By Amy Estrada, Associate
San Diego Office
and Mark Bresee, Partner
Irvine Office
Since voter approval of Proposition 215 in 1996 (enacting the the Compassionate Use Act ("CUA")), school districts have encountered issues regarding the discipline of students and employees who possess medical marijuana cards. Due to the tumultuous nature of the law, when asked how to proceed in such situations the responses have varied widely over the years. In light of the California Supreme Court’s decision in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, however, it can be stated with greater confidence that the CUA will not insulate employees or students who happen to be qualified medical marijuana patients from discipline under the Education Code.
Under the federal Controlled Substances Act, the possession and use of marijuana is prohibited, even for medical users. (Gonzales v. Raich (2005) 545 U.S. 1, 26–29.) Federal law classifies marijuana as a "Schedule I" drug, meaning it has "no currently accepted medical use." (21 U.S.C. § 812(c).) The federal government therefore does not deem medical marijuana "prescriptions" valid.
Given that federal law preempts state law, California voters were powerless to change federal drug law through the initiative process. Thus, the CUA merely provides qualified medical marijuana patients with a defense to violations of certain specified California criminal laws.
The California Supreme Court, in the Ross case, made clear that medical marijuana is not "legal" and that patients do not have a "right" to use medical marijuana like other legal prescription drugs. The patient-plaintiff in Ross had been terminated for failing a drug test, which the employee contested because he possessed a prescription for medical marjuana. The Supreme Court dismissed the plaintiff’s wrongful termination and employment claims, finding the CUA did not alter employment law in California. The CUA’s "operative provisions speak exclusively to the criminal law." Employers are therefore not required to accommodate an employee’s use of medical marijuana.
The Court further noted that California’s medical marijuana laws “did not purport to change the laws affecting public intoxication with controlled substances or the laws affecting controlled substances in places such as schools and parks[.]” While children of any age may, theoretically, be qualified medical marijuana patients under the California Health & Safety Code, there is nothing in the CUA or its accompanying legislation indicating California voters sought to confer upon school-age children a right to use, possess, or be under the influence of marijuana at school. Given the California Supreme Court’s reasoning in Ross, a court would likely find the CUA does not alter a school district’s authority to discipline a patient-student for marijuana-related offenses at school. Such offenses would then still fall within the ambit of Education Code section 48900(c) and/or laws governing the discipline of special education students.
Schools should be cautious to avoid facilitating a medical marijuana patient's use or possession of the drug. For example, physicians have been cautioned by the California Medical Association to avoid offering advice or instructions regarding a patient's use of marijuana or how to obtain it. (People v. Kelly (2010) 47 Cal.4th 1008, 1018 ["physicians risk triggering liability under federal law for aiding and abetting the unlawful possession of a controlled substance"].) School officials should likewise refrain from behaving in a manner that may constitute aiding or abetting a student or employee to violate federal drug laws.
Although the present state of the law indicates employee and student discipline issues involving medical marijuana should be handled according to the Education Code and other applicable law, we advise school districts and other readers to confirm with legal counsel that particular exceptional factual circumstances and potential further legal developments do not lead to a different conclusion.
