Hot Law: Cannabis in Schools

Update: On April 30, 2019, Governor Jay Inslee signed “Ducky’s Bill,” which will allow students in Washington to access medical marijuana therapies in the school setting. For more information, please see: https://hightimes.com/news/duckys-bill-becomes-law-giving-washington-students-access-medical-cannabis/

November 2018

I attended the 2018 Pacific Northwest Institute on Special Education and the Law. I always leave that conference excited about our practice area and feeling up to date on its latest developments. My favorite session was on Medical Issues in Schools by Darcy Kriha, Attorney at Law and Founding Partner, Kriha Law LLC in Chicago, Illinois. She spoke about a range of topics, but the latest update on medical marijuana in schools is particularly exciting:

Illinois – January 2018

Last school year, Ms. Kriha represented an Illinois school district sued by the family of an eleven-year-old student, Ashley, who had been prohibited from attending school due to the medical marijuana patch and cannabis oil and lotion she requires to manage the seizures she endures as a result of childhood acute lymphoblastic leukemia treatment.

Although the school district was refusing to allow Ashley to attend based on their interpretation of state and federal law, the district superintendent and the school board president told Ms. Kriha that her mission was to do whatever she could to make sure Ashley could come back to school. The Illinois attorney general agreed not to prosecute and said there should be no negative legal ramifications for staff who help with her medicine. The federal judge issued an emergency order to allow Ashley to go back to school, but this order was limited to her individual case and did not address whether denial of the medication was a violation of her right to a free and appropriate public education (FAPE). Read more about her case on CNN!

California – September 2018

 Just months later, this issue was addressed more broadly by an Administrative Law Judge (ALJ) in California in a due process hearing brought against the Rincon Valley Union Elementary School District on behalf of a five-year-old girl with Dravet syndrome who requires THC oil as an emergency seizure medication. In the Matter of Rincon Valley Union Elementary School District, 118 LRP 39709.

The parties agreed that Student could not be safely educated unless her seizure medication was readily available at all times, but Rincon Valley declined to offer her placement on a public school campus or transportation by public school bus, because of its concern that possession of the THC oil on a public school campus or bus was prohibited by state and federal law.

The ALJ performed an extensive review of state and federal medical marijuana laws, and ultimately held that the mother, student, and nurse had strictly complied with California law in possessing and using the oil as an emergency seizure medication, and could do so on a public school campus and bus without violating California law and that their strict compliance with California law may have exempted them from the federal law prohibiting possession of marijuana, and did exempt them from federal prosecution.

The ALJ further held that the school district had violated FAPE by refusing to keep the student’s emergency medication on campus and ordered the district to place her on a public school campus among her peers with her medication available, and to allow her and her nurse to travel on a school bus. Citing Doug C. v. Hawaii Dept. of Educ., 720 F.3d 1038 (2013) for guidance on how to comply with competing commands of federal law by determining which course of action promotes the purpose of the IDEA, the ALJ provided:

[I]t is not reasonable for Rincon Valley to exclude Student from its campus and bus out of theoretical concern for a federal law that is at present unenforced and unenforceable. Rincon Valley’s failure to offer Student a placement on a campus among her peers denied her a FAPE because it did not place her in the least restrictive environment in which she could satisfactorily be educated and did not adequately allow her to achieve her annual goals.

Washington – 2016 to 2019

While the federal analysis would apply to a Washington student, we have different state laws governing medical marijuana use. Since July 1, 2016, Washington state law specifies that schools are not required to permit on-site use of medical marijuana, but are permitted to allow it if they choose.

RCW 69.51A.060(4) provides:

(4) Nothing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment, in any school bus or on any school grounds, in any youth center, in any correctional facility, or smoking marijuana in any public place or hotel or motel. However, a school may permit a minor who meets the requirements of RCW 69.51A.220 to consume marijuana on school grounds. Such use must be in accordance with school policy relating to medication use on school grounds.

(emphasis added). Section 69.51A.220 RCW defines when health care professionals may authorize medical use of marijuana to qualifying patients under age eighteen.

HB 1060 – 2017-18, concerning the administration of marijuana to students for medical purposes was introduced in the state legislature in January 2017 but remains in committee as of October 2018. See also: https://www.king5.com/article/news/health/medical-marijuana-in-schools-it-may-soon-be-legal-in-wa/281-386677717

If you or your child requires access to medical marijuana in order to safely and successfully participate in the educational environment, Cedar Law PLLC can advocate on your behalf to ensure that your school allows medically necessary use and ensures the provision of FAPE. Likewise, if you are an administrator of a school seeking assistance to develop and implement policies that enable students or staff to access medical marijuana on campus, please contact us for advice and consultation.