College Lawyers Grapple With the Implications of Medical Marijuana on Campuses

February 06, 2011

Emboldened by state laws that accommodate or decriminalize medical marijuana use, a new generation of college students is pushing institutions to let them toke up. But the response from affected colleges has been decidedly ungroovy.

At a panel session during the National Conference on Law and Higher Education here on Sunday, presenters told an audience that consisted mostly of university lawyers that deregulation of marijuana use need not compel colleges to relax their own conduct codes on drug use. That's because, as recipients of federal funds, colleges are governed by the federal statute that classifies marijuana as a controlled substance, experts said.

Colleges do, however, need to do a much better job of communicating with students, and faculty and staff members about how current conduct codes fit into the context of state legislation concerning marijuana, said Thomas A. Workman, an associate professor of communications at Baylor College of Medicine, who has worked on college substance-abuse-prevention programs.

"We can't just say 'Just say no.' 'Just say no' won't work anymore," Mr. Workman said at the conference, which was sponsored by the Stetson University College of Law.

Several institutions have already issued statements or revised policies to deal with confusion about the difference between state laws and university codes. Among them is the University of Montana at Missoula, which in 2010 adopted a policy specifically prohibiting the use of marijuana, even by people with state-issued medical-marijuana permits, in university housing, on university property, or at off-campus events sponsored by the institution.

Montana officials said at the time that they feared losing federal funds if they reversed the university's zero-tolerance position.

As could be expected, university policies that deny students access to prescribed marijuana can draw legal challenges. Edward Nicholson, a student at the University of Colorado at Boulder, threatened to sue the institution after the campus police in May 2008 confiscated marijuana he was authorized to administer to his brother, who sustained injuries in football. To great fanfare among legalization advocates, Mr. Nicholson was permitted to move to off-campus housing, and the police returned his two ounces of marijuana.

The university still forbids drug possession on campus, but it will release students from housing contracts if they live in residence halls and have a medical marijuana prescription. Other institutions—including Fort Lewis College, in Colorado, and Humboldt State University, in California—have taken a similar stance, advising medical-marijuana users to live off campus and leave their medicine at home.

Speakers on the panel here pointed out that while the "federal trump card" gives universities legal cover to ban marijuana use without fear of challenge under the Americans With Disabilities Act or similar state laws, they still face challenges when dealing with marijuana use among students.

Students tend to "romanticize" the drug, Mr. Workman said, a factor that is compounded by some professors, who were of college age in the 1960s and associate marijuana with the peace movement.

Indeed, it is marijuana's unique position within popular culture that so lures students to use it, Mr. Workman said. There's a lot of debate about marijuana's risks and potential medicinal value, and college administrators simply don't have a lot of research to point students toward in defense of prohibitive policies.

Students tend to view marijuana as a safe drug that serves a valuable social function, he added. "It's something you do at a table while making jokes and eating Doritos," he said, referencing depictions of marijuana use on "That '70s Show."

Darby Dickerson, vice president and dean of Stetson's law school, said it is important to convey to students, however, that there are reputational and legal risks to consider—even if they have marijuana prescriptions. Courts have upheld employers' rights to administer drug tests and sanction or terminate employees who fail tests because of prescribed marijuana use, she said.

"You don't get a free pass because you have a medical-marijuana card," she said.

Sunday's conversation invariably turned toward other legal drugs, including synthetic forms of marijuana known as "Spice" or "K2."

Mr. Workman reiterated that existing university policies forbidding the use of substances that pose "harm to self or others" already cover synthetic marijuana, but he expressed consternation with how frequently new substances seem to appear on the college scene. He noted, for example, the emerging trend of students snorting bath salts for a high.

"I don't know who was the bright, bright egg," he said. "Who was the future of America who said, 'Hmm, I wonder what would happen if I snort this up my nose?'"