Drugs, Substance Abuse,
and Public Schools
A Legal Guide for School Leaders Amidst Evolving Social Norms
With a foreword by the National Association of School Nurses
Drugs, Substance Abuse,
and Public Schools
A Legal Guide for School Leaders Amidst Evolving Social Norms
With a foreword by the National Association of School Nurses
Copyright © 2019 by the National School Boards Association. All Rights Reserved.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
1
TABLE OF CONTENTS
FOREWORD ....................................................................................................................................................... 4
INTRODUCTION .................................................................................................................................................5
I. MEDICATIONS AT SCHOOL .........................................................................................................................6
Q1. What policies and procedures are needed to ensure that all student medications at school are properly
stored and administered? .................................................................................................................................... 6
Q2. Who can administer medications to students at school? Under what circumstances may unlicensed
assistive personnel (UAP) do so? .........................................................................................................................7
Q3. Should schools include the administration of medication in a student’s IEP or Section 504 plan? .......... 8
Q4. Should school districts allow parents/guardians to volunteer to administer medications to their
children? Does it matter whether the parent is a licensed medical professional? What policies and
procedures should be in place if the district determines that parent volunteers may administer medication
to their own or other children (such as on eld trips)? ...................................................................................... 9
Q5. Who should administer medication in school if trained medical sta are not available? .......................... 9
Q6. Are there any legal protections for school nurses, other sta, or the district for administering
medications to students? ...................................................................................................................................10
Q7. Given that the FDA classies naloxone as a prescription-only drug, should school districts have a
supply of naloxone available to administer to individuals who have overdosed? What state level naloxone
administration laws include schools as a site for having naloxone on hand? .................................................. 11
Q8. Should school districts have certain common emergency medications on hand beyond student-specic
prescriptions taken in accordance with an individualized healthcare plan, Section 504 plan, or IEP? ........... 11
Q9. When certain drugs (e.g., epinephrine autoinjectors) necessary to student care are unavailable (e.g.,
due to shortages or exorbitant costs), what alternatives does a district have?
Is it acceptable to administer
expired drugs? What protocols should be in place? ..........................................................................................12
II. MARIJUANA ................................................................................................................................................ 13
Q10. If a student is prescribed or is a registered user of medical marijuana, must a school district permit
the use of the drug on school premises or provide other accommodations for the individual’s use of
medical marijuana? .......................................................................................................................................13
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
2
Q11. May a school allow a student to use medical marijuana on school grounds without violating federal law?
How does this aect any federal funds the district may receive? ....................................................................14
Q12. If a school decides to permit student use of medical marijuana, who should administer it?
Where
should it be stored? .............................................................................................................................................14
Q13. What steps should school districts take to verify that a student is a registered user of medical
marijuana and that the person administering it is legally permitted to do so? ................................................14
Q14. Can a school prohibit students from possessing, using, or distributing medical marijuana at school?......15
Q15. Can a school district regulate a student’s legal use of marijuana (whether medical or recreational)
o-campus?.........................................................................................................................................................15
III. TOBACCO AND RELATED PRODUCTS ......................................................................................................16
Q16. May schools prohibit the possession and use of tobacco products at school by students? ...................16
Q17. May schools prohibit vaping devices, such as e-cigarettes? .....................................................................16
Q18. Is vaping an acceptable method of administering medical marijuana? ...................................................18
IV. SCHOOL AUTHORITY TO DISCIPLINE AND STUDENT RIGHTS .............................................................18
Q19. What student rights should schools keep in mind when developing policy and making decisions
regarding student discipline for drug involvement? .......................................................................................... 18
Q20. May a school district discipline a student for being under the inuence of a drug or alcohol while at
school? May a school district require an impairment assessment onsite if a student is suspected of being
under the inuence of drugs or alcohol? .......................................................................................................... 20
Q21. When can a school district require a student to submit to drug or alcohol testing? .............................. 20
Q22. Can a school district require a student to undergo/continue participating in drug/alcohol treatment
as a condition of attending school or participating in extracurricular activities? ........................................... 20
Q23. Can a school district prohibit a student found to have committed a drug/alcohol infraction, whether
on or o campus, from participating in extracurricular activities? ................................................................. 20
Q24. What special rules apply to the discipline of IDEA-covered students who are alleged to have violated
the district’s drug policies or federal/state law? ...............................................................................................21
Q25. Does student alcoholism or illicit substance use or chemical dependency qualify as a disability under
the IDEA or Section 504? If so, does this change how a district may discipline a student found to have
committed a drug or alcohol infraction? ........................................................................................................... 22
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
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Q26. What considerations should a school district address in its code of conduct provisions concerning
student involvement with illicit substances? .................................................................................................... 22
V. STUDENT EDUCATIONAL PERFORMANCE AND DRUG USE .................................................................. 23
Q27. If school leaders suspect that a student’s educational performance is aected by his/her established
or suspected chemical dependence, what are the school district’s responsibilities toward that student? ....... 23
Q28. Should school districts address a special education student’s chemical dependency in his/her IEP? .... 23
Q29. May a school district delay an educational evaluation of a student it suspects is actively
using chemicals? ................................................................................................................................................ 23
Q30. Can a school district require a student to undergo a chemical health assessment as part of an
educational evaluation? ..................................................................................................................................... 24
VI. STUDENT PRIVACY AND DRUG USE ........................................................................................................ 24
Q31. What does federal law require schools to do to keep student medication and drug involvement
information condential? .................................................................................................................................. 24
Q32. How do applicable laws address continuity of care communications between healthcare providers
and school nurses when a student returns to school from inpatient drug use treatment? ........................... 24
RESOURCES .................................................................................................................................................... 25
CHARTS ........................................................................................................................................................... 26
ENDNOTES ......................................................................................................................................................40
NSBA thanks the National Association of School Nurses for reviewing and providing input to this publication.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
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FOREWORD
A third grade student comes to school days after being diagnosed with type 1 diabetes,
requiring insulin and treatment in case of low blood glucose. An assistant principal nds a
ninth grade student hidden behind a car vaping in the high school parking lot. School district
leaders attend a community conversation hosted by the state health department – the topic
of discussion: the opioid epidemic. These reality-based scenarios require school board
guidance and policy development. School nurses and other local school professionals implement school board
policies to support student health, safety, and readiness to learn.
As a partner in support of student success and well-being, the National Association of School Nurses (NASN)
worked closely with the National School Boards Association (NSBA). NASN members possess expertise to
inform evidence-based policies and practices for safe medication administration in schools. We are pleased
to collaborate with NSBA in the review of this legal guide for school leaders. School nurses observe the home
and community factors that impact student health and learning and work with the school team and link with
community-based resources to support students. These data are shared with school boards to inform their
policy making. Topics such as medical marijuana use in schools and drug use by students require knowledge of
federal and state laws. This legal guide provides responses to the questions school leaders are asking, making
the guide useful and practical for school boards. NASN applauds NSBA for gathering and organizing current
state laws on drugs and substance use as they relate to schools.
Drugs, Substance Abuse and Public Schools: A Legal Guide for School Leaders Amidst Changing Social Norms,
reects the NSBA’s mission to advocate for equity and excellence in public education through school board
governance and NASN’s mission to optimize health and learning for all students by advancing school nursing
practice. School boards will nd the information needed to write policies and implement practices that support
healthy, safe, and supported students.
Donna Mazyck
Executive Director
National Association of School Nurses
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
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INTRODUCTION
Today more than ever issues of drugs and medications in schools present a challenging
landscape for school boards and school ocials. This legal guide is intended to help
schools navigate the complicated patchwork of federal, state and local laws and
regulations governing the presence and use of both authorized medications and illicit
drugs in school. From medication management to increasingly novel issues such as
medical marijuana, to the rise of troubling trends aecting children such as the opioid addiction and
e-cigarettes, to student privacy rights and discipline, this publication will guide school board members in
policy making and school board ocials in identifying issues and appropriate responses to help ensure
student well being and to maintain safe school environments. The National School Boards Association is
especially pleased to be joined by the National Association of School Nurses in this eort, and we
acknowledge their generous review. Our hope is that this guide, which will live digitally on the NSBA website
and will be available through many of our state association members, will help school leaders proactively
prepare for and meet the many challenges, new and old, in this area.
Thomas J. Gentzel
Executive Director & CEO
National School Boards Association
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
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I. MEDICATIONS AT SCHOOL
Q1. What policies and procedures are needed to ensure that all student medications at
school are properly stored and administered?
Some states have laws or standards that establish specic policies for administration of medications in
schools that apply to all school districts in that state.
1
This prevents signicant discrepancies between school
districts within the state and reduces confusion for parents of medicated children and prescribing health care
professionals. When state laws or guidelines do not exist, school health professionals, consulting physicians,
and medical advisory committees should be involved in this process.
2
Well-written policies and procedures will enable schools to fulfill their obligations to provide needed
health-related services to students during the school day with consistency. School policies and
procedures should address:
• delegation (when permissible by state law), training, and supervision of unlicensed assistive
personnel (UAP);
• student condentiality;
• medication orders;
• medication doses that exceed manufacturer’s guidelines;
• proper labeling, storage, disposal, and transportation of medication to and from school;
• documentation of medication administration;
• rescue and emergency medications;
• o-label medications and investigational drugs;
• prescription and over-the-counter (OTC) medications;
• complementary and alternative medications; and
• psychotropic medications and controlled substances.
3
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
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Q2. Who can administer medications to students at school? Under what circumstances may
unlicensed assistive personnel (UAP) do so?
Ideally, registered professional school nurses should be responsible for administering medication in the school
setting. To administer any prescribed medication, schools should require a written statement from the parent
and the physician that provides the name of the drug, the dose, approximate time it is to be taken, and the
diagnosis or reason the medication is needed.
7
Individualized Healthcare Plans
What – An Individualized Healthcare Plan (IHP) is a written document that describes the medical needs
of a student during the school day and outlines how the school will provide healthcare services to the
student, along with specic student outcome goals.
Why – IHPs are created for students whose healthcare needs aect or have the potential to aect their
safe and optimal school attendance and academic performance.
4
IHPs fulll administrative and clinical
purposes including management of healthcare conditions to promote learning; facilitating communication,
coordination, and continuity of care among service providers; and evaluation/revision of care provided.
5
How – IHPs are typically developed using steps based on the nursing process:
1. Assessment: The school nurse collects comprehensive data pertinent to the student’s health
and/or situation.
2. Nursing Diagnosis: The school nurse analyzes the assessment data to determine the diagnoses
or issues.
3. Outcome Identication: The school nurse identies expected outcomes for a plan individualized
to the student or the situation.
4. Planning: The school nurse develops a plan that prescribes strategies and alternatives to attain
expected outcomes.
5. Implementation: The school nurse implements the identied plan.
6. Evaluation: The school nurse evaluates progress toward attainment of outcomes.
6
Whom – The IHP usually is developed and managed by the school nurse, in collaboration with the
student, family, and healthcare providers.
When – Usually the school nurse implements, manages, and evaluates the IHP at least yearly and as
changes in a student’s health status occur to determine the need for revision and evidence of desired
student outcomes.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
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When a school nurse is not available, it is recommended that a trained and supervised unlicensed assistive
personnel (UAP) who has the required knowledge, skills, and composure to deliver specic school health
services do so, under the guidance of a licensed Registered Nurse (RN). A licensed RN, or a school nurse,
may delegate duties that allow UAPs to provide standardized routine health services. UAPs operate under the
supervision of the nurse, and on the basis of physician guidance and a school nursing assessment of the unique
needs of the student and the suitability of delegation of specic nursing tasks.
8
The nurse determines which nursing services can be delegated and then selects, trains, and evaluates the
performance of a UAP (within the personnel policies of the school district), audits school medication records
and documents, and conducts refresher classes throughout the school year.
9
The training, certication,
and supervision of a UAP should be determined by national and state nursing organizations and state nurse
practice laws. In most circumstances, a medication UAP should be an ancillary health oce sta member
(health assistant/aide) who is also trained in basic rst aid and district health oce procedures.
10
The administration of certain medications may be specically designated by law as a “nursing function” that
may not be delegated to a UAP, such as those that are required to be given intravenously or subcutaneously,
or those that need to be specically measured, or for which the dosage must be based upon the symptoms in
question.
11
Most states now expressly permit non-medical personnel to administer some emergency injectable
medications, such as EpiPens for allergies and glucagon for diabetes.
12
Other medications, such as those that
must be rectally administered in emergency situations, like the commonly prescribed emergency medication
for epilepsy called Diastat, vary more widely state by state.
13
In some instances, older and responsible students should be allowed to self-medicate at school with over-
the-counter medications and certain prescription medications (albuterol for asthma, insulin for diabetes)
when this is recommended by the parent and physician.
