Fighting Over Mary Jane

The UA says no to medical marijuana, and the library says no to petition-passers

Back in November, by the slimmest of margins, voters legalized marijuana for medical use. Five months later, fallout from that election persists.

That fallout includes what are viewed as restrictions on free speech by folks such as retired librarian Michelle Graye. Armed with legal help from the American Civil Liberties Union of Arizona, she's pushing that point with the Pima County Public Library.

Last year, we reported on Graye's disagreement with library officials, who booted her from a sidewalk in front of the Dusenberry-River Branch, where she was gathering signatures for the medical-marijuana ballot initiative. (See "Signature Skirmish," Feb. 4, 2010.)

While the county owns the branch building, it must also abide by rules set by shopping-center management. Those rules preclude passing petitions.

There was no choice but to send Graye packing, says Pima County Public Library director Nancy Ledeboer. "It's like a condominium. We don't own the ground that it's on, and we don't own the walls. But we own the space within the walls."

And since library policy doesn't allow petition-passing within those walls, that means Graye was out of luck. Her only possible recourse, says Regina Nassen, of the Pima County Attorney's Office, was to use a parking space the county has rights to. But that would mean skedaddling each time a car pulled into the slot. "It's not a great solution," Nassen admits.

Dan Pochoda couldn't agree more. As legal director for the ACLU of Arizona, he calls Graye's petition-passing "core First Amendment activity." Even a private shopping center bears some free-speech responsibility when it hosts a government facility, he wrote in a letter to the Pima County Attorney's Office.

"We believe," Pochoda tells the Tucson Weekly, "that county officials, who are clearly governmental actors, have acceded to the wishes of the owners of the mall, even though Pima County owns the building and voluntarily chose to place it in that area.

"We also believe that the owners of the mall gain monetary benefit from having this public building and function in their mall—from accepting it and advertising it as a magnet tenant in their brochures."

As a result, he says, the shopping-center owners "would also effectively be considered public actors for this purpose. We believe there are obligations that the county has to meet in terms of fundamental constitutional rights. In this case, we believe any decisions made by the property owner would be governmental decisions because of the inter-connection with the public building on private property."

Letters have gone back and forth between Pochoda and the county attorney, without resolution.

Meanwhile, Arizona's three state universities are snubbing the voter-approved right to smoke medicinal marijuana. This has created a sticky situation for students—and for campus cops who must "bust" them under a law they're not entitled to enforce.

"As it stands right now, the University of Arizona is a drug-free zone," says Sgt. Juan Alvarez of the UA Police Department. "However, if a person should have a permit to use medical marijuana, and we respond to a call where a person is smoking marijuana, it's not something we're going to arrest that person for. We will, however, make a referral to the Dean of Students' Office. And the dean of students will handle the matter administratively."

According to Dean of Students Veda Kowalski, the UA is committed to following a higher law. "We are under federal legislation—the Drug-Free Workplace Act of 1988 and the Drug-Free Schools and Communities Act of 1989," she says, "so nothing changes for us in terms of marijuana on campus, whether it's for medical purposes or not. Students will continue to have to follow the law."

The upshot? Students nabbed with medicinal pot "are given community service hours," Kowalski says. "They are placed on probation and given an educational program as well."

That education includes counseling "where they are given the opportunity to learn more about drug use and its impact. We also have a personal-responsibility class here in our office that we sanction for students to learn more about critical errors in thinking."

Would those be the same "critical errors" that Arizona voters passed into law in November? Kowalski doesn't offer an answer for that question. And she insists—as do officials at Arizona State University and Northern Arizona University—that state universities must follow federal laws, which still consider all marijuana illegal, lest they lose federal funding for everything from research to student loans.

But that may be a smokescreen. Certainly, student loans provided through the U.S. Department of Education hardly seem at risk. "I checked with our federal student-aid office," says department spokeswoman Sara Gast, "and there has never been any school that has lost its eligibility for Title IV funds due to allowing medical marijuana."

Among other things, Title IV funds refer to direct federal student loans provided to universities. Those funds awarded to the UA last year totaled nearly $200 million, according to the university's associate director for student client services, Virginia Callahan. "They make up the bulk of our financial aid," she says.

Robert Raich is an Oakland, Calif., attorney who specializes in marijuana law, and has worked on two successful cases before the U.S. Supreme Court. "I don't think the federal Department of Education is particularly interested in trying to thwart state medical-cannabis laws," he says.

Nor can Raich name a single instance where any federal funds were withheld from universities that allow medical-marijuana use. Instead, he argues that schools such as the UA are just desperate to maintain the status quo. "I think they're looking for some excuse they can seize upon to avoid adhering to Arizona law."

There is another way. Raich points out that since California legalized medical marijuana in 1996, many of that state's public colleges have made accommodations, such as designated areas for medical-cannabis use.

By taking a hard line, the UA may be setting itself up for a lawsuit, he says. "If a student has a severe enough medical condition that they would qualify as being disabled, then (legal action) is quite possible under the Arizona state disability-rights laws.

"And once a seriously enough ill patient raises the issue with some campus, that will make a very good precedent."

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