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Neuhaus v. Federico

February 2, 1973

NEUHAUS ET AL, APPELLANTS,
v.
FEDERICO ET AL, RESPONDENTS



Appeal from Circuit Court, Marion County. Jena V. Schlegel, Judge.

Clemens E. Ady, Salem, argued the cause for appellants. With him on the brief were Ady & Blair, Salem.

Robert W. De Armond, Salem, argued the cause for respondents. With him on the brief were De Armond, Sherman & Barber, Salem.

Schwab, Chief Judge, and Foley, Judge. Thornton, Judge, dissenting.

Schwab

While enrolled as students at Cascade Union High School, the four plaintiffs were suspended by the defendant school officials on the sole ground that they were in violation of the following rule applicable to male students: "Hair must be kept off the ears [and], collar * * *." Plaintiffs appeal from a circuit court decision upholding the validity of their suspensions.

The essence of the plaintiffs' position is that the maximum hair length rule is invalid. They base this argument on a variety of constitutional grounds. Likewise, the vast majority of American courts that have recently considered school hair length regulations have only discussed constitutional issues. See, Annotation, 14 ALR3d 1201 (1967); Note, 84 Harv L Rev 1702 (1971).

However, one commentator has suggested that the extent of school officials' statutory authority to enact hair length rules should first be considered:

"* * * A preoccupation with constitutional issues has distorted both the constitutional and nonconstitutional questions involved. For example, the issue of the power of a school board to prohibit extreme hair and dress styles often has been joined as freedom of expression versus state power, distorting both the first amendment and the legislative delegation of power to school boards * * *." Goldstein, The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Nonconstitutional Analysis, 117 U Pa L Rev 373, 377 (1969).

Relying heavily on Goldstein, supra, one court has recently held, without referring to the constitution, that a school board did not have authority to enact such rules. Pendley v. Mingus Union High School Dist. No. 4, 498 P2d 586 (Ariz App 1972). Thus, we begin by considering the extent of a school board's authority in this context.

A school board, like any other agency of government, has only that authority granted by statute. Monaghan v. School District No. 1, 211 Or 360, 315 P2d 797 (1957); School Dist. 106 v. New Amsterdam Cas. Co., 132 Or 673, 288 P 196 (1930); Baxter v. Davis, 58 Or 109, 112 P 410, 113 P 438 (1911).

The relevant statutes provide:

"(1) The State Board of Education in accordance with ORS chapter 183 shall prepare and promulgate to all school districts minimum standards for pupil conduct and discipline and for rights and procedures pertaining thereto that are consistent with orderly operation of the educational processes and with fair hearing requirements.

"(2) Every district school board shall adopt and attempt to give the widest possible distribution of copies of reasonable written rules regarding pupil conduct, discipline and rights and procedures pertaining thereto. Such rules must comply with minimum standards promulgated by the State Board of Education under subsection (1) of this section." ORS 339.240.

"(1) Public school pupils shall comply with rules for the government of such schools, pursue the prescribed course of study, use the prescribed textbooks and submit to the teachers' authority.

"(2) The district school board may authorize the discipline, suspension or expulsion of any refractory pupil.

"(3) Wilful disobedience, open defiance of a teacher's authority or the use of profane or obscene language is sufficient cause for discipline, suspension or expulsion from school.

"(4) Expulsion of a pupil for any cause shall not extend beyond the current term or semester." ORS 339.250.

"Each district school board may establish rules for the government of the schools and pupils consistent with the rules of the State Board of Education." ORS 332.107.

ORS 339.240 was enacted in 1971. Oregon Laws 1971, ch 561, sections 2 and 3, p 981. ORS 339.250 was enacted in 1965. Oregon Laws 1965, ch 100, section 289, p 210. Neither ORS 339.240 nor ORS 339.250 has previously been interpreted by an Oregon appellate court. ORS 332.107 dates from 1951. Oregon Laws 1951, ch 588, section 3, p 1047 -- originally codified as ORS 336.030, renumbered 332.107 in 1965. ORS 332.107 has been mentioned in some cases, but none involving a question of the extent of a school board's authority to enact rules governing student conduct. See, e.g., Dilger v. School District 24CJ, 222 Or 108, 352 P2d 564 (1960);

Owens v. School District, 3 Or App 294, 473 P2d 678 (1970). Thus, the question of the school board's authority in this context is a novel one.

We interpret ORS 339.240, 339.250 and 332.107 to mean that a school board's authority to enact rules governing student conduct is limited to enacting rules that have some reasonable connection with the educational process.