14
Schools should obtain written notication from
parents acknowledging that the school bears no responsibility for ensuring the medication is taken. School
districts allowing such self-medication often establish clear policy stating that if a student shares his/her
medication with classmates, the school will immediately conscate the medication and revoke the student’s
privilege of self-administration.
Q3. Should schools include the administration of a medication in student’s IEP or Section
504 plan?
Section 504 of the Rehabilitation Act
15
and the Individuals with Disabilities Education Act (IDEA)
16
provide
protection for students with disabilities by requiring schools to make reasonable accommodations, to provide
special education and related services, and to allow for safe inclusion of these students in school programs.
These federal laws do not cover all students who require medications during the school day (e.g., short-term),
and are not specic about how administration of medications should be conducted in school.
17
If a student with a qualifying disability under the IDEA and/or Section 504 requires the administration of
medication during the school day, such administration is typically deemed to be a related service to which the
student is entitled as part of his accommodations and/or special education services under these statutes.
18
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
9
Under Section 504, in addition to the development of an IHP, parents and the student are entitled to an
evaluation and meetings using a team process that involves the parents to determine what accommodations
are necessary and/or appropriate for the student.
19
A similar process takes place under IDEA as a student’s
Individualized Education Program (IEP) is developed and modied.
Q4. Should school districts allow parents/guardians to volunteer to administer medications
to their children? Does it matter whether the parent is a licensed medical professional? What
policies and procedures should be in place if the district determines that parent volunteers
may administer medication to their own or other children (such as on eld trips)?
Maybe. Some parents who are accustomed to providing medication and other services to their children may
volunteer to do so on eld trips and at school events. Even when state law does not prohibit this practice,
schools should ensure that the parents are aware that while the school may allow parents to provide such
services to their students, they are not required to do so.
20
Without proper documentation of the fact that the
parents have requested to provide these services, it may appear that the school is unwilling or ill-equipped
to provide them.
21
Schools should document in a student’s Section 504 plan the procedures to be followed
when a parent provides certain accommodations, and should state clearly that the school is able and willing to
provide the services if the parents is unwilling or unable to do so. In many cases, it is helpful (and in some cases
necessary) to set forth protocols for parents who voluntarily choose to provide services for their child on a
regular basis to notify the school when they are not able to do so for a specic event.
22
In some cases, there may be a parent with current nursing qualications who volunteers to serve in his/her
nursing capacity on school trips or at school events. Schools should be cautious about how they handle these
arrangements, as the volunteer nurses would be providing professional services, not just general volunteer
services. Schools should review their insurance policies and contact their carriers, where necessary, to determine
whether a volunteer nurse would be covered under the school’s liability coverage. While schools should check with
their carriers to be sure, it is likely that coverage eectively will extend to the volunteering parent. If the school
determines that it is necessary or benecial to hire the individual on a per diem basis, it also should make sure
that such action is not in violation of any bidding requirements or other legal obligations.
Q5. Who should administer medication in school if trained medical sta are not available?
On rare occasions when a member of the health oce sta (RN, licensed practice nurse, or UAP health
assistant/aide) is not available, other willing volunteer school sta may be trained by the licensed RN to
assume specic limited tasks such as single dose medication delivery or lifesaving emergency medication
administration.
23
In those instances, it is important for the school district to identify and satisfactorily address
medical liability issues for the district, the nurse, and the voluntary nonmedical sta member who is serving
temporarily as UAP.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
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Q6. Are there any legal protections for school nurses, other sta, or the district for
administering medications to students?
State laws provide tort immunity for school ocials, including school nurses, though that immunity varies
by state. Federal courts have recognized that federal, state, and local ocials, including school ocials, are
entitled to qualied – not absolute — immunity when they are sued for damages in cases claiming violations of
the Constitution and federal law.
24
The Supreme Court has not denitively decided if qualied immunity shields
school nurses regarding violations of administering mediations, though some federal courts have extended the
right to school nurses in the Fourth Amendment (search/seizure) context.
25
School districts should seek legal advice when they assume the responsibility for giving medication during
school hours. Liability coverage should be provided for the sta, including nurses, teachers, athletic sta,
principals, superintendents, and school board members.
26
Schools should establish protocols for the documentation of all medications given at school, whether emergency
or routine. Some schools use a log; others use a computer-based student medical record system. Any errors
The Opioid Crisis
Every day, more than 115 people in the U.S. die after overdosing on opioids.
28
Unintentional drug
overdose is one of the leading causes of preventable death in the country.
29
According to the Centers
for Disease Control and Prevention (CDC), the rate of overdose among high school students nearly
doubled from 1999 to 2015.
30
From 2014 to 2015, overdose deaths increased by 19% among high school
aged children (15-19).
31
A study conducted to estimate risk of future opioid misuse among high school
adolescents found that legitimate opiate use in the high school years (to manage pain) is “independently
associated with a 33% increase in the risk of future opioid misuse after high school.”
32
Naloxone is a medication designed to rapidly reverse opioid overdose. It is an opioid antagonist—it binds
to opioid receptors and can reverse and block the eects of other opioids. It can very quickly restore
normal respiration to a person whose breathing has slowed or stopped as a result of overdosing with
heroin or prescription opioid pain medications. There are three FDA-approved formulations of naloxone:
1) injectable (professional training required); 2) autoinjectable; and 3) prepackaged nasal spray.
33
Some states have increased access to naloxone by passing legislation protecting prescribers and
dispensers. Currently, 35 states give immunity to third-party prescribers and those who dispense
naloxone to an overdose victim. A third-party prescriber is a pharmacist who prescribes a drug to a
person other than for whom the drug is intended. Here, naloxone is made available to people who are
likely to be near a person who is overdosing, often users themselves or concerned family members.
In a school setting, the third party could be a school nurse or member of the school’s administration.
Currently, 46 states permit pharmacists to prescribe naloxone to third parties, while ve continue to
prohibit the practice.
34
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
11
in medication administration at school need to be reported to at least one common supervisor so that patterns
of errors can be identied, and corrective action can be taken. Measures taken by school administrators after a
medication error must be designed so that they do not discourage sta self-reporting of errors.
27
Q7.
Given that the FDA classies naloxone as a prescription-only drug, should school districts
have a supply of naloxone available to administer to individuals who have overdosed? What
state level naloxone administration laws include schools as a site for having naloxone on hand?
Maybe. The pharmaceutical company that makes Narcan (currently the only available FDA-approved nasal spray
version of naloxone) oers limited free doses to libraries, YMCAs, and high schools in the U.S.
35
In the school
setting, school nurses are the most likely to administer naloxone to an overdosing student, but other personnel
may be on the scene rst.
36
Some school districts have hesitated to participate in this program, asserting that the risk of liability is greater
than the potential benet. Others, alternatively, note “the severity of the opioid problem has overwhelmed any
concerns they might have about the optics of naloxone.”
37
Many states have Good Samaritan laws that protect bystanders and rst responders who help in an emergency;
these laws usually apply in the school setting. Depending on the state, school personnel are immune from civil and/
or criminal liability when they assist in an overdose emergency at school. When a naloxone dispenser acts within the
scope of her employment and administers naloxone to an overdose victim at school, the law usually presumes that
the person is acting in the state’s interests by preventing an overdose. She is usually protected not only by newer
naloxone legislation, but also by her state’s tort immunity laws, and the extension of Good Samaritan laws.
38
Q8. Should school districts have certain common emergency medications on hand beyond
student-specic prescriptions taken in accordance with an individualized healthcare plan,
504 plan or IEP?
Yes. For lifesaving emergency medications to be eective, they must be accessible immediately in emergency
situations. Schools should make the availability of such medications (e.g., autoinjectable epinephrine, albuterol,
rectal diazepam, and glucagon) a high priority. To maintain medication security and safety and to provide for timely
treatment, school procedures should specify where medications will be stored, who is responsible for the medication,
who will regularly review and replace outdated medication, and who will carry the medication for eld trips.
Emergency Plans
Stocking emergency medications is a solid practice, but not a substitute for emergency action plans that
call for notifying rst responders. School districts should develop clear emergency action policies and
procedures, and actively train sta to follow them. Sta should call 911 in a medical emergency, including
one requiring the administration of emergency medication.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
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Schools also need an adequate supply of emergency medications in the event of a school lock-down or
evacuation. Parent-supplied extra medication and/or school-supplied stock medications (including but
not limited to autoinjectable epinephrine and albuterol inhalers) are among the emergency or urgent care
medications that need to be available in these circumstances.
39
Q9. When certain drugs (e.g., epinephrine autoinjectors) necessary to student care are
unavailable (e.g., due to shortages or exorbitant costs), what alternatives does a school district
have? Is it acceptable to administer expired drugs? What protocols should be in place?
In August 2018, the FDA announced that it would extend the expiration date on some EpiPens by four months,
indicating that expired epinephrine can still potentially save lives. FDA recommends to schools that expired
undesignated (stock) epinephrine autoinjectors should not be discarded until they can be replaced with new
ones. Moreover, schools should allow students to carry or store their prescribed autoinjectors past the expiration
date until in-date autoinjectors become available.
40
School districts should check their state laws regarding
expired medications, as some state nursing regulations do not allow school boards to accept or administer
expired medications, regardless of the FDA’s statement.
All prescription medications brought to school should be in original containers appropriately labeled by the
pharmacist or physician. Except for self-carry medications, they should be stored securely in accordance with
manufacturer directions. Controlled substances must be double-locked. The school nurse, licensed practice
nurse, or delegated, trained UAP must be available and have access to the medications at all times during the
school day. All medications should be returned to the parents at the end of the school year or disposed of in
accordance with existing laws, regulations, and standards.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
13
Marijuana 101
Marijuana is a species (Cannabis sativa L.) of the Hemp family of plants, under
the genus Cannabis L, which is also called “hemp.”
41
“Marijuana” is commonly
used interchangeably with “cannabis,” while “hemp” commonly refers to a
cannabis plant that contains less than .3 percent THC (explained below).
42
Marijuana produces resin containing compounds called cannabinoids.
43
The two well-known cannabinoids are tetrahydrocannabinol (THC) and cannabidiol (CBD), both of which
produce drug-like eects in the human body. THC is the main psychoactive component of the cannabis
plant. It is the primary agent responsible for creating the “high” associated with recreational cannabis
use.
44
CBD, on the other hand, is non-psychoactive; it will not get the user “high.” For this reason, CBD
appears more frequently than THC in dietary and natural supplements.
Marijuana is a controlled substance in the U.S., which means its possession is prohibited without specic
licensing.
Medical marijuana use is legal in some states, and some have legalized recreational use.
(See Chart C, p. 39.)
On December 12, 2018, the U.S. Congress passed legislation that will legalize the use of CBD, one of hemp’s
byproducts, at the federal level.
45
This change in federal law likely will lead to increased availability of CBD-
infused products in retail outlets. The law also will permit farmers to legally grow industrial hemp.
46
II. MARIJUANA
Q10. If a student is prescribed or is a registered user of medical marijuana, must a school
district permit the use of the drug on school premises or provide other accommodations for
the individual’s use of medical marijuana?
No. The majority of states that allow the use of medical marijuana by law still bar its consumption in public
places, which includes school property and school buses. Currently Colorado, Delaware, Florida, Illinois, Maine,
New Jersey, Oklahoma, Pennsylvania, Washington, and West Virginia allow specic uses on school grounds, with
parameters. Ohio’s medical marijuana law neither requires a public place to allow the use of medical marijuana,
nor prohibits any public place from allowing the use of medical marijuana.
Colorado, Delaware, Illinois, and New Jersey permit parents to give their child non-smokable medicinal
marijuana-derived products at school. In 2018, Colorado expanded its law to allow school sta to administer
the medication. Maine expanded state regulations to permit medical marijuana use at school, according to the
Education Commission of the States. (See Chart A, p. 26.)
Proposed legislation in California would let school boards decide whether to allow medical cannabis at schools
if a child has a doctor’s note. Currently, the drug cannot be prescribed because, with limited exceptions, it
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
14
is illegal under federal law — classied as one that has “no accepted medical use.”
47
States that allow use of
cannabis for medicinal purposes require patients and medical providers to register.
Q11. May a school allow a student to use medical marijuana on school grounds without
violating federal law? How does this aect any federal funds the district may receive?
Maybe. Marijuana is still listed on Schedule I of the federal Controlled Substances Act. Some states that permit
the use of medical marijuana on school grounds allow schools to prohibit such use if they lose federal funding
because of implementing that policy.
48
States that allow use of cannabis for medicinal purposes require
patients and medical providers to register.
