KingSpry Student Medical Marijuana Use Just Got More Complicated

Responding to Student Medical Marijuana Use Just Got a Whole Lot More Complicated

Photo of Timothy E. Gilsbach

Posted on January 17th, 2018
by Timothy E. Gilsbach

Several recent developments in the area of medical marijuana have made things a lot more complicated for schools responding to requests from students to use it at school. Under Pennsylvania law, individuals may use certain forms of marijuana if they meet certain qualifications, including having certain disabilities, and this can and does include school age students.  

To date, the law is silent on its use in school by students and the Department of Education has been tasked with drafting regulations to address this issue, although they have not yet been issued.  However, under federal law, the use of marijuana for any purpose remains illegal and it appears that it is likely illegal to even have marijuana on school grounds. This past week, the conflict in these two laws has become even more problematic.

Federal Judge Orders to Allow

First, late last week a federal judge in Illinois, which also allows for the use of medical marijuana, ordered a school district to allow a student to use medical marijuana in school and found that the failure to do so is a violation of several anti-discrimination statutes, including the IDEA and Section 504.

The federal judge in this case did so over the objections of the school, which argued that state law made it unlawful to have marijuana at school, federal law prohibits its use, and that it would be unlawful for school staff to assist the student with this medication.

Nonetheless, the court ordered the school to allow it and found that the Student was entitled to have this at school.

While the case is not binding in Pennsylvania, this is the first time a judge has ruled on this issue and could be an indication of where other courts may go.   

Justice Department Rescinds Guidance Not to Prosecute Users

Second, the Justice Department, in a departure from past practices, has rescinded guidance that instructed local U.S. Attorneys to not prosecute marijuana users who are complying with state law in states that allow marijuana.

While it is not clear if local U.S. Attorneys will prosecute, they have been given wider discretion to do so than in the past.  In addition, while the protections afforded under federal law through the Rohrabacher-Blumenauer amendment, which prohibits the use of federal money to prosecute medical marijuana users so long as they comply with state law, has been extended it has been attached to the federal budget and there is no guarantee that it will continue to the be included and at present has only been extended a couple of months.  This complicates issues for schools in that there could be a more serious threat of prosecution for allowing or assisting students who use medical marijuana by federal prosecutors.

Finally, medical marijuana is now available in Pennsylvania, as the first dispensaries for the same are now open, and, according to the state, more than double the number of people originally expected to apply for medical marijuana permits have submitted applications, meaning a lot more people than expected could be using this new drug.

Bottom Line for Schools

Medical marijuana is now available and more people than expected are likely to be using it at a time when the federal government seems intent on cracking down on its use, which would likely result in many school entities simply prohibiting it on school grounds. In fact, such an approach may still make the most sense.

Although it is too early to say how the medical marijuana legal wars will play out, schools seem to be headed for an uncomfortable dilemma between a rock and a hard place. On the one hand, the federal government is signalling stricter enforcement  of federal drug laws, and on the other, plaintiff lawyers are gearing up lawsuits under IDEA and Section 504. School entities are well-advised to consult with legal counsel when requests for medical marijuana are made by students until the law in this area becomes more settled.


School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.