; or (2) in determining whether to appoint the applicant to the covered position— (A) use the results of a test indicating that an applicant for a covered position used marijuana, in whole or in part; or (B) use any evidence that the applicant used marijuana before the date on which the application is submitted if such use was authorized under the law of the State or the law of the Indian tribe that has jurisdiction over the Indian country where the use occurred. 303. Fair access to education (a) Short title This section may be cited as the Fair Access to Education Act of 2017 . (b) Exclusion of misdemeanor marijuana possession offenses from drug-Related offenses resulting in suspension of eligibility for financial assistance for higher education Section 484(r)(1) of the Higher Education Act of 1965 ( 20 U.S.C. 1091(r)(1) ) is amended by inserting after controlled substance the following: , but not including any misdemeanor offense for possession of marihuana (as such term is defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 )), . (c) Applicability