Some school ocials have expressed opposition to state laws and policy allowing medicinal marijuana use
at school, citing the risk to federal funds, including money for school breakfasts and lunches for low-income
students, which are contingent on schools being drug-free zones. Others, including the California Schools
Boards Association, have supported new laws similar to those adopted in the states of Washington, Florida,
Colorado, New Jersey, and Maine, to enable a governing board to adopt a policy allowing the administration of
medical marijuana on campus where appropriate to create a more accessible education program for students
with severe medical issues that may be treated with marijuana products.
49
State courts have started to address the interaction of state and federal law regarding marijuana use. Some
have ruled that medical marijuana laws do not conict with federal law because they merely carve out a narrow
exemption to criminal prosecution under state law, leaving federal authorities to prosecute at their discretion.
50
Q12. If a school decides to permit student use of medical marijuana, who should administer
it?
Where should it be stored?
States that permit medical marijuana use in schools (currently Colorado, Delaware, Florida, Illinois, Maine, New
Jersey, Oklahoma, Pennsylvania, Washington, and West Virginia) regulate who administers it and how it is stored.
(See Chart A , p. 26.) Delaware and Oklahoma expressly prohibit nurses from administering medical marijuana.
Colorado’s statute directs that the primary caregiver will administer and “remove any remaining medical marijuana
in a nonsmokeable form from the grounds of the preschool or primary or secondary school, the school bus, or
school-sponsored event.”
51
Illinois’ statute contains similar language.
52
(See Chart B, p. 34)
Q13. What steps should school districts take to verify that a student is a registered user of
medical marijuana and that the person administering it is legally permitted to do so?
States authorizing the use of medical marijuana at school specify by statute who must register as both users
and caregivers, and how they must do so. (See Chart A, p. 26.)
School district policies often reect state statutory requirements. For example, the Boonton Township Board of
Education in New Jersey has implemented a medical marijuana policy, which states: “Students authorized to
use medical marijuana, including adult students, are not authorized by law to self-administer the medication
on school grounds, on the school bus or at school sponsored activities. In all cases, a primary caregiver shall be
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
15
required to assist with the administration of the prescribed medical marijuana on school grounds, on the school
bus, or at school sponsored activities subject to law and this board policy. In order for the prescribed medical
marijuana to be legally administered, the student and primary caregiver shall possess a current registry
identication card. The NJDOH shall issue a registry identication card only upon certication from a licensed
physician in the State with whom a qualifying patient has a bona de physician-patient relationship”.
53
The New Jersey School Boards Association (NJSBA) recommends that if a school board “wishes to create
additional protocols above the legal minimum to verify the registration status and ongoing authorization, a
modied policy version is available upon request [to NJSBA] that contains additional discretionary protocols
for checking registration cards and encouraging the development of an individualized health care plan.”
54
Q14. Can a school prohibit students from possessing, using, or distributing medical
marijuana at school?
States that allow medical marijuana use in schools restrict who may possess the marijuana on school property.
In most instances, possession is limited to the caregiver responsible for administering the marijuana. For
example, Colorado’s medical marijuana statute only allows a “primary caregiver” to possess and administer
the marijuana. Delaware and Illinois likewise limit possession and administration to the primary/designated
caregiver. (See Chart B, p.34) Under no circumstances do state medical marijuana laws allow students to
distribute marijuana on school property.
Q15. Can a school district regulate a student’s legal use of marijuana (whether medical or
recreational) o-campus?
In those states allowing medical marijuana use, a student who holds a valid user’s card is protected from criminal
prosecution. There are no reported court decisions ruling whether a school district could impose discipline on a
student’s statutorily-protected use of medical marijuana o-campus. It is likely such discipline would not be upheld
by the courts. In addition, some states limit school districts’ authority to discipline o-campus student conduct.
55
States that have legalized recreational marijuana restrict its use to individuals 21 years of age or older. It is,
therefore, unlikely that recreational marijuana laws would apply to K-12 students.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
16
III. TOBACCO AND RELATED PRODUCTS
Q16. May schools prohibit the possession and use of tobacco products at school by students?
Yes. Courts have consistently found that individuals do not have a constitutionally-protected right to smoke,
except in certain limited contexts involving traditional use of tobacco in religious or cultural ceremonies.
60
To
be found constitutional, laws and policies restricting smoking need only be found to be rationally related to the
legitimate government interest of protecting the health of the public by limiting the eects of second-hand
smoke.
61
In the school context, layers of federal, state, and local law restrict use of tobacco and related products in
school buildings and on school grounds.
The federal Pro-Children Act of 1994, 20 USC §6081 et seq., prohibits any person from allowing smoking in an indoor
educational facility that received federal funding through states or local governments.
62
This federal law specically
allows states and localities to further restrict tobacco use.
63
Whereas the federal law prohibits use of tobacco
indoors, some state laws restrict its use in areas adjacent to school grounds, at school-related events, etc.
64
Q17. May schools prohibit vaping devices, such as e-cigarettes?
Yes. About 49 states, including the District of Columbia, regulate youth access to electronic nicotine delivery systems
(ENDS), or e-cigarettes, requiring that youth be a minimum age to purchase.
65
Some states include e-cigarettes in
the state law denition of tobacco products, and some have started to regulate packaging of e-cigarette products.
66
States have started to pass laws prohibiting the sale, use, and/or possession of ENDS by minors. Maryland,
for example, passed a law adding ENDs to the list of tobacco products retailers are prohibited from selling
to minors, and minors are prohibited from using or possessing, with civil penalties starting at $300 for a
rst violation.
67
School districts in Maryland have informed students that school resource ocers can issue
citations for use or possession of ENDS.
Tobacco and E-Cigarette Use
The health risks of frequent tobacco use have been known for some time, and lawmakers at all levels –
federal, state, and local – have passed regulations to restrict tobacco use to protect both the user and
those who would be subjected to second hand smoke. The CDC reports that although “[t]obacco use
is the leading cause of preventable disease, disability, and death in the U.S…. [e]very day, about 3,200
young people aged 18 or younger try their rst cigarette.”
56
Cigarette smoking rates for both adults and
youth have decreased by half since 1965, but one in seven U.S. adults smokes cigarettes, and about one
quarter of the population is exposed to second-hand smoke. Nine out of 10 smokers report trying their
rst cigarette before age 18.
57
With the rise of alternatives to smoking including e-cigarettes, states are
reporting an increase in youth tobacco use.
58
The CDC estimates that 3.9 million U.S. middle and high
school students use at least one tobacco product.
59
School districts across the country restrict the use of tobacco products by students. Many now address
student use of e-cigarette products.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
17
E-cigarettes and Related Products
The CDC reports that ENDS are now the most commonly used tobacco product by young people. These
include e-cigarettes, vape pens, and e-hookahs. An e-cigarette product works by heating a liquid that
contains nicotine, avorings, and other chemicals to create an aerosol that the user inhales into his/her
lungs. There is often a visible vapor – hence the term “vape” or “vaping.” Nicotine is a highly addictive
chemical, potentially harmful to adolescent brain development. The added chemicals in e-cigarette liquids
contain small particles of chemicals such as the avoring diacetyl, which has been linked to a serious lung
disease, and heavy metals including lead.
Although e-cigarette use among U.S. youth decreased in 2016, which may have been due to prevention
and control strategies by federal, state, and local authorities, results from 2018 National Youth Tobacco
Survey showed a dramatic increase in e-cigarette use among youth over the past year.
68
The federal Food and Drug Administration (FDA) regulates tobacco products and prohibits the sale
and distribution of such products to minors.
69
The FDA recently targeted the Juul Labs company, which
makes an e-cigarette product that looks like a USB “thumb” drive, can be re-charged in a USB port, and is
oered in array of avors. The FDA requested that the company come up with a plan to mitigate and slow
widespread use of its products by young people. The company announced in late 2018 that it would no
longer sell most of its avored e-cigarette pods in stores or promote its products in social media.
70
Source:
Centers for Disease Control and Prevention,
https://www.cdc.gov/tobacco/basic_information/e-cigarettes/about-e-cigarettes.html.
Some e-cigarettes are made to look like regular cigarettes, cigars, or pipes.
Some resemble pens, USB sticks, and other everyday items.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
18
Q18. Is vaping an acceptable method of administering medical marijuana?
The form of marijuana that may be administered medicinally varies state by state. Some states prohibit the use
of medical marijuana in smokable form, limiting use to non-smokable forms, such as edibles and oils. New York
state, however, allows for vaping medical marijuana, with certain limitations. (See Chart B , p. 34.)
IV. SCHOOL AUTHORITY TO DISCIPLINE AND STUDENT RIGHTS
Q19. What student rights should schools keep in mind when developing policy and making
decisions regarding student discipline for drug involvement?
Students in public schools retain a number of constitutional rights vis-a-vis their schools, though those rights are
not coexistent with those of adults in other settings,
71
and must be considered “in light of the special characteristics
of the school environment.”
72
Although federal courts often defer to the decisions of educators regarding student
discipline, they have recognized constitutional limits to school ocial authority in several contexts.
First Amendment Free Speech. “In the absence of a specic showing of constitutionally valid reasons to regulate
their speech,” the Supreme Court said in 1969, “students are entitled to freedom of expression of their views.”
73
Students have a right to free speech and expressive conduct under the First Amendment, unless that speech
“materially disrupts classwork or involves substantial disorder or invasion of the rights of others,”
74
constitutes a
threat, is obscene or lewd, is school-sponsored speech, or promotes illegal drug use or criminal activity.
75
The Supreme Court has ruled that illegal drug-related speech can be regulated by schools. In Morse v. Frederick,
551 U.S. 393 (2007), the Court decided that a public school could discipline a student who had unfurled a
banner at a school-sanctioned event that read “Bong Hits for Jesus.”
76
Finding the principal reasonably could
have interpreted the banner to promote illegal drug use, and because deterring drug use by schoolchildren is an
“important—indeed, perhaps compelling”public interest, the Court determined that the principal’s action was
constitutionally permissible. The Court noted that “drug abuse can cause severe and permanent damage to the
health and well-being of young people,” that schools have been charged with conveying this message to youth, and
that Congress provided billions of dollars to schools for education programs on the dangers of illegal drug use.
77
Fourth Amendment right against unreasonable search and seizure. The Fourth Amendment “right of the
people to be secure in their persons, houses, papers, and eects, against unreasonable searches and seizures”
arises frequently when school ocials address unauthorized use of drugs in schools. In fact, the key cases
decided by the Supreme Court regarding the Fourth Amendment in schools have arisen in drug and tobacco
search scenarios. In 1985, the Supreme Court decided — in a case involving the search of a student’s purse for
cigarettes, which yielded marijuana and a list of students — that school ocials may search students when it
is reasonable under all the circumstances.
78
Generally, this means the search has to be justied at its inception,
meaning it’s likely to turn up evidence of a violation of law or school rules, reasonably related in scope to the
original reason for the search, and “not excessively intrusive in light of the age and sex of the student and the
nature of the infraction.”
79
The Court decided in 2009 that a school ocial’s search of a 13-year-old student’s
underwear upon suspicion of possession of ibuprofen in violation of school rules was not justied in scope.
80
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
19
To address a perceived problem with drug use among youth, some districts require drug testing of student
athletes and participants in extra-curricular activities. In 1995, the Supreme Court held that public schools could
conduct random drug tests on student athletes, and in 2002, the Court expanded that authority to students
participating in competitive extracurricular activities generally.
81
Some districts also require drug testing based
on a specic suspicion. A research study indicates that between 1998 and 2011, 14% of middle and 28% of high
school students attended schools with student drug testing, whether random or suspicion-based.
82
Courts deciding drug search cases, including searches by canines, note that the privacy rights of students must
be balanced against the duty of schools to maintain a safe environment conducive to learning, and the reduced
expectations of privacy in students have in school buildings.
83
Fifth Amendment right against self-incrimination. When students are suspected of illegal use of drugs,
school ocials often partner with law enforcement, whether a School Resource Ocer (SRO) or outside
ocer, to investigate. School ocials should keep in mind that students do have some limited rights under
the Fifth Amendment’s guarantee against self-incrimination, especially when law enforcement is involved in an
interrogation. Courts generally have rejected the argument that students must be given a “Miranda warning” of
their right to remain silent during custodial questioning by school ocials,
84
but some state appellate courts
have taken a harder look when the school ocial conducting the interrogation is a school resource ocer and
the questioning results in criminal charges.
85
One state supreme court has ruled that school ocials who searched and questioned a student were not
agents of the police, and therefore not required to provide Miranda warnings, even though the school had a
written agreement with local police to report crimes.
86
In Yarborough v. Alvarado, 541 U.S. 652 (2004), the
Supreme Court held that specic consideration of a defendant’s age is not required when determining whether
the defendant knowingly and voluntarily waived his or her Miranda rights; but in J.D.B. v. North Carolina, 564
U.S. 261 (2011), the Court held that “a child’s age properly informs the Miranda custody analysis,” especially
when the questioning takes place in school. At least one state attorney general has written an opinion stating
that a school ocial who interviews a student at the request or direction of a law enforcement agency must
advise the student of his or her Miranda rights before proceeding.
