President Trump recently issued Executive Order 14370, directing the U.S. Attorney General to begin rulemaking to move marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA) – as referenced in our previous alert here. This change, along with Food and Drug Administration (FDA) approval, would recognize marijuana as having accepted medical uses and could significantly affect policies related to student use of marijuana at institutions of higher education.
Current Legal Framework:
Under federal law, marijuana is a Schedule I drug – illegal for virtually all purposes under the CSA. Pennsylvania’s Medical Marijuana Act (MMA), enacted in 2016, allows medical use of the substance, but an earlier decision from the Commonwealth Court in the case of HACC v. PHRC (2020) held that neither the Pennsylvania Human Relations Act (PHRA), nor the Pennsylvania Fair Educational Opportunity Act (PFEOA), requires colleges to permit students’ use of marijuana as a disability accommodation. In that case, a nursing student requested an accommodation from the college’s drug testing requirement because she was a lawful medical marijuana user under the MMA. The Commonwealth Court, however, held that the MMA’s enactment did not provide the student with the right to use marijuana as a disability accommodation because marijuana, at the time, was still a Schedule I substance under federal law.
What Changes if Marijuana Becomes Schedule III?
If marijuana is reclassified and approved by the FDA for prescription use, medical marijuana would no longer be considered “illegal” for all purposes under federal law. As a result, the ADA, PHRA, and PFEOA might require colleges to consider reasonable disability-based accommodations that could include permitting the use of marijuana, unless doing so would impose an undue hardship on the institution or constitute a direct threat to the health and safety of other students.
Practical Implications:
Certainly, institutions would be able to prohibit marijuana use that is not authorized by a valid prescription. Likewise, institutions might be able to restrict even prescribed marijuana use if institutions can show legitimate health and safety concerns. In particular, institutions might be able to restrict the smoking of marijuana in on-campus housing – as opposed to other forms of marijuana ingestion – due to the dangers related to smoking and open flames.
That said, institutions will likely be required to revise drug testing policies that are curricular requirements for professional services training programs, such as nursing or allied health programs that frequently feature drug testing requirements prohibiting students from using any form of marijuana. It’s too early at this point, however, to know how the courts and civil rights enforcement agencies will view the issue. For the time being, it’s safe to say that the re-classification of marijuana will likely require institutions to review their current drug policies and accommodation procedures to align them with federal changes. Thus, institutions should monitor developments closely.
Next Steps:
Higher education leaders should review existing policies on drug use and disability accommodations, prepare for potential updates if marijuana becomes a lawful prescribed medication, and seek legal guidance to ensure compliance with evolving federal and state laws.
Barley Snyder’s Higher Education Industry Group includes a dedicated team of attorneys who regularly advise colleges and universities on evolving compliance issues. For guidance tailored to your institution, please contact attorneys David Freedman, Sarah Doyle or any member of our team.
