Season 2: Episode 7 BONUS EPISODE: A Much Higher Education

In this timely bonus episode, Lisa and Miriam are joined by Attorney Kathy Perrico to discuss how recent medical marijuana legislation affects school districts’ obligations. For example, are students with disabilities entitled to use medical marijuana on school grounds? What happens when federal and state laws collide and how have some school districts navigated this legal quagmire?

View Podcast Transcript

[music]

Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We’re attorneys at Walter | Haverfield, we practice school law. Every few weeks, we get together and we talk about recent legal developments in the fields of education that are relevant to school boards, administrators, anybody who works with the kids.

Lisa:  Today, we’re going to be talking about a very timely and interesting topic, medical marijuana, and how that impacts schools. With us is a special guest Kathy Perrigo. Kathy is a partner at Walter | Haverfield who frequently advises school districts on cutting edge issues especially those related to students with disabilities. Kathy, welcome.

Kathy: Thank you.

Miriam: Medical marijuana. Let’s talk about this. It’s a hot topic here in Ohio. We recently legalized it just about two years ago. Is that right? We’re in the process of implementing the program.

Kathy: Right, it was June of 2016 when Ohio became the 25th state. I think now we’re up to 28 in the nation. As of 2016, we were the 25th to enact medical marijuana legislation, so it was in effect on September of 2016. The rules and regulations were in effect a year later and will be fully operational by September of this year.

Miriam: There are some distinctions between when a state legalizes medical marijuana and those that legalize it in a more blanket way. Can you dive into what that looks like?

Lisa: Yes, before you go there, I just want to let our audience know that this episode will focus heavily on Ohio law but we will touch upon some other states. Just with that caveat, Kathy, take it away.

Kathy: There is a huge difference in between states that have fully legalized marijuana which would permit it for any use and states that have legalized for medical purposes, which is what Ohio has done. Here you have to have a qualified doctor making a recommendation– it’s not technically officially a prescription, to an individual with one of several qualifying diagnoses.

Some of those are going to be more potentially relevant to the school setting in our discussion today than others, but it does include things like AIDS, Alzheimer’s, glaucoma, multiple sclerosis, post-traumatic stress disorder, and traumatic brain injury are going to be the ones that can become more relevant talking points for us today as we go on. In addition to having the qualifying diagnosis, there has to be a certification that the current treatment wasn’t working.

It’s far more narrow than states that have fully legalized marijuana.

Miriam: How interesting, the individual has to show that the current treatment was not working.

Kathy: Correct.

Miriam: It can only be administered by certain individuals and in certain specific forms. Is that right?

Kathy: Correct.  Medical marijuana can’t be purchased, possessed, or administered by anybody other than a patient or a registered caregiver.

Miriam: In Ohio?

Kathy: Yes, and patients and caregivers have to be registered in Ohio’s online system. Patients under 18– so for our purposes almost all students, would have to have a parent or legal representative serve as their caregiver for medical marijuana administration purposes. Again, it’s a parent or legal representative of the patient and that legal representative has to be 21 years old, someone who is 18, 19, or 20.

In other words, a young parent could still serve as the caregiver even if they are under the age of 21 but at a minimum, still have to be 18.

Lisa: Those definitions are going to be really important for school districts should they get requests down the road.

Kathy: Correct, because in Ohio as I assume with other states there is that in loco parentis doctrine which says that administrators and teachers serve in the place of the parents while students are under their watch, so to speak. That is not sufficient for purposes of being a legal representative within Ohio’s law.

Miriam: Wait, a legal representative, do you mean like a lawyer? Can a kid say, “This is my lawyer, he’s going to give me some pot.”

Kathy: It’s got to be some sort of legal guardianship.

Miriam: A legal guardianship, okay.

Lisa: Kathy, can you touch on some of the forums that Ohio law is going to allow.

Kathy:  Sure, it allows for quite a few different forums. It does not allow for smoking yet it does allow for vaporizing. So there’s vaporizing, you can use patches, lotions, or creams for topical use, oil for direct administration or for vaporizing, tinctures, capsules, or edible forms for oral consumption.

