The Confusion Over CBD On College Campuses: Outdated Policies and the Need for Education

Did you know that 14% of Americans say they use Cannabidiol (CBD) products? A 2019 Gallup survey revealed that it’s not just baby boomers who are interested, either. Twenty percent of participants polled were in the 18-29 year old age range. Another survey completed by The NewsHouse at Syracuse University earlier this year found that 47% of students polled have used CBD products.

Despite the passing of the Farm Bill which legalized hemp in 2018, many universities and college campuses continue to ban the use of any form of cannabis altogether.

This, then, begs an important question: how can students who rely on CBD consume it on campus?

Distinguishing Between THC and CBD

You might think the ban on consumption pertains just to THC, or for non-medical patients. Guess what? Most schools don’t even distinguish between CBD and THC.

In the fall of 2019 The Berkeley Beacon published an editorial that lamented the university’s official stance on cannabis. Titled, “Separate the college’s policies on CBD and THC,” the piece noted that school administrators had been meeting to discuss and finalize policies regarding on campus usage of CBD.

“We encourage the college to account for the differences between CBD and THC when drafting these policies in the coming weeks,” the Editorial Board noted. “The guidelines that oversee students’ use of CBD should not be grouped with those that define the restrictions around other substances and paraphernalia.”

Despite the fact that students pleaded for administrators to update policy, the University of California’s stance on CBD remained unchanged. The official University of California policy on “marijuana” even states that despite the passing of Proposition 64 which legalized recreational cannabis, “marijuana remains prohibited on all university property and at all university events.” There is no mention of hemp or CBD anywhere in the policy.

Unfortunately this seems to be the standard policy at universities all across the country. But just why is that? Why are schools so adamant about adhering to these draconian policies even after the passing of the Farm Bill?

Financial Influences & Cannabis Policy

Do you know why universities continue to exclude cannabis from campuses? They have a lot to lose financially.

The National Center for Education Statistics had listed 4,298 institutions in their index in 2017. 1,626 of these institutions—37%—are public colleges.

Public colleges pose the greatest challenge for students who use CBD for a few reasons, most notably The Drug Free Schools and Communities Act and the Drug Free Workplace Act. These two acts require that any recipients of federal funding must, “…establish policies that prohibit marijuana use, possession and distribution on campus and in the workplace.” An amendment to the Drug Free Schools and Communities Act passed in 1989 also notes that schools must also, “…adopt[ed] and implement[ed] a program to prevent the use of illicit drugs and the abuse of alcohol by students and employees.” The Federal Drug Free Workplace Act of 1988 also stipulates that colleges must act as disciplinarians as well, requiring them to, “Take direct action against an employee convicted of a workplace drug violation.”

So what does that all entail, exactly? It means university students are forbidden from consuming cannabis of any kind on campus. It means that students who are caught doing so could face anything from disciplinary action through the university to criminal charges and beyond. These laws even go as far as to assert colleges and universities that don’t comply with these policies can be punished in a number of ways. Schools that don’t comply can face suspension or termination of their grants and contracts. They can be heavily fined, be prohibited from applying for future government funding and may even have to pay back federal funds they received if found in violation.

A 2019 article published to the Inside Higher Ed blog sought out to investigate schools which had been fined for drug related violations. They discovered that,

“…between November 2014 and September 2018, the department has imposed $739,000 in fines for Drug-Free Schools and Communities Act Amendments violations across 36 institutions, with the highest potential cost of noncompliance increasing during this period from $35,000 per violation to $55,907 per violation. In September 2018 alone, eight colleges were fined for violations, with fines reaching $38,500.”

Private Universities & Compliance

Unlike publicly funded institutions, private universities do not typically rely on federal funding or grants. As such they’re free to set and determine their own policies as they see fit.

Despite the lack of financial restrictions public schools face, many private universities continue to ban all forms of cannabis. One such institution is Harvard University.

Harvard University has the single largest endowment in the United States, valued in 2019 at $40 billion dollars. The university notes that while

Massachusetts law permits adults to possess and consume cannabis, federal law prohibits its possession and use including for medical purposes, on Harvard property.

“Thus, even if possession or use of marijuana would be permitted under Massachusetts law, it remains prohibited on campus,” the Harvard College Handbook for Students 2020-2011 edition notes.

Handling Hemp

I reviewed cannabis/marijuana policies regarding on campus use for a dozen of the largest universities in the United States. Of the top 12 schools I could not find any mention of hemp or CBD. I continued to search through schools until I found one which mentioned hemp at all: Colorado State University (CSU).

Unlike every other institution mentioned here so far, CSU explicitly discusses hemp in its cannabis policy.

CSU begins by noting that while Proposition 64 legalized recreational cannabis for adults over 21, “…the possession and use of marijuana is still prohibited under federal law.” They also remind students that, “As a federally controlled substance, the use and possession of marijuana on campus is prohibited by CSU policy and the CSU Student Conduct Code.”

However the university pivots their direction shortly after with a passage on hemp. They note that, “While hemp and cannabinoids derived from hemp are now legal under federal law, they remain subject to regulation.” CSU continues to add that, “Products derived from legally grown hemp”—required to be grown by a licensed vendor in Colorado—can be legally possessed. However that in itself still poses significant challenges as “…it can be difficult to determine if CBD products have been legally produced.” Another evident challenge for universities is how campus police can recognize the difference between THC and CBD or hemp products.

Medical Patients, Legal Battles and Takeaways

A quick analysis of universities’ policies regarding CBD/cannabis use reveals anachronistic, fear mongering attitudes reminiscent of Nixon’s War on Drugs. Many of these policies are happy to endlessly extoll the “dangers” of cannabis without so much as linking to a singular piece of evidence or research that verifies their claims. And while dangers are heavily emphasized few, if none of the policies I examined listed the advances in medicinal CBD/cannabis at all.

Students, however, are fighting back. A student charged with felony cannabis possession at Arizona State University in 2012 appealed the decision which was later found to be unconstitutional in state appeals court. The court noted that The Arizona Medical Marijuana Act (AMMA) which legalized recreational cannabis offered, “…no textual support for the notion that otherwise lawful use of marijuana on college or university campuses can be made criminal.” The panel also added that the state could still ban cannabis from campuses but couldn’t make it a crime.

Similar cases have emerged over the past few years since as students continue to fight outdated medical cannabis laws.

Equal Protections Under the ADA

It’s still not clear if students using CBD/cannabis—particularly medical patients—qualify for protection under the Americans with Disabilities Act. This type of protection mandates universities to provide reasonable accommodations for students with disabilities.

A 2015 op-ed written by the Director of Illinois Higher Education Center Eric Davidson noted how medical cannabis students, “…may present the greatest challenge for institutions.” Davidson cites the 2012 case of James v. City of Costa Mesa to illuminate these challenges. He explains that both the district court and an appeals court,

“…agreed that unless marijuana was rescheduled as a legal drug, the ADA could not be used as a means of overcoming discrimination. For higher education, this suggests that IHE’s [Institutes of Higher Learning] are not required to provide accommodations for students who have medical marijuana prescriptions.”

However the passing of the 2018 Farm Bill makes hemp fully federally legal, which then begs another tantalizing question: can hemp users and patients be protected under the ADA? Whether that notion will stand up in court only remains to be seen.