Guidance on the Marijuana Regulation and Taxation Act and SUNY Campuses

On March 31, 2021, New York enacted the Marijuana Regulation and Taxation Act (MRTA), legalizing and regulating the use and possession of cannabis for adults ages 21 and up across the state. However, the MRTA’s impact is limited for SUNY campuses based on continuing requirements of federal law. Below, we provide guidance for SUNY campuses regarding how the MRTA’s provisions will impact student conduct, residential life, and law enforcement policies and practices. This document may be revised upon further guidance from the New York State Office of Cannabis Management and other agencies.

I. What does the MRTA mean for SUNY campuses?

Although the MRTA changes the way New York State regulates cannabis, using and possessing cannabis in any form remains a crime under federal law. Specifically, New York colleges and universities remain bound by their federal requirements under the Drug Free Schools and Communities Act and the Drug Free Workplace Act. Under these laws, the use, possession, and distribution of cannabis for any reason must be prohibited and subject to student code of conduct or employee disciplinary actions. Failure to comply with federal law may result in termination of all forms of federal financial assistance, including federal student financial aid grants.

As a result, all existing campus policies prohibiting the use of cannabis must remain in effect. Possession or use of cannabis must remain prohibited on all SUNY property in public or in residence halls or offices (including university-owned and leased buildings, housing, and parking lots) and at all campus events or while conducting campus business, except for approved academic research. In addition to traditional cannabis buds that are smoked using rolling papers, bowls, bongs, or other paraphernalia, cannabis may also take the form of edibles, including candies, cookies, and brownies. None of these forms are permitted within SUNY-owned or operated accommodations, and residence life professional and para-professional staff must adopt a consistent protocol for confrontation and documentation procedures regardless of the form of cannabis. A recommended cannabis response protocol for residence life staff and University Police (UPD) is described below.

Additionally, medical cannabis remains prohibited in SUNY-owned or operated accommodations. Existing New York Department of Health regulations governing medical cannabis, including the prohibition from using medical cannabis on college campuses or in college dormitories or residence halls (10 NYCRR 1004.18), will remain in effect unless modified or abrogated by the newly-established New York State Office of Cannabis Management.

While use and possession of cannabis is not a criminal offense under the MRTA for small quantities of cannabis, possessing amounts of cannabis above the legally authorized amount of three ounces can trigger violations of the law, ranging from a violation for more than three ounces, to a felony for more than 10 pounds.

Additionally, criminal penalties for selling, exchanging, or disposing of cannabis for compensation range from a violation for less than three ounces to a felony for over one hundred pounds.

II. How does the MRTA impact our student conduct process?

Because of their continuing federal requirements, New York colleges and universities remain obligated to prohibit the use, possession, and distribution of cannabis on campus and to penalize such conduct through their disciplinary process. Even if the conduct is now legal under New York law, the MRTA specifically allows postsecondary institutions to penalize that conduct if failing to do so would result in the loss of monetary benefits under federal law, or if that cannabis prohibition is put in place based on the institution’s “sincere religious belief.” Simply put, campuses do not violate state law by enforcing their ongoing federal obligations in this field.

Codes of conduct should continue to indicate that smoking, vaping, or other consumption of cannabis on campus are conduct violations. Codes may also maintain prohibitions on the on-campus use of paraphernalia associated with the use of cannabis. Pursuant to Cannabis Law §127(2-a), codes of conduct should not impose penalties on students who engage in off-campus conduct that is legal under New York State cannabis law, including cannabis use and possession within the allowable amounts by individuals over 21 years of age.

In explaining the distinction between what is legal off-campus and prohibited within, conduct officials may point to their federal obligations, but it may also be helpful to share the broader goals of the student code of conduct and the potential impact of drug use on academic success and well-being.

Still, federal law does not require that campuses apply a particular sanction where students are found in violation of a cannabis-related prohibition. SUNY campuses should consider realigning their sanctions for cannabis violations to ensure that assigned sanctions are commensurate with cannabis’s status as a legal drug in New York. To that end, campuses may consider aligning cannabis sanctioning with alcohol sanctioning for individuals under age 21.

Under the MRTA, it is likely that students who have been previously disciplined for cannabis-related violations and faced concurrent criminal investigations will now have their criminal convictions expunged. There is no specific language in the law requiring that colleges and universities remove disciplinary notations or expunge student records regarding sanctions arising from cannabis violations.

III. Recommended Cannabis Response Protocols in Residential Housing: Residence Life Staff and University Police

The following protocols are recommended but not required. Campuses may develop alternate protocols in consultation with their campus counsel.

