The Legal Intelligencer - Medical Marijuana and the Effect of Legalization on College Campuses
By Melissa Hazell Davis & Fara A. Cohen
With society's ever-evolving approach to marijuana, colleges and universities across the country, including those here in Pennsylvania, are now faced with a complexing dilemma: enforce federal regulations in order to maintain federal funding or risk that funding by recognizing their state's mandate to permit marijuana use. Colleges, universities and the students who matriculate them are caught in the middle of the legal tug-of-war between the federal government's prohibition of marijuana use and the various states who allow its citizens to use the drug - either recreationally or for medical reasons.
Public support for the legalization of marijuana is growing, with a recent Gallup poll showing that 64% of Americans favor legalization. The Drug Enforcement Administration has reported that one in every twenty-two college students uses marijuana daily, or almost daily, and the Washington Post reported in 2016 that since 2002, regular marijuana use among middle aged Americans (ages 45-54) has gone up by nearly 50%. With the public tide shifting, marijuana is more profitable than ever; sales of legal marijuana exploded to $9.7 billion in 2017 in North America alone. Studies predict that that number will only increase to $24.5 billion in sales by 2021 as the number of legal state markets grow. As of 2017, medical marijuana is legal in Washington D.C. and 30 states (including Pennsylvania, New Jersey, and Delaware), with 9 of those states also permitting recreational marijuana. For example, in 2016, Pennsylvania legalized medical marijuana use, making it available at dispensaries and in many different forms, including pills, oils, and topical treatments. The Pennsylvania law lists seventeen conditions for which a patient may be recommended medical marijuana including PTSD, cancer, autism, HIV/AIDS, seizures, severe chronic pain and others. However, the federal policy on marijuana - recreational or otherwise - has not changed. In fact, the Trump administration, led by Attorney General Jeff Sessions, has ramped up its enforcement of federal statutes prohibiting the growing, distribution, and use of the drug.
So where do these conflicting laws leave colleges and universities located in one of the states where its citizens have decided that marijuana use should be legal? Because of the Supremacy Clause of the U.S. Constitution, the federal Controlled Substances Act (which criminalizes the growing and use of marijuana) is the law of the land, despite what any state's laws might say. Furthermore, the Safe and Drug Free Schools Act (the "DFSCA") requires institutions that receive funds or other financial assistance from the Federal government to adopt and implement a drug prevention program, which means that colleges and universities that allow marijuana use on campus could be at risk of losing federal funding. Under the DFSCA, an institution of higher education's drug prevention program must include: 1) a policy establishing standards of conduct that clearly prohibit unlawful possession, use or distribution of illicit drugs and alcohol by students and employees on its property or as part of any of its activities, which is to be distributed annually to all employees and students; 2) a description of the applicable legal sanctions under local, state or federal law for the unlawful possession or distribution of illicit drugs and alcohol; 3) a description of health risks association with the use of illicit drugs and the abuse of alcohol; 4) a description of any drug or alcohol counseling, treatment or rehabilitation or re-entry programs available to employees or students; 5) a clear statement that the institution will impose disciplinary action for violation of the policy against use of illicit drugs and alcohol, as well as a description of those sanctions.
Therefore, many colleges and universities have chosen to comply with DFSCA in order to preserve their access to federal funds by prohibiting marijuana use (even for medical marijuana users), and punishing and arresting those who break university policy. The DFSCA compliance defense was tested for the first time in the recent case State of Arizona v. Maestas. In that case, the State of Arizona argued that Arizona State University was at risk of losing federal funding if they did not enforce their marijuana policy. The Court rejected that argument, finding that the State did not sufficiently show that they would lose or have lost federal funding by not prosecuting violations of the university's program. Ultimately, Arizona's highest court held that while universities can ban the use or possession of marijuana on campus, they cannot criminalize any such violations. As a result, the argument that medical marijuana use should be prohibited on college campuses because federally funding is dependent on compliance with the DFSCA is potentially a less persuasive argument for colleges and universities going forward.
Other colleges have also addressed this issue. For example, despite the legalization of marijuana in California for recreational and medical purposes, the University of California forbids marijuana possession and/or use on its campuses. The University of Massachusetts, Amherst Marijuana Policy with respect to On Campus Expectations states that "[a]lthough Massachusetts voters have approved a ballot measure permitting the possession and recreational use of marijuana, federal laws prohibit the use, possession and/or cultivation of marijuana at educational facilities. The use, possession, or cultivation of marijuana in any form is therefore not allowed in any university housing, on any other university property, or at university sponsored off-campus events." Some universities that are unwilling to waiver on their strict policies against marijuana on campuses allow or advise medical marijuana users to live off campus and leave their marijuana at home. For example, The Michigan State University Medical Marijuana policy says that "MSU will make accommodations for students who are registered to use medical marijuana under state law by waiving the requirement for them to live on campus or by allowing them to end their housing contract and move off campus."
While Pennsylvania's law is still fairly new, it is reasonable to assume that colleges and universities in the state will follow the same path as out-of-state institutions that have faced these issues. Colleges and universities within the state should be proactive in reviewing their policies, updating them where necessary, in order to both ensure compliance with federal law and ensure that students who need to use marijuana for medical reasons can still access it while attending school. Additionally, it is important that students do not assume that they can smoke and/or possess marijuana on campus simply because they have a state issued card permitting them to use the drug. A student in Pennsylvania with a medical marijuana card should immediately contact his school to ascertain that school's marijuana policy and to determine if he can qualify for an exemption to any policies that might require him to reside on campus.
Reprinted with permission from the June 28, 2018 edition of The Legal Intelligencer. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.