Miriam: Edible forms for oral consumption like brownies.

Kathy: Brownies. I can’t claim to be an expert in that regard.

Lisa: Somehow I feel like those are going to come up in the next few years as issues will be addressing with some board policies.

Miriam: Yes, most likely. Now, here’s something that I think is challenging.  Federal law across the country…federal law applies to all states. Federal law still prohibits marijuana use. Let’s talk about some of this tension between federal law and state law.

I think school districts are sometimes in a difficult position especially because this administration specifically Jeff Sessions has indicated that the federal government still plans to enforce it’s anti-marijuana policies in a way that the previous administration maybe was a little bit more lax about deliberately.

Lisa: Yes, that’s my understanding.

Kathy: Right. Marijuana is still considered a schedule 1 illicit substance under the Controlled Substances Act. In 2005, the US Supreme Court held that the Controlled Substances Act preempted state medical marijuana laws and therefore federal law enforcement agencies could prosecute users and growers of medical marijuana which is exactly what Jeff Sessions reiterated and stressed that he pulled back from the Obama era guidance and mindset and did say that he still wanted the Controlled Substances Act to be rigorously enforced.

Miriam: Schools are obligated obviously to follow federal law and then also state law.

Kathy: Correct.

Miriam: How does this work? Are schools allowed to possess or administer marijuana if it’s for medical purposes?

Kathy: Well, schools wouldn’t be administering.

Miriam: Okay, thank you.

Kathy: Unfortunately, being that we are in Ohio, we are in a state that is completely silent on the issue of whether schools should prohibit, must permit, have discretion. Ohio law is just silent on what schools should be doing with medical marijuana.

Miriam: What do most states do in terms of how they treat schools and student use of marijuana on school grounds?

Kathy: The majority of states have legislation that either explicitly prohibits use on school grounds or says that there is no requirement for schools to accommodate the use or possession of medical marijuana.

Lisa: What about students with disabilities. Does this change things at all?

Kathy: Well, that’s a great question and we don’t have any firm guidance in Ohio.

Miriam: This is really cutting edge. [laughs]

Lisa: This is ever-evolving.

Kathy: Not even the medical marijuana control board has addressed use or possession of medical marijuana on school grounds.

Lisa: By that, you mean nationally, right?

Kathy: I believe Ohio.

Lisa: Oh, you’re specific to Ohio.

Kathy: The Ohio Administrative Code says medical marijuana shall not be possessed or administered at any public or private place where it’s prohibited. There is where you get the discretionary piece because clearly, public school boards are public entities, public places. Should they choose to prohibit it, they can do that under the law. Then the companion criminal provision in the revised code can impose additional penalties for drug offenses committed on school premises or in a building, or and this becomes relevant to a case that we’re going to talk about from a different state, within 1,000 feet of the boundaries of any school premises.

Lisa: What comes to mind for me is many school districts currently are drug-free zones and take a stance of no drugs on school property at all.

Kathy: Correct.

Lisa: Certainly, that’s going to be part of the analysis if a request comes for a student, right?

Kathy: Right. As we’ve talked about in prior episodes and I think you’ve all talked about in episodes where I haven’t been around, we have both IDEA and Section 504 of the Rehabilitation Act of 1973 that requires districts to provide FAPE and to not discriminate against students with disabilities. I can foresee as has happened in a couple of other states that schools in Ohio are going to be getting requests for accommodations relating to the administration of medical marijuana by parents or other caregivers.

Lisa: This is all newer to Ohio since everything’s not fully enforceable yet and that’s coming up later this year. Some other states have had these types of laws in place for a little while, so there have been some cases that have gone to court. Let’s dive into some of the issues that have arisen in the decisions that are out there.

Miriam: I think this is so interesting. Essentially, you have school districts who on one hand, they’re trying to accommodate the needs of a child who has a disability that requires medical marijuana, but at the same time, the school district is obligated to comply with federal laws that prohibit marijuana. How does that play out?

Kathy: Well, I think you’re diving a little bit into a disciplinary context. Before we get there though, let’s talk about the general FAPE obligations and accommodations and how do you balance the desire to prohibit medical marijuana with the requirement that you either level the playing field or affirmatively provide FAPE to a student with a disability.

