Delta-8, a cannabinoid found in the Cannabis plant and also synthesized in labs, is in the news again.  Because Delta-8 is largely unregulated throughout the United States (including in Ohio), it is sometimes legally purchased and used by students.  A national study published in March 2024 in the Journal of the American Medical Association found that 11.4% of surveyed 12th-grade students had used Delta-8 in the past year.  This was the first national estimate of Delta-8 usage.

Governor DeWine has called on the Ohio General Assembly to regulate Delta-8.  Currently, seventeen states ban Delta-8, and another seven states regulate it.  Governor DeWine has suggested that Delta-8 regulations could be a part of marijuana regulation that has been under consideration by the General Assembly since voters approved recreational marijuana in November 2023.

Delta-8 is sometimes packaged like candy or other food products.  This can both aid in evading detection in schools and increase the risk of students unwittingly using it.  It can also be used in vapes, as a tincture, and smoked.  If it seems like Delta-8 is a relatively recent concern, that is partly due to the 2018 federal legislation which allowed for a minimal level of THC in hemp plants when farmed.

Because Delta-8 is not banned or regulated in Ohio, there is nothing to stop a store from selling it to school-age children.  In fact, the Ohio Department of Health conducted a limited test, and two fifteen-year-old students were able to buy Delta-8 gummies from a gas station within 3 miles of their school.  In recent years Ohio has averaged about 100 Delta-8 poisonings annually, and the medical community warns that use of Delta-8 is especially harmful to the developing brains of children.

School districts should revisit their student codes of conduct to ensure that any drug infractions are defined in a way that includes Delta-8 and other synthetic or derivative-type drugs.  It is important that policies and codes of conduct are carefully written to put students (and employees) on notice of prohibited substances, but to do so in a way that allows flexibility to include future variations of intoxicating substances as possible infractions.  It is not enough to simply ban illegal drugs because the law is not keeping up with the development of drugs.  Additionally, special education discipline questions can arise when a student is being disciplined for the use of newer drugs such as Delta-8.  Districts should consult with legal counsel to ensure student safety and legal compliance.

While most New Year’s resolutions are all but forgotten by now, several federal agencies have promised new rules or updates to rules to take effect sometime in 2024. Here’s a quick look at New Year’s resolutions – the federal addition, and their possible impact on special education.

Title IX – the long-awaited and much anticipated final Title IX rules are now scheduled to be published in 2024, giving the Administration ample time to review the over 240,000 comments on the proposed changes. Having had a sneak peek at the proposed rules, districts can expect that IEP and 504 teams will have a greater role in Title IX investigations and grievance resolution. The proposed rules specifically provide that a student with a disability involved in a Title IX proceeding will be best served by the Title IX Coordinator consulting with the student’s IEP team to 504 team throughout the implementation of the grievance procedures. This statement suggests that the role of the team will not be relegated to the beginning of the process or in developing supportive measures, but that the expectation is that the student’s IEP or 504 team will be involved and consulted throughout the entire process.

Section 504 – Proposed regulations for Section 504 of the Rehabilitation Act of 1973 were promised in November 2023. While there have been no identifiable hints on what the new regulations will require, practitioners are hopeful for either clarification of procedural differences between the IDEA and Section 504 or clearer alignment between the two. The implications of these regulatory changes for special education are self-evident, as IDEA protections fall under the umbrella of Section 504. At this time, no new release dates have been offered.

FERPA – Likewise, the deadline for the proposed updates to FERPA’s implementing regulations has come and gone. Nonetheless, a new target is in sight, as the Department of Education identified a proposed release date of May, 2024. However, on January 12, 2024, the Department extended the time for comments to March 12, 2024. While this announcement did not include a new deadline for the release of the proposed regulations, this is a welcomed opportunity to raise questions and concerns about the practical side of implementing FERPA. Stakeholders are encouraged to submit comments electronically on or before March 12, 2024, at www.regulations.gov.

With so much at stake, districts must capitalize on every opportunity to become informed on the laws, rules, and decisions that shape our obligations toward students with disabilities. Ennis Britton is taking an active role in these discussions on a national level with three presentations at the upcoming LRP National Institute and School Attorney Conference in Savannah, Georgia this May. Please join Jeremy Neff for an in-depth look at “Successfully Mapping the Exit from IDEA Services” and reflections on “COVID Lessons Learned for Future Disruptions”, and Pamela Leist as she explains “Navigating Confidentiality Under IDEA,504 and FERPA”