INSIGHT: California Allows Medicinal Cannabis in Public Schools—A National Milestone for Cannabis Laws

As of Jan. 1, a new California law—known as Jojo’s Act—allows parents and guardians to bring and administer the use of certain medicinal cannabis products to students at California’s public K–12 campuses. The controversial law is a milestone in cannabis reform inside and outside of California.

With roughly six million K–12 students, California has the largest public student enrollment of any state in the nation. Jojo’s Act reflects the increasing normalization of medicinal cannabis use in schools nationwide, as nearly one in five states now has a similar law.

California Law

In 1996, with the passage of the Compassionate Use Act, California became the first state to decriminalize the use of medicinal cannabis for medical treatment. Following this history, Jojo’s Act is intended to assist students coping with debilitating illnesses, such as epilepsy or cancer, so they can receive treatment without disrupting their education.

Prior law prohibited the possession and use of cannabis within 1,000 feet of a school. However, since the pediatric conditions most effectively treated by cannabis require regular treatment, the objective of the law is to ensure that parents and guardians of students who need medicinal cannabis are not compelled to pull their children out of class and remove them from campus to administer needed medication.

Jojo’s Act authorizes school districts, county boards of education, and charter school governing bodies to adopt policies allowing parents or guardians of eligible students to administer medicinal cannabis on campus.

In addition to the adoption of such policies, relevant elements of Jojo’s Act include the following:

• Parents or guardians of students that are otherwise deemed “qualified patients” under the California Health & Safety Code may possess and administer medicinal cannabis at a school site, provided that the parent or guardian gives the school with a copy of a valid written medical recommendation to possess and administer medicinal cannabis on behalf of a student.
• Jojo’s Act prohibits the possession or administration of smokable or vapable cannabis-based substances.
• Local policies must adhere to certain minimum standards including (1) the administration of medicinal cannabis must not disrupt the educational environment or expose other students to medicinal cannabis; (2) medicinal cannabis may not be stored on campus; it must be brought to a school site by the parent or guardian, then removed after the student receives the necessary dose; and (3) a parent or guardian must sign in when coming on campus to administer the medicinal cannabis to the student.
• Student records collected by a school site to monitor the use of medicinal cannabis must remain confidential and be treated as medical records, subject to all provisions of state and federal law that govern the confidentiality of medical records.

Absent the adoption of local policies, the use of medicinal cannabis at school sites will continue to be prohibited. Accordingly, the use of medicinal cannabis will be left to California’s 58 county offices of education, more than 1,000 school districts and roughly 1,200 charter schools.

In many ways, the law is flexible. While it establishes baseline requirements, it permits local governing bodies to create a medicinal cannabis policy that best suits them and their student populations.

Commonalities With Other States

The passage of Jojo’s Act follows the enactment of similar measures in eight other states: Washington, Colorado, Florida, Maine, New Jersey, Delaware, Illinois, and New Mexico.

Similar to the legislation in Illinois, Colorado, Maine, and New Jersey, only nonsmokable cannabis products may be administered on school grounds. Additionally, in these states medicinal cannabis must be administered by a parent or guardian, though Colorado recently expanded its law to allow school staff to administer medicinal cannabis.

The change in Colorado is a significant development because it recognizes the need to help remove barriers and burdens on working parents who may not have the flexibility to administer cannabis treatments on-campus during the school day. In turn, more students in need of medication can be treated.

Like California, New Mexico places school districts and charter school governing bodies in charge of setting policies around the use of medicinal cannabis. Similarly, Washington delegates decisions around medicinal cannabis use down to the school level. It is clear that jurisdictions are pushing for local control, which could allow for thoughtful rules and regulations tailored to specific student and parent populations.

While the policies may vary from state to state, district to district and, in some cases, school to school, nearly one in five states allows students with ailments to benefit from medicinal cannabis. However, as is often noted, states must still reckon with and consider federal laws that continue to proscribe cannabis use, particularly when schools accept and rely on federal grants.

Interactions With Federal Law

Cannabis remains a “Schedule 1” controlled substance under federal law. Further, recipients of any federal grants—including education-based grants—must comply with the Drug-Free Workplace Act, which requires grantees to prohibit the manufacture, use and distribution of controlled substances in the workplace. Failure to comply with the Drug-Free Workplace Act may lead to the suspension or termination of federal grant funding.

Complications with federal law present serious risks for schools. Federal funding accounts for less than 10% of spending on K–12 education in the United States, and federal funds constitute 9% of California’s K–12 budget. That funding supports the education of California’s most vulnerable students. For example, California school districts receive nearly $2 billion a year in federal grants to support the education of students from low-income backgrounds, a level of investment unmatched by any other state.

In recognition of complications with federal law, Jojo’s Act includes a safety valve to avoid the potential loss of federal funding. The legislation allows for local governing bodies to quickly modify or rescind their medicinal cannabis policy if “exigent circumstances” (a term of art not defined in the law) exist.

This allowance gives districts and counties the ability to opt-out of its medicinal cannabis policies if they are at-risk of losing federal funding. Other states are sensitive to the federal dynamics at play. New Mexico allows boards of education and charter school governing boards to opt-out of medicinal cannabis policies if they threaten the loss of federal funding.

Similarly, in Colorado, a school can choose not to allow school personnel to administer medicinal cannabis if it fears that will lead to a loss in federal funding. Presumably, until federal law changes, statutory or regulatory flexibility to quickly eliminate medicinal cannabis policies at school sites will be a regular feature in future state laws that follow Jojo’s Act.

Health Care Industry

Against the backdrop of changing state laws and attitudes toward medicinal cannabis at school sites, the use of medicinal cannabis among minors remains controversial. However, such use is slowly gaining traction in the medical provider community.

The American Academy of Pediatrics, among the most prominent voices in the advocacy of children’s health, opposes the use of medicinal cannabis among minors as a policy matter. Still, in 2015, the AAP recognized “that marijuana may currently be an option for cannabinoid administration for children with life-limiting or severely debilitating conditions and for whom current therapies are inadequate.”

Moreover, in a 2017 article published in Pediatrics, the AAP’s quarterly journal, 92% of 654 surveyed pediatric oncology providers in Illinois, Massachusetts, and Washington indicated that they would be willing to help children with cancer access medicinal cannabis.

Looking Forward

The passage and enactment of Jojo’s Act are notable as the act comes from the country’s most populated state, which has the largest K–12 student population, and it represents a significant step in the cannabis reform movement. But what is perhaps most significant about Jojo’s Act is what it does not do.

It does not force school districts to adopt policies around medicinal cannabis, and it does not require school personnel to administer it. While some may disagree with the use of medicinal cannabis among K–12 students, Jojo’s Act rightfully places that choice with communities and families.

The decision to adopt or forego a medicinal cannabis policy is made at the local level, and the ultimate decision-maker regarding use and administration is a parent or guardian.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Anita Sabine is a partner with Manatt, Phelps & Phillips in Los Angeles and leads the firm’s real estate transactions and finance practice and the cannabis and CBD practice.

Brandon Young is a partner with Manatt, Phelps & Phillips in Los Angeles in its government and regulatory group.

Mario Cardona is a litigation associate with Manatt, Phelps & Phillips in Los Angeles.