Is This Dope or What? Teachers and Recreational Marijuana Use
Many states permit recreational marijuana use, and more are likely to follow suit. This raises questions about the use of marijuana for many professions, especially educators.
October 2018, Volume 42, Issue 2
By Mark Paige and Suzanne Eckes
At least eight states and the District of Columbia, subject to certain exceptions, permit recreational use of marijuana. If the current trend continues, more states will soon follow suit. The legalization of marijuana raises numerous questions, especially for educators. Some express worry that the legalization might lead to increased use among children, notwithstanding that a person must be at least 21 to purchase and use marijuana. But quite apart from student use, what are the issues associated with educator use of marijuana? More specifically, as employers, what issues will school districts confront if educators engage in what is legal behavior in many states? These questions and answers are emerging, so “hard and fast” rules are elusive. But there are things administrators should consider in these relatively unchartered waters.
State Law Versus Federal Law
To begin, federal law prohibits the use of marijuana. The current Attorney General has expressed a desire to undo protections for medical marijuana use so it is not a stretch to suggest the federal government might take an aggressive stance vis-à-vis recreational use. The point: Educators using marijuana might not escape federal prosecution and, of course, if that did happen, their jobs would be jeopardized. Also, even in those states that allow recreational use, the law might defer to the decision of the employer. California’s law, for example, protects the employer’s right to have some control in these situations.
Public Perception Counts
In addition, educators must remember that they are considered “role models” and this affects their rights as private citizens. We use the term role model in its legal sense, not simply a quaint reference to an aspirational view of educators. Indeed, numerous courts have upheld a school’s disciplinary action for educators that display behavior—even legal behavior—inapposite to what we expect role models to do in our society. An educator can drink alcohol legally at a bar, but at what point would an intoxicated and obnoxious teacher in a public bar cross the “role model” boundary? Is there a similar line to cross with respect to a teacher who may use marijuana at a party (where children are attending) to the point of impairment?
Teachers might recoil at the notion that they have some reductions in terms of freedoms that other citizens may enjoy. Yet they should know that it is part of the exchange in public employment, especially in a school. Of course, this is not to say that legal use of marijuana justifies a disciplinary action based on this role model status or that such an action would be upheld. But it is to say that this might arise in a particular case and the outcome may depend on the facts.
When Laws Fall into a Gray Area
What about when a teacher uses marijuana where it is legal (say Colorado) but returns home to Texas (where it is illegal) and fails a drug test? At least one administrative law judge determined that discipline was not appropriate. He observed that if the teacher had gambled in Nevada (where gambling is legal) but taught in Texas (where gambling is illegal), she would not have experienced disciplinary action. But, the results might vary, depending on a particular judge or facts of a case. These are just a sampling of the issues that can arise. As time moves forward, we are sure to see others.
What Principals Can Do
What are principals, then, supposed to do? Train teachers and employees about the legal issues—and ambiguity—around marijuana. Many teachers might think “Hey, it’s legal, no problem, right?” But that is not the case, and, as we note, it remains illegal under federal law. Clarifying points might help stop myths about the law that can spread quickly in teacher lunch rooms, if left to their own devices. Review your school board policies that might have been enacted in relation to state law changes. Are there policies related to employee use, possession, and cultivation on personal time? Should there be?
These issues of marijuana use are evolving and vary depending on your state. It is important to be aware of this evolution and how your district is (or is not) responding. One thing is for sure: Legalizing marijuana might have resolved one question (i.e., permissible use under state law), but it raised a host of others for school leaders.
Mark A. Paige is an associate professor at the University of Massachusetts-Dartmouth.
Suzanne Eckes is a professor at Indiana University. Both are board members of the Education Law Association
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