After Maryam Roland, a public high school teacher in Ysleta, in El Paso, tested positive for marijuana use in 2015, the State Board for Educator Certification sought to suspend her license for two years. In her defense, Roland argued that because she’d smoked the pot during a vacation in Colorado, where the drug has been legal for recreational use since 2013, she had done nothing wrong.
Such explanations typically have not met with success, attorneys said. In an opinion released earlier this month, however, a Texas judge agreed with Roland, comparing punishing her for using pot in Colorado to penalizing someone after returning from a vacation in Las Vegas.
“Possession of a usable quantity of marijuana is a criminal offense in Texas, but so is gambling,”
Administrative Law Judge William Newchurch wrote. But the court “would not recommend that the Board find a teacher unworthy to instruct in Texas because she legally gambled in Nevada.”
Paul Armentano, deputy director for the National Organization for the Reform of Marijuana Laws — NORML — said it was the first he’d heard of a judge siding with an employee in such a claim. “I think it’s a big deal,” he said.
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Roland’s case, they add, also raises complicated questions about the government’s reach in monitoring a professional’s behavior that, like Roland’s, is non-criminal, off-the-job and did not affect her work.
While Texas administrative courts can determine facts, a judge’s opinion, called a proposal for decision, is advisory; the licensing agency can either accept or reject it. Either side can then appeal to state district court.
Lauren Callahan, a spokeswoman for the Texas Education Agency, said she could not comment on the case because it is on-going. Roland’s attorney, Nicholas Enoch, also declined to comment pending the educator certification board’s final decision, which will likely come this spring. He said Roland would not speak on the case, either.
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Lauren Davis, a Denver attorney specializing in marijuana laws, said even in Colorado, where recreational and medical pot use is legal, courts have sided with employers who have fired workers for failing marijuana drug tests. Often, she said, companies cite policies prohibiting an employee from violating federal law, which still lists marijuana as an illegal narcotic.
In his 16-page decision, however, Newchurch concluded Roland hadn’t broken any Texas laws or local policies that would lead to a sanction against her license. (Attorneys for the state licensing board did not bring up federal law.) The judge noted, for example, that while Ysleta’s district policy prohibited marijuana, it specified only that employees couldn’t use or possess it during work hours at school.
And “There is no evidence that (Roland’s) behavior…suggested she was under the influence of marijuana” at school, Newchurch wrote.
The judge also pointed out that district policies called for drug testing only as part of a random screening, after an accident or based on reasonable suspicion. He found that none of those conditions were met in Roland’s case. Because Roland hadn’t used marijuana in Texas so she’d broken no state law, either, Newchurch reasoned.
Finally, he wrote, the teacher licensing board’s lawyers hadn’t made a good case that Roland’s legal Rocky Mountain high made her unfit to teach Texas students: “Aside from her limited marijuana consumption in Colorado, the evidence does not show that (she) engaged in any other conduct that even arguably would render her unworthy to instruct.”
Giana Ortiz, an Arlington attorney specializing in employment law, said that while Newchurch’s decision ultimately may not stand, the question behind it will persist: “Can it be considered unethical for a Texas teacher to smoke marijuana in a state where it’s legal?”
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