Medical pot only allowed on a student-by-student basis in CA
(Calif.) While a case involving a California school district and student who relies on medical marijuana to treat her seizure disorder is now settled in favor of the child, legal experts say administrators facing similar issues can’t apply the ruling to their schools.
A state administrative law judge ruled late last month that Rincon Valley Union School District must allow a student's nurse to administer medical marijuana, as needed, on campus and on school transportation.
Aimee Perry, Marcy Gutierrez and Alyssa Bivins—all attorneys from the education law firm Lozano Smith—noted in a recent news brief that the decision is limited and not binding on other school districts.
“This area of the law continues to rapidly develop and change,” the attorneys wrote. “Because this decision is not binding and it fails to address several components of state and federal law regarding the presence of marijuana on public school campuses, school districts and parents should not presume this case to mean that all students in California can now have access to medical marijuana on campus, or that districts are required to administer same.”
The case arose from a dispute over whether the district was required to allow the child to attend a public campus and use school transportation since she required administration of a rescue medication for seizures which contains Tetrahydrocannabinol, or TCH, the part of the marijuana plant that creates a "high."
The now-5-year-old student has Dravet Syndrome, a disorder that causes severe and frequent seizures, and uses THC oil to stop seizures when they occur.
Marijuana is not allowed on public school campuses under both federal and state law, so for the past two years, the district has covered the cost for the child to attend a local private preschool where she could keep the THC oil at school and have it administered by a nurse when she had a seizure, pursuant to her individualized education program.
Throughout the country, lawmakers have been attempting to create exceptions for children who rely on medical cannabis to continue attending school.
Although pain relief is perhaps one of the most common uses of the drug under a doctor’s care, health care experts say that marijuana can also be effective in reducing muscle spasms caused by multiple sclerosis or nausea from chemotherapy, as well as poor appetite and weight loss caused by some chronic illnesses.
States including Illinois, Florida, Washington, Delaware, Maine, New Jersey and Colorado allow students to take medical cannabis on campus providing that they, their parent or guardian, and school officials abide by various restrictions in addition to following their state’s laws for medical marijuana use by minors–which often includes a prohibition of keeping marijuana products stored at school.
California was poised to join that list until late last month, when Gov. Jerry Brown vetoed a bill that would have permitted parents to administer medical cannabis to their children on school grounds.
In his veto message, Brown said the bill was “overly broad,” and that it “goes too far–further than some research has–to allow use of medical marijuana for youth.”
The bill–SB 1127–was authored in response to a situation in which the family of a South San Francisco High School student living with a severe form of epilepsy pushed for their district to allow their son to taking medical cannabis, which allowed him to regularly attend school.
Sen. Jerry Hill, D-San Mateo, author of SB 1127, said he intends to reintroduce his bill when the Legislature reconvenes on December 3. It is likely to contain the same conditions to administering medical cannabis, however, including a provision that the cannabis not be stored on campus–one of the factors that brought about the student’s case against Rincon Valley.
When it came time to transition into Kindergarten, parents wanted their child to attend a public school in the Rincon Valley district and still have access to her THC rescue medication, but administrators said allowing the student to possess marijuana on campus or on a public school bus would violate state and federal laws. Instead, they offered in-home specialized instruction with nursing services. The parents argued that the district was educating their child in the least restrictive environment possible, nor providing their child with a free appropriate public education under the Individuals with Disabilities Education Act.
Representatives for the district testified that were it not for the illegality of possession of THC on a public school campus, the public school would be the least restrictive environment for the student.
The judge ruled in favor of the student, finding that the district's proposed in-home program was not the least restrictive environment for the student, and therefore denied her a free appropriate public education. Additionally, the judge stated that the possession and transportation of the THC rescue medication by the nurse assigned to the student was in compliance with California state law, and that the district could not exclude the student from campus based on a "theoretical concern for a federal law that is at present unenforced and unenforceable."
Attorneys at Lozano Smith said because the decision is not binding on any other school districts besides Rincon Valley, that a school district facing a request for a student to have access to medical marijuana at school should contact legal counsel.