Addressing Cannabis Odor in Residence Halls

In the past, it may have been protocol for residence life staff to contact UPD or Campus Safety when they detected cannabis odor. It is recommended that this guidance shift to align more closely with the confrontation and documentation of other substances found within accommodations, including alcohol. The following protocol is advised for residence life staff when cannabis odor is detected in residence halls.

Locate the specific room that is the source of the odor. If unable to locate the exact room, submit a report providing the approximate room range and/or a description of the location.
If you locate the smell to a single room, apartment, or suite, knock on the door. If residents do not answer the door, use the roster to document the residents of the room. Submit this information in an incident report that includes as many details as possible.
If residents answer the door, and the presence of cannabis is observed, follow the protocol described below.
If you need assistance, contact the Professional Staff Member on duty. If you are concerned about safety matters, you may also contact UPD or campus safety.

Addressing the Presence of Cannabis in Residence Halls

If you observe a person possessing cannabis or an individual smoking, vaping or ingesting cannabis, the follow protocol is advised:

If staff observes cannabis in a residence hall room, apartment, or suite when no residents are present (such as during a semester break or a room health and safety check) or when staff is meeting with another student who shares that space but asserts they are not the owner of the cannabis, staff should contact UPD or campus safety to notify them that they are going to take possession of the cannabis and place it in an appropriate container (such as a sealable odor-free bag) and request UPD or campus safety to meet them at a designated location in the building (for example, the front lobby) for pick up, documentation, storage or disposal. Staff will then complete their confrontation protocol, meeting UPD or campus safety to turn the cannabis over to the responding officer at the conclusion of the incident. Staff will collect information from any individuals present and submit this information in an incident report to Residence Life. Campus Residential Life Departments can develop a notification process for confiscated items, similarly to the confiscation of any other illegal items.
If staff observes an individual smoking, vaping or ingesting cannabis, staff should instruct them to turn over the cannabis and any paraphernalia. Staff should contact UPD or campus safety to notify them that they are going to take possession of the cannabis and place it in an appropriate container (such as a sealable odor-free bag) and request UPD or campus safety to meet them at a designated location in the building (for example, the front lobby) for pick up, documentation, storage or disposal. Staff will then complete their confrontation protocol, meeting UPD or campus safety to turn the cannabis over to the responding officer at the conclusion of the incident. Staff will collect information from any individuals present and submit this information in an incident report to Residence Life. Residence Life staff may call UPD or campus safety for support and assistance if an individual is uncooperative or threatening.
If the individual found in possession of cannabis is a guest and will not cooperate with the staff’s request, they should be escorted out of the room and building. UPD or campus safety may be contacted for assistance with removing an uncooperative guest.

Addressing Drug Paraphernalia in Residence Halls

If you observe drug paraphernalia but the paraphernalia does not contain cannabis and individuals are not observed using it to smoke or vaporize cannabis, you should follow the procedures described in your campus’ housing license for handling any other prohibited item. If the paraphernalia contains any controlled substance, however, you may confiscate and bag the items and turn them over to UPD or campus safety.

Addressing Drug Dealing or other Criminal Behavior in Residence Halls

If you observe drug dealing or drug distribution, move to a safe location and call UPD or campus safety. Notify the Professional Staff Member on Call.

IV. What else do Campus Police and Public Safety Officers need to know?

What protocols will Campus Police and Public Safety follow in response to a report of cannabis use or possession in a residence hall?

Pursuant to the MRTA, there are no criminal penalties for public possession of up to three ounces of cannabis, and police cannot use the odor of cannabis to justify searches. However, UPD and other campus public safety officials should continue to coordinate with student conduct officials to support campus policies and code of conduct enforcement.

Residence life staff are instructed to contact UPD or campus safety when they come in possession of cannabis or paraphernalia containing cannabis in the course of their duties. UPD or campus safety will be responsible for taking possession of cannabis or paraphernalia containing cannabis seized in residence halls for documentation, storage, and destruction or disposal. Items confiscated by UPD or campus safety pursuant to this provision will not be returned to students.

Where residence life staff identify the odor of cannabis in residence halls, UPD or campus safety will not be contacted unless staff believes the situation creates a safety risk. If such request comes into the dispatch, an officer will be sent to keep the peace and allow residence life staff to address the incident.

How does the MRTA impact Clery Act reporting obligations?

Clery reporting for calendar year 2021 will be due in October 2022. SUNY campuses must update the definitions used for cannabis arrests and referrals for discipline occurring within their Clery Act designated geography and reported to local law enforcement or a Campus Security Authority for all incidents that occurred on or after March 31, 2021. Cannabis offenses should only be recorded if they are violations of New York State criminal law, not merely campus policies or procedures.

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Please contact your campus counsel if you have any questions.