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Marijuana and Public Schools - The Talk Has

Changed

I. INTRODUCTION

Medical marijuana usage in public schools has created a haze for


state and federal lawmakers, students, school districts, and parents/
guardians. Medical marijuana benefits the lives of many people who
suffer from life threatening illnesses, such as multiple sclerosis,
epilepsy, autism, and glaucoma. Usually, it is prescribed in two forms:
the plant itself or cannabis oil, which the patient can ingest through food
and drink. While medical marijuana has been legal in some states for
nearly two decades, it is still illegal under federal law. Only now are
school districts and lawmakers across the United States starting to tackle
the issues regarding students’ use of medical marijuana.
The issue arises when students are prescribed medical marijuana.
After years of attempting to keep marijuana out of schools, educators
across the country now have to address the issue of administering
prescription medical marijuana to students. When public school nurses
administer medicinal marijuana to students, the schools claim that
students and nurses are violating federal law, even though marijuana use
is legal for medicinal purposes under state law.
Nationwide, many families have been negatively affected by schools
that refuse to let their staff administer prescribed marijuana to students.
Some schools require students to go home in the middle of the school
day to take their much needed medication; meaning, these students often
complete only a half-day at school. 1 When a student is denied their
prescribed medication, or they have to leave in the middle of the school
day to take their medication, their daily routine is disrupted. This is

1. Parents Seek Help fo r Son with Autism and Reoccurring Behavioral Crises, AUTISM
10, 2015), https://www.autismspeaks.org/blog/2013/10/25/parents-seek-help-
S p e a k s (N ov .
son-autism-and-recurring-behavioral-crises.

443
444 Journal of Law & Education [Vol. 45, No. 3

problematic because schools have the capability to administer the


medical marijuana through their fully-trained nursing staff.2
The U.S. Supreme Court has long held that the 14th Amendment to
the U.S. Constitution guarantees that certain fundamental rights cannot
be removed without Due Process of law.3 One of those fundamental
rights is the right of parents to direct the upbringing and education of
their children.4 The public schools that deny medicinal marijuana use, or
require students to leave school to take their prescribed dose, are
infringing on the rights of parents to wholly direct the health, welfare,
and education of their children.
The schools are infringing parents’ rights by not allowing children
access to medication, or by making it unduly burdensome on parents
and children in having access to the prescribed medication. Therefore,
schools stand in the way of parents’ ability to rightfully care for the best
interests of their children within the public school system.
The following sections will address a particular student, Genny, and
the many legal problems her family faced because of medical marijuana
usage in state schools. The following sections explain the parents’
constitutional rights to make health decisions regarding the upbringing
of their children, and the various reasons medical marijuana has become
so popular and successful in combatting chronic illnesses similar to
Genny’s. Additionally, the states’ fears regarding medical marijuana
usage in schools will be examined. Finally, this note gives
recommendations for how the schools should implement the legal
administration of medical marijuana to the prescribed students on school
grounds.

2. Jay Syrmopoulos, Parents Threatened with Arrest fo r Treating Daughter’s Epilepsy with
Legal Cannabis Oil at School Alternate Inc., AlterN et (Sept. 24, 2015, 2:03 PM),
http://www.altemet.org/drugs/parents-threatened-arrest-treating-daughters-epilepsy-cannabis-oil-
school.
3. U.S. Const, amend. XIV, § 1.
4. Meyer v. Neb., 262 U.S. 390, 29 1923).
Summer 2016] Chalk Talks 445

II. GENNY’S STRUGGLES

An epileptic seizure is extremely scary and painful. They come out


of nowhere and lead to stiff muscles, limbs that jerk uncontrollably, face
twitching, severe confusion, and writhing pain all over one’s body.
Many who experience these epileptic seizures hit and slap themselves in
the head and all over their bodies in an attempt to rid themselves of the
indescribable pain that took control over every muscle in their body.
This is the life of 16-year-old Genny Barbour when she experiences
an epileptic and an autistic seizure. These seizures come out of nowhere
and the severity varies from person to person.
Genny attends the Larc school, in Bellmawr, in the Maple Shade
School District of New Jersey; this school specifically serves children
with disabilities.5 Genny’s school refused to administer her medically
prescribed cannabis oil on school grounds, claiming it was illegal under
federal law and that the school would be violating federal law if they
administered the prescription.6 In order for Genny to receive her
medication, Genny has to consume a tiny dash of the cannabis oil four
times a day in a soft drink. One of the times her doctor recommends is
during lunchtime.7 Due to the school’s refusal to administer the cannabis
oil through the school nurse, Genny’s parents, Lora and Roger Barbour,
are forced to send Genny to school for half-days in order to ensure that
she receives the cannabis oil the prescribed four times a day,
particularly at lunch time, as her doctor has recommended.8

