By Marc H. Zitomer, Esq. and Christopher J. Sedefian, Esq.

On February 22, 2021, Governor Murphy signed three bills into law that legalize marijuana in New Jersey. At issue is the impact these laws will have on the schools and student/staff discipline. This Q&A represents our initial guidance. Given that these laws are new and untested, our opinions will likely evolve as more questions will follow. We will update this guidance as the statutes, regulations, and caselaw develop. 

Q: What does each marijuana law address?

A:

• 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.

Q: Do the laws specifically address public schools?

A: Yes. The laws prohibit the advertising of cannabis items or cannabis paraphernalia within 200 feet of any elementary or secondary school, excluding advertisements within the premises of cannabis retailers.

The new laws are not intended to permit any person to possess, consume, use, display, transfer, distribute, sell, transport, or grow or manufacture cannabis or cannabis items in school.

However, the mere presence of cannabinoid metabolites in the bodily fluids of a student engaged in conduct permitted under the new laws cannot form the basis to penalize the student, unless failing to do so would put the school in violation of a federal contract or cause it to lose federal funding.

Finally, there are heightened penalties for individuals who commit offenses that are specifically prohibited by the laws while on school property, within 1,000 feet of school property, or on a school bus.

Q: Are there any penalties for those younger than 21 who are found to be in possession of marijuana?

A: Yes, but not criminal penalties. Individuals between 18 and 21 who knowingly possess or consume marijuana (without legal authority) are subject to a civil penalty of up to $50.00. Anyone who is 18 years of age or under who knowingly possesses or consumes marijuana (without legal authority) will be subject to a sliding scale of warnings for a first, second, and third offense. For a first offense, the warning from law enforcement goes directly to the individual student, not the parent/guardian. Of course, if the offense involves the school, we recommend that school officials notify the parents. For a second offense, the warning goes to the minor and his/her parent or guardian, along with information about drug treatment services.   A third offense and any subsequent offenses will result in a write-up issued by a law enforcement officer, along with a rereferral for accessing community drug treatment services provided by a public or private agency or organization. The drug treatment program shall also be notified by police.

Q: Can the Administration still send a staff or pupil out for a drug test if the individual is suspected of being under the influence of marijuana?

A. Yes, being under the influence of marijuana while on school grounds or at a school sponsored event or activity is still prohibited. This is analogous to alcohol, which can legally be consumed by individuals 21 years of age or older but is still prohibited at school. Simply put, if there is reasonable suspicion that a student or staff member is under the influence, that individual must be sent out for a test. 

Q: Should the Administration report to law enforcement if a student is found to be in possession of marijuana or paraphernalia? 

A. Yes, although it appears that possession of marijuana by students in school will be merely a documentation process for law enforcement.

Q: Should the Administration report to law enforcement if a staff member is found to be in possession of marijuana or paraphernalia? 

A. This is still an open question. We recommend erring on the side of caution and making the report, although it is doubtful that law enforcement will take action unless there is evidence that the marijuana is being distributed or consumed with students.

Q: 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 paraphernalia at school or a school sponsored event or activity?

A. Yes, nothing in the new laws prohibits a school from taking disciplinary action in these circumstances (unless there is a medical exemption). 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. 

Q: Does a school still retain the right to discipline a staff member who is found to be under the influence of marijuana at school or a school-sponsored event or activity?

A. Yes, nothing in the new laws prohibits a school from taking disciplinary action in these circumstances (unless there is a medical exemption). Schools still maintain the right to ensure that staff are not under the influence at school and to take action when they are. Again, this is no different than alcohol.

Q: What level of marijuana in one’s system is deemed to be a positive test result?

A: This remains a challenging and open question. Unlike alcohol, there is no generally accepted level for determining if somebody is technically under the influence of cannabis. Furthermore, THC (the chemical in marijuana responsible for its psychoactive effects) can remain in one’s system for extended periods of time after marijuana is consumed. There may be a situation where a staff member or student is sent for a test during the week and it is positive for THC. However, the individual may have consumed/smoked the marijuana days or weeks beforehand. Presumably, schools will be able to enact policies regarding the level which constitutes a positive result. Schools should seek expert advice in developing such policies.

Q: Should a School Resource Officer or Administrator/staff member search a student suspected of possessing marijuana?

A. Any search should be conducted by a school staff member and not a law enforcement officer. Remember -- school officials only need reasonable suspicion to search a student. Law enforcement must meet the higher standard of probable cause. Moreover, under the new laws, law enforcement officers may not request consent to search from anyone under the age of 21. Officers may no longer use the odor of either burnt or raw marijuana as probable cause to stop or search anyone (except in the case of a possible DUI). Officers who observe marijuana in plain view will no longer be able to search the individual, their property, or their vehicle. Officers may not arrest, detain, or take into custody anyone under the age of 21 for underage possession or consumption of alcohol. The law states that police officers who violate any of the above-listed provisions while investigating an individual under the age of 21 concerning the possession or use of cannabis, hashish, or alcohol, may be charged criminally for "depriving the individual of their civil rights.”

Q: Can a school board refuse to hire an employee who admits to using marijuana in their leisure time (not during the workday, etc.)?

A: No. The law prohibits an employer from terminating or refusing to hire an employee or prospective employee for recreational marijuana use on their own time.

Q: Should Board policies be reviewed and amended?

A: Like with any new legislation, school boards should review their policies in consultation with Board Counsel and their policy development consultants to ensure they remain legally compliant.

New Jersey’s newly enacted laws decriminalizing marijuana will undoubtedly present new challenges for school officials. However, school officials should be mindful that, although marijuana use is now legal for a certain segment of the population, schools retain the right to ensure that staff/students do not possess it on school property and/or are not under the influence at school and at school-sponsored events. The School Law Attorneys at Schenck Price stand ready to provide counsel to our school clients on these challenging issues based upon the latest developments in the law.

DISCLAIMER:  This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.