Miriam: Sure.

Kathy: The Maple Shade case out of New Jersey and the reason we’re starting here is because New Jersey’s law is strikingly similar to Ohio’s law. But in this case, there was a student who had been prescribed medical marijuana to combat a seizure disorder. The student used just an eyedropper size dose of homemade cannabis oil in a small glass of cola, and I will just jokingly say that we should have known it was New Jersey or somewhere getting close to the East Coast because they call it cola and not soda or pop.

Miriam: Soda everybody, that’s the right way to say it, soda.

[laughter]

Kathy: Some of my relatives combine them and say soda-pop, but in a small glass in the morning after school and before bedtime. Since being prescribed medical marijuana, the student’s daily seizure activities decreased in frequency by approximately 50%, so no small decrease there.

Miriam: Yes. That is pretty significant.

Kathy: During the student’s spring break when she could take that lunchtime dose legally without running afoul of the school’s requirements, she was seizure-free for seven days entirely, which was the longest stretch of time ever since she was three months old.

Lisa: So you can certainly see why the parent would be seeking the district’s help with this.

Miriam: Yes. There’s definitely benefit.

Kathy: Yes. Correct. Under New Jersey law at the time, minors could consume medical marijuana, but again, their law, like ours was silent on whether or not it could be used and consumed on school grounds. Earlier in that school year, the parents had actually asked the district to add the provision of medical marijuana to the student within the IEP.

The district denied the parent’s request and instead said, “Hey, come pick her up at lunch, take her 1,000 feet away from the school to give her the cannabis oil in the soda and then bring her back.”

Miriam: They were trying to get her outside of a reasonable school boundary, basically.

Kathy: Correct. There was absolutely recognition that a fourth dose seemed to be beneficial to her. Well, the parents then said, “Well, no. Our child also has autism and transitions are difficult and upsetting and that’s not a suitable accommodation for us for that purpose.”

Miriam: That’s a heavy burden to put on a parent. What if the parent works, for example, and can’t just drop everything in the middle of the day and pick up their kid.

Lisa: This definitely is a great example of the tension that arises between the district wanting to do what’s best for the student and also be conservative and protective of its obligations and also, recognizing what the student needs medically. You can see the contention is easy to arise.

Kathy: And as we’ve talked about before, parents can challenge decisions through requests for due process hearings. Well, in New Jersey, there is a slight difference available that isn’t available here in Ohio. In New Jersey, emergency relief is available if the petition for a due process can show that the matter being put before the hearing officer involves an alleged “Break in the delivery of services.” Here the student’s parents said, “Without medical marijuana, there’s a greater potential that the student will have seizures after the time that she should have received her lunchtime dose, which would therefore result in a break in delivery of services.”

But, the hearing officer ultimately denied the request and found that the student had only missed six days of school due to the disorder as opposed to 41% of the days in the prior year that the parents couldn’t show a break in services or that a break in services was imminent, and they also weren’t able to show irreparable harm, which was another criteria that had to be established.

Miriam: These parents lost?

Kathy: They did. Here, much like I could see Ohio districts doing, there was a reference point to the discrepancy between the New Jersey Drug Free School Zone Act, that the student didn’t have a clear legal right to access medical marijuana. Of course, the parents appealed and the request was again denied. The student’s parents then chose to take her out of school at lunchtime every day and then turn around and said, “This is silly. Why isn’t a school nurse doing this?”

Much like in Ohio, the judge found that a school nurse couldn’t qualify as a caregiver and that there was no duty to administer the medical marijuana under the doctrine of in loco parentis.

Lisa: At this point it’s in court, it’s outside of just their administrative process.

Miriam: This is like state court or federal court?

Lisa: This is still in an administrative process?

Kathy: The administrative law judge– so when I say judge, that’s what I was referencing, also found that the student’s parents were required to comply with the Drug Free School Zone Act. If they were charged criminally under that act, they could always assert the affirmative defense that it was medical marijuana, but in New Jersey, the legislature passed amendments to their medical marijuana law four days after that decision. Which then allowed parents, guardians, or primary caregivers to administer medical marijuana on school grounds, on a school bus, or at a school-sponsored activity, provided that it was administered in a non-smokeable form.

