PROPOSED ADMINISTRATIVE REGULATION DATE: January 29, 2010 TO: FROM: SUBJECT: Joint Academic Senate Student Affairs Committee Robert Myers, Campus Counsel AR on Medical Marijuana The College would like to adopt an Administrative Regulation on medical marijuana use on campus. We propose for your consideration the following new Administrative Regulation: AR 2430. In accordance with federal law and Board Policy 2430, possession and/or use of medical marijuana is prohibited in all property owned or controlled by the District. I. OVERVIEW The California statute that allows the use of medical marijuana explicitly prohibits its use in places where smoking is prohibited by law, and within 1000 feet of a school, recreation center, or youth center (unless the use occurs within a residence). California courts have held that allowing the use of medical marijuana is not required as a reasonable accommodation by employers. Anecdotal evidence of the policies of California colleges and universities indicates that a general policy of complete prohibition of the use of medical marijuana on campuses is common. Most importantly, federal law requires that all institutions of higher education implement a no tolerance policy for the use of federally prohibited drugs on campus and at campus sponsored events. Failure to comply with this law can result in the loss of all federal grants and other forms of federal financial assistance. It seems clear that reasonable restrictions placed upon the use of medical marijuana in a workplace or the public areas of a college campus will be upheld if challenged in court. The need for this policy arises because of on-campus use of marijuana by a student on November 13, 2009. When confronted by a Santa Monica College Police Officer, the student produced his medical marijuana prescription. To provide clear notice to students, we propose AR 2430. 1
II. RELEVANT CALIFORNIA STATUTE In August 2008 the California Attorney General published Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use. The sections dealing with enforcement guidelines mostly repeat the unambiguous language of the statute. They read as follows: 1. Location of Use: Medical marijuana may not be smoked (a) where smoking is prohibited by law, (b) at or within 1000 feet of a school, recreation center, or youth center (unless the medical use occurs within a residence), (c) on a school bus, or (d) in a moving motor vehicle or boat. (CAL. HEALTH AND SAFETY CODE SECTION 11362.79.) 2. Use of Medical Marijuana in the Workplace or at Correctional Facilities: The medical use of marijuana need not be accommodated in the workplace, during work hours, or at any jail, correctional facility, or other penal institution. ( 11362.785(a); Ross v. Ragingwire Telecomms., Inc. (2008) 42 Cal.4th 920, 933 [under the Fair Employment and Housing Act, an employer may terminate an employee who tests positive for marijuana use].) (California Attorney General Guidelines Section III. B.) III. CALIFORNIA SUPREME COURT PRECEDENT As noted above, as educational institution, the College is not required to allow medical marijuana use on its property. Likewise, as an employer, we have no duty to allow employees to use medical marijuana in the work place. The California Supreme Court has ruled that allowing the use of medical marijuana is not required as a reasonable accommodation by employers. In Ross v. Ragingwire Telecommunications, Inc., the California Supreme Court found that the Compassionate Use Act was intended to provide a defense in state criminal prosecutions, but not to eliminate an employer's legitimate interest in whether employees used drugs banned by federal law or to otherwise extend to employment law. (42 Cal.4th 920, 926-27 (2008).) Further, the Supreme Court found that no state law could completely legalize marijuana for medical purposes, because the drug remains illegal under federal law, even for medical users. It noted Plaintiff's position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law. (42 Cal.4th at 926.) The Supreme Court s analysis makes it clear that California medical marijuana law creates a narrow exception to criminal prosecution for those who prescribe, provide, or use medical marijuana for medical purposes. The Compassionate Use Act did not provide for broad exemptions for reasonable health and safety restrictions on the use of the drug. (Id., at 929.) 2
