​As interest in psychedelics rises, amidst the decriminalization of psychedelic substances in various jurisdictions and the regulation of the provision of psilocybin services in Oregon, institutions of higher education may find themselves wondering how to navigate the myriad questions that come along with these and other related developments. For example, what if a student seeks an accommodation to use psilocybin in student housing for mental health reasons? What if a researcher seeks permission to run a ketamine clinical study using university funds? What if a university employee tests positive for MDMA but claims a medical reason for using the same?

What You Need to Know:

• Psychedelic substances are being recognized as a promising new frontier for the treatment of various mental health conditions. 
• Colorado and Oregon have legalized the provision of certain psychedelics in regulated establishments, under the supervision of licensed facilitators. 
• Bills providing for the decriminalization and/or legalization of psychedelic substances are being introduced in legislatures throughout the country, and whether it be through the legislature or ballot measures, additional states are expected to follow Colorado and Oregon in years to come. 
• Federally-funded colleges and universities face unique challenges in navigating psychedelics-related issues, from student accommodation to sponsored research to employee drug testing, and beyond.  These and other topics are addressed in this alert.

Psychedelics – a blanket term that encompasses a diverse array of substances – have been recognized as a potential therapy for certain mental illnesses, such as depression and post-traumatic stress disorder (PTSD). For example, the United States Food and Drug Administration (FDA) identified psilocybin (hallucinogenic mushrooms) as a breakthrough therapy in 2019.^[1] The Journal of the American Medical Association^[2] published a study in 2020 demonstrating promising outcomes of treatment with psilocybin for various forms of depression. A study published in Nature Medicine^[3] identified MDMA-assisted therapy as a potential breakthrough treatment for PTSD.  

In 2020, Oregon voters approved a Ballot Measure 109, which prompted the creation of a regulatory regime for psilocybin-assisted therapy within the state. Oregon’s psilocybin program will begin accepting applications for licensure on January 2, 2023.^[4] A similar ballot measure passed in Colorado during this year’s election.^[5] Cities, including Ann Arbor, Michigan,^[6]Denver, Colorado,^[7]Oakland, California,^[8]Seattle, Washington,^[9] and Washington, D.C.,^[10] have decriminalized or de-prioritized enforcement against psilocybin (and sometimes other psychedelic substances), and legislation contemplating the decriminalization, research, and/or regulation of psychedelics has been introduced in a handful of states, including Maryland,^[11]Florida,^[12]New York^[13] and Pennsylvania.^[14]

Similar to cannabis, the decriminalization/legalization of psilocybin at the state level does nothing to impact its federal legality. Psilocybin is currently a Schedule I substance, meaning, by definition, that the U.S. Drug Enforcement Administration considers it to have no medical use and a high potential for abuse. (Other psychedelics, such as ketamine, are listed in Schedule III, meaning that they have a currently accepted medical use and a lower potential for abuse.^[15]) Therefore, institutions of higher education in states that have decriminalized/legalized psilocybin, and/or any other Schedule I psychedelics, should be cautious when revising or implementing new policies in the wake of psychedelic legalization or decriminalization.  

One of the largest concerns for higher education stakeholders is that any softening of psychedelics-related policies may jeopardize federal funding due to certain provisions of the Drug-Free Schools and Communities Act (DFSCA), which require educational institutions receiving federal funding to have policies in place to prevent the “unlawful possession, use, or distribution of illicit drugs” (emphasis added).^[16] Psychedelics are not always unlawful. Therefore, institutions must be careful to develop policies that differentiate between what is lawful from what is not. The nature of psychedelics, however, makes such differentiations a delicate matter (e.g., each substance must be evaluated against both federal and state controlled substances laws).

Schedule III psychedelics, such as ketamine, are already being prescribed for medical use, and early research into some Schedule I psychedelics suggests that accepted medical uses for these substances may be on the horizon. As such, there could be legitimate, lawful medical reasons for students and faculty members to use some psychedelic substances, and there may be additional lawful reasons in years to come. While the administration of medically-prescribed psychedelics typically occurs in an outpatient facility, at-home ketamine services are beginning to pop up.^[17] Institutions may therefore soon find themselves in a position where patients would want to use psychedelics on campus. Administrators should consider how to respond to requests to accommodate such use, while being mindful of the medical privacy rights of students and faculty and the institution’s federal compliance obligations.

Psychedelics may also be present on campus for the purpose of research into possible medical uses. Many institutions of higher education are already engaged in the study of psychedelic substances for therapeutic purposes.^[18] More research is likely to be performed at additional colleges and universities as more about the therapeutic potential of these substances becomes known. For an institution of higher education to perform such research lawfully, and not jeopardize federal funding, compliance with a complex web of federal regulations is necessary (i.e., researchers must obtain the approval of an institutional review board (IRB), obtain the necessary registrations from the United States Drug Enforcement Administration (DEA), apply to the National Institute of Drug Abuse (NIDA) to obtain samples of the drug to be used during the study, and submit an Investigational New Drug Application to FDA). Administrators considering the performance of studies involving psychedelics on campus should therefore be aware of the regulatory requirements surrounding the performance of such studies and adhere to them strictly to ensure DFSCA risks are minimized. 

