Bad puns aside, schools must now confront the reality that South Dakota law allows medical marijuana in schools, and schools need to have a plan for addressing the inevitable issues that are going to arise.
The Department of Education’s new rules for medical marijuana in schools cleared their last hurdle July 19 with the legislative committee giving its stamp of approval. Some highlights:
The rules go into effect August 8, 2021.
Schools may still have a bit of a reprieve at the beginning of the school year, as the Department of Health will not be handing out cards to qualifying individuals until October or November. (However, your IEP and Section 504 teams will want to be ready before that, and non-verified students who bring cards in should be ringing your child find bells--more on that below.)
Students may still be considered “cardholders” with valid cards from other states if they are new to the state or are tribal members.
The new rules do not force school personnel to administer marijuana to students.
All medical marijuana must be in a non-smokable form.
Now what? Schools need to decide how much control they wish to assert over the administration of medical marijuana in their district. Under the rules, schools can choose to:
Administer medical marijuana themselves; or
Allow for designated caregivers to administer medical marijuana to a student rather than have staff deal with it, but the caregiver must be allowed to come onto school property to do so.
Regardless of which approach you choose to take your district, we recommend that Boards enact a policy clearly laying out the District’s approach.
Are you finding yourself saying, “Isn’t marijuana still illegal under federal law? I don’t want to deal with it or lose my license.” The regulations consider this and allow for a district to refuse to comply with the rules entirely if it loses federal funding or if it can “reasonably demonstrate that it will lose” federal funding as a result of complying with the rules. Marijuana is still illegal at the federal level, but no schools in other states with legalized medical marijuana have lost funding due to allowing medical marijuana on school grounds. How strict the South Dakota Department of Education will be with this requirement remains to be seen. We also hope the SDDOE will factor in these rules when dealing with professionalism standards related to licensing of teachers and administrators and the interplay with state and federal criminal laws.
Speaking of federal law, how do the IDEA and Section 504 mesh with these new rules? If a school gets a request from a student on an IEP or 504 plan to have district personnel administer marijuana, but district policy does not allow for that, what should the district do? The rules attempt to address this by explicitly stating those laws cannot force a school to store or administer medical marijuana. The protection this rule would give a school in federal court may be limited, as this has been an issue in other jurisdictions, with courts coming out on both sides of the issue. However, it is clear that such a request triggers the team’s obligation to consider it, issue prior written notice, and possibly include any services or related services related to it. If a non-verified student brings in a request, you should get your special education and Section 504 staff involved to determine if the underlying medical condition you may or may not have been aware of triggers your obligation to refer the child to the student assistance team and/or begin the evaluation process.
You should contact your school attorney to begin the process of adopting a policy regarding medical marijuana or feel free to reach out to Karen, Steve, Bobby, Coady, Jordan or Tyler with any questions at (402) 804-8000 or ksb@ksbschoollaw.com.