87
Fourteenth Amendment due process. The Supreme Court has found that when the state has extended
public education as a right under its laws and constitution, a student has a property interest in his education,
and therefore is entitled to some minimal due process – the opportunity to be heard — before he is excluded
from school.
88
A student subject to suspension or expulsion for a drug-related oense, just like other oenses,
must be given an opportunity to tell his side of the story before the discipline is imposed.
It is important to be aware that these federal constitutional protections constitute a “oor” of available rights.
State constitutions and laws, as well as local policy, may provide greater rights. School ocials should consult
with their state school boards association and Council of School Attorneys (COSA) member for specic
standards in their state.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
20
Q20. May a school district discipline a student for being under the inuence of a drug or
alcohol while at school? May a school district require an impairment assessment onsite if a
student is suspected of being under the inuence of drugs or alcohol?
Yes, in most cases. Virtually every school district’s code of student conduct prohibits students from being
intoxicated from either drugs or alcohol while at school or at school-sponsored activities.
89
A school district may
require an impairment assessment if state law allows. For example, New York’s Cooperstown Central School
District policy provides for “assessment of any individual who is referred and/or presents with altered perception
or behavior reducing that individual’s ability to function appropriately in the academic environment.”
90
New Jersey law instructs school districts to “adopt and implement policies and procedures for the assessment,
intervention, referral for evaluation, referral for treatment, and enforcement of the code of student conduct,
pursuant to N.J.A.C. 6A:16-7, for students whose use of alcohol or other drugs has aected their school
performance, or for students who consume or who are suspected of being under the inuence of or who
possess or distribute … substances on school grounds pursuant to N.J.S.A. 18A:40A-9, 10, and 11.”
91
Q21. When can a school district require a student to submit to drug or alcohol testing?
Outside of the extra-curricular context detailed above, because a drug or alcohol test would be considered a
“search,” raising Fourth Amendment protections (see Question 19), school ocials would need to have reasonable
suspicion of drug or alcohol use that violated school rules or laws to require a student to submit to such a test.
The U.S. Court of Appeals for the Third Circuit has held that due process rights of a student reasonably suspected
of drug use were not violated by a requirement that she submit to urine and blood tests to determine presence of
drugs.
92
Rumors of drug use likely would not be enough to require a student to take a drug test.
93
Q22. Can a school district require a student to undergo/continue participating in drug/alcohol
treatment as a condition of attending school or participating in extracurricular activities?
Yes, within the context of releasing a student early from a suspension or expulsion, sometimes known as conditional
early reinstatement or abeyance contact, a school district generally may allow a student facing a suspension or
expulsion for a drug or alcohol related infraction to avoid discipline if he/she agrees to a substance abuse program.
The length of the program usually cannot exceed the maximum suspension term for the oense level.
94
Q23. Can a school district prohibit a student found to have committed a drug/alcohol
infraction, whether on or o campus, from participating in extracurricular activities?
Yes, within reason. A school has the right to exclude a student from any extracurricular activities if he/she has
committed a drug or alcohol infraction.
95
It is well-established that participating in extracurricular activities is a
privilege rather than a right. Thus, schools can impose higher disciplinary standards on students who participate
in these activities.
96
The courts reason that extracurricular activities are “usually conducted outside the classroom
before or after regular school hours, usually carry no credit, are generally supervised by school ocials or others,
are academically non-remedial, and are of a voluntary nature for participants.”
97
Due process is not required
when a school denies a student extracurricular participation, unless the school board has established policies for
suspending or expelling students from extracurricular activities.
98
Courts have upheld the suspension of students
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
21
from interscholastic athletics for violating regulations prohibiting smoking, drinking, use of drugs, or other
disciplinary infractions, including o-campus and o-season conduct, providing the regulations so stipulate.
99
Members of athletic teams and other extracurricular groups (drama, band, debate, cheerleading, and clubs) often
are selected through a competitive process, and students have no property right to be chosen.
100
Q24. What special rules apply to the discipline of IDEA-covered students who are alleged to
have violated the district’s drug policies or federal/state law?
For drug-involved students with disabilities served under the IDEA, school ocials should be mindful of the
requirements of the student’s IEP and remain in consultation with sta familiar with the student’s disability
needs when enforcing school rules and disciplining the student.
If school ocials seek to suspend or expel a student served under the IDEA for more than 10 days, the school
must conduct a manifestation determination to decide whether the conduct was a manifestation of the student’s
disability. If the conduct is a manifestation of the child’s disability, the problem must be addressed through a
functional behavioral assessment and implementation of a behavioral intervention plan. Also, the child must be
returned to the placement from which he or she was removed unless the parents agree to a change.
If the conduct is not a manifestation of the student’s disability, the school system may discipline the student in
the same manner as a nondisabled student but must provide educational services during the removal.
All the procedural protections of the IDEA are available to a child who at the time of the misconduct has not yet
been found eligible for special education if the school had prior “knowledge” that the child had a disability. A
school has “knowledge” of a disability if:
However, the school district can place the student in an interim alternative educational setting for up to 45 school
days, regardless of the manifestation outcome, if the student possesses a weapon; possesses/uses illegal drugs or
sells/solicits controlled substances; or inicts serious bodily harm to someone while on school property.
101
School ocials may, under federal regulations, report a crime committed by a child with a disability to law
enforcement; and law enforcement ocials may exercise their responsibilities to enforce criminal laws
committed by students with disabilities served under IDEA. The school must ensure that the child’s special
education and disciplinary records are transmitted to the entity to which the school reports the crime but must
follow the procedures required by the Family Educational Rights and Privacy Act.
102
This generally will require
parent consent, or a court order or subpoena, which would require parent notice.
• The parent has expressed concern in writing that the child may need special education or has
requested an evaluation;
• The behavior or the performance of the child demonstrates the need for services; or
• A teacher has expressed a specic concern about a pattern of behavior demonstrated by the child
directly to the special education director or other supervisory personnel.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
22
Q25. Does student alcoholism or illicit substance use or chemical dependency qualify as a
disability under the IDEA or Section 504/ADA? If so, does this change how a district may
discipline a student found to have committed a drug or alcohol infraction?
Although alcoholism, substance abuse, chemical dependency, or simple use of substances is pervasive among
youth, and often impacts academic progress and social/emotional functioning, chemical abuse and chemical
dependency are not recognized as “disabilities” under the IDEA. Substance use alone does not trigger a school
district’s obligation to evaluate the student for special education eligibility.
Section 504 of the Rehabilitation Act of 1974 and its regulations,
103
which prohibit discrimination on the basis of
disability in programs receiving federal nancial assistance, do not protect a student who is currently engaging
in the illegal use of drugs, when a school acts on the basis of such use. People who are no longer engaging
in the illegal use of drugs and in a rehabilitation program are covered, however. Section 504 permits schools
to discipline students with disabilities who use drugs or alcohol to the same degree as students without
disabilities, though alcoholism is not specically excluded from the denition of “disability.”
Q26. What considerations should a school district address in its code of conduct provisions
concerning student involvement with illicit substances?
School ocials should work closely with their state school boards association and COSA member attorney
to determine what topics should be addressed in student codes of conduct with respect to student drug and
substance use, as many criminal oenses and specic procedures will be dictated by state law. Generally, such
policies include the components below.
• Denition of what constitutes a prohibited or restricted “substance” or “drug.” This may include
synthetics, look-alikes, edibles, and prescription drugs used outside of the prescription parameters;
• Descriptions and denitions of the types of drug-related activities that are prohibited, including
what constitutes “possession” and “constructive possession,” as well as locations covered under
the code of conduct;
• Clear explanation of penalties for violations, including the number of oenses;
• Description and notice of the district’s search and seizure policy;
• Description and notice of the district’s interrogation policy;
• Description and notice of the district’s student drug testing policies, including under what
circumstances students will be randomly tested, or tested based on suspicion of drug use;
• Description of the district’s drug-sweep procedures, if any, including use of canines;
• Description of the district’s procedures if a student displays indication of intoxication or drug use at
school, including the odor of marijuana or alcohol.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
23
V. STUDENT EDUCATIONAL PERFORMANCE AND DRUG USE
Q27. If school leaders suspect that a student’s educational performance is aected by
his/her established or suspected chemical dependence, what are the school district’s
responsibilities toward that student?
School ocials should explore how they can support the student, starting with a referral to counselors or
other practitioners who see patients with chemical dependency. That process may result in a determination of
whether the student is eligible for special education services.
Q28. Should school districts address a special education student’s chemical dependency in
his/her IEP?
It is generally unwise to address chemical dependency in a student’s IEP. As explained above, chemical
dependency is not a recognized disability category under the IDEA. School districts do not have an obligation to
address behaviors and to established goals related solely to that dependency.
Q29. May a school district delay an educational evaluation of a student it suspects is
actively using chemicals?
Active substance use can aect an educational evaluation in several ways. It can aect academic performance,
interactions with others in the educational environment, and performance on evaluative tests, producing an
inaccurate picture of the student’s current functioning. Substance or chemical use may mimic mental health
disorders, including depression, bipolar disorder, and anxiety. Falsely identifying a student under the category
of “serious emotional disturbance” or “other health impairment” could be harmful to the student, especially
when special education services ignore the problem and enable continued chemical use. For these reasons, a
school district may desire to delay an educational evaluation of a student who is actively using substances.
104
Generally, a school district must follow federal timelines for evaluating a student. Although best practice
dictates that the student abstain from substance use during testing, that abstention is dicult to obtain for a
long enough period to obtain accurate test results. And some state regulations specically say that a student
may not be found eligible under the category of emotional or behavior disorder if the adverse eects on
educational performance is attributable to illegal chemical use.
105
Under federal law, however, a school district cannot delay evaluation of a student to await the student’s
cessation of drug use.
106
School districts have “child nd” responsibility to identify students eligible for service
under IDEA. Generally, a district cannot determine the eect of the student’s chemical use upon his eligibility
without conducting an evaluation.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
24
Q30. Can a school district require a student to undergo a chemical health assessment as
part of an educational evaluation?
The IDEA does not prohibit a school district from including a chemical health assessment as part of
an educational evaluation to determine student’s eligibility for special education services. As with all
evaluations, the district will have to obtain parent consent before evaluating the student. Some states protect
communications with chemical dependency counselors as condential information, which may limit the
district’s ability to access or use the evaluation in a due process hearing. It is advisable to inform the parent and
student that the chemical health assessment will not create a counselor-patient privilege and ask the parent
and student to waive any right to assert such a privilege.
107
VI. STUDENT PRIVACY AND DRUG USE
Q31. What does federal law require schools to do to keep student medication and drug
involvement information condential?
Student health records maintained by a school are covered as education records under the Family
Educational Rights and Privacy Act (FERPA),
108
and generally not by the Health Insurance Portability and
Accountability Act (HIPAA).
109
Drug and alcohol treatment records of students kept by any institution receiving federal assistance are
protected under Drug Abuse Oce and Treatment Act (1976) 21 USCA §§1101 , 1102 , 1115 , 1171 , 1177-1179 ,
1181. These requirements apply to all records relating to the identity, diagnosis, prognosis, or treatment of
any student involved in any federally assisted substance abuse program. All records must be maintained in a
locked and secure area. Because these regulations are generally stricter, records to which they apply should be
maintained separately from other educational records. Usually, records may not be disclosed without written
consent of the student. Under applicable state law, minor clients with legal capacity must give consent for
any release of information, including to the minor’s parents. If state law requires parental consent to obtain
treatment, then both parent and student must give consent before disclosure of information.
110
Because these federal regulations and laws may or may not apply to a particular school district’s records
pertaining to a student’s drug involvement, school ocials should consult with the state school boards
association and COSA member attorney when developing records policy.
Q32. How do applicable laws address continuity of care communications between
healthcare providers and school nurses when a student returns to school from inpatient
drug use treatment?
When a student returns to school from an inpatient or outpatient drug or alcohol use treatment, her records
must remain condential. The Condentiality of Alcohol and Drug Abuse Patient Records (CFR Title 42 Part 2)
regulation species restrictions concerning the disclosure and use of patient records that include all records
relating to the identity, diagnosis, prognosis, or treatment of any patient in a substance abuse program that is
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
25
conducted, regulated, or directly or indirectly assisted by any department or agency of the United States.
111
The
requirements of FERPA and HIPAA must also be considered.
Information contained in records covered by 42 CFR Part 2 can be shared if written consent is obtained. A
minor must always sign the consent form for a program to release information even to his or her parent or
guardian.
