Q:       We caught a student on campus with CBD oil and local law enforcement advised us that they cannot determine the THC concentration to pursue charges for possession of a controlled substance. Can we still discipline the student under the Student Code of Conduct?

 A:        Yes. A school district can discipline a student for possession of CBD oil under the Student Code of Conduct as possession of an e-cigarette. This is true regardless of whether law enforcement is able to charge the student with a criminal offense.

             Under Texas Education Code section 37.006(a)(2)(C), possession of a controlled substance on school property is a mandatory DAEP placement. The CBD oil possessed by your students, however, is likely considered “hemp” which is excluded from the definition of a controlled substance. The Agriculture Code defines hemp as “cannabis and derivatives with a tetrahydrocannabinol (“THC”) concentration of no more than .3%.” Therefore, if the CBD concentration is less than .3%, it is not considered a controlled substance punishable by a mandatory DAEP placement. To further complicate matters, determining the THC concentration cannot be accomplished without chemical testing and the state crime lab does not currently test misdemeanor amounts of cannabis. As such, many prosecutors across the state are not accepting these types of cases for prosecution, making pursuit of criminal charges for possession of CBD challenging.

            While it may be difficult, if not impossible, to determine if a student’s CBD oil is over the .3% threshold and therefore a controlled substance, districts who prohibit possession of e-cigarettes within their Student Code of Conduct are able to utilize this section to discipline students who bring or possess CBD oil at school or a school related function. The definition of e-cigarette now includes “a consumable liquid solution or other material aerosolized or vaporized during the use of an electronic cigarette or other device.” This part of the definition was recently added after the passage of SB 248 which sought to provide more flexibility to discipline and/or pursue criminal penalties when an e-cigarette or vape is dismantled. Therefore, if a student is found to be in possession of a “consumable liquid solution,” including, but not limited to, liquid CBD oil, the student is in possession of an e-cigarette, which according to most discipline codes is a prohibited item. If your school district uses the TASB Model Student Code of Conduct, an e-cigarette should be defined in the Glossary and a student in possession may be punished as a General Conduct Violation. This is true regardless of the amount of CBD oil or whether the liquid is separate from an e-cigarette container or vape.

            It is important to note that a student who has a valid prescription for low-THC cannabis is exempt from discipline under the Student Code of Conduct for being “under the influence.” The recently passed HB 1535 expanded the Compassionate Use Act to include new provisions for medical use of low-THC cannabis. The medical conditions that fall under the Compassionate Use Act now include: epilepsy, a seizure disorder, multiple sclerosis, spasticity, amyotrophic lateral sclerosis, autism, cancer, an incurable neurodegenerative disease, PTSD, and certain medical conditions approved for research. Notably, the amount permitted for use under the Act was increased to 1%. To the extent a student has been authorized by a treating physician to use CBD substances under the Compassionate Use Act, the student should never be in possession of such a substance at school or at a school related activity. Rather, if administration is necessary at school as indicated by the student’s medical provider, an arrangement with the student’s physician and parents should be memorialized in a 504 plan or IEP, consistent with the district’s policy at FFAC (LEGAL) and (LOCAL).

For additional questions regarding CBD oil and student discipline, contact your school district’s attorney.

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