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Non-Medical Use of Marijuana Now Legal in California

Of course, it's hardly breaking news that Proposition 64 passed yesterday.  California now joins the growing number of states to legalize marijuana for those over age 21.  Also not news is that the lifting of California's ban does not affect college campus policies.  The federal Drug Free Schools and Community Act (DFSCA) specifies that federal funds to institutions of higher education are contingent upon them maintaining an illegal-drug free environment.  Since under the federal law marijuana remains illegal, campuses must maintain their ban.  

But perhaps its also time to speculate on where policies will go from here.  We now have more than half the states allowing some form of marijuana possession and use.  Most of those are medical use states, but now 9 states have passed non-medical use laws as well.  The discordance between federal and state laws is likely reaching a breaking point.  Perhaps the first move by the federal government would be to change marijuana to a CSA Schedule II status (allowing medical use).  

While a schedule change may seem inconsequential to the campus bans, in fact it may be a game-changer.  Currently, no entity that faces a federal consequence by allowing marijuana has been required to "accommodate" marijuana use for those patients who need it.  There's a simple logic to why this is the case: the federal government can't on the one hand require a campus to break a law, and on the other hand punish it for breaking that law. But rescheduling may change that dynamic.  A Schedule II drug can be used for medical purposes, and therefore would not fall under the general DFSCA ban.  Thus, someone with a medical need would have to be accommodated within practicality.

What would this mean? Well in California, medical use remains a constitutionally protected right.  This right is unbounded by age.  It would seem quite plausible that a court could find that campuses would need to provide reasonable accommodation for students with a medical recommendation.  Therefore, any aged students with a medical recommendation would likely be allowed to possess and use under the accommodation scheme.  Enforcement of campus policy becomes extremely complex with various ages of students and reasons for possession.  This complex environment would remain, even if marijuana is de-scheduled altogether.  Again, the age-21 law can be easily circumvented with an easily obtained medical recommendation.  

And so this means... while we may feel comfortable that our need to comply with the DFSCA keeps marijuana off our campuses, that comfort may be fleeting.  At any time, a federal law change could set up a need to dramatically rethink how marijuana is handled on campus. Indeed, it seems with each election that change becomes more and more likely.  Focusing prevention efforts on harmful/riskier use, rather than just use and possession will likely be the blueprint for adapting to that eventuality.