alcohol by students and employees.  The program must include the following:

  • Annual notification of the IHE’s standards of conduct,
  • Description of sanctions for violating federal, state, and local law and campus policy regarding alcohol and other drugs (AOH),
  • A description of health risks associated with AOD use,
  • A description of treatment options,
  • A biennial (every two years) review of the program’s effectiveness and the consistency of the enforcement of sanctions.

Students and employees must receive this notification annually and the notification must be made available to the Department of Education upon requires.[2]

A separate law, the Drug-Free Workplace Act of 1988 also addresses the requirements associated with the employees of institutions receiving federal grants and contracts.[3]


HISTORY

In response to former President George H. W. Bush’s national drug control strategy, Congress passed legislation to require IHEs to implement and enforce drug prevention programs and policies as a condition of eligibility to receive federal financial assistance.  On December 12, 1989, President Bush signed the Drug-Free Schools and Communities Act Amendments of 1989 (Amendments), Public Law 101-226.  Section 22 of the Amendments amends provisions for the Drug-Free Schools and Communities Act of 1986 and the Higher Education Act of 1965 to require that, as a condition of receiving funds or any other form of financial assistance under any federal program after Oct. 1, 1990, an IHE must submit certification that it has adopted and implemented a drug prevention program.


 APPLICABILITY TO UCONN

As a condition of receiving funds or any other form of financial assistance under any federal program, an IHE 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. Failure to comply with the Drug-Free Schools and Communities Act may cause an institution to forfeit funding eligibility.  As an institution that receives federal student financial assistance as well as federal grants and contracts, UConn is required to comply with the provisions of this law.


REQUIREMENTS

The Drug and Alcohol Abuse Prevention regulations require that UConn

  1. Distribute annually the following notifications in writing to all students[4] and employees:
    1. 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;
    2. A description of the applicable legal sanctions under federal, state, or local law for the unlawful possession or distribution of illicit drugs and alcohol;
    3. A description of the health risks associated with the use of illicit drugs and the abuse of alcohol;
    4. A description of any drug or alcohol counseling, treatment, rehabilitation, and re-entry programs that are available to employees or students; and
    5. 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]
  2. Submit to the Secretary of the Department of Education the drug prevention program certification required by §86.3(b).[6] This is typically done as part of the Program Participation Agreement signed by the President of the University.
  3. Review biennially its drug and alcohol abuse prevention program to:
  • determine the program’s effectiveness and implement changes to the program if the changes are needed;
  • determine the number of drug and alcohol-related violations and fatalities that—(i) occur on the institution’s campus (as defined in section 485(f)(6) [20 USC § 1092(f)(6)] campus crime statistics), or as part of any of the institution’s activities; and (ii) are reported to campus officials;
  • determine the number and type of sanctions described in paragraph (1)(E) that are imposed by the institution as a result of drug and alcohol-related violations and fatalities on the institution’s campus or as part of any of the institution’s activities; and
  • ensure that the sanctions required by paragraph (1)(E) are consistently enforced.”[7]

This requirement is typically documented in a report from the committee conducting the assessment and must be made available to the Department of Education upon request.[8]

  1. Periodically, the U.S. Department of Education may direct its Higher Education Center to analyze a random sample of biennial reviews from colleges and universities nationwide. The Center will contact campuses included in the sample directly when an analysis is to be conducted.[9] If selected for review, the IHE must “provide the Secretary [of the Department of Education] access to personnel . . . and any other necessary information requested by the Secretary to review the [university’s] adoption and implementation of its drug prevention program.”[10]
  2. Retain records related to the drug and alcohol prevention program for three years after the fiscal year in which the record was created.[11]

Federal regulations do not specify how information about drug and alcohol prevention must be distributed to students and employees other than stating the information must be in writing.[12] According to guidance issued by the U.S. Department of Education in 2006, “merely making the materials available to those who wish to take them does not satisfy the requirements of the regulations, as that does not ensure distribution to every student and employer.”[13] Some schools disseminate information to students by including the information in registration materials, academic schedules, class schedules, or invoices for financial accounts.[14] Likewise, schools have distributed the information to employees with paystubs or W-2s.[15] Applicable regulations and guidance do not prohibit distributing the drug and alcohol abuse prevention information in conjunction with a school’s annual security report, which is required by the Clery Act.