IV. FEDERAL DRUG-FREE SCHOLS AND COMMUNITIES ACT Published in the Federal Register (Vol. 55, No. 159, Aug. 16, 1990, pp. 33580-33601), the Drug-Free Schools and Campuses (DFSC) regulations state that, as a condition of receiving funds or other forms of financial assistance under any federal program, institutions of higher education (IHEs) must certify that they have implemented a program to prevent the unlawful possession, use, or distribution of illicit drugs and alcohol by students and employees. Creating a program in compliance with these regulations requires IHEs to prepare a written AOD policy, employ a sound method for distributing the policy each year to every student and employee, and prepare a biennial report on the effectiveness of their AOD programs and the consistency of policy enforcement. The regulations also specify minimum requirements for the written policy. Contents must include the following: (1) standards of conduct that prohibit the unlawful possession, use, or distribution of illicit drugs and alcohol on college property or as part of any college-related activities; (2) sanctions for violations of these standards, up to and including expulsion or termination of employment and referral for criminal prosecution; (3) applicable legal sanctions under local, state, and federal laws for the unlawful possession or distribution of illicit drugs and alcohol; (4) a description of the health risks associated with the use of illicit drugs and alcohol; and (5) AOD counseling, treatment, rehabilitation, or re-entry programs that are available to students and employees. Noncompliance with the regulations implementing the Drug-Free Schools and Communities Act can result in termination of all forms of federal financial assistance. (U.S. Department of Education, Complying with the Drug-Free Schools and Campuses Regulations: A Guide for University and College Administrators.) V. POLICIES OF OTHER CALIFORNIA COLLEGES A review of newspapers articles and online sources found a number of campus officials and police officers, particularly at California State University campuses, stating unequivocally that no exceptions to campus prohibition of marijuana use would be made regardless of whether or not the person who used or possessed the drug was in possession of a valid prescription. The few authorities quoted as giving reasons for this policy uniformly stated that as (partially) federally funded institutions their duties under federal law required a no tolerance policy. 1. Overview The college policies regarding the use of medical marijuana that are easily available online are short and direct. It seems that no nuance is really necessary because, from the perspective of a college or university, the controlling issue is compliance with federal law. Specifically, the Federal Drug Free Schools Act requires that in order to receive any federal funding all higher education institutions must certify that they have policies that comply with federal drug laws. See the U.S. Department of Education s website at: 3
http://www.higheredcenter.org/mandates/dfsca stating, in part: Part 86, the Drug and Alcohol Abuse Prevention Regulations (Education Department General Administrative Regulations [EDGAR]), requires that, as a condition of receiving funds or any other form of financial assistance under any federal program, an institution of higher education (IHE) (1) must certify that it has adopted and implemented a program to prevent the unlawful possession, use, or distribution of illicit drugs and alcohol by students and employees. If audited, failure to comply with the Drug and Alcohol Abuse Prevention Regulations may cause an institution to forfeit eligibility for federal funding. (http://www.higheredcenter.org/mandates/dfsca, retrieved 12/12/09.) As you will see below, CSU Sonoma (8) and San Francisco City College (9) have policies that are less absolute than those at most other colleges, and SFCC s could arguably permit the use of prescription marijuana. Most California colleges and universities have no easily accessible policy that explicitly addresses the use of medical marijuana. 2. Sample Policies A. Humboldt State: Humboldt State University does not recognize nor permit medical marijuana in any form possession or use on its property. Possession or use of medical marijuana is a violation and will be enforced. B. CSU Los Angeles: The possession, sale, use, or being in the presence of illegal drugs or controlled substances, as well as possession of drug paraphernalia, as those terms are used in the California Penal Code, the California Health and Safety code, and any relevant Federal regulations and legislation, is prohibited (this includes medical marijuana). Furthermore, inappropriate or illegal behavior while under the influence of drugs or controlled substances is also a violation. Individuals found in violation can be subject to action up to, and including, termination. C. CSU San Francisco: In accordance with State and Federal law, possession, sale, use, or manufacturing of any illegal or controlled substance or abuse of prescription drugs other than their intended use for the person to whom they are prescribed, is prohibited in the residence facility and on campus. Possession or use of drug paraphernalia is also prohibited in the residence community. Drug paraphernalia includes 'bongs', pipes, and/or other devices that may be used to facilitate the consumption of illegal drugs. Any paraphernalia found will be confiscated. Use of medical marijuana is not permitted and medical marijuana cards are not recognized on campus and in the residence facilities. 4
