What the Ohio Elections Mean for Ohio Higher Education Institutions

On November 7th, Ohioans headed to the polls to vote on two proposed ballot measures—the first, deciding on a constitutional amendment regarding reproductive rights and the second, a law permitting use and possession of recreational marijuana. Over 3.8 million votes were cast, and each measure garnered over 2 million “yes” votes across the state. These newly passed measures raise questions for higher education institutions in Ohio and foreshadow issues other institutions across the country may soon encounter.  

Issue 1 – Reproductive Rights

Issue 1, which proposed an amendment to enact Section 22 of Article I of the Constitution of the State of Ohio, passed with approximately 56.6% of the vote. Support for the Amendment rose following the United States Supreme Court’s June 2022 decision in Dobbs v. Jackson Womens Health Organization, which overturned Roe v. Wade. As a result of the Dobbs decision, Ohio Senate Bill 23, originally enacted in 2019, took effect, banning abortion after 6 weeks of gestation.[1] Organizers gathered over 700,000 signatures in 2023 in support of the ballot measure to amend the state constitution. After a significant campaign, Ohio joins California, Michigan, and Vermont as the fourth state since the Dobbs decision to secure reproductive rights in state constitutions via citizen-led initiative. In Kansas, Kentucky, and Montana, voters rejected proposals to restrict abortion access in their states. Looking ahead to 2024, both Maryland and New York will vote on abortion-related constitutional amendments, and eleven other states have proposed measures pending.

The Amendment grants “every individual” the right to make decisions on their use of contraception, fertility treatment, continuation of pregnancy, miscarriage care, and abortion. The Amendment also prohibits “the state,” meaning any governmental entity or political subdivision, from directly or indirectly burdening, penalizing, prohibiting, interfering with, or discriminating against individuals exercising any of their five prescribed rights or individuals and entities assisting those exercising their rights. Notably, the Amendment preserves the state legislature’s authority to restrict access to abortion after “fetal viability.” Under current state law, Revised Code 2919.201 prohibits individuals from performing abortion on a “pregnant woman” when the “probable post-fertilization age of the unborn child is twenty weeks or greater.” Revised Code 2919.17 additionally prohibits abortion on a “pregnant woman” when the unborn child is “viable.” O.R.C. 2919.17(E) creates a rebuttable presumption that “an unborn child or at least twenty-four weeks gestational age is viable.”

So, what does this mean for college campuses? This Amendment will largely mark a return to the pre-June 2022 status quo. Higher education institutions will need to take inventory of their on- and off-campus student health services to ensure that such services are compliant with the Amendment and do not impermissibly restrict abortion access. Additionally, institutions may notice changes in enrollment or application trends, as recent studies demonstrated that students consider reproductive health care laws when making their enrollment decisions. For example, an April 2023 study from Lumina Foundation and Gallup found that 72% of college students reported that access to reproductive health care was “at least somewhat important to their decision to stay enrolled” and 60% of unenrolled adults said that reproductive health care laws would factor into their decisions to enroll at particular schools. The Amendment goes into effect on December 7, 2023.

Issue 2 – Authorizing Recreational Marijuana Use for Adults

Ohio voters also adopted a citizen-initiated statute to legalize recreational marijuana, Issue 2. The law permits Ohioans who are at least 21 years of age to possess up to 2.5 ounces of marijuana and 15 grams of marijuana concentrate and to grow up to six plants at home. The legalization raises a series of issues for college campuses, ranging from employee concerns to student conduct issues. First and foremost, it is important to remember that, under federal law, recreational marijuana is not legal. As marijuana remains a prohibited Schedule I drug under federal law, allowing such drugs on campus violates the Drug Free Schools and Communities Act of 1989 and the Drug Free Workplace Act of 1988. Under these federal laws, institutions receiving federal funds and grants are required to adopt standards of conduct that prohibit the unlawful possession, use, and distribution of illicit drugs by students and employees. As for the impact on campus employees, on its face the language in Issue 2 is clear that it does not prohibit employers from adopting and enforcing Drug Free Workplace policies, even if those policies prohibit marijuana use by employees that is otherwise legal under Issue 2.  Similarly, and of note, the Ohio Workers Compensation system still requires drug test screening for marijuana.

As for the impact of Issue 2 on student conduct, while campus policies on prohibition of marijuana will not change (for example, the Fair Housing Act still applies to residence halls and prohibits growing marijuana or its use), the way that institutions consider marijuana possession and use for Clery crime reporting purposes should change. Because Clery reporting for “Drug Abuse Violations” is only applicable to arrests or disciplinary referrals for conduct that violates state or local law, Ohio institutions will no longer count disciplinary referrals, marijuana possession, or use as legalized under Issue 2 in their Clery statistics. Marijuana-related conduct that falls outside of that legalized by Issue 2—e.g. use/possession by someone under 21, unlicensed sale, possession of an amount over 2.5 ounces, etc.—will still be counted as an arrest or disciplinary referral for Clery purposes. It is also important to note that, because Issue 2 was a statute and not a constitutional amendment like Issue 1, the language in Issue 2 is subject to change within the regular legislative process. Institutions should stay on the lookout for any changes, as even subtle differences in the law could affect your institution’s Clery reporting obligations.

While these measures are specific to Ohio, they demonstrate ongoing citizen-led efforts at the state level to address access to reproductive health care and the legalization of recreational marijuana. As these issues continue to appear on ballot measures across the country, higher education institutions should carefully track the language of the proposed laws and/or constitutional amendments and proactively gather appropriate campus stakeholders to identify any necessary changes to existing policies and practices should the measures pass.

For a comprehensive overview of the outcome of the Ohio 2023 General Elections, check out this article from our Bricker Graydon colleagues.