“The Department of Education has not developed official policy on allowing electronic dissemination in fulfillment of the requirement that IHEs [institutions of higher education] must distribute their AOD [alcohol and other drugs] annual notification in writing.”[16] Emailing a link may satisfy the requirement to distribute information in writing;[17] however, the Department of Education suggests that if email is used to distribute alcohol and drug prevention information, schools “must ensure they can provide reasonable assurance to the Department (if audited) that this method of dissemination ensures distribution to all students and employees.”[18]


COMPLIANCE CALENDAR

The regulations and amendments (effective August 14, 2008) 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 (originally 1990), long practice has held that campuses conduct a biennial review by the end of each even-numbered calendar year.


STAYING UP-TO-DATE

The following web sites provide valuable information regarding this law and its applicability.

DOCUMENT/REFERENCE DESCRIPTION
“Complying With the Drug-Free Schools and Campuses Regulations: A guide for University and College Administrators” A description of the Drug-Free School Act, its requirements, and a useful checklist developed by the Department’s Higher Education Center for Alcohol and Other Drug Abuse and Violence Prevention that highlights the legal requirements of the Drug-Free Schools and Campuses Regulations. Completing this checklist will ensure that the campus has a sense of what has been done to satisfy the minimum requirements.
The Department of Education’s Higher Education Center for Alcohol and Other Drug Abuse and Violence Prevention This site contains updated information on DFSCA and other useful information regarding actual implementation of the law by other universities.
The Office of Safe and Health Students The Federal government’s vehicle for reducing drug, alcohol and tobacco use and violence in our nation’s schools.
Catholic University of America General Counsel General Overview of the Act.
UCONN Policy on Alcohol and Other Drugs UCONN policy on drug abstinence.
UConn Drug-Free School & Campuses Act Notification UConn policy and notification document.
UConn Health Drug-Free Schools & Campuses Act and Drug-Free Workplace Act UConn Health policy and notification document.

[1] 34 CFR §86.1

[2] Complying With the Drug-Free Schools and Campuses Regulations – A guide for University and College Administrators, U.S. Department of Education, July 2006, p. 3.

[3] See 41 U.S.C. §§  8101-8106; 34 C.F.R. pt. 84;  and  48 C.F.R. pt. 23.5

[4] The annual distribution must be made to students “taking one or more classes for any type of academic credit except for continuing education units.” 34 C.F.R. §86.100(a)

[5] “Drug-Free Schools and Communities Act (DFSCA) and Drug and Alcohol Abuse Prevention Regulations”, U.S. Department of Education’s Higher Education Center for Alcohol and Other Drug Abuse and Violence Prevention, http://www.higheredcenter.org/mandates/dfsca.

[6] 34 C.F.R. §86.4

[7] 20 U.S.C. § 1011i(a)(2)(A)-(D).

[8] 20 U.S.C. § 1011i(b).

[9] Ibid. 34 C.F.R. § 86.101

[10] 34 C.F.R. § 86.102-3.

[11] 20 U.S.C. § 1011i(b), 34 C.F.R. § 86.103.

[12] Id. § 86.100(a).

[13] U.S. Department of Education, Higher Education Center for Alcohol and Other Drug Abuse and Violence Prevention, Complying with the Drug-Free Schools and Campuses Regulations: A Guide for University and College Administrators 9 (2006), available at http://www.higheredcompliance.org/resources/resources/dfscr-hec-2006-manual.pdf .

[14] Id. at 6-7.

[15] Id. at 7.

[16] Id.

[17] Given the lack of specificity regarding the distribution requirements for drug and alcohol prevention information, the Clery Act regulations are instructive. Under the Clery Act, an institution may distribute its annual security report via email or a website posting. Id. § 668.41(b). The annual security report can be distributed by posting the information on an Internet or Intranet website so long as the required recipients are sent a notice that includes the “exact electronic address at which the information is posted” and a “statement that the institution will provide a paper copy of the information on request.” Id. § 668.41(c)(2)-(3); id. § 668.41(e)(1)-(2).

[18] U.S. Department of Education, Higher Education Center for Alcohol and Other Drug Abuse and Violence Prevention, Complying with the Drug-Free Schools and Campuses Regulations: A Guide for University and College Administrators 10 (2006), available at http://www.higheredcompliance.org/resources/resources/dfscr-hec-2006-manual.pdf.