Best News: Suspending Students For Odor Of Marijuana On Their Persons is a Problem In Pot-Legal States

By Darren Smith, Weekend Contributor

There is going to need to be a rethinking of how schools with their propensity toward zero-tolerance rules adjudicate students they suspect of marijuana use or possession. That issue was played out in over the course of recent months at a high school in Wenatchee, Washington where in October of last year school administrators suspended for five days a student based upon the odor of marijuana on his person. Washington is a state having legal recreational and medicinal marijuana possession and use.

Though marijuana possession or use is for those under twenty-one years of age is a status offense–a misdemeanor and violates school policy–having a odor of marijuana in itself is not indicative of violations of law. The student and his mother denied the student using or possessing marijuana, however the school district continued with the suspension. It turns out, as alleged by the mother and is the most probable explanation, the student had the aroma on his person as a result of her harvesting legal medical marijuana in the household. The mother has a prescription for medical marijuana.

On the day of the initial incident, the student was contacted by a security official of the school on school property for the marijuana aroma. The administrators of the school sanctioned the student with an "emergency expulsion" pending the result of a drug test that would not be available for a week. I fail to accept that a student, not having marijuana on his or her person after search by school officials but has an aroma of marijuana on his person, constitutes an emergency. The school should have recognized also that in the state marijuana is legal to possess and so are cigarettes as well. Children living in homes having parents who smoke are likely to have cigarette smoke aroma on their persons. And though minors are prohibited from purchasing cigarettes, because of the fact that others surround them during adult smoking is not sufficient cause to suspect the minor is engaged in purchasing tobacco.

The result of the marijuana drug test of the student was negative.

In an interview with the Wenatchee World, school administrators stated that it was policy to issue emergency expulsions if students were under the influence of controlled substances. Again, the school had no evidence to support that the student was under the influence or in possession of marijuana.

Another problem with drug testing for marijuana is that the active ingredient in some strains of the plant, Delta-9 THC, is fat soluble and can remain in the system for weeks without any signs of the person being high. If the standard is "under the influence" the state needs to have Drug Recognition Experts who are certified by the state in order to have probable cause of a person being under the influence of marijuana. The state establishes for the purpose of DUI presumptive THC intoxication 5 nanograms per milliliter of whole blood.

Mark Helm, the district's executive director of student services, stated that though they discussed this particular incident, he indicated the policy was unlikely to change, claiming the school was erring on the side of caution. I believe his interpretation of caution is the opposite of what it needs to be.

Mr. Helm offered a solution that would allow for the student to "reduce their suspension time" if the parents were to bring their child to a clinic and obtain a drug test result that shows a negative result. The problem with this solution is three fold. It puts the burden of proof upon the student to prove innocence, the student will already be expelled and sanctioned prior to the result–which I believe violates due process rights for the student, and it will be a burdensome cost to parents and students who's return to school will subject to available time slots at local clinics to perform the test.

Also, Washington courts are increasingly resistant to placing due process responsibility on behalf of the accused. We previously discussed this matter in 2014 concerning former state law requiring a rape suspect rove lack of consent violated the state constitution. See State of Washington v. W.R., J.R.. This might have applicability in cases such as these.

The incident points to public institutions are going to need to readdress prior expectations as society and laws change, especially in regard to marijuana. Unfortunately, some bureaucracies are among the last to accept these changes.

By Darren Smith

Sources:

The Wenatchee World
Revised Code of Washington, 46.61.506

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