MEDICINAL MARIJUANA IN A CHAPTER HOUSE?

Tim Burke, Manley Burke, tburke@manleyburke.com

California leads the nation in allowing the possession and use of small amounts of marijuana for medical-related purposes.  Even though members of a fraternity may have complied with California law for the purpose of possessing and using medical marijuana, that does not exempt them from obeying fraternity rules requiring compliance with state and federal laws regarding drugs.  Irrespective of the fact that the medical use of marijuana may, in certain circumstances, be exempt from prosecution for violation of state laws in California, the use and possession of marijuana remains illegal under federal law.  As a result, the medical use of marijuana in a chapter house would still be illegal and therefore a violation of fraternity regulations requiring compliance with all drug laws.

The California Supreme Court, just a year ago, upheld the right of an employer to terminate an employee for violating the company’s anti-drug policy when the employee tested positive for the use of marijuana.  The employee argued that he was allowed to use marijuana because he had approval to use marijuana for medicinal purposes in California.  The employee ultimately sued the employer, claiming that his termination violated California’s Fair Employment & Housing Act.¹   The employee argued that the voters had approved California’s Compassionate Use Act of 1966.²  The Supreme Court of California recognized that the plaintiff was arguing that “just as it would violate the FEHA to fire an employee who uses insulin or Zoloft . . . it violates [the] statute to terminate an employee who uses a medicine deemed legal by the California Electorate upon the recommendation of a physician.”³

The Supreme Court, however, readily recognized that “no state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law.  (21 U.S.C. §§812,844(a), even for medical users)”

In addition to the fact that federal law continues to criminalize the possession and use of marijuana, California’s state colleges and universities, like those all across the country which receive federal funding, are under an obligation to comply with the federal Drug-Free Workplace Act of 1988.  In essence, campuses may appropriately be concerned that they risk their federal funding if they fail to have a policy designed to promote a drug-free campus.

The bottom line is this, if a member of a chapter that has rules requiring compliance with state and federal drug laws believes he or she needs marijuana to address a medical condition, then living in a chapter house may not be the appropriate place for them.

¹  Gov. Code, Section 12900, et seq.

²  Health & SAF. Code, Section 11362.5.

³ Ross v. Ragingwire Telecommunications, Inc., 42 Cal.4^th 920, 174 P.3d 200 (2008).