Petrey v. Flaugher
| Citation | 505 F. Supp. 1087 |
| Decision Date | 28 January 1981 |
| Docket Number | Civ. A. No. 80-165. |
| Parties | Colin PETREY v. Gene FLAUGHER et al. |
| Court | U.S. District Court — Eastern District of Kentucky |
Kathleen Cunningham, Richard Cullison, Northern Kentucky Legal Aid, Covington, Ky., for plaintiff.
Robert W. McGinnis, Butler, Ky., for defendants.
The plaintiff is a high school student who was expelled from the county public high school by the Board of Education of Pendleton County, Kentucky, for smoking marijuana in school. He was caught by the principal who was paying a routine visit to an outdoor tobacco smoking area.
Plaintiff had had some fairly serious disciplinary problems prior to this time and had been threatened with suspension or expulsion on at least one occasion, but this was his first offense in violation of the school alcohol and drug policy. Expulsion for possession of alcohol or drugs in school is specifically authorized by statute. K.R.S. 158.150. Under generally prevailing Kentucky public school practice, the expulsion was for the remainder of the school year.
As a matter of fact, the plaintiff was readmitted to school after the initial hearing in this case as part of a compromise by which he waived certain procedural due process claims. There remains before the court, however, the question of the propriety of the expulsion for this offense, because the plaintiff is still seeking to have the expulsion expunged from his record.
Plaintiff argues that his expulsion for the balance of the school year is a punishment so excessive when weighed against his offense of smoking marijuana in school that it infringes his constitutional rights. He bases this contention on the doctrine of substantive due process.
"The doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed has come to be known as substantive due process."1
Space does not permit an exhaustive discussion of the history of substantive due process in this opinion. Its rationale may be summarized as follows:
2
Courts have experienced great difficulties in dealing with the theory of substantive due process. The basic problem is that, once courts begin to enforce rights that are not specifically enumerated in the Constitution, the door is left open to wide judicial discretion in defining these rights. Although it is now undisputed that there are unenumerated rights,3 whether under the heading of the Due Process Clauses or the Ninth Amendment,4 the power to define such rights has been abused by courts in the past.5 Therefore, there is a reluctance to open the door to abuse it again by recognizing a broad judicial power to cut new unenumerated rights out of whole cloth. In their willingness to recognize new unenumerated rights the courts have been constrained by the sepulchral influence of "Lochner's ghost,"6 reminding them of the era when judges imposed "their own notions of constitutional right and wrong into the `vague contours of the Due Process Clause.'"7
Haunted by "Lochner's ghost," courts have been unable totally to agree on a workable doctrine of unenumerated rights.8 It is clear, however, that if unenumerated rights are to be recognized, they must in some way be able to be classified as fundamental, as objectively determined from historical analysis,9 so that there may be some restraint on the ability of courts to create new rights according to their own unchecked philosophy as they did in the era of Lochner and the other economic liberty decisions.
."10
Applying this background to the problem of discipline in the public schools, we find that some courts have indeed, said that there is a substantive due process limitation on the severity of disciplinary sanctions imposed on students in public educational institutions.11 The school opinions do not relate their analysis to the substantive due process authorities in other contexts, as discussed above. A leading school substantive due process case did, however, emphasize the need for judicial self-restraint in applying the substantive due process doctrine in public school disciplinary cases.12
Synthesizing the substantive due process school cases with the other lines of substantive due process cases, the following principles emerge.
1. A substantive due process or Ninth Amendment right, not expressly found in the text of the Constitution, must be one that is fundamental, able to be recognized as such by reference to the teachings of history and the basic values that underlie our society. Such historical reference is necessary because of the need for an objective standard,13 so that judges may not elevate their purely personal, political and social views to constitutional dignity merely by labelling them "fundamental."
2. After, but only after, a right has been identified as fundamental14 in the light of history and tradition, the law regulating it is subjected to strict scrutiny by the court, to determine if the regulation is justified by a sufficient, but not necessarily compelling, state interest.15
3. Students do not shed their constitutional rights, including those of substantive and procedural due process, at the school-house gate.16
4. However, the prerogative of managing the public schools belongs to the states and the boards of education and administrators to whom the state has delegated it. The federal courts have the power to supersede their decisions only where their actions are clearly unconstitutional.17
With these principles in mind, the court turns to the case at bar. It is unlikely that the right to a free, public education, however important it may have become as a practical matter, could be said to be a fundamental right rooted in the history and traditions of our people to the extent that the state could not abolish it, if done in a non-discriminatory manner. Nor is there an individual fundamental right invoked here, such as freedom of speech,18 religion,19 or the right to travel or to marry.20
There is no constitutional right, fundamental or otherwise, to smoke marijuana in school. Nor, is there anything unconstitutional about having discipline in a high school — even strict discipline.
There is no constitutional right to be free from an appropriate degree of discipline, if one is affiliated with an organization where discipline is necessary, such as a team, a military unit, a police force, or a high school. Even enumerated rights, such as those guaranteed by the First Amendment, are limited by the need for discipline, commensurate with the nature of the organization to which one belongs.21
The heritage of our civilization to which we look to discern the fundamental rights which may be enforced under the doctrine of substantive due process or the Ninth Amendment requires that, rather than having a right to be free from discipline, a young person has a need to be subjected to constructive discipline. Preeminent among the values of our people, which our Constitution was designed to preserve and enhance, are family values.
22
Essential to the functioning of a family, or the school as a substitute for the family, is discipline. The traditions of our culture recognize that due discipline23 in the rearing of the young is necessary and wholesome, rather than a violation of personal rights. It has been said:
24
If a penalty is so grossly disproportionate to the offense as to be arbitrary in the sense that it has no rational relation to any legitimate end, it may be a violation of equal protection or substantive due process.25 But that is not the case here. Far from being a trivial matter, as contended by the plaintiff, his offense was of sufficient gravity to justify expulsion for the remainder of the school year. This has been expressly declared by statute.26
The evidence in this case shows that the Board of Education and administrators of this rural school system have mounted a determined effort to see that drugs do not infiltrate their schools. Their efforts are to be commended, rather than undermined by this court.
Although the measures taken by the defendant here were...
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