In a case of first impression, the Pennsylvania Commonwealth Court has ruled in Harrisburg Area Community College v. Pennsylvania Human Relations Commission that a nursing student at a community college did not have a right to use medical marijuana, and that the college’s failure to provide an accommodation in the form of an exception to its anti-drug policy did not violate the Pennsylvania Medical Marijuana Act, the Pennsylvania Human Relations Act or the Pennsylvania Fair Educational Opportunities Act. The Commonwealth Court’s legal analysis suggests students who use medical marijuana likely have limited protections for using or being under influence of the drug in the school setting, both in college and K-12 settings.
In this case, a nursing student at a community college requested an accommodation in the form of an exemption from drug testing requirements due to her use of medical marijuana under Pennsylvania law for treatment of post-traumatic stress disorder and irritable bowel syndrome. The community college refused and the student filed a complaint with the Pennsylvania Human Relations Commission. The Human Relations Commission denied a motion to dismiss the complaint and the community college filed an interlocutory appeal to Commonwealth Court. Commonwealth Court found that the student failed to state a claim and that the complaint should be dismissed. However, the court’s legal analysis likely has broader implications for requests to use medical marijuana in school settings, and is more important than the facts of the case.
The court found that both the Pennsylvania Human Relations Act and Pennsylvania Fair Educational Opportunities Act prohibit discrimination by educational entities on the basis of disability, but specifically exclude from the definition of disability "current, illegal use of or addiction to a controlled substance," as defined in section 102 of the federal Controlled Substances Act. The court found that because marijuana, medical or otherwise, is prohibited by the federal Controlled Substances Act as a substance that does not have any acceptable medical use, the use of medical marijuana does not count as a required accommodation and that the failure to permit its use cannot be the basis upon which a disability discrimination claim is established under either statute. The court further noted the absence of any suggestion that the Pennsylvania Legislature intended to amend either of these laws by virtue of the Medical Marijuana Act. Of note, a federal court previously found that there is no duty to provide such an accommodation under federal law under Section 504. When read together, these two cases suggest that one cannot make a claim for disability discrimination on the basis of a school entity’s refusal to permit an accommodation that allows for the use of or being under the influence of medical marijuana unless such protections are found under the Medical Marijuana Act itself.
The court found that Pennsylvania’s Medical Marijuana Act gives students minimal attention, other than to state that the Pennsylvania Department of Education (PDE) is directed to issue regulations, which it has not yet done. The court further explains that, unlike employees, for which the Pennsylvania Legislature gave limited protections, lawmakers did not give any protections to college students or to K-12 students, other than to provide that PDE could issue regulations to address this issue. Given the lack of any legal protections afforded under the Medical Marijuana Act, the court found that the student could not assert a claim. It is important to note that PDE has provided temporary guidance for students in grades K through 12 that permits, but does not require, schools to allow parents to come to campus to administer medical marijuana. However, even this temporary guidance would not appear to require schools to provide such an accommodation.
As a result of the legal analysis used in this case, it appears that school entities can refuse an accommodation request to permit a student to use or be under the influence of marijuana at school under these three statutes, unless PDE issues regulations that expand the rights of students in the K-12 setting, and can clearly refuse such requests in the college setting. Schools in the K-12 setting should keep informed of any changes in guidance from PDE on this front.