112
Some states require programs to obtain parental permission before providing treatment to a
minor.
113
In these states only, programs must get the signatures of both the minor and a parent, guardian, or
other person legally responsible for the minor.
114
42 CFR Part 2 requires patient written records to be in a secure room, locked le cabinet, safe, or other
similar container. The regulations also require programs to adopt written procedures to regulate access to
patients’ records.
115
Some states have outlined strategies regarding a school nurse’s role when addressing a student’s drug
abuse.
116
School nurses should make appropriate referrals to agencies like social services, drug/alcohol
treatment services, behavioral health services, and child protection teams. A school nurse should also solve
ethical dilemmas often associated with substance abuse and assess, support, and participate in community
prevention eorts surrounding substance abuse.
117
RESOURCES
Federal Government
• Centers for Disease Control and Prevention
• Smoking and Tobacco Use main page: https://www.cdc.gov/tobacco/index.htm.
• State Facts Sheets by state, including rates of tobacco and e-cigarette use:
https://www.cdc.gov/tobacco/about/osh/state-fact-sheets/illinois/
• Substance Abuse and Mental Health Services Administration
• Substance Abuse Condentiality Regulations,
https://www.samhsa.gov/about-us/who-we-are/laws-regulations/condentiality-regulations-faqs
• U.S. Department of Health and Human Services
• “E-Cigarette Use Among Youth and Young Adults: A Report of the Surgeon General,”
https://e-cigarettes.surgeongeneral.gov/documents/2016_sgr_full_report_non-508.pdf
Organizations
• American Academy of Pediatrics https://www.aap.org
• National Association of School Nurses https://www.nasn.org
• Public Health Law Center https://publichealthlawcenter.org/
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
26
CHART A
STATES PERMITTING MEDICAL MARIJUANA USE BY STUDENTS AT SCHOOL
Colorado: C.R.S.A. § 22-1-119.3
(2)(b) If a school’s administration receives notice from a student’s parent or legal guardian that the student
may be in possession of his or her prescribed medications, the school’s administration shall ensure that such
notice is provided to the student’s teachers and the school nurse or other person who is designated to provide
health services to students at the school.
(3)(c) A student shall not possess or self-administer medical marijuana on school grounds, upon a school bus,
or at any school-sponsored event, except as provided for in paragraph (d) of this subsection (3).
(3)(d)(I)(A) A primary caregiver may possess, and administer to a student who holds a valid recommendation
for medical marijuana, medical marijuana in a nonsmokeable form upon the grounds of the preschool or
primary or secondary school in which the student is enrolled, or upon a school bus or at a school-sponsored
event. The primary caregiver shall not administer the nonsmokeable medical marijuana in a manner that
creates disruption to the educational environment or causes exposure to other students.
(B) After the primary caregiver administers the medical marijuana in a nonsmokeable form, the primary
caregiver shall remove any remaining medical marijuana in a nonsmokeable form from the grounds of the
preschool or primary or secondary school, the school bus, or school-sponsored event.
(II) Nothing in this section requires the school district sta to administer medical marijuana.
(III) A school district board of education or charter school may adopt policies regarding who may act as a
primary caregiver pursuant to this paragraph (d) and the reasonable parameters of the administration and
use of medical marijuana in a nonsmokeable form upon the grounds of the preschool or primary or secondary
school in which the student is enrolled, or upon a school bus or at a school-sponsored event.
(IV) This paragraph (d) does not apply to a school district or charter school if:
(A) The school district or charter school loses federal funding as a result of implementing this paragraph (d);
(B) The school district or charter school can reasonably demonstrate that it lost federal funding as a result of
implementing this paragraph (d); and
(C) The school district or charter school posts on its website in a conspicuous place a statement regarding its
decision not to comply with this paragraph (d).
(V) Student possession, use, distribution, or sale or being under the inuence of a cannabinoid product
inconsistent with this paragraph (d) is not permitted.
(VI) This paragraph (d) shall be known as “Jack’s Law”.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
27
(d.5)(I) Medical marijuana in a nonsmokeable form shall not be administered at a school pursuant to this
subsection (3)(d.5) unless a written plan for the administration of medical marijuana in a nonsmokeable form is
agreed to and signed by the school principal or his or her designee and a parent or legal guardian.
(II) Prior to the administration of medical marijuana in a nonsmokeable form at school, the student’s parent or
legal guardian shall complete and submit to the school the documentation required by rule of the state board of
education, including but not limited to:
(A) A written medical marijuana recommendation that includes the signature of one of the recommending
physicians and the purpose, recommended dosage, frequency, and length of time between dosages of the
medical marijuana in a nonsmokeable form to be administered; and
(B) A written statement from the student’s parent or legal guardian releasing the school, and employees and
volunteers of the school, from liability, except in cases of willful or wanton conduct or disregard of the criteria of
the treatment plan.
(III)(A) Subject to the requirements specied in subsections (3)(d.5)(I) and (3)(d.5)(II) of this section, school
personnel may possess, and administer to a student who holds a valid recommendation for medical marijuana,
medical marijuana in a nonsmokeable form upon the grounds of the preschool or primary or secondary
school in which the student is enrolled, or upon a school bus or at a school-sponsored event. The school
personnel shall not administer the nonsmokeable medical marijuana in a manner that creates disruption to the
educational environment or causes exposure to other students. If a student who is subject to the provisions of
this subsection (3)(d.5) takes a school trip outside of the state of Colorado or participates in a school activity
outside of the state of Colorado, the provisions of this subsection (3)(d.5) do not apply for the time during which
the student is engaged in the trip or activity outside of the state of Colorado.
(B) Nothing in this subsection (3)(d.5) requires any school personnel to administer medical marijuana.
Administration of medical marijuana in a nonsmokeable form is at the discretion of the parent or legal guardian,
the school principal or his or her designee, or the designated school personnel.
(C) It is an exception from the state’s criminal laws for school personnel to possess and administer
medical marijuana in a nonsmokeable form in compliance with this subsection (3)(d.5) to a student who holds a
valid recommendation for medical marijuana, except as otherwise provided in section 18-18-406.3.
(IV) A school may adopt policies regarding who may act as school personnel pursuant to this subsection (3)
(d.5) and the reasonable parameters of the administration and use of medical marijuana in a nonsmokeable
form upon the grounds of the preschool or primary or secondary school in which the student is enrolled, or upon
a school bus or at a school-sponsored event.
(V) This subsection (3)(d.5) does not apply to a school if:
(A) The school loses federal funding as a result of implementing this subsection (3)(d.5);
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
28
(B) The school can reasonably demonstrate that it lost federal funding as a result of implementing this
subsection (3)(d.5); and
(C) The school posts on its website in a conspicuous place a statement regarding its decision not to comply
with this subsection (3)(d.5).
(VI) Student possession, use, distribution, or sale, or a student being under the inuence, of a cannabinoid
product inconsistent with this subsection (3)(d.5) is not permitted.
(VII) The student’s parent, guardian, or designee shall deliver the student’s medical marijuana in a nonsmokeable
form, in a container that contains clearly labeled instructions or the plan for administration must clearly specify
instructions for the dosing, timing, and delivery route instructions from one of the student’s recommending
physicians, to the person designated by the school as the person who secures the medical marijuana before the
student attends school for the school day. The person who secures the medical marijuana in a nonsmokeable
form shall place the medical marijuana in a locked storage container. After the school personnel administers the
medical marijuana in a nonsmokeable form, the school personnel shall place the medical marijuana in a locked
medical marijuana storage container designated by the school. The person who secures the medical marijuana in
a nonsmokeable form shall return any unused medical marijuana to the student’s parent, guardian, or designee
at the end of each school day. The student shall not handle the medical marijuana in a nonsmokeable form on the
grounds of the school, school bus, or school-sponsored event.
(VIII) Neither this section nor any other state or federal law, including without limitation the “Individuals with
Disabilities Education Act”, 20 U.S.C. sec. 1400 et seq., as amended, and section 504 of the “Rehabilitation Act
of 1973”, 29 U.S.C. sec. 794, as amended, may be used to require a school or any employee or volunteer thereof
to store medical marijuana on the grounds of a school, school bus, or school-sponsored event or to administer
medical marijuana.
(IX) For purposes of this subsection (3)(d.5), “school personnel” means school personnel designated by
agreement between the principal or his or her designee and a parent or legal guardian.
(e) Notwithstanding the provisions of section 22-33-106(1)(d)(II), a school district or charter school may not
discipline a student who holds a valid recommendation for medical marijuana solely because the student requires
medical marijuana in a nonsmokeable form as a reasonable accommodation necessary for the child to attend
school.
(f) A school district or charter school may not deny eligibility to attend school to a student who holds a
valid recommendation for medical marijuana solely because the student requires medical marijuana in a
nonsmokeable form as a reasonable accommodation necessary for the child to attend school.
(4) The state board of education may promulgate rules for the implementation of this section.
(5) A school district board of education that adopts a policy pursuant to subsection (1) of this section shall be
exempt from rules promulgated by the state board of education pursuant to the “Colorado Schoolchildren’s
Asthma, Food Allergy, and Anaphylaxis Health Management Act”, section 22-1-119.5.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
29
Delaware: 16 Del.C. § 4904A
(a)(2) Except as provided in subsection (b) of this section, possessing marijuana, or otherwise engaging in the
medical use of marijuana:
a. In a school bus;
b. On the grounds of any preschool or primary or secondary school; or
c. In any correctional facility.
d. In any health care or treatment facility operated by the Department or funded contractually through
the Department.
(a)(3) Smoking marijuana:
a. In any form of transportation; or
b. In any public place.
(b) School exceptions.—Notwithstanding subsection (a) of this section, a designated caregiver registered
pursuant to § 4908A of this title may possess for the purpose of administering, and may administer to a minor
qualifying patient medical marijuana oil in a school bus and on the grounds or property of the preschool, or
primary or secondary school in which a minor qualifying patient is enrolled. The designated caregiver shall not
be a school nurse or other school employee hired or contracted by a school unless he or she is a parent or legal
guardian of the minor qualifying patient, and said parent or legal guardian possesses no more than the number
of doses prescribed per day of medical marijuana oil which is kept at all times on their person. Provided further,
this exception shall only apply within the physical boundaries of the State of Delaware.
Florida: F.S.A. § 1006.062
(8) Each district school board shall adopt a policy and a procedure for allowing a student who is a qualied
patient, as dened in s. 381.986, to use marijuana obtained pursuant to that section. Such policy and procedure
shall ensure access by the qualied patient; identify how the marijuana will be received, accounted for, and
stored; and establish processes to prevent access by other students and school personnel whose access would
be unnecessary for the implementation of the policy.
Illinois: 105 ILCS 5/22-33
(b) Subject to the restrictions under subsections (c) through (g) of this Section, a school district, public school,
charter school, or nonpublic school shall authorize a parent or guardian or any other individual registered with
the Department of Public Health as a designated caregiver of a student who is a registered qualifying patient
to administer a medical cannabis infused product to the student on the premises of the child’s school or on
the child’s school bus if both the student (as a registered qualifying patient) and the parent or guardian or
other individual (as a registered designated caregiver) have been issued registry identication cards under
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
30
the Compassionate Use of Medical Cannabis Pilot Program Act. After administering the product, the parent or
guardian or other individual shall remove the product from the school premises or the school bus.
(c) A parent or guardian or other individual may not administer a medical cannabis infused product under
this Section in a manner that, in the opinion of the school district or school, would create a disruption to the
school’s educational environment or would cause exposure of the product to other students.
(d) A school district or school may not discipline a student who is administered a medical cannabis infused
product by a parent or guardian or other individual under this Section and may not deny the student’s eligibility
to attend school solely because the student requires the administration of the product.
(e) Nothing in this Section requires a member of a school’s sta to administer a medical cannabis infused
product to a student.
(f) A school district, public school, charter school, or nonpublic school may not authorize the use of a medical
cannabis infused product under this Section if the school district or school would lose federal funding as a
result of the authorization.
(g) A school district, public school, charter school, or nonpublic school shall adopt a policy to implement
this Section.
New Jersey: N.J.S.A. 18A:40-12.22
a. A board of education or chief school administrator of a nonpublic school shall develop a policy authorizing
parents, guardians, and primary caregivers to administer medical marijuana to a student while the student is
on school grounds, aboard a school bus, or attending a school-sponsored event.
b. A policy adopted pursuant to subsection a. of this section shall, at a minimum:
(1) require that the student be authorized to engage in the medical use of marijuana pursuant to P.L.2009, c.
