Medical Marijuana And K-12 Schools: The Straight Dope On How Schools Can Deal

by Franczek Radelet P.C.

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.


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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.