Additionally, unlike cannabis, the use of some psychedelic substances, like peyote, may be permissible in the context of legitimate religious ceremonies. The most notable example is the exemption provided to the Native American Church, which uses peyote in the course of their religious practices.^[19] Currently, religious exemptions for the use of psychedelic substances are few and far between. This is an area, however, that may be subject to change if the medicalization and normalization of psychedelics continues on its current course. Therefore, institutions of higher education may want to consider having policies in place that allow for accommodating legitimate religious uses of psychedelics, and monitor developments regarding exemptions provided for the religious use of psychedelics.  

As the psychedelic landscape continues to change, administrators at institutions of higher education should also be mindful of the following questions:

• Have any psychedelics been decriminalized/legalized in the institution’s jurisdiction, and does the state law diverge from law at the federal level?
• Does denying access to psychedelics for medical use place the school at risk (e.g., for violating the Americans with Disabilities Act and/or state analogs of the same)? 
• Do any policies being considered with respect to psychedelics place the school at risk for loss of federal funding?
• How does the school’s student handbook and bylaws address the use, possession, and distribution of psychedelics that are legal within the state, but illegal federally? 
• Are there any limitations on disciplinary actions that can be taken by campus officials when students or faculty members are caught with psychedelic substances, depending on the reason for which the psychedelic substances are possessed?
• Are there any policies in place for how to deal with students under the influence of psychedelics? 
• Are there any policies regarding psychedelics in on-campus housing?

The treatment of psychedelics is more nuanced than cannabis in many ways. Institutions must therefore be prepared to develop new policies, addressing these nuances, when considering policies regarding possession, use, and research of psychedelics on campus.

[1]  Yasemin Saplakoglu, FDA Calls Psychedelic Psilocybin a 'Breakthrough Therapy' for Severe Depression, Live Science (Nov. 25, 2019), available at: https://www.livescience.com/psilocybin-depression-breakthrough-therapy.html. 
[2]  Alan K. Davis, Frederick S. Barrett, Darrick G. May, Effects of Psilocybin-Assisted Therapy on Major Depressive Disorder, 78(5) Journal of the American Medical Association, Psychiatry 481-489 (Nov. 2020), https://jamanetwork.com/journals/jamapsychiatry/fullarticle/2772630 
[3]  Jennifer M. Mitchell, et al., MDMA-assisted therapy for severe PTSD: a randomized, double-blind, placebo-controlled phase 3 study, 27 Nature Medicine 1025–1033 (May 2021), https://www.nature.com/articles/s41591-021-01336-3.  
[4]  Or. Measure 109, Psilocybin Mushroom Services Program Initiative (2020).
[5]  Colo. Prop. 122, Decriminalization and Regulated Access Program for Certain Psychedelic Plants and Fungi Initiative (2022).
[6]  City of Ann Arbor, Mich., Res. 20-1389, Resolution Decriminalizing Entheogenic Plants (Sept. 2020).
[7]  Denver, Colo., Initiated Ordinance 301, Psilocybin Mushroom Initiative (May 2019). 
[8]  City of Oakland, Cal., Res. 18-1790, Decriminalizing Entheogenic Plants (June 2019). 
[9]  City of Seattle, Wash., Res. 32021, A resolution declaring that the investigation, arrest, and prosecution of anyone engaging in entheogen-related activities should be among The City of Seattle's lowest law enforcement priorities and stating the Council's support for full decriminalization of these activities (Oct. 2021). 
[10]  Washington, D.C., Initiative 81, Entheogenic Plants and Fungus Measure (2020). 
[11]  Md. H.B. 1054 (2022).
[12]  Fla. S.B. 348 (2022).
[13]  N.Y. Bill No. A08569A (2021-2022). 
[14]  Pa. H.B. 1959  (2021-2022). 
[15] Controlled Substances by CSA Schedule, U.S. Drug Enforcement Administration (Sept. 2022), https://www.deadiversion.usdoj.gov/schedules/orangebook/e_cs_sched.pdf. 
[16]  20 U.S.C. § 1145g (a)(1)(A).  
[17]  My Ketamine Home, Home, https://myketaminehome.com/ (last visited on October 13, 2022). 
[18]  Jessica Callahan and Michelle Kirby, Legal Status of Psychedelic Drugs and Research Involving Possible Medical Uses, Connecticut Office of Legislative Research (December 15, 2020). 
[19]  21 C.F.R. § 1307.31.