307 (C.24:6I-1 et al.) and that the parent, guardian, or primary caregiver be authorized to assist the student
with the medical use of marijuana pursuant to P.L.2009, c. 307(C.24:6I-1 et al.);
(2) establish protocols for verifying the registration status and ongoing authorization pursuant to P.L.2009,
c. 307 (C.24:6I-1 et al.) concerning the medical use of marijuana for the student and the parent, guardian, or
primary caregiver;
(3) expressly authorize parents, guardians, and primary caregivers of students who have been authorized for
the medical use of marijuana to administer medical marijuana to the student while the student is on school
grounds, aboard a school bus, or attending a school-sponsored event;
(4) identify locations on school grounds where medical marijuana may be administered; and
(5) prohibit the administration of medical marijuana to a student by smoking or other form of inhalation while
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
31
the student is on school grounds, aboard a school bus, or attending a school-sponsored event.
c. Medical marijuana may be administered to a student while the student is on school grounds, aboard a
school bus, or attending school-sponsored events, provided that such administration is consistent with the
requirements of the policy adopted pursuant to this section.
Oklahoma: 63 O.S. § 420A, et seq.
According to Oklahoma State Department of Education’s “Medical Marijuana FAQs”:
• Students may not self-administer medical marijuana on school property
• School personnel, including nurses, are prohibited from possessing and/or administering medical
marijuana to students
• School districts may adopt a policy authorizing a student license holder to have access to his or
her medical treatment on school property. If a district adopts such a policy, a student’s parent(s),
legal guardian and/or caregiver should be permitted to bring an appropriate dosage of a student’s
recommended medical marijuana product(s) to the school for the parent/legal guardian/caregiver (as
applicable) to administer to the student.
If a district adopts such a policy, the school should establish a place for a parent/legal
guardian/caregiver to meet the student and administer the student’s dosage of medical
marijuana product(s). In the same manner, schools must provide an appropriate space for
the administration of insulin injections or space for a student to nurse or express milk for an
infant. (This could be one designated space for all such student medical needs, or separate
spaces, depending on the school’s available space and any relevant scheduling or privacy
considerations.) Further, a school district policy should require that a record be kept of the name
of the student to whom the medicine was administered, the date the medicine was administered,
the dosage administered and the name of the person who administered the medicine.
As a part of any policy, schools should require a parent/legal guardian/caregiver (as applicable) to provide the
current and valid license for the student, any caregiver license(s) associated with the student, and a written
authorization form, to include the following as applicable:
• Copy of the student’s current and valid medical marijuana license and any associated caregiver’s license;
• Purpose of the medication;
• Time to be administered;
• Dosage to be administered;
• Termination date for the administration of the medicine;
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
32
• Side eects to be observed, if any, the management of such eects and student allergies to food
and/or medicine;
• Emergency instructions, as appropriate;
• Written acknowledgement assuming all responsibility for the provision, administration, maintenance
and use of medical marijuana under state law, and release of liability for any injury, personal or
otherwise, to a student which results from the acts or omissions of the parent/guardian/other licensed
caretaker in administering or possessing the medical marijuana; and,
• Other appropriate information.
The same prohibitions that exist relating to the use of tobacco in schools and/or on school property now also
extend to all smokable, vaporized, vapable and e-cigarette medical marijuana on such property. As such, and
because the Smoking in Public Places and Indoor Workplaces Act and the 24/7 Tobacco-free Schools Act (70
O.S. § 1210.213) prohibit the use of tobacco (now inclusive of all smokable, vaporized, vapable and e-cigarette
medical marijuana), these forms of medical marijuana may not in any instance be used or consumed by
a patient license holder (adult or minor) on school property.* School property includes, but is not limited
to, buildings, physical grounds, motor vehicles and any school-sponsored or school-sanctioned event or
activity. See 70 O.S. § 1210.212.
Pennsylvania: 35 P.S. § 10231.2104
The Pennsylvania Department of Education has not yet promulgated regulations on possession and use of
medical marijuana at school. However, the Pennsylvania Departments of Health and Education have issued the
following “Recommended Guidance” in the interim:
A parent, legal guardian or caregiver may administer medical marijuana to their child/student on school
premises provided that the parent, legal guardian or caregiver: (1) provides the school principal with a copy
of the Safe Harbor Letter; and (2) noties the school principal, in advance, of each instance in which the
parent or caregiver will administer the medical marijuana to the child/student. The school principal shall
provide notication to the school nurse in each instance a parent or caregiver will be administering medical
marijuana to the child/student as well. The parent/caregiver shall follow all school protocols applicable to
visitors to the school during the school day. A parent, legal guardian or caregiver shall bring to the school
and administer the medical marijuana to their child/student without creating a distraction and shall
promptly remove any excess medical marijuana and related materials from the school premises after the
administration of medical marijuana is complete. The school shall provide a secure and private location
for the parent/legal guardian/caregiver to administer the medical marijuana to the student. Students
themselves shall not be permitted to possess any form of medical marijuana at any time on school property
or during any school activities on school property.
Washington: Wash. Rev. Code § 69.51A.060
Schools are not required to allow the use of medical marijuana on school property but may permit such use.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
33
Such use must be in accordance with school policy relating to medication use on school grounds.
West Virginia: W. Va. Code, § 16A-15-5
The Department of Education shall promulgate rules within six months of the eective date of this section
regarding the following:
(1) Possession and use of medical cannabis by a student on the grounds of a preschool, primary school and a
secondary school.
(2) Possession and use of medical cannabis by an employee of a preschool, primary school and a
secondary school on the grounds of such school.
The West Virginia Department of Education has not yet issued any rules.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
34
State Statute Citation
Allows Use
in School Restrictions as Exactly Stated in the State Law
AK Alaska Stat. §
17.37.040 (d) (3),
(5)
N The Act does not permit use of medical marijuana in workplace, school bus,
within 500 feet of school grounds.
AZ Ariz. Rev. Stat. §
36-2802
N The MMA does not prevent the imposition of penalties for possessing or
engaging in the medical use of marijuana on a school bus, or on the grounds
of any preschool or primary or secondary school.
AR AR Const. Amend.
98, § 6
N Use of medical cannabis is prohibited in a school bus, on the grounds of any
preschool or primary or secondary school.
CA Cal.Health &
Safety Code §
11362.79 (b), (c)
N This article does not authorize a qualied patient or person with an
identication card to engage in the smoking of medical cannabis under any of
the following circumstances:
This article does not authorize a qualied patient or person with an
identication card to engage in the smoking of medical cannabis under any of
the following circumstances:
(b) In or within 1,000 feet of the grounds of a school, recreation center, or
youth center, unless the medicinal use occurs within a residence.
(c) On a school bus.
SB 1127 vetoed by Governor Sept. 28, 2018 (Proposed legislation would allow
parent or legal guardian to possess and administer medical marijuana to
qualied student).
CO C.R.S.A. § 22-1-
119.3
Y c) A student shall not possess or self-administer medical marijuana on school
grounds, upon a school bus, or at any school-sponsored event, except as
provided for in paragraph (d) of this subsection (3).
(d)(I)(A) A primary caregiver may possess and administer to a student who
holds a valid recommendation for medical marijuana, medical marijuana
in a nonsmokeable form upon the grounds of the preschool or primary or
secondary school in which the student is enrolled, or upon a school bus or
at a school-sponsored event. The primary caregiver shall not administer the
nonsmokeable medical marijuana in a manner that creates disruption to the
educational environment or causes exposure to other students.
(B) After the primary caregiver administers the medical marijuana in a
nonsmokeable form, the primary caregiver shall remove any remaining
medical marijuana in a nonsmokeable form from the grounds of the preschool
or primary or secondary school, the school bus, or school-sponsored event.
CHART B
STATE MEDICAL MARIJUANA LAWS
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
35
(II) Nothing in this section requires the school district sta to administer
medical marijuana.
(III) A school district board of education or charter school may adopt policies
regarding who may act as a primary caregiver pursuant to this paragraph
(d) and the reasonable parameters of the administration and use of medical
marijuana in a nonsmokeable form upon the grounds of the preschool or
primary or secondary school in which the student is enrolled, or upon a school
bus or at a school-sponsored event.
CT C.G.S.A. §
21a-408a
N 2) The ingestion of marijuana (A) in a motor bus or a school bus or in any
other moving vehicle, (B) in the workplace, (C) on any schoolgrounds or any
public or private school, dormitory, college or university property, unless such
college or university is participating in a research program and such use is
pursuant to the terms of the research program
DE 16 Del.C. § 4904A Y b) School exceptions.— Notwithstanding subsection (a) of this section,
a designated caregiver registered pursuant to § 4908A of this title may
possess for the purpose of administering, and may administer to a minor
qualifying patient medical marijuana oil in a school bus and on the grounds
or property of the preschool, or primary or secondary school in which a
minor qualifying patient is enrolled. The designated caregiver shall not be a
school nurse or other school employee hired or contracted by a school unless
he or she is a parent or legal guardian of the minor qualifying patient, and
said parent or legal guardian possesses no more than the number of doses
prescribed per day of medical marijuana oil which is kept at all times on their
person. Provided further, this exception shall only apply within the physical
boundaries of the State of Delaware.
FL F.S.A. § 381.986
(2018) and F.S.A.
§ 1006.062
Y § 381.986
(14) Exceptions to other laws.—
(f) Notwithstanding s. 893.13, s. 893.135, s. 893.147, or any other provision of
law, but subject to the requirements of this section and pursuant to policies
and procedures established pursuant to s. 1006.62(8), school personnel may
possess marijuana that is obtained for medical use pursuant to this section
by a student who is a qualied patient.
§ 1006.062
(8) Each district school board shall adopt a policy and a procedure for
allowing a student who is a qualied patient, as dened in s. 381.986, to use
marijuana obtained pursuant to that section. Such policy and procedure
shall ensure access by the qualied patient; identify how the marijuana will
be received, accounted for, and stored; and establish processes to prevent
access by other students and school personnel whose access would be
unnecessary for the implementation of the policy.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
36
HI HRS § 329-122 N (e) The authorization for the medical use of cannabis in this section shall not
apply to:
(2) The medical use of cannabis:
(A) In a school bus, public bus, or any moving vehicle;
(C) On any school grounds;
IL 105 ILCS 5/22-33 Y (b) Subject to the restrictions under subsections (c) through (g) of this
Section, a school district, public school, charter school, or nonpublic school
shall authorize a parent or guardian or any other individual registered with
the Department of Public Health as a designated caregiver of a student who
is a registered qualifying patient to administer a medical cannabis infused
product to the student on the premises of the child’s school or on the child’s
school bus if both the student (as a registered qualifying patient) and the
parent or guardian or other individual (as a registered designated caregiver)
have been issued registry identication cards under the Compassionate Use
of Medical Cannabis Pilot Program Act.
ME 22 M.R.S.A. §
2426
Y 1-A. School exceptions. Notwithstanding subsection 1, paragraph B, a primary
caregiver designated pursuant to section 2423-A, subsection 1, paragraph E
may possess and administer marijuana in a nonsmokeable form in a school
bus and on the grounds of the preschool or primary or secondary school in
which a minor qualifying patient is enrolled only if:
A. A medical provider has provided the minor qualifying patient with a current
written certication for the medical use of marijuana under this chapter; and
B. Possession of marijuana in a nonsmokeable form is for the purpose
of administering marijuana in a nonsmokeable form to the minor
qualifying patient.
MD MD Code, Health
- General §§ 13-
3301 to 13-3316
N May not smoke cannabis: (1) in any public place or (2) in a motor vehicle.
Marijuana: Comparison of State Laws Allowing Use for Medicinal Purposes,
National Alliance for Model State Drug Laws (2017), http://www.namsdl.org/
library/5E330F37-EFA5-DDDE-0EF7018E59FC7C95/.
MA M.G.L.A. 94C App.
§ 1-7
N D) Nothing in this law requires any accommodation of any on-site medical use
of marijuana in any place of employment, school bus or on school grounds, in
any youth center, in any correctional facility, or of smoking medical marijuana
in any public place.
MI MCL 333.26427 N § 7 prohibits using medical marijuana in a school bus or near a school
MN Minn. Stat. §
152.32, subd. 2.
N The statue prohibits (2) possessing or engaging in the use of medical cannabis:
(i) on a school bus or van;
(ii) on the grounds of any preschool or primary or secondary school
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
37
MT Mont Code Ann. §
50-46-320
N Prohibits the use of medical marijuana:
(ii) in a school or a postsecondary school as dened in 20-5-402;
(iii) on or in any property owned by a school district or a postsecondary school;
(iv) on or in any property leased by a school district or a postsecondary
school when the property is being used for school-related purposes;
(v) in a school bus or other form of public transportation
NV N.R.S. 453A.300 N Prohibits: 2) If the possession of the marijuana or paraphernalia occurs on
school property.
NH N.H. Rev. Stat.