5. Maple Shade, N.J. District Becomes First To Allow Medical Marijuana For Students,
CBS (Nov. 13, 2015), http://newyork.cbslocal.com/2015/ll/13/maple-shade-n-j-medical-
marijuana-students/.
6. Christina Lobrutto, N.J. Bill Would Allow Sick Kids To Use Medical Marijuana Oil In
School, P hilly V oice (June 23, 2015), http://www.phillyvoice.com/nj-bill-sick-kids-medicaI-
marijuana-oil-school/.
7. Susan K. Livio, N.J. Lawmakers Push Bill Allowing Sick Kids To Use Medical
Marijuana Oil In School (June 22, 2015), http://www.nj.com/politics/index.ssf/2015/06/
nj_]awmakers_introduce_bill_allowing_sick_kids_to.html#incart_river.
8. Susan K. Livio, N.J. Family In Medical Marijuana Dispute With School Appears On
'The View,’ (September 21, 2015), http://www.nj.com/politics/index.ssf/2015/09/nj_family_
in_medical_marijuana_dispute_with_school.html.
446 Journal of Law & Education [Vol. 45, No. 3

Since being prescribed cannabis oil, Genny’s seizures have decreased


from several times a day to about once every five days. 9 Also, according
to her parents and documentation from the school, the oil has
dramatically reduced the intensity and frequency of Genny’s seizures, it
helps control behavior outbursts, and improves her learning skills. 10
Previously, the Barbours tried various scheduled pharmaceuticals, but
none of them decreased the frequency of Genny’s seizures or helped her
attentiveness at school the way the cannabis oil has. *11
Roger Barbour sued the school and the Maple Shade School District
for violating Genny’s right to receive an education and her right to
consume the cannabis oil at school. Judge, John S. Kennedy, ruled that
it was illegal for the school nurses and for Genny’s mother to administer
the cannabis oil on school grounds under federal law and another court
agreed. 12 The court reasoned that, “state and federal laws prohibiting
drug possession on school grounds takes precedence over the students’
right to use medical cannabis derivatives. ” 13 This ruling was made
despite the New Jersey Compassionate Use Medical Marijuana Act,
which permits the use of marijuana for medicinal purposes. 14
Due to Judge Kennedy’s ruling, Genny had to continue half-days in
school, so that she could go home and take her prescribed dose of the

9. Patrick Whittle, Schools Start To Grapple With Medical Marijuana Use By Students As
Policy Lags Behind Acceptance, U.S. NEWS & WORLD R e p o r t (Jan. 7, 2016),
http://www.usnews.com/news/us/articles/2016-01 -07/schools-mull-medical-marijuana-policies-
over-student-use.
10. Celeste Whitaker, Christie Passes Medical Marijuana Bill, COURIER-POST (Nov. 9,
2015), http://www.courierpostonline.eom/story/news/2015/l 1/09/christie-passes-medical-
marijuana-bill/75481668/.
11. Joe Landou, New Jersey Parents Sue To Allow Daughter To Use Medical Marijuana In
School, N.Y. D a il y N e w s (May 3, 2015), http://www.nydailynews.com/life-style/health/
parents-sue-daughter-medical-marijuana-school-article-1.2208717.
12. Susan K. Livio, N.J. Family In Medical Marijuana Dispute With School Appears On
'The View', NJ.COM (Sept. 21, 2015), http://www.nj.com/politics/index.ssf/2015/09/nj_family_
in_medical_marijuana_dispute_with_schooI.html.
13. Patrick Whittle, Schools Start To Grapple With Medical Marijuana Use By Students As
Policy Lags Behind Acceptance, U.S. NEWS & WORLD REPORT (Jan. 7, 2016),
http://www.usnews.com/news/us/articles/2016-01-07/schools-mull-medical-marijuana-policies-
over-student-use.
14. Jay Syrmopoulos, Parents Threatened with Arrest fo r Treating Daughter’s Epilepsy
with Legal Cannabis Oil at School Alternate Inc., A l t e r N e t (Sept. 24, 2015, 2:03 PM),
http://www.altemet.org/drugs/parents-threatened-arrest-treating-daughters-epilepsy-cannabis-oil-
school.
Summer 2016] Chalk Talks 447

