Illinois recently joined twenty other states and the District of Columbia in legalizing medical marijuana. Four other states are considering passing similar legislation in the near future. How do primary and secondary schools adapt when the state allows employees and students to legally possess and use marijuana for medical purposes? The following are a few issues that K-12 schools may face.

Drug Possession and Use

What if an employee or student shows up at school, on a school bus, or at a school-related event with marijuana? Or uses marijuana at those places? When caught, the individual presents a doctor’s prescription for the drug. Is the prescription a get-out-of-jail-free card for school discipline?

Despite the many state laws legalizing marijuana, marijuana is still illegal on the federal level. Federal and many state laws also provide that schools are drug-free zones, meaning it is illegal for individuals to possess any drug – including cannabis – within a certain distance of school grounds. Perhaps recognizing this fact, some medical marijuana laws, including the Illinois law, explicitly disclaim protection for individuals who impermissibly possess or use marijuana on school property, including school busses.

Of course, in imposing discipline, schools must respect laws that may place limits on their discipline authority, such as the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and the Individuals with Disabilities in Education Act (IDEA). And there is a chance that as the courts address these issues over time, they will recognize protections for employees and students of public schools based on the medical marijuana laws. But based on the foregoing, the medical marijuana laws should not shield students, employees, and others who impermissibly possess or use marijuana on or near school property from otherwise permissible discipline.

Under the Influence

What if an employee or student does not have cannabis in his or her possession, but shows up under the influence of the drug at school or a school-related event? Although there is no legal precedent on this issue, there is good reason to believe that, as with possession and use, an employee or student can be disciplined for being under the influence despite having a valid marijuana prescription. An analogy to alcohol is instructive: Although alcohol is a legal substance, employees may be disciplined for coming to school or school-related events under the influence of alcohol. Similarly, even if cannabis is legally obtained or used outside of school, if an employee or student comes to school or a school-related event under the influence of marijuana, violating school rules regarding intoxication in the process, that conduct should justify discipline. As with use and possession, however, care should be taken to respect any laws that may limit discipline authority and school leaders should keep a close eye on legal changes in this area before imposing discipline.

Drug Testing

In some circumstances, school districts may conduct drug tests for employees and students who participate in extra-curricular activities. Do the medical marijuana laws limit school districts’ ability to discipline or terminate employees or remove students from extracurricular activities for failing a test for cannabis?

There is no clear answer. With respect to employees, schools can take the same steps as other employers to enforce drug-free policies in the workplace. But it is unclear whether any employer may continue to strictly enforce zero tolerance policies and drug test policies when employees use medical marijuana outside of the workplace. Some states, such as Michigan, reportedly have protections in their medical marijuana laws for workers who use medical marijuana. But the legal landscape in other states is less clear. Our Labor & Employment practice group recently wrestled with this issue in an FR Alert, and the issue has also been addressed in the national news media. Although courts have issued favorable decisions allowing employees to be dismissed or disciplined for failing marijuana drug tests even in states with medical marijuana laws, employers, including public schools, should expect this area of law to change rapidly. Accordingly, the best approach is to seek legal counsel before disciplining or dismissing an employee for drug use outside of the schoolhouse.

Similarly, with respect to students, it is unclear if or how medical marijuana laws will change courts’ interpretation of school districts’ ability to conduct drug tests. In a 1995 decision, Vernonia School District 47J v. Acton, the U.S. Supreme Court held that public schools may subject student athletes to drug tests without violating their constitutional rights. There is no language in Vernonia that would suggest limits to its holding based on medical marijuana laws, but because of the lack of case law on this issue schools should carefully consider the impact of medical marijuana laws before conducting drug testing of students.

Discrimination

What if you find out that  a student or employee has a prescription for medical marijuana. The individual hasn’t possessed or use cannabis at school, has not been under the influence of marijuana, and has not failed a drug test. Can the employee be kept from a promotion because of disagreement by administration with his or her decision? Can the student be passed over for a benefit because of his or her use of medical marijuana? Under the Illinois law, there is a specific provision prohibiting such discrimination by, among other entities, public schools. In other jurisdictions without such a prohibition, the law is less clear. Although discrimination on the basis of any particular characteristic can be risky, users of medical marijuana are not a “suspect class” for whom special protection is warranted under the law. As long as there is a rational basis based on something other than pure animus supporting the decision, the decision should be upheld.

There are only a few potential issues that school districts may face when addressing how medical marijuana laws implicate their policies and procedures. With careful consideration of these and other issues that arise, school districts can work through the haze created by medical marijuana laws.