The plain language of those statutes so provides. The repeated references to rules regarding " pupil conduct" (emphasis supplied), ORS 339.240(1), 339.240 (2), and rules for the " government " (emphasis supplied) of the public schools, ORS 339.250(1), 332.107, make it apparent that any school board's authority is limited to promulgating rules that have some reasonable connection with the operation of the public schools. "* * * [A] school board is * * * created to regulate matters of concern to public education [and does not have] * * * general legislative power over youths in its geographic territory * * *." Goldstein, supra, at 387.

This conclusion is reinforced by two additional considerations: students' rights to attend public school, and parents' rights to control the rearing of their school-age children.

Residents of this state between certain ages have the right, and even the duty, to attend public schools.*fn1

"* * * [T]he district school board shall admit

free of charge to the schools of the district all persons between the ages of 6 and 21 residing therein * * *." ORS 339.115(1).

"Except as provided in ORS 339.030, all children between the ages of 7 and 18 years who have not completed the 12th grade are required to attend regularly a public full-time school of the school district in which the child resides." ORS 339.010.

In addition, the Supreme Court has stated it "is the public policy of" this state "to afford all children of school age a reasonable opportunity to attain, at least, a common school education." Rysdam v. School District No. 67, 154 Or 347, 351-52, 58 P2d 614 (1936).

Reading all of the above-quoted statutes together, it is clear that school officials' general authority to make and enforce rules can take precedence over students' rights to attend public school. That is to say, a student's right to attend school is necessarily subordinated to the school officials' right to enforce rules when enforcement results in the student's suspension or expulsion.

However, because there is this possible conflict between the students' right to attend and the school officials' right to suspend or expel, reading all the above-quoted statutes together leads to the further

conclusion that rules of student conduct promulgated and enforced by school officials have to have some reasonable connection with the function of the schools. Otherwise, school officials could promulgate any rule they wished in such a manner that could effectively destroy the students' statutory right to attend public schools. See, Nutt v. Board of Education, 128 Kan 507, 509, 278 P 1065 (1929):

"The public schools are for the benefit of children within school age, and efficiency ought to be the sole object of those charged with the power and privilege of managing and conducting the same, and while great care should be taken to preserve order and proper discipline, it is proper also to see that no one within school age should be denied the privilege of attending school unless it is clear that the public interest demands the expulsion of such pupil or a denial of his right to attend * * *."

Another group with important interests at stake is the parents of public school students. The Oregon Supreme Court has described parents' interests in these terms:

"In support of the contention that the rule violates parental authority counsel for the plaintiffs cite 47 Am Jur, Schools, 426, ยง 173, where it is said:

"'It has been held that school directors and teachers have no concern with the individual conduct of pupils wholly outside the schoolroom and school grounds when they are presumed to be under the control of their parents. It has been said that when the schoolroom is entered by a pupil, the authority of the parent ceases and that of the teacher begins; when the pupil is sent to his home, the authority of the teacher ends, and that of the parent is resumed * * *.'

"* * *

"This court would be the last to sanction any

unlawful interference with 'the liberty of parents and guardians to direct the upbringing and education of children under their control.' Pierce v. Society of the Sisters, supra [268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A.L.R. 468 (1925)]. In that case Mr. Justice McReynolds, speaking for the court, said: 'The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.' To this eloquent expression, not only of a principle of constitutional law, but of a natural right as well, we give our full adherence. We would be loathe to see in this country any departure from the doctrine thus enunciated * * *." Burkitt et al v. School District No. 1, et al, 195 Or 471, 495-97, 246 P2d 566 (1952).

The possibility of a conflict between requirements imposed on students by school officials and requirements imposed on their children by parents is further documentation of the need to interpret school officials' statutory authority in this context as limited to enacting rules having a reasonable relation with the proper operation of the schools.

Thus, under our interpretation of the controlling statutes, ORS 339.240, 339.250, and 332.107, the issue of whether the school board has authority to adopt the disputed maximum hair length rule comes down to the question of whether there is any reasonable connection between long hair and education in the public schools. While this is a fact question, and each case must be decided on its own facts, there are certain legal principles available to facilitate such a determination.

