Authored By: Timothy E. Gilsbach, Esquire

King, Spry, Herman, Freund & Faul, LLC.
One West Broad Street, Suite 700
Bethlehem, PA  18018
www.kingspry.com

 

First, such schools face state law that permits the use of medical marijuana for certain groups of individuals with what are likely disabilities under Section 504 of the Rehabilitation Act of 1973 (“Section 504”), including students. And, absent specific language that prohibits the use of it on school grounds, are likely to receive requests for students to use medical marijuana in school.

Second, schools face the requirements of Section 504, which mandates that the school provide appropriate aides and services to disabled students. See 34 CFR § 104.33(b)(1). A number of cases have found that this requires that school entities assist a student in the administration of his or her medication, when necessary for the student to access his or her education. See In re: Student with Disability, 103 LRP 57786 (NM SEA 2003); Birmingham City Bd. of Educ., 33 LRP 6531 (Al. SEA 2000); Berlin Brothersvalley (PA) Sch. Dist., 353 LRP 9134 (OCR ED 1988); Fairfield-Suisun (CA) Unif. Sch. Dist., 353 LRP 9359 (OCR WD 1989).

Finally, there is the Controlled Substance Act (“CSA”), federal law that makes marijuana, including medical marijuana, a controlled substance that is illegal under federal law. To date, no court has addressed this clear legal conflict among these laws as it relates to schools.

As a practical example, it is likely that parents of a student who qualifies to use medical marijuana will request that the school permit its use or that the school be more directly involved in administer the marijuana, absent a statutory provision prohibiting the use of the product on school grounds. The school could agree to do so, and Section 504 would suggest that they must. However, such action would be illegal under the CSA, making school nurses or other staff reluctant to being involved in this at all. It appears that schools can only comply with one law, but not both.

In addition, it is likely that school nurses and other staff may be reluctant to be involved in what may be illegal under federal law and it would appear highly unlikely that schools can simply direct school staff to do something as part of their job that is a federal offense.

While the law is still developing, in other contexts courts have found creative ways to sidestep this issue by finding that the request to use medical marijuana was an unreasonable accommodation in the area of employment law or other public accommodations under Section 504. See e.g. Garcia v. Tractor Supply Co., 154 F.Supp. 3d 1225 (D.N.M. 2016); Forrest City Residential Management v. Beasley, 71 F.Supp.3d 715 (E.D.Mich. 2014).

However, the application of Section 504 in the area of students in schools is different in that there is an affirmative duty to provide appropriate accommodations which is not subject to the same reasonableness standard.

Another way this issue has been sidestepped in other contexts is that the use of illegal drugs is not a disability. See Beasley, supra; James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012).

However, with students with disabilities it is likely the underlying condition rather than the drug use itself that is the disability for which the school must accommodate. Accordingly, this case law does little to eliminate this conflict.

While at first blush, it may appear that the Rohrabacher-Farr Amendment, which prohibits the use of federal dollars to prosecute those who are in compliance with state medical marijuana laws, might offer protection for school employees, there is a catch. In order to benefit from this provision one must using the marijuana in compliance with the state law, which means schools must hope they are in compliance with a law that in many cases did not consider this conundrum.

For example in the case of Maple Shade Township Bd. of Educ., 115 LRP 54740 (NJ SEA 2015), which at first blush might appear to be helpful to school entities, it was found that school officials did not have to administer medical marijuana because under that state law they were not authorized to do so. However, this decision does not answer the thornier issue of the failure to comply Section 504, which would appear to require the administration of medication and which are squarely been found to prohibit a school entity from requiring a parent to come to school to administer the medication or the student won’t get it. But it did find that New Jersey law did not authorize school employees to administer medical marijuana and, as a result, likely do not fall with the protection afforded by Rohrabacher-Farr. Moreover, the Rohrabacher-Farr must be renewed from year to year, living school employees at the mercy of whether it will be renewed or not.

As a result, given this clear conflict in various laws, schools are left between complying with one law or complying with another. Accordingly, states should consider this issue when passing or amended medical marijuana statutes, by either being clear that school officials can administer the medication under their state law and under what conditions, and as a result benefit from the Rohrabacher-Farr Amendment, or prohibit the use of such medication on school ground outright.

Another option would be for the federal government to directly address this issue directly by either expanding the terms of Rohrabacher-Farr or addressing this in some other fashion by amending either Section 504 or the CSA.

Until then, school officials will have to take their chances on which law they will follow.