D. Santa Clara University: Santa Clara University does not permit the use of marijuana for any purpose on University property. Students who qualify under California Proposition 215 to use marijuana for medical purposes are not permitted to possess, store, -provide, or use the marijuana on University-owned or controlled property (including but not limited to residence halls, academic buildings, athletic -facilities, and parking lots), or during a University-sanctioned activity -regardless of the location. Students who violate this policy are in violation of the Student Conduct Code and are subject to disciplinary action. E. Loyola Marymount University: In accordance with federal law and University regulations, possession and/or use of medical marijuana is prohibited. F. UC Santa Barbara: Controlled Substances: Federal law, state law and University policy prohibit the solicitation, procurement, sale or manufacture of narcotics or controlled substances. Additionally, the possession of drug paraphernalia is prohibited in the residence halls. Any student known or suspected to be in possession, using or distributing drugs, including medical marijuana or drugrelated paraphernalia is subject to disciplinary action and/or criminal action under state law. G. UC Santa Cruz: You must adhere to all federal, state and local laws as they pertain to legal substances. Because UCSC receives federal aid, the University and Porter College adhere to all federal, state, and local laws. The University, as well as federal and state laws, prohibits the possession, use, sale or transportation of any drug. Violation of these laws and policies will result in judicial action at the college level, and may also result in police and local, state and/or federal intervention. Any person found to be under the influence of any drug is in violation of College policy. Unlawful manufacture, distribution, dispensing, possession, use, or sale of, or the attempted manufacture, distribution, dispensing or sale of controlled substances, identified in federal and state law or regulations, is strictly against University policy. Additionally, the University does not recognize the privileges associated with a medical marijuana card. H. CSU Sonoma: Marijuana use in the State of California is controversial and its perceptions will continue to change both socially and politically. Although marijuana can currently be prescribed for medicinal purposes, due to the Drug Free Schools Act, possession of marijuana on the SSU campus, for any reason, is a housing violation. Regardless, it is our hope that it is both clear and representative of an academic living environment. Use and/or possession of marijuana conflicts with the academic setting, and threatens the educational intent of the community members at large. 5
VI. POLICY CONCLUSIONS A college policy prohibiting the use of medical marijuana on campus is supported by many factors. 1. Because SMC is generally a smoke free campus, the use of medical marijuana (except in other forms) is already prohibited in all but designated smoking areas. 2. Prohibition on use near a school: Community colleges are included in the definition of schools in the federal Drug-Free Schools and Communities Act. SMC s campus is also a school for the purposes of the California statute. Because the compassionate use act prohibits use of medical marijuana at or within 1000 feet of a school, its use should be prohibited at SMC. 3. Not a reasonable accommodation: Because California courts have unambiguously held that the use of medical marijuana need not be required as a reasonable accommodation under either state or federal law, there is no reason to think that any reasonable restriction on the on-campus use of medical marijuana that SMC decides to adopt will be open to successful challenge on disability discrimination grounds. 4. Current federal law prohibiting the possession and use of marijuana makes no exception for the use of marijuana that is prescribed for medical uses. Therefore, in order to comply with the Drug-Free Schools and Campuses Regulations, SMC must implement a clear policy prohibiting the use of medical marijuana on its campus and at campus activities. Regardless of California law, failure to explicitly prohibit the use of all drugs currently illegal under federal law could result in the loss of all forms of federal grants and financial aid to SMC. VII. RECOMMENDED POLICY FOR SANTA MONICA COLLEGE It is recommended that the following Administrative Regulation be adopted: AR 2430. In accordance with federal law and Board Policy 2430, possession and/or use of medical marijuana is prohibited in all property owned or controlled by the District. 6