By Michael Tucker, Attorney at Law
On September 28, 2018, Governor Jerry Brown wrote that in vetoing Senate Bill 1127, officials should “pause before going much further down this path” that would lead to the use of medical cannabis on school district, charter school and county office of education campuses. The vetoed bill would have permitted Local Educational Agency (LEA) governing boards to establish policies allowing parents or guardians to possess and administer medical cannabis to a student. While government officials “pause” to reflect on this approach, LEAs are faced with the very real possibility that a student could request to use medical cannabis on campus with little guidance.
Fortunately, a recent Office of Administrative Hearings decision sheds some light on how the seemingly conflicting federal and state cannabis laws may be interpreted when applied to a student requiring cannabis use on campus. In Student v. Rincon Valley Unified School District (OAH No. 2018050651), the hearing officer ruled that Rincon Valley denied a student who required the use of a cannabis medical product to reduce seizures a free and appropriate public education (FAPE) by only offering home instruction in an attempt to keep the cannabis product off campus. Rincon Valley attempted to justify their FAPE offer by providing that all cannabis possession is prohibited by federal law and the Drug-Free Workplace Act requires that Rincon Valley maintain a drug-free workplace for its employees. However, the hearing officer found that denying a student placement in the least restrictive environment based on a vague speculation that a federal law is being violated is unreasonable. Below are three suggestions based on this ruling to assist LEAs in navigating this complicated issue.
1. LEAs Should Not Assume a Federal Law Violation.
According to the hearing officer in Rincon Valley, the LEA was unable to specifically articulate the federal laws that created the risk of prosecution for allowing the medical cannabis to be possessed and used on campus. Instead, the hearing officer carefully analyzed the various state and federal statutes applicable to medical cannabis possession and on-campus use and determined the risk of federal prosecution to be very low. Therefore, if an LEA is basing any decisions regarding medical cannabis use on federal law, the LEA should carefully articulate those requirements.
2. LEAs Should Assess the Student’s Needs Against the Risk of a Legal Violation.
The hearing officer in Rincon Valley may have sided with the LEA if the risk of prosecution for violation of federal law was more significant when compared to the student’s need for the medical cannabis. The student used THC oil to prevent and limit the effects of seizures due to Dravet Syndrome. To support the student’s need, the student had several medical professionals explain how the THC oil was necessary and effective to prevent unnecessary and severe seizure complications. In response, the hearing office did not find that the LEAs concerns regarding federal prosecution for cannabis possession on campus to be comparable. Based on this, if an LEA is using a potential legal violation to support the LEA’s decision to deny the use of medical cannabis on campus then the LEA should weigh that consideration against the student’s need for the medical cannabis.
3. LEAs Should Carefully Evaluate a Student’s Needs if Medical Cannabis is Requested.
In Rincon Valley, the student was able to clearly and effectively articulate a connection between the student’s medical needs and medical cannabis. The student also provided evidence that the student was able to effectively access her education due to the benefits of medical cannabis. Therefore, LEAs should request the same level of support if a request is received for a student to use medical cannabis. LEAs should consider requesting permission to discuss the need for the medical cannabis with the student’s medical team so that the LEA can consider this information when making a placement offer.