The strongest case can be made to establish that a given rule of student conduct is connected with the educational process by showing the rule regulates only

in-school activity. For example, Stromberg v. French, 60 ND 750, 236 NW 477 (1931), involved a school rule that provided students could not wear metal plates on their shoes while in school. Finding that the metal plates caused damage to floors and disruptive amounts of noise, the rule was upheld. But students who felt strongly enough about it to carry an extra pair of shoes to school remained completely free to wear metalplated shoes to school in the morning and then put metal-plated shoes back on as soon as they left school in the afternoon. The challenged rule regulated purely in-school activity.*fn2

At the other extreme would be a school rule that regulates only out-of-school conduct. It would be much more difficult, if not impossible, to establish the requisite educational basis necessary to find statutory authority to enact such a rule. For example, Dritt v. Snodgrass, 66 Mo 286, 27 Am R 343 (1877), involved a challenged school rule that prohibited pupils from attending parties during the evening, presumably with the hope that they would study more. The court stated:

"* * * For his conduct when at school, he may be punished or even expelled, under proper circumstances; for his conduct when at home, he is subject to domestic control. The * * * [school board], in prescribing the rule that scholars who attend a social party should be expelled from school, went beyond their power, and invaded the right of the parent to govern the conduct of his child, when solely under his charge." 66 Mo at 298. (Emphasis supplied.)

See also, Hobbs v. Germany, 94 Miss 469, 49 So 515 (1909) (rule requiring students to remain in homes and study between 7 p.m. and 9 p.m. held beyond authority of school board to enact).

The in-school-activity versus out-of-school-activity dichotomy is not conclusive. Courts in other states have held rules regulating purely in-school conduct to be invalid, e.g., State ex rel. Bowe v. Board of Education of the City of Fond du Lac, 63 Wis 234, 23 NW 102, 53 Am R 282 (1885) (rule required students returning from recess to carry in wood for stove), and have held rules regulating out-of-school conduct to be valid, see, Goldstein, supra, 117 U Pa L Rev 373 at 383, n 41. Also, it is generally assumed that school officials have authority to exercise some control over student conduct while students are coming to or going from school, and while students are at school-sponsored functions away from the school building itself, if the control is found to be functionally related to education. See, O'Rourke v. Walker, 102 Conn 130, 128 A 25, 41 ALR 1308 (1925). In all situations the ultimate question remains whether there is any reasonable connection between the school's rule and the school's role of educating. While it is not conclusive, the in-school-activity versus out-of-school-activity dichotomy can be helpful in assessing the evidence as it bears on this ultimate question.

In this case, the challenged maximum hair length rule regulates conduct that falls between the two extremes of being purely in-school and being purely out-of-school. While the rule may have been intended to control hair length only during school hours, the necessary effect of the rule is to control hair length 24 hours a day. Hair is not like metal-plated shoes, Stromberg v. French, supra, or any other article of

attire that can be changed at will. In the very nature of things, hair cannot be short while a student is in a school building and long when he leaves the school building.

"* * * [I]t would be impossible to comply with the long hair regulation during school hours and follow the wishes of the students and their parents as to hair length outside of school * * *." Breen v. Kahl, 419 F2d 1034, 1038 (7th Cir 1969), cert denied 398 U.S. 937 (1970).

"* * * [A] school rule which forbids skirts shorter than a certain length while on school grounds would require less justification than one requiring hair to be cut, which affects the student twenty-four hours a day, seven days a week, nine months a year * * *." Richards v. Thurston, 424 F2d 1281, 1285 (1st Cir 1970).

"* * * [A] regulation requiring a student to shorten his hair effects a substantial intrusion into his private life in a way that is important to him, where the school board has no authority or reason to interfere." Karr v. Schmidt, 460 F2d 609, 624-25 (5th Cir 1972) (dissenting opinion) (emphasis supplied).

The impact of a hair length rule is to regulate out-of-school conduct more than in-school conduct. Richards v. Thurston, supra. Students are in or around high schools about 7 hours a day, about 180 days a year, for a total of 1260 hours. Yet there are about 5340 additional hours in a nine-month academic year. Requiring hair to be short for the 1260 in-school hours necessarily requires hair to be short the additional 5340 out-of-school hours. Accordingly, we approach the hair length rule here in question as being more akin to a rule forbidding students from attending parties in the evenings, Dritt v. Snodgrass, supra, than

a rule prohibiting metal-plated shoes in school, Stromberg v. French, supra.

Against this background, we turn to the evidence in this case to determine whether any reasonable connection was established between hair on males longer than permitted by the rule in question and the proper operation of the public schools -- a factual showing necessary to find the adoption of the rule to be within the school board's authority.

The thesis of the school officials who testified in support of the hair length rule appears to be that hair on a male student that is over the top of his ears on the sides or over the top of his shirt collar in the back disrupts the proper educational atmosphere in the schools by distracting other students. No claim is made in this case that the plaintiffs' long hair is unclean or unsanitary. See, Carr v. Dighton, 229 Mass 304, 118 NE 525 (1918) (pupils excluded from school because they had "head lice"). Indeed, the portion of the dress code relating to hair in effect at the time of plaintiffs' suspension had no requirements as to cleanliness of hair. Nor do we understand the defendant school officials to contend ...


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