Miriam: This is really, the legislature responding to this administrative law judge.

Kathy: Correct.

Miriam: I think an administrative law judge is what we in Ohio call a hearing officer. In response to this decision by the administrative law judge, the state legislature actually changed its law. Is that what you’re saying? That’s so interesting.

Lisa: It sounds like though, even with the legislature change, the medical marijuana could be administered on school grounds by say, a parent. It’s still didn’t indicate that say, a school nurse, is going to have to administer it, correct.

Miriam: I think that’s still so difficult, that’s challenging. If you’re a parent and you have to leave work in the middle of the day to do this all the time for your daughter with a seizure disorder, I think that would be so time-consuming.

Kathy: Right. I think the other perspective to take on it though is to think about where you can provide services. Just because you can’t– in the case of the last case, administer the medical marijuana to perhaps prohibit a seizure following the lunchtime missed dose, if there is downtime and missed instruction, you could provide compensatory hour for example of educational services to provide FAPE through other means.

We want to maybe turn next to another case coming out of a state where the law actually prohibited use of cannabis, medical marijuana, on school grounds.

Lisa: This is really an interesting case with IDEA and Section 504 laws being implicated, right?

Kathy: Right. Here, the student was an 11-year old student with leukemia to treat seizure disorders caused by chemotherapy. That student wore a medical marijuana patch on her foot and would also occasionally put marijuana oil on topically on her wrist or do a few drops on her tongue to combat the seizures. Her parents asked those district officials to allow her to store and use that cannabis on school grounds but the district said, “No, we can’t. We’re prohibited by state law.”

Lisa: So, here you have a state that’s much more clear cut that it’s prohibited. Not even like Ohio where it’s kind of arbitrary right now.

Kathy: Correct. Again, this was another student who happened to be on an IEP for other impairments. The parents said, “We want this to happen. This is necessary for her.” The school district said, “Hey, guess what guys? But for the law, we would be ready, willing, and able to provide this accommodation to allow her to carry and use the medical marijuana on site.”

Miriam: The school district was very favorable towards the parents and their child’s needs.

Kathy: Correct.

Lisa: But also, an area where we liked the black and white law, when we’re advising clients because it’s nice to say, “Well, the law says no.” I mean, we don’t even have to interpret, it says “no.”

Kathy: Right. But, you still have to interpret because of the federal kerfuffle….

Lisa: …Right, exactly.

Miriam: Yes.

Kathy: Which is exactly what these parents marched into federal court and said. There is no rational basis for the decision to exclude students in schools from the application of medical marijuana and that adherence to that law, that had no rational basis, would deny the student the constitutional right to due process, as well as the full benefits of the educational services and programs thereby violating the IDEA, the ADA and Section 504. So in that case– this is a very recent case, this activity all happened in January of this year. The parents filed a motion for a temporary restraining order to prevent the enforcement of the Illinois statute.

Miriam: Basically, the parents asked the court to immediately direct the District to let the student have this patch that she wore.

Kathy: Right. The parents’ arguments were very heavily based in IDEA and Section 504 and the obligation to provide FAPE.

Lisa: Basically, they were saying she couldn’t even attend school if they didn’t do this, right?

Kathy: Right. She can’t get FAPE at all if she isn’t allowed to carry and self administer. The school who was named as a party because they were tied into this by virtue of the law saying they weren’t allowed to, even though they were a defendant, they were fully on the parents’ side saying, “We are, again, ready, willing, and able to administer while she’s present on school grounds, but we just have a state law that is preventing us from doing so.”

Lisa: Was the state also a party to this as the defendant?

Kathy: Yes. In January, there was an initial hearing and then there was another court hearing that was supposed to occur just on April 26th of this year. The delay occurred because the parties were negotiating a settlement. well, the docket entry available publicly in relation to that April 26th hearing isn’t highly detailed, but it strongly suggest that there either was a settlement or there is a pending change in litigation that is in the works, so that’s one to follow in terms of looking at what the legislature does in Illinois.

