Medical Cannabis, Schools and Civil Rights

In 2016, I received a call from a distraught mother, who had been referred to me by the Washington State chapter of the National Organization for the Reform of Marijuana Laws (“NORML”) for possible pro bono representation of her and her son in some kind of marijuana-related civil rights/liberties case. I was surprised by this referral as I had only recently taken on my first ever cannabis business client, a top shelf processor whose employment and business disputes I had been handling. Since early in my legal career, when I had been a young prosecutor and criminal defense attorney, I had represented virtually no clients who were suing or being sued due to civil rights violations.

I expected this case would be an adventure. It sounded interesting enough to listen to Kelly’s mother. This young mother asked if I would represent her and her son pro bono, which I agreed to do after hearing their story. Kelly was 15 and had just been suspended from high school, after being caught smoking pot just off the high school campus. Kelly had a medical marijuana certificate, which his mother had helped him get. While no major scholar, Kelly was doing better in school and feeling far better using cannabis than he had while being treated with “traditional” mental health medications (Ritalin, Adderall, and others), which Kelly had been prescribed. While on these traditional legal medications, Kelly did much poorer in school–while also being debilitatingly anxious, depressed, at times even suicidal–although he had been, generally, an energetic, optimistic person most of his life.

I vividly remember driving Kelly to his high school, and how important it was to him–win or lose, before we had even entered the high school–to take a picture with his buttoned-down attorney and his fancy car. Kelly had no real grasp of the legal issues, nor should he have. He just knew that cannabis helped him to study and learn better, with significantly reduced and less debilitating side effects than the “traditional” psychotropic medications that had been prescribed to him.

I had no real idea how I would convince the school and school district officials that Kelly’s experience should allow him to use cannabis. But I figured my best move would be to listen a lot, and to be ready with names of medical experts the school officials might respect.

I was in for a big surprise. The big and tall vice principal, a former pro football player, had obviously already given this case much thought. I could tell he was an open-minded empathic person, who had decided to give my young client a break.

“Can Kelly avoid smoking marijuana?” he asked. “How can I explain to the other students and teachers if Kelly comes in from breaks smelling like pot?” This distinction between conspicuous public consumption versus quiet private use made good sense to me. School officials must do their jobs. Kelly seemed to agree.

“So if Kelly uses only edible pot or oil, you’re okay with that,” I queried. “Yes,” said the vice principal. And just like that, I had won my first cannabis civil rights case without fighting. I was very happy for Kelly, his mother, and the enlightened school officials who helped along the way.

Recently, I contacted Kelly’s mom to share the good news that a new Colorado law legalizes administration by nurses of non-smokable cannabis in schools. The law is referred to as the “Quintin Amendment,” after a third-grader named Quintin, whose medical ordeal with and effective treatment for epilepsy and Tourette’s syndrome helped to galvanize popular support for marijuana in Colorado.

This new Colorado law is actually a bit less dramatic than it seems, as minor student use was already legal in Colorado schools, if prescribed by a doctor and administered by a parent or guardian, pursuant to Colorado’s well-known “Jack’s Law,” named after a nationally publicized inspiring case in which a principal non-psychoactive cannabinoid, CBD, was used successfully to treat a boy named Jack who had severe cerebral palsy.

This newer Colorado law proceeds a step further by authorizing administration of marijuana by a school nurse, after “a written plan for the administration of medical marijuana in a non-smokeable [sic] form is agreed to and signed by the school principal … and a parent or legal guardian.”  This new Colorado law allows nurses to administer marijuana legally, but it does not require them to do so; they retain discretion to refuse.

A written recommendation by a physician is required, and this doctor’s note must instruct the school nurse about dosage and timing of administration.  The parents must release the school from all liability. And all administration must be carried out at a reasonable time and in a reasonable manner so as to avoid “disruption to the educational environment or cause[] exposure to other students.”

Although most states have yet to face and resolve this precise issue of school administration of cannabis, the general trend now, both across the United States and abroad, is toward increased liberality toward marijuana use. Canada has just legalized marijuana. The liberation of cannabis cultivation and use continues apace, offering new business and investment opportunities every day. We are constantly working on these matters, primarily in Washington, Oregon and California.

Kelly, his mom, and countless others like them continue to work for broader and better legislation in many different states, by showing the public impressive science supporting medical cannabis efficacy for many serious maladies. After all, cannabis legalization may even increase college enrollments!