Ann. § 126-X:3
N Prohibits (d) The possession of cannabis in any of the following:
(1) The building and grounds of any preschool, elementary, or secondary
school, which are located in an area designated as a drug free zone
NJ N.J.S.A. 18A:40-
12.22
Y a. A board of education or chief school administrator of a nonpublic school
shall develop a policy authorizing parents, guardians, and primary caregivers
to administer medical marijuana to a student while the student is on school
grounds, aboard a school bus, or attending a school-sponsored event.
NM N. M. S. A. 1978, §
26-2B-5
N Prohibits:
possession or use of cannabis:
(a) in a school bus or public vehicle;
(b) on school grounds or property;
NY McKinney’s Public
Health Law § 3362
N 2. Notwithstanding subdivision one of this section:
(a) possession of medical marihuana shall not be lawful under this title if it is
smoked, consumed, vaporized, or grown in a public place, regardless of the
form of medical marihuana stated in the patient’s certication.
NC N.C.G.S.A. § 90-
113.100
N N/A
ND N.D. Cent. Code §
19-24.1-33
N Prohibits:
2. Possessing or consuming usable marijuana: a. On a school bus or school
van that is used for school purposes; b. On the grounds of any public or
private school; c. At any location while a public or private school sanctioned
event is occurring at that location
OH R.C. § 3796.24 Maybe Medical marijuana provision neither: 4) Requires any public place to
accommodate a registered patient’s use of medical marijuana; [nor]
(5) Prohibits any public place from accommodating a registered patient’s use
of medical marijuana;
OK 63 O.S. § 420A et
seq.
Y See: FAQs: Medical Marijuana, Oklahoma State Department of Education
(updated Sept. 10, 2018), https://sde.ok.gov/newsblog/2018-09-10/faqs-
medical-marijuana
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
38
OR Or. Rev. Stat.
§ 475B.015
N Prohibits the use in public places, including school property. provision of Oregon
Medical Marijuana Act armatively authorizing the use of medical marijuana
was preempted by Federal Controlled Substances Act, which explicitly
prohibited marijuana use without regard to medicinal purpose.
Emerald Steel
Fabricators, Inc. v. Bureau of Labor and Industries (2010) 230 P.3d 518
(2010)
PA 35 P.S. §
10231.2104
Y The Department of Education shall promulgate regulations within 18 months
of the eective date of this section regarding the following:
(1) Possession and use of medical marijuana by a student on the grounds of a
preschool, primary school and a secondary school.
(2) Possession and use of medical marijuana by an employee of a preschool,
primary school and a secondary school on the grounds of such school.
See: Guidance for Schools and School Districts, Pennsylvania Department
of Health (2018) https://www.health.pa.gov/topics/programs/Medical%20
Marijuana/Pages/School.aspx
UT N/A N/A N/A
RI 216-RICR- 20-10-
3.11
N The Act and these Regulations shall not permit the smoking of marijuana:
a. In a school bus or other form of public transportation;
b. On any school grounds;
VT 18 V.S.A. § 4474c N Prohibits: 3) The smoking of marijuana in any public place, including:
(A) a school bus, public bus, or other public vehicle;
(C) any school grounds
VA VA Code Ann. §
18.2-251.1
N N/A
WA Wash. Rev. Code §
69.51A.060
Y (4) Nothing in this chapter requires any accommodation of any on-site
medical use of marijuana in any place of employment, in any school bus or
on any school grounds, in any youth center, in any correctional facility, or
smoking marijuana in any public place or hotel or motel. However, a school
may permit a minor who meets the requirements of RCW 69.51A.220 to
consume marijuana on school grounds. Such use must be in accordance with
school policy relating to medication use on school grounds.
Schools are not required to permit on-site use of medical marijuana but are
permitted to allow it if they choose. https://www.ecs.org/medical-marijuana-
in-schools-state-legislation-and-policy-considerations/
WV W. Va. Code, §
16A-15-5
Y The Department of Education shall promulgate rules within six months of the
eective date of this section regarding the following:
(1) Possession and use of medical cannabis by a student on the grounds of a
preschool, primary school, and a secondary school.
DC DC ST § 7-1671.05 N Administration of marijuana restrict to private residence or medical treatment
facility. (See DC ST § 7-1671.03).
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
39
State Statue Citation Age Restriction Other Restrictions as Exactly Stated in the
State Law
AK AS § 17.38.020 21 years or older Prohibits consumption in public
CA Cal.Health & Safety Code §
11362.1- § 11362.3
21 years or older § 11362.3 prohibits:
Smoking cannabis or cannabis products within 1,000
feet of a school, day care center, or youth center
while children are present at school, day care center,
or youth center.
Smoking cannabis or cannabis products within 1,000
feet of a school, day care center, or youth center
while children are present at school, day care center,
or youth center.
CO C.R.S.A. Const. Art. 18, § 16 21 years or older Prohibits consumption that is conducted openly and
publicly or in a manner that endangers others.
ME 28-B M.R.S.A. Ch. 1 et seq. 21 years or older (see
22 M.R.S.A. § 2383)
Marijuana use and possession are prohibited in
school buses. (See 05-071 CMR Ch. 81, § 6)
MA M.G.L.A. Pt. I, T. XV, Ch. 94G
et seq.
21 years or older Prohibits the possession or consumption of marijuana
or marijuana accessories on the grounds of or within a
public or private school where children attend classes
in preschool programs, kindergarten programs or
grades 1 to 12, inclusive, on a school bus, in any youth
center, or on the grounds of or within any correctional
facility or detoxication facility.
MI Voters approved Proposal 1
amending state constitution
21 years or older Public use prohibited.
NV N.R.S. T. 40, Ch. 453D et seq. 21 years or older Prohibits smoking or otherwise consuming
marijuana in a public place. (See N.R.S. 453D.400)
OR O.R.S. § 475B.005 21 years or older Prohibits the use of marijuana items in a public
place. (See O.R.S. § 475B.381)
VT 18 V.S.A. § 4230a 21 years or older Prohibits consumption in public place.
WA RCWA 69.50.101 et seq. 21 years or older Prohibits consumption in public place.
(See RCW 69.50.445)
D.C. DC ST D. VIII, T. 48, Subt. III,
Ch. 9 et. Seq.
21 years or older Prohibits consumption in public place.
(See DC ST § 48-911.01)
CHART C
STATE RECREATIONAL MARIJUANA LAWS
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
40
ENDNOTES
1
See, e.g., Massachusetts General Laws Chapter 71, Section 54B; Regulations 105 CMR 210.001 et seq.
2
“Guidelines for the Administration of Medication in Schools,” Committee on School Health, American Academy of
Pediatrics, http://pediatrics.aappublications.org/content/112/3/697#xref-ref-2-1.
3
“Medication Administration in Schools Position Statement,” National Association of School Nurses (2017) https://
www.nasn.org/advocacy/professional-practice-documents/position-statements/ps-medication.
4
“Individualized Healthcare Plans: Role of the School Nurse,” National Association of School Nurses, https://www.nasn.
org/advocacy/professional-practice-documents/position-statements/ps-ihps.
5
Id., citing Hermann, D, “Individualized Healthcare Plans,” In C. Silkworth, M. Arnold, J., Harrigan, & D. Zaiger, (Eds.),
Individualized healthcare plans for the school nurse: Concepts, Framework, Issues and Applications for School
Nursing Practice (pp. 1-4). North Branch, MN: Sunrise River Press (2005).
6
“Individualized Healthcare Plans: Role of the School Nurse,” National Association of School Nurses https://www.nasn.
org/advocacy/professional-practice-documents/position-statements/ps-ihps.
7
Id.
8
Any delegation of nursing duties must be consistent with the requirements of state nurse practice acts, state
regulations, and guidelines provided by professional nursing organizations.
9
Gilsbach, Erin, “Do We Need a Nurse,” National School Boards Association, April 2018. Available to COSA members at
https://www.nsba.org/when-do-we-need-nurse-0.
10
Id.
11
Id.
12
Id.
13
Id.
14
“Policy Statement – Guidance for the Administration of Medication in School,” American Academy of Pediatrics,
http://pediatrics.aappublications.org/content/pediatrics/124/4/1244.full.pdf.
15
29 U.S.C. §794 (2018).
16
29 USC §1400 et seq. (2018).
17
“Policy Statement – Guidance for the Administration of Medication in School,” American Academy of Pediatrics,
http://pediatrics.aappublications.org/content/pediatrics/124/4/1244.full.pdf.
18
Gilsbach, Erin, “Do We Need a Nurse,” National School Boards Association, April 2018. Available to COSA members at
https://www.nsba.org/when-do-we-need-nurse-0, citing Collier County Sch. Dist., 110 LRP 7471 (SEA FL 09/15/09);
and Birmingham City Bd. of Educ., 33 IDELR 236 (SEA AL 2000).
19
See 34 CFR § §300.34, 300.35, and 300.36.
20
See Sarasota County (FL) Sch. Dist., 60 IDELR 261 (OCR 2012).
21
Gilsbach, Erin, “Do We Need a Nurse,” National School Boards Association, April 2018. Available to COSA members at
https://www.nsba.org/when-do-we-need-nurse-0.
22
Id.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
41
23
“Policy Statement – Guidance for the Administration of Medication in School,” American Academy of Pediatrics,
http://pediatrics.aappublications.org/content/pediatrics/124/4/1244.full.pdf.
24
Saord Unied School District No. 1 v. Redding, 557 U.S. 364, 379 (2009).
25
Hearring v Sliwowski, 712 F.3d 275, (6th Cir. 2013).
26
“Guidelines for the Administration of Medication in Schools,” Policy Statement, American Academy of Pediatrics,
http://pediatrics.aappublications.org/content/pediatrics/112/3/697.full.pdf.
27
Schwab NC, Panettieri MJ, Bergren MD, “Guidelines for School Nursing Documentation: Standards, Issues, and
Models,” Scarborough, ME: National Association of School Nurses, 1998.
28
“Opioid Crisis,” National Institute on Drug Abuse, https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-
crisis#one.
29
“Drug Overdose Deaths in the United States, 1999-2015,” The Centers for Disease Control and Prevention, https://
www.cdc.gov/nchs/products/databriefs/db273.htm.
30
Curtin, Sally C., et. al., “Drug Overdose Deaths Among Adolescents Aged 15-19 in the United States: 1999-2015,”
https://les.eric.ed.gov/fulltext/ED575708.pdf.
31
Id.
32
Miech, Richard, Lloyd Johnston, Patrick M. O’Malley, Katherine M. Keyes and Kennon Heard, “Prescription Opioids and
Future Opioid Misuse,” Pediatrics Vol. 136 No 5, Nov 2016.
33
“Opioid Overdose Reversal with Naloxone,” National Institute on Drug Abuse,
https://www.drugabuse.gov/related-
topics/opioid-overdose-reversal-naloxone-narcan-evzio.
34
Morgan, Jessica, “Legal Issues Around Naloxone and Public Schools,” 47 J.L. & Educ. 265 (2018).
35
https://www.narcan.com/community/education-awareness-and-training-resources/.
36
Morgan, Jessica, “Legal Issues Around Naloxone and Public Schools,” 47 J.L. & Educ. 265 (2018).
37
Id.
38
Id.
39
“Policy Statement – Guidance for the Administration of Medication in School,” American Academy of Pediatrics,
http://pediatrics.aappublications.org/content/pediatrics/124/4/1244.full.pdf.
40
“Expired Epinephrine Can Still Save Lives,” Food Allergy Research & Education, https://www.foodallergy.org/about-
fare/blog/expired-epinephrine-can-still-save-lives; https://www.fda.gov/Drugs/DrugSafety/DrugShortages/
ucm563360.htm
41
United States Department of Agriculture, Natural Resources Conservation Service, https://plants.usda.gov/core/
prole?symbol=casa3.
42
See Hudak, John, “The Farm Bill, hemp legalization and the status of CBD: An explainer,” https://www.brookings.edu/
blog/xgov/2018/12/14/the-farm-bill-hemp-and-cbd-explainer/.
43
“Cannabis and Cannabinoids,” National Cancer Institute, https://www.cancer.gov/about-cancer/treatment/cam/
patient/cannabis-pdq?redirect=true.
44
“What is the Dierence Between THC and CBD?,” CBDOILReview.com (2018), https://cbdoilreview.org/cbd-
cannabidiol/thc-cbd/.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
42
45
Gill, Lisa L., “Congress Approves a Bill to Make CBD Legal at Federal Level,” Consumer Reports (Dec. 13, 2018), https://
www.consumerreports.org/marijuana/will-new-farm-bill-make-cbd-legal-everywhere/.
46
Id.
47
Young, Samantha, “The Pros and Cons of Allowing Medical Marijuana Use in Schools,” Governing (Aug. 31, 2018),
http://www.governing.com/topics/health-human-services/khn-states-do-not-permit-medical-marijuana-use-school-
grounds.html.