oil. The family appealed the decision in state and federal court, on the
grounds that their daughter was being denied her education because of
her illness. Legal experts claimed that the case was the first of its kind in
the United States. Months after the Barbours’ legal loss with Judge
Kennedy, a new bill, inspired by Genny, was introduced by New Jersey
lawmakers. This bill would allow students to consume medical
marijuana oil in school if parents or a legal guardian would come to the
school to administer it.15 However, smoking marijuana on school
grounds would still be prohibited. The A4587 bill would protect school
districts from any liability associated with cannabis use because children
would have to have a developmental disability, and they would need to
be registered with the state's medical marijuana program.16
The A5487 bill was signed into law in November 2015 by New
Jersey Governor, Chris Christie. While the new law does not allow the
school nurse to administer the dose, Genny's mother is now allowed to
bring Genny’s lunch time dose to her every day at school. Even though
the family is ecstatic with the win, Genny’s mother said, “What parent
has the time to go into the school every day to do it?” The family plans
on continuing to fight to allow school nurses to administer the doses in
the future.
Two months after this A5487 bill was signed into law, a city of about
23,000 in Auburn, Maine approved a policy to allow students to have
medical marijuana under the same conditions as Genny’s school district.
The policy had to be based on the conditions of the legislation.17
Prescriptions would have to be approved by a physician and
administered in school by a parent or guardian. To date, only three of
the twenty three states where medical marijuana is legal have seen
schools or state officials set up similar rules.18 If the remaining twenty

15. Maple Shade, N.J. District Becomes First To Allow Medical Marijuana For Students,
CBS, (Nov. 13, 2015), http://newyork.cbslocal.com/2015/ll/13/maple-shade-n-j-medical-
marijuana-students/.
16. Supra, note 15.
17. Asher Fogle, Medical Marijuana Saved Our Daughter's Life, GOOD HOUSEKEEPING
(June 24, 2015), http://www.goodhousekeeping.com/health/a33066/genny-barbour-medical-
marijuana/.
18. Parents Seek Help for Son Autism and Recurring Behavioral Crises, A u t is m S p e a k s
(November 10, 2015), https://www.autismspeaks.org/blog/2013/10/25/parents-seek-help-son-
autism-and-recurring-behavioral-crises.
448 Journal of Law & Education [Vol. 45, No. 3

states would follow New Jersey’s lead, kids in every school district
suffering from an illness would be able to obtain their medication at
school without having to leave school grounds. Policies like this would
allow students to have a consistent routine that students without
illnesses enjoy every day.

IV. PARENTS AND THE PROTECTION OF THE U.S.


CONSTITUTION

According to the U.S. Constitution, and numerous Supreme Court


rulings, parents have a fundamental right to make decisions regarding
the upbringing of their children. In Meyer v. Nebraska, the U.S.
Supreme Court held that “the liberty protected by the Due Process
Clause includes the right of parents to establish a home and bring up
children and to control the education of their own children.”19 Several
decisions followed Meyer, Prince v. Massachusetts, where the Court
ruled that, “it is cardinal with us that the custody, care and nurture of the
child reside first in the parents, whose primary function and freedom
include preparation for obligations the state can neither supply nor
hinder.”20 The Court has consistently held that parents have the most
power when it comes to the numerous complex decisions that
correspond with the upbringing of children from birth to their legal age.
In 2000, the Court summarized their previous decisions in Troxel v.
Granville when they stated that, “in light of this extensive precedent, it
cannot now be doubted that the Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children.”21
The Supreme Court has consistently ruled that no state alone, or
through its public school system, has the power to undermine or
overpower the fundamental rights of parents concerning the upbringing
of their children.22 Many other families across the United States have
found themselves in the same or similar situations as Genny. They are

19. Meyer v. Neb., 262 U.S. 390, 43 U.S. 625 (1923).


20. Prince v. Massachusetts, 321 U.S. 158 1944).
21. Troxel v. Granville, 530 U.S. 57 2000).
22. Supra, note 21.
Summer 2016] Chalk Talks 449

currently battling the rights they have as parents, such as their


fundamental right to choose the best form of medication for their child.
But, they are getting push back from school districts that refuse to let
their children have this particular medication, as needed, throughout the
school day.

