Arizona Supreme Court says State May not Criminalize Possession of Medical Marijuana on College Campuses
On Wednesday, in Arizona v. Maestas, the Arizona Supreme Court invalidated a 2012 state statute that had criminalized the simple possession of medical marijuana on college campuses. The Court found that the statutory prohibition conflicted with a voter approved initiative—the 2010 Arizona Medical Marijuana Act (AMMA). The AMMA lists a handful of places where the legislature may ban possession—namely, on a “school bus,” “the grounds of any preschool or primary or secondary school,” and in “any correction facility”, Ariz. Rev. Stat. § 36-2802(B)(1)–(3)—but college campuses were not included on that list. Invoking the expression unius canon, the court thus “assum[ed] that voters did not intend to criminalize AMMA-compliant possession or use of marijuana on public college and university campuses.” Maestas p. 5.
Because the Arizona Constitution severely constrains the legislature’s power to amend ballot initiatives (more on those constraints below), the Court found the legislature’s attempt to restrict a right conferred by the AMMA to be unconstitutional.
Let me share 3 observations on the Maestas decision:
First, the decision is more limited than many people recognize. It appears to decriminalize AMMA compliant marijuana possession on college campuses, but not legalize such possession, as some headlines suggest (see, e.g., High Times, Arizona Supreme Court Rules Medical Marijuana Legal on College Campuses). In other words, colleges may continue to ban possession of marijuana on their campuses and impose various civil penalties (like expulsion) for violations of those bans, notwithstanding Maestas.
For reasons explained above, the Maestas court found that the state legislature lacked the power to criminalize AMMA compliant simple possession on college campuses. That’s why I say the opinion (at the least) decriminalizes possession. But in another portion of its opinion, the Maestas court noted that the AMMA expressly allows schools to penalize possession, at least when doing so is necessary to comply with federal grant conditions. The Maestas Court quoted language of the AMMA declaring that a “school” may “penalize a person solely for his status as a [medical marijuana] cardholder” if “failing to do so would cause the school . . . to lose a monetary or licensing related benefit under federal law or regulations.” Ariz. Rev. Stat. § 36-2813(A). Indeed, in footnote 1 of the opinion, the Maestas court quotes with seeming approval Arizona State University’s (ASU) anti-drug policy, which provides that,
“ASU prohibits the unlawful use, possession, production, manufacture, and distribution of alcohol and other drugs and controlled substances” and that “[a]nyone who violates federal, state, or local law regarding alcohol or other drugs, including the illegal possession of drug paraphernalia, or who otherwise engages in illegal conduct is subject to prosecution and punishment by criminal and civil authorities in addition to disciplinary or administrative sanctions issued by the university”
Maestas, at 8n1. But since schools cannot impose criminal sanctions, Section 2813 does not also authorize the criminal sanctions imposed by the 2012 legislation.
As far as I’m aware, no college in the U.S. now allows students to possess / use marijuana on campus (see book pages 724)—and I’m skeptical that Maestas will change that, even in Arizona. Why? Colleges could jeopardize the nearly $75 billion in funding they receive every year from the federal government if they allowed students to possess / use marijuana on campus. As a condition of receiving those federal funds, colleges must certify to the Secretary of Education that they have “adopted and . . . implemented a program to prevent the use of illicit drugs and the abuse of alcohol by students and employees.” 20 U.S.C. § 1011i. (The book discusses the federal grant conditions on pages 722-725.)
Second, it remains somewhat unclear what sort of marijuana policy colleges must adopt to comply with the conditions imposed by Section 1011i. The Maestas court briefly discusses the issue:
“A university can comply with federal funding requirements by adopting and implementing ‘a program to prevent the use of illicit drugs.’ 20 U.S.C. § 1011i(a). The program must prohibit “the unlawful possession . . . of illicit drugs, id. § 1011i(a)(1)(A), and describe ‘the applicable legal sanctions under local, State, or Federal law for the unlawful possession . . . of illicit drugs,’ id. § 1011i(a)(1)(B), which may include ‘referral for prosecution,’ id. § 1011i(a)(1)(E).1 But a university does not have to guarantee prosecution for violations of its program. And it can refer violations of its program to the federal prosecutor. The State has not shown that a university would lose (or has lost) federal funding if a state prosecutor did not prosecute violations of the university’s program.”
Maestas p. 7.
I think the Maestas Court is right—a college doesn’t need to (and probably couldn’t anyway) “guarantee prosecution for violations of its program.” But if a college refused to prohibit marijuana possession at all, or if it failed to punish any violations of its stated prohibition, it would violate the terms of Section 1011. That Section not only requires colleges to ban illicit substances, as the Maestas Court observes, it also requires colleges to “ensure that . . . sanctions” for drug possession “are consistently enforced” and to report to the Secretary of Education the number of sanctions imposed and violations occurring on campus. 20 U.S.C. §1011i(a)(2)-(b). Just how many violations a college may tolerate without losing federal funding remains a mystery, one that colleges seem unwilling to explore in depth.
Importantly, federal grants to colleges are administered by the Department of Education. This means that congressional budget riders like Rohrabacher-Blumenauer (see book pages 353-358)—which restrict use of funds only by the Department of Justice—would not necessarily prevent the federal government from stripping a college of its federal grant funds if it failed to adequately combat marijuana possession on campus.
Third, the Maestas decision highlights the added complexity of fine-tuning marijuana policy in many states that have legalized the drug via the initiative process. Under the Arizona Constitution, the legislature not allowed to repeal an initiative passed by the voters (!), and it may amend an initiative only if “the amending legislation furthers the purposes of such measure and at least three-fourths of the members of each house of the legislature . . . vote to amend such measure.” Ariz. Const. art. 4, pt. 1, § 1(6)(C). Many states with ballot initiatives impose similar limitations on their legislatures (see book pages 291-295).
It’s easy to see the populist appeal of limiting the legislature’s power to amend initiatives, but such limitations also make it very difficult—if not impossible—to correct possible mistakes/oversights in initiatives governing marijuana (see book pages 291-295 discussing California’s experience under Proposition 215). To be sure, the omission of college campuses from the AMMA’s list of places where marijuana possession may be criminalized might not be a mistake or oversight (I doubt voters ever thought of the issue, to be honest). But what about possession in other locations not mentioned by AMMA Section 36-2802(B)(1)–(3), like daycare centers, video arcades, or public pools? If the Maestas opinion is correct, the Arizona legislature might lack the power to restrict marijuana possession in these places as well–and that result may not sit quite so well with the Justices (or voters).