48
See, e.g., C.R.S. § 22-1-119.3 (3)(d) (IV)(2018); 105 ILCS 5/22-33 (f)(2018).
49
Gardner, Keona, “Florida school districts defying hazy rules on the use of medical marijuana for students,” USA
Today (Aug. 10, 2018), https://www.usatoday.com/story/news/nation-now/2018/08/10/orida-schools-medical-
marijuana-policies-mixed-messages/957250002/; Young, Samantha, “The pluses and minuses of allowing medical
marijuana at school, ABC News” (Aug. 30, 2018), https://abcnews.go.com/Health/pluses-minuses-allowing-medical-
marijuana-school/story?id=57498234; See also Eger, Andrea, “Oklahoma schools getting conicting advice about
impact of medical marijuana on their policies,” Tulsa World (Sept. 2, 2018), https://www.tulsaworld.com/news/
marijuana/oklahoma-schools-getting-conicting-advice-about-impact-of-medical-marijuana/article_55d17210-9793-
5a1e-a2c9-0db9c0688b53.html.
50
Garvey, Todd, “Medical Marijuana: The Supremacy Clause, Federalism, and the Interplay Between State and Federal
Laws,” Congressional Research Service (Mar. 6, 2012), https://www.votehemp.com/wp-content/uploads/2018/09/
MedicalMarijuana-SupremacyClause-CRS-R42398-2012.pdf; https://tucson.com/news/local/arizona-s-high-court-
won-t-intercede-to-block-medical/article_65ccbe1b-3f6a-5f46-9e79-6a9a835c7ac2.html.
51
C.R.S. § 22-1-119.3 (3)(d)(I)(A),(B)(2018).
52
105 ILCS 5/22-33(b)(2018).
53
Medical Marijuana, Boonton Township Board of Education, Policy No. 5141.22 (Approved Mar. 16, 2016), http://www.
rvsnj.org/rvsnj/Board%20of%20Education/Board%20Policies/Series%205000%2C%20Students/5141.22%20
Medical%20Marijuana.pdf.
54
Policies Updated on Nepotism, Medical Marijuana, New Jersey School Boards Association, Vol. XXXIX No. 24 (Feb.
2, 2016), https://www.njsba.org/news-publications/school-board-notes/february-2-2016-vol-xxxix-no-24/policies-
updated-on-nepotism-medical-marijuana/.
55
See, e.g., N.J.A.C. 6A:16–7.5;
Neb. Rev. Stat. § 79-267; Indiana Law IC 20-33-8-15.
56
“Extinguishing the Epidemic At a Glance 2017,” Centers for Disease Control and Prevention, https://www.cdc.gov/
chronicdisease/resources/publications/aag/tobacco-use.htm.
57
Id.
58
“Addressing Student Use of E-cigarettes and other Vaping Products,” Minnesota Department of Health, http://www.
health.state.mn.us/divs/hpcd/tpc/topics/ecig_docs/2018_school_ecig_toolkit.pdf.
59
“Extinguishing the Epidemic At a Glance 2017,” Centers for Disease Control, https://www.cdc.gov/chronicdisease/
resources/publications/aag/tobacco-use.htm.
60
“There is No Constitutional Right to Smoke or Toke,” Public Health Law Center, https://publichealthlawcenter.org/
sites/default/les/resources/No-Constitutional-Right-Smoke-Toke-2018.pdf, citing American Legion Post #149 v.
Wash. State Dep’t of Health, 164 Wash.2d 570, 600-01 (Wash. 2008)(en banc) for unanimous agreement among state
and federal courts.
61
Id.
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
43
62
20 USC §§6082, 6083.
63
20 USC §6084.
64
FLA §386.212 (2018); AK ST §18.35.301 (2018); MCA 20-1-22021(2018); OK1. St §1247(2018).
65
“Youth Access to E-cigarettes,” Public Health Law Center, https://publichealthlawcenter.org/sites/default/les/
States-with-Laws-Restricting-Youth-Access-to-ECigarettes-Sept2018.pdf.
66
“U.S. E-cigarette Regulations: 50 State Review,” Public Health Law Center, https://publichealthlawcenter.org/
resources/us-e-cigarette-regulations-50-state-review.
67
MD HB 1094 (2018), http://mgaleg.maryland.gov/2018RS/bills/hb/hb1094f.pdf.
68
U.S. Food & Drug Administration (Nov. 15, 2018), https://www.fda.gov/NewsEvents/Newsroom/
PressAnnouncements/ucm625917.htm.
69
21 C.F.R. Part 1140 (2018).
70
Kaplan, Sheila and Jan Homan, “Juul Suspends Selling Most E-Cigarette Flavors in Stores,” New York Times,
November 13, 2018, https://www.nytimes.com/2018/11/13/health/juul-ecigarettes-vaping-teenagers.html. See also,
“E-cigarette Ads and Youth,” CDC Vitalsigns (Jan. 2016), https://www.cdc.gov/vitalsigns/pdf/2016-01-vitalsigns.
pdf (noting that exposure to e-cigarette advertisements may be contributing to increases in e-cigarette use among
youth).
71
Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986).
72
Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 266 (1988) (quoting Tinker v. DesMoines Ind. Sch. Dist., 393 U.S.
503, 506 (1969)).
73
Tinker v. DesMoines Ind. Sch. Dist., 393 U.S. 503, 511 (1969).
74
Id. at 513. For a full treatment of the First Amendment speech rights of students in public schools, see “Coercion,
Conscience, and the First Amendment: A Legal Guide for Public Schools on the Regulation of Student and Employee
Speech,” National School Boards Association, https://www.nsba.org/coercion-conscience-and-rst-amendment.
75
See, e.g., Watts v. United States, 394 U.S. 705 (1969) and Virginia v. Black, 538 U.S. 343 (true threats); Bethel Sch. Dist.
403 v. Fraser, 478 U.S. 675 (1986)(obscene or lewd speech); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)
(school-sponsored speech); Morse v. Frederick, 551 U.S. 393, 410 (2007)(speech that promotes illegal drug use).
76
Morse v. Frederick, 551 U.S. 393, 410 (2007).
77
Id. at 410, citing Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 661 (1995).
78
New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).
79
Id. at 342.
80
Saord Unied School District v. Redding, 557 U.S. 364 (2009).
81
Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995); Board of Ed. of Independent School Dist. No. 92 of
Pottawatomie Cty. v. Earls, 536 U. S. 822 (2002).
82
Terry-McElrath, Yvonne M., Patrick M. O’Malley, and Lloyd D. Johnston, PhD “Middle and High School Drug Testing and
Student Illicit Drug Use: A National Study 1998–2011,” https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3793394/.
83
See Doe v. Renfrow, 475 F.Supp. 1012 (N.D. Ind. 1979), rev’d on other grounds, 631 F.2d 91 (7th Cir. 1980), reh’g denied,
635 F.2d 582, cert. denied, 451 U.S. 1022 (1981).
84
Boynton v. Casey, 543 F. Supp. 995 (D. Me. 1982); C.S. v. Couch, 843 F. Supp. 2d 894 (N.D. Ind. 2011).
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
44
85
See, e.g., In re D.A.R., 73 S.W.3d 505 (Tex. App. 2002); In re R.H., 791 A.2d 331 (Pa. 2002).
86
Commonwealth v. Lawrence L., 792 N.E.2d 109 (Mass. 2003).
87
See Ariz. Atty. Gen. Op. No. I04-003 (2004).
88
Goss v. Lopez, 419 US 565 (1975).
89
See, e.g., In re Appeal of Suspension of Huer From Circleville High School, 546 N.E.2d 1308 (Ohio 1989) (School board
had authority to establish rule allowing school administrator to suspend students for being under the inuence of
alcohol while attending school or school activity). Community of concern oers the following sample policy: “Students
found in violation of the rules prohibiting involvement with alcohol, tobacco, and other drugs may be suspended
or dismissed from the school,” Policy Samples, Community of Concern (2018), https://thecommunityofconcern.
org/it-takes-a-community/how-to-set-up-a-c-of-c/policy-samples/#consequences. Likewise, the UNLN Student
Engagement Project states: “Students under the inuence of any controlled substance or alcoholic liquor may also
be subject to school discipline. Tobacco possession and use is also regulated;” Ann O’Conner and Reece L. Peterson,
Drugs & Alcohol - Policy Q & A, UNLN Student Engagement Project University of Nebraska-Lincoln (2014), https://
k12engagement.unl.edu/drugs-and-alcohol-policies#Q6.
90
Alcohol, Tobacco, Drugs and Other Substances (Students), Cooperstown Central School District, Policy 7320 (2005).
91
N.J.A.C. 6A:16-4.1 (a) (2018), https://www.state.nj.us/education/code/current/title6a/chap16.pdf.
92
Hedges v. Musco, 204 F.3d 109, 122 (3d Cir. 2000). See also Willis II v. Anderson Community School Corp., 158 F.3d
415, 420 (7th Cir. 1998) (nding the school did not have reasonable suspicion of substance abuse when a student was
suspended for ghting).
93
See Cummerlander v. Patriot Preparatory Academy Inc., 86 F.Supp.3d 808 (S.D. Ohio 2015).
94
Witte, Doug, “Expulsion Overview And Pointers For Administrators,” Association of Wisconsin School Administrators,
https://awsa.memberclicks.net/update-article--expulsion-overview-and-pointers-for-administrators; Northshore
School District, 2018-2019 STUDENT RIGHTS AND RESPONSIBILITIES HANDBOOK (R&R), https://resources.
nalsite.net/images/v1537979830/nsdorg/todzi8igh8lhblzhiu63/RightsAndResponsibilitiesHandbook.pdf; Student
Discipline Rights and Procedures, Education Law Center (2004), at *9, https://les.eric.ed.gov/fulltext/ED504922.
pdf; Student Conduct Policy Guidelines, Virginia Board of Education (2014 Legislative Update), http://www.doe.
virginia.gov/boe/guidance/safety/student_conduct.pdf.
95
“Student Rights: School Disciple Pamphlet,” Rhode Island ACLU,
http://www.riaclu.org/know-your-rights/pamphlets/
know-your-rights-school-discipline.
96
James v. Tallahassee High Sch., 104 F.3d 372 (11th Cir. 1996); Ryan v. Cal. Interscholastic Fed’n, 114 Cal. Rptr. 2d 798
(Ct. App. 2001); Taylor v. Enumclaw Sch. Dist. No. 216, 133 P.3d 492 (Wash. Ct. App. 2006).
97
Lunenburg, Fred C., “Does a Student’s Property Right to an Education Extend to Participation in Extracurricular
Activities,” FOCUS V5 N1 (2011) http://www.nationalforum.com/Journals/FOCUS/FOCUS.htm.
98
Id.
99
Ferguson v. Phoenix-Talent Sch. Dist. No. 4, 19 P.3d 943 (Or. Ct. App. 2001).
100
Id.
101
20 USC §1415(k); 34 CFR 300.530-300.536.
102
34 CFR 300.535.
103
29 U.S.C. §794 (2018); 34 CFR Part 104 (2018).
DRUGS, SUBSTANCE ABUSE, AND PUBLIC SCHOOLS
45
104
Waldspurger, Mick, and William Kidel, M.D., “Drugs and Disabilities:
Conducting Special Education Evaluations of
Students Who Abuse Drugs or Alcohol,” Inquiry & Analysis, National School Boards Association, July 2010.
105
Id., citing Minn. R. 3525.1329(2)(a), and Old Orchard Beach Sch. Dep’t 2, 21 IDELR 1084 (Maine state education agency
ruling that state rules require ruling out other causes, and nding that the student was truant, but not EBD).
106
Id., citing, e.g., Letter to Uhler, 18 IDELR 1238 (1992).
107
Id.
108
42 USC §1232g.
109
42 USC §1320d.
110
Sealander, Karen, “Condentiality and the Law,” Professional School Counseling; Dec 99, Vol. 3 Issue 2, p122, 6p http://
www.pc3connect.org/otherdocs/condentiality%20and%20the%20law.pdf.
111
See e.g., 42 CFR Part 2.
112
42 CFR §2.14.
113
The Condentiality of Alcohol and Drug Abuse Patient Records Regulation and the HIPAA Privacy Rule: Implications
for Alcohol and Substance Abuse Programs, HHS, Substance Abuse and Mental Health Services Administration Center
for Substance Abuse Treatment (2004), https://www.samhsa.gov/sites/default/les/part2-hipaa-comparison2004.
pdf.
114
42 CFR §2.14(c)(2).
115
See 42 CFR §2.16.
116
Virginia Assoc. of School Nurses, “Drug Endangered Students and the School Nurse’s Role” (April 7, 2013).
117
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