This guidance is being provided to NJPSA members from the NJPSA Legal Team: Robert Schwartz, Esq., John Farinella, Esq., and LEGAL ONE consultant John Worthington, Esq.
As you are aware, New Jersey recently passed legislation addressing the sale, possession, and consumption of marijuana. This legislation has generated questions and concerns, including how to address issues concerning possession and use of marijuana by students in our public schools, when school officials may/must act, and the role of law enforcement in the context of addressing these issues in the school setting.
What follows is guidance based on questions that we have posed with suggested answers. While the new laws distinguish between cannabis and marijuana, the terms will be used interchangeably in this Q & A. As always, we remind you to contact your board attorney if you require legal advice with respect to the legislation and its implementation in your district.
1. What do the new marijuana laws do?
P.L.2021, c.16, entitled the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” legalizes personal use cannabis for certain adults, subject to State regulation; decriminalizes small amount marijuana and hashish possession; and removes marijuana as a Schedule I drug.
P.L.2021, c.19 provides for certain criminal and civil justice reforms, particularly addressing legal consequences associated with certain marijuana and hashish offenses, as well as raising awareness of available expungement relief.
P.L.2021, c.25 concerns certain regulated substances, with particular emphasis on underage possession or consumption of various forms of cannabis, including legal consequences for such activities
2. Does the decriminalization of marijuana affect how schools should operate as drug-free organizations?
Answer: No. While the law decriminalizes possession of 6 oz. of marijuana or less for adults – people age 21 or older – schools can still prohibit the possession and or use of marijuana on school premises or at school events, much like schools can now prevent possession or use of tobacco products and/or alcohol.
3. Does a school still retain the right to discipline a student who is found to be under the influence of marijuana or in possession of marijuana or paraphernalia at school or a school sponsored event or activity?
Answer: Yes. Nothing in the new laws prohibits a school from taking disciplinary action unless there is a medical exemption pursuant to N.J.S.A. 18A:40-12.22. Schools still maintain the right to ensure that students are not under the influence at school and to take action when they violate the code of conduct.
4. Do the reporting requirements under N.J.S.A 18A:40A-12 for appearing to be under the influence at school or at a school event change in light of the new marijuana laws in NJ?
Answer: No. If a student appears to be under the influence – whether it is alcohol, marijuana or some other drug, the principal or the designee still shall arrange for an immediate medical examination of the student, either by the physician selected by the parent or guardian, or that physician is not available, then by another physician selected by the school, or the student shall be taken to the emergency room. This shall be followed by a written report furnished within 24 hours by the examining physician to the parents/guardians and the chief school administrator. All the follow-up requirements remain the same as well.
5. How should school officials interact with law enforcement in light of the changes in the marijuana laws? Has the role of the School Resource Officer (SRO) changed as a result of the new marijuana laws?
Answer: The ability of local law enforcement to act on such notice is limited by the new legislation. Based on the current MOA, law enforcement must be notified as in the past, considering the requirements in the MOA with law enforcement requiring notification in certain prescribed circumstances. It is anticipated that the MOA will be amended in the future to address this situation.
6. Do the new laws bar school officials from contacting parents for initial marijuana infractions?
Answer: No. Depending on what the school policy says, and pursuant to the medical examination requirement as set forth in N.J.S.A. 18A:40a-12, parents should be notified.
7. Can students be barred from participation in school-sponsored sports activities if they use marijuana in a manner similar to other non-prescribed drugs and/or alcohol that would otherwise preclude their participation in the same?
Answer: Yes. The new law only decriminalizes marijuana, meaning that possession and use is no longer subject to criminal penalties. But a school district can still impose administrative penalties, such as barring students from participating in athletic activities who have non-prescribed drugs found in their system, which presumably would be based on health and safety concerns. In addition, the NJSIAA lists alcohol and cannabinoids as banned substances subjecting athletes to disqualification. Therefore, there will remain penalties for use of marijuana and alcohol with respect to interscholastic sports.
8. Should a School Resource Officer or Administrator/staff member search a student suspected of possessing marijuana?
Answer: No. First, a school resource officer who is considered law enforcement needs probable cause to search. School officials only need reasonable suspicion which is a lesser standard. Second, law enforcement officers may no longer request consent to search from students under the age of 18 – because they are not deemed capable of providing consent. As for the search itself, law enforcement is no longer permitted to search a person for suspected possession alone.
9. Can students bring foods that contain cannabis and/or cannabis derivatives to school?
Answer: No. As students cannot bring alcohol, cigarettes or drugs into school, on school premises or to school functions, it would stand to reason that they cannot bring drinks or foods that contain cannabis derivatives.
10. Should Board policies be reviewed and amended?
Answer: Yes. The newly enacted laws decriminalizing possession or use of marijuana present new challenges for school officials which should lead boards of education to review their policies and make necessary adjustments.