V. THE BENEFITS OF MEDICAL MARIJUANA

The science is clear, medical marijuana is a safe and effective


treatment for a variety of debilitating medical conditions. Countless
researchers and organizations, including the Institute of Medicine, the
American College of Physicians, the American Public Health
Association, the American Nurses Association, and the Epilepsy
Foundation, have documented the medical benefits of marijuana.23 Like
in Genny’s case, medical marijuana has been shown to provide relief for
many conditions where conventional drug methods have failed.
Seven University of California studies, published since July 2015,
have found that marijuana relieves neuropathic pain (pain caused by
damage to nerves) and is effective with only minor side effects. This
symptom is commonly associated with multiple sclerosis, HIV/AIDS,
diabetes, and a variety of other conditions for which conventional pain
drugs are notoriously inadequate.24 A 2015 McGill University study, the
“first and largest study of the long term safety of medical cannabis use
by patients suffering from chronic pain,” found marijuana to have a
“reasonable safety profile” with no increased risk of serious adverse
effects.22 Medical marijuana helps ease temporary or chronic pain
associated with a range of illnesses and has been proven through
various, reputable studies. Medicinal marijuana should be available for
convenient usage by all who are prescribed it, regardless of whether
they are in the public school system.

23. Supra, note 17.


24. Gregory Carter, Medicinal Cannabis: Rational Guidelines fo r Dosing 464-470 IDrugs
(2004).
25. Medical Marijuana, Marijuana Policy Project, https://www.mpp.org/issues/ medical-
marijuana-2016-35649252ana/ (last visited Feb. 10, 2016).
450 Journal of Law & Education [Vol. 45, No. 3

VI. THE STATE’S LEGAL WEED WOES

States are concerned with the legality of having medical marijuana


on campus and the possibility of redistribution on school grounds for
recreational use. Scott Gagnon, director of Smart Approaches to
Marijuana Maine, which opposes legalization of marijuana and fought
Maine’s law to allow marijuana in schools, said districts are right to be
cautious and to work to prevent recreational use of the substance.26 Mr.
Gagnon stated, “We already know kids report that drugs are sold and
exchanged on school property. We don’t want to see this add to that.”27
However, the students who are prescribed medical marijuana are
sick, and many have life threatening illnesses. These students need this
medical marijuana in order to attend any form of school at all. The
students should not have their education interrupted simply because they
were diagnosed with a painful and crippling disease. It is punishment
enough that the students deal with the daily aches and pains of living
through their illnesses and life threatening seizures. These students
should not have to endure even more punishment from public schools
by being denied their legally prescribed meds.
The Marijuana Policy Project has studied the correlation between
medical marijuana usage and teens.28 Nearly fifteen years after the
passage of the nation’s first state medical marijuana law, California’s
Prop. 215, a considerable set of data shows that teens’ marijuana use has
generally gone down following the passage of these laws.29
Additionally, no state saw any increase in teens’ marijuana use which
strongly suggests that the enactment of state medical marijuana laws
does not increase teen marijuana use.30 Therefore, medical marijuana
usage in public schools would not create a negative impact in schools.

26. Supra, note 24.


27. Patrick Whittle, Schools Start To Grapple With Medical Marijuana Use By Students As
Policy Lags Behind Acceptance, U.S. N ews & W orld Report (Jan. 7, 2016),
http://www.usnews.com/news/us/articles/2016-01-07/schools-mull-medical-marijuana-policies-
over-student-use.
28. Supra, note 24.
29. Id.
30. Id.
Summer 2016] Chalk Talks 451

The fear that state public school systems have, of the medical
marijuana becoming recreational in the school, has no merit. The
administration of the drug would be followed through with the same
protocol of other medications that students have always been allowed to
take throughout a school day. If the last twenty states followed New
Jersey’s lead and allowed the administration of the meds through a parent
or a school nurse, the student would only have access to it in the moment
they are consuming it; which would be in front of a parent or school
nurse, in a private room within the school. The supervising individual
would be responsible for making sure the student fully consumed it.

VII. CONCLUSION

Countless researchers, medical studies, and organizations have


documented the medical benefits of marijuana. Medicine should be
based on science, not politics and the law should reflect the facts.
Doctors should be allowed to recommend marijuana to patients when
they believe it will be effective. Students in the public school system
who are prescribed marijuana should not be prevented from taking their
medication and put through burdensome hoops to consume it during a
typical school day. Likewise, the parents of these students should not be
prevented from trying to administer these meds to their children when
they have the fundamental right to decide the course of meds for their
child’s health.

Ajla Hakalovic
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