A Highlands Ranch family has confirmed it filed a discrimination complaint against the Douglas County School District with the Colorado Division of Civil Rights over the district's medical marijuana policy.
The school district has declined to discuss its policy or the complaint, filed in October, while the regulatory agency's investigation is underway. A spokeswoman for the Colorado Division of Civil Rights said the agency can neither confirm nor deny the existence of the complaint.
Colorado Community Media obtained a copy of the complaint drafted by the family's attorney, Alex Buscher — which the state agency may have amended before officially filing, Buscher said — along with the district's response to the claims and the family's rebuttal.
All are now in the hands of the regulatory agency for review.
In short, Mountain Vista High School senior Ben Wann and his parents, Brad and Amber, say the school board is usurping power granted to school principals under Colorado law. Their hope is that the complaint can change district policy to give school principals the power to decide who administers medical marijuana to students on campus and at school events.
Basis of the complaint
Discrimination complaints can take months to resolve, said Colorado Division of Civil Rights Deputy Director Jennifer McPherson. McPherson said she could not comment on the case but discussed how complaints are processed by the agency.
A dispute could be resolved through mediation between both parties, if both agree to that. If not, agency personnel conduct an investigation and determine if discrimination occurred. Their decision could be appealed, and a complainant can also take the matter to court if they are displeased with an outcome.
Colorado law was amended through legislation in 2018 to allow school personnel to administer nonsmokeable, medical marijuana to students. Families must form a written care plan signed off by the school principal, among other requirements. The law does not require schools to let staff administer cannabis.
Douglas County in 2016 passed a policy allowing primary caregivers and parents to come to school and administer the products, but cannabis cannot be kept on campus or administered by staff under the policy.
Buscher said Colorado law clearly gives principals the authority to decide if staff can administer the products, not school boards or districts.
“(The policy) runs contrary to law,” Buscher said. “Our argument is that the school board policy is preventing any possibility of this law being implemented.”
Ben Wann has epilepsy and uses hemp oil to treat his condition morning and night. In the event of a breakthrough seizure, or a seizure that occurs despite his epilepsy treatment, Ben relies on a nasal spray containing small amounts of THC, the main psychoactive ingredient in marijuana, which he is not allowed to store at school.
The district's response to the discrimination complaint says no state law, including the Colorado Anti-Discrimination Act, can force a school to store or administer medical marijuana at school.
“The school district notes that complainant is attempting to cast the school district's policy relating to medical marijuana — a policy that if fully compliant and consistent with state law — as a civil rights/discrimination issue,” the district responded.
The district's statement called the complaint an “end-around” Colorado and federal law. Its statement also said, “there is no evidence the complainant (Ben) is an individual with a disability or that he has suffered any disability-based discrimination at school.”
Their stance that Ben does not have a disability drew ire from the Wanns.
"No. 1, I'm just heartbroken the words were even said," Brad said. "How in the world can they say our son does not have a disability?"
Buscher said a disability under Colorado law is broadly defined and includes epilepsy. The condition impacts major life activities on a daily basis and has neurological effects on a patient, even when they are not having a seizure, he said.
He also added the school district provided a copy of Ben's seizure-care plan with its statement, which he said serves as evidence of the student's disability.
Sarah Klein, CEO of the Colorado Epilepsy Foundation, said epilepsy is considered a disability under the Americans with Disabilities Act.
“People with epilepsy generally can be eligible for federal and disability benefits,” she said.
Klein said the organization has worked with the Wanns, is aware of their advocacy efforts and is supportive of the family.
Traditional pharmaceutical medications work for about two-thirds of people with epilepsy, she said, but some people look for alternative treatment methods, like medical devices that modulate brain waves or medical marijuana.
She understands the issue with schools is complicated “because there's some concern between schools that receive federal funding,” she said, but the organization believes people should have access to medications they use.
“If they are a student, they should have access to it at school. If they are an adult, they should have access to it at work,” Klein. “If this is a product that's working for them and controlling their seizures, I think it's only right that that kid should have access to those medications.”
Brad and Amber Wann say the Douglas County School District lied about the discrimination complaint in October. District officials have disputed that claim but remain mostly quiet on the conflict.
Douglas County School Board President David Ray promised Ben during the Oct. 22 board meeting that directors would review the medical marijuana policy at its first meeting in November, but the discussion was removed from the agenda before the meeting took place.
The district later released a statement, saying it learned of a complaint against it with a state regulatory agency after Ray's decision. The Wann family maintains the district knew of the complaint when Ray made his promise.
An email from an employee at the state agency to Buscher was provided to Colorado Community Media and states the staff member “served the document on October 17” to the district. McPherson said a business or organization is typically notified of a complaint within two weeks and is notified by mail, she said. The agency can email the notification if they have an email address.
“They might be referring to the date of the mailing verse the date it was received, that's one possibility,” she said regarding the employee's email to Buscher.
A district spokeswoman said they were notified of the complaint by mail. Ray has said the district received the notification on Oct. 23, after he pledged a policy review to Ben. Ray also said he intends to pick the policy review up again once the discrimination complaint is no longer under investigation.
The policy review would have served as a milestone in the dispute between the family and the district. The Wanns have lobbied for the policy change for more than a year.
Brad believes the district's resistance is politically and personally motivated by a grudge against him. He wrote the blue book argument against the district's mill levy override and bond measure passed in 2018, he said, and has campaigned against sitting and outgoing board directors, including Ray.
The family believes Ray's promise to review the policy was a political stunt to quiet them before his reelection in November. Ray has denied that claim and maintained he was deeply moved by Ben's request for a policy review.
Hoping for quick resolution
The Wann family hopes to resolve its complaint as soon as possible through mediation, because time is running out before Ben graduates, Buscher said.
If the policy is amended and a school principal were still to decide against allowing staff to administer medical marijuana, that would be in accordance with state law, Buscher said.
He also said a recent decision by the Committee on Legal Services at the Capitol affirms their stance that the district's policy is discriminatory.
On Dec. 17, the Committee on Legal Services,which is made up of Colorado lawmakers, determined a rule of the State Board of Education stating school personnel may administer marijuana “if consistent with local school board policy”should not be extended.
A memo from the Office of Legislative Legal Services said the state board doesn't have the authority to allow local school boards to decide which school personnel administer medical marijuana, and that the law applies to principals.
“Authority under the statute is clearly delegated only to school principals and shall not be usurped by school districts,” Buscher wrote in an update to the family's complaint, “which is exactly what has occurred here.”