Miriam: These parents somehow worked it out with their school district, but we just don’t know exactly how. [laughs]

Kathy: Not just the school district, but the state as well because they’re all parties.

Lisa: That might be very important because if the state is a party, they very well may be in the process of changing law. Who knows what they proposed to appease parents.

Kathy: I think the final thing to touch on brings us back to something that came up earlier with the discussion between you and I, Miriam, which was the disciplinary provisions.

Miriam: Oh, good, yes.

Kathy: There is a pending federal case against Jeff Sessions challenging the fact that this is still a controlled substance, schedule 1 designation for marijuana. The case said, “You know what Feds? You’ve never believed, you still don’t believe that cannabis has ever met, or continues to meet the three requirements to be a schedule 1 classification.”

Lisa: Yes, there’s a lot of contention about that out there.

Kathy: Right, high potential for abuse, no medical use in treatment, and no ability to be used or tested safely even under medical supervision.

Miriam: Okay, wait. I just going to unpack this a little bit. In order to be a schedule 1 drug, the substance has to have no medical use, and what else?

Kathy: High potential for abuse, and no ability to be used or tested safely even under medical supervision.

Miriam: Marijuana right now is a schedule 1 drug and that’s why it’s so heavily regulated. That’s why we have all of these conflicts between state law and federal law, and if federal law were to change the classification of marijuana, this conflict would resolve itself. What you’re saying is that there’s currently a lawsuit asking for that designation to change?

Kathy: Correct.

Lisa: Well, certainly in that definition, it’s obvious why one would seek to get that changed. It certainly at the current state doesn’t sound it falls into that description.

Kathy: When you think about students with disabilities and disciplinary provisions under IDEA as opposed to under Section 504, you could have a student who was in possession of medical marijuana and ingesting or topically applying medical marijuana, and seek to– if you are a district that has exercised your discretion to prohibit such use, you might put that student up for expulsion. Because the student has a disability, you would have to analyze whether the conduct engaged in was directly substantially related to or caused by the disability. With the medical marijuana being linked to the disability, you’re going to have that connection, but currently, under the three exceptions, drugs, weapons, and serious bodily injury, with it being a scheduled 1 classification, you could still technically remove that student for the 45 days. If that schedule 1 designation changes, that analysis is going to change too.

Miriam: For those of you in our audience who don’t remember what we’re talking about, you can go back and listen to episode, I think it’s 16. It talks about the exceptions for removing a child, for expelling a student. If a child has brought weapons to school, has seriously harmed someone, or has possessed drugs on school property, you are able to remove that child for 45 days, even if the child’s conduct is based on their disability. I think Kathy, what you’re describing here– I’m just thinking about this case that you just told us about. A child with leukemia who’s wearing a medical marijuana patch at school, and the school district can theoretically say, “You know what? This violates our drug-free zone position, and we’re going to remove you for 45 days.” Even though this is related to your disability, even though it’s obviously this is what you’re doing because of your leukemia or your seizure disorder, we’re still going to remove you for 45 days. What you’re saying right now is that would still be-

Kathy: That’s still currently available to districts.

Miriam: That’s still currently available to districts. Now, obviously, we’re not saying that’s what districts should be doing.

Lisa: Right. Well, and certainly highlight some of the contention here that is really, really unsettled.

Kathy: I think unsettled is a great way to wrap it up and say because it is so unsettled, this is going to be a veritable minefield to navigate, and districts would be well advised to consult with counsel as they navigate the minefield.

[music]

Lisa: Well, thanks for joining us.

Miriam: Thank you so much. This was a really interesting episode, and please join us next time because Kathy will be talking about Section 504 again with us in our next episode.

Lisa: Yes, we’re going to dive into some of the basics for you so you can really understand eligibility and all the things that go along with Section 504.

Miriam: Don’t forget to leave us great feedback and rate us on iTunes, Stitcher, Google Play Music, or wherever you get your podcast. Thanks, have a great day.

Disclaimer: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.