505 P.2d 939 (Or.App. 1973), Neuhaus v. Federico

Citation505 P.2d 939, 12 Or.App. 314
Opinion JudgeTHORNTON, J.,
Party NameNick Edward NEUHAUS, by and through his guardian ad litem, Althea Van Wyck, et al., Appellants, v. Leonard FEDERICO, Principal, and Alva Brown, Assistant Principal, Individually, and Cascade School District UH5, Respondents.
AttorneyClemens 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.
Case DateFebruary 02, 1973
CourtCourt of Appeals of Oregon

Page 939

505 P.2d 939 (Or.App. 1973)

12 Or.App. 314

Nick Edward NEUHAUS, by and through his guardian ad litem,

Althea Van Wyck, et al., Appellants,

v.

Leonard FEDERICO, Principal, and Alva Brown, Assistant

Principal, Individually, and Cascade School

District UH5, Respondents.

Court of Appeals of Oregon.

February 2, 1973

Argued and Submitted Oct. 24, 1972.

Rehearing Denied March 2, 1973.

Review Denied May 30, 1973.

Page 940

[12 Or.App. 316] Clemens E. Ady, Salem, argued the cause for appellants. With him on the brief were Ady & Blair, Salem.

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

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

SCHWAB, Chief Judge.

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 A.L.R.3d 1201 (1967); Note, 84 Harv.L.Rev. 1702 (1971).

[12 Or.App. 317] 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, 17 Ariz.App. 512, 498 P.2d 586 (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 P.2d 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

Page 941

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.

[12 Or.App. 318] '(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, 353 P.2d 564 (1960); [12 Or.App. 319] Owens v. School District, 3 Or.App. 294, 473 P.2d 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, makes 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' right 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. 1

Page 942

'* * * (T)he district school board shall admit [12 Or.App. 320] 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--352, 58 P.2d 614, 616 (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 [12 Or.App. 321] conclusion that rules of student conduct promulgated and enforce by school officials with the function of the schools. Otherwise, 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, 1066 (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 pupils 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, § 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 [12 Or.App. 322] 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

Page 943

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...

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15 practice notes
  • 723 P.2d 298 (Or. 1986), SC S32472, Cooper v. Eugene School Dist. No. 4J
    • United States
    • Oregon Supreme Court of Oregon
    • July 29, 1986
    ...statutory authority to make such a regulation, see Hysong v. Gallitzin School Dist., 164 Pa. 629, 30 A. 482 (1894); Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939 (1973), and an individual claim to [301 Or. 369] exemption on religious grounds. See, e.g., Goldman v. Weinberger, 475 Page 3......
  • 553 P.2d 496 (Okla. 1976), 48253, Independent School Dist. No. 8 of Seiling, Dewey County v. Swanson
    • United States
    • Oklahoma Supreme Court of Oklahoma
    • June 1, 1976
    ...Under this analysis, how does the Seiling hair code measure up? We mut agree with the Court of Appeals of Oregon in Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939 (1973) that, while the intention of such a rule is to control hair length during school hours, its necessary effect is to con......
  • 734 P.2d 1326 (Or. 1987), SC S32918, Fazzolari By and Through Fazzolari v. Portland School Dist. No. 1J
    • United States
    • Oregon Supreme Court of Oregon
    • March 17, 1987
    ..."negligence" liability. [19] Sometimes more authority than anyone has actually delegated to them. See Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939 (1973); see also Goldstein, The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Nonconstitu......
  • 852 P.2d 859 (Or.App. 1993), CA A68770, Meltebeke v. Bureau of Labor and Industries
    • United States
    • Oregon Court of Appeals of Oregon
    • May 19, 1993
    ...statutory authority to make such a regulation, see Hysong v. Gallitzin School Dist., 164 Pa. 629, 30 A. 482 (1894); Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939 (1973), and an individual claim to exemption on religious grounds. * * * But ORS 342.650 is not neutral toward religion. On t......
  • Request a trial to view additional results
15 cases
  • 553 P.2d 496 (Okla. 1976), 48253, Independent School Dist. No. 8 of Seiling, Dewey County v. Swanson
    • United States
    • Oklahoma Supreme Court of Oklahoma
    • June 1, 1976
    ...Under this analysis, how does the Seiling hair code measure up? We mut agree with the Court of Appeals of Oregon in Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939 (1973) that, while the intention of such a rule is to control hair length during school hours, its necessary effect is to con......
  • 734 P.2d 1326 (Or. 1987), SC S32918, Fazzolari By and Through Fazzolari v. Portland School Dist. No. 1J
    • United States
    • Oregon Supreme Court of Oregon
    • March 17, 1987
    ..."negligence" liability. [19] Sometimes more authority than anyone has actually delegated to them. See Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939 (1973); see also Goldstein, The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Nonconstitu......
  • 852 P.2d 859 (Or.App. 1993), CA A68770, Meltebeke v. Bureau of Labor and Industries
    • United States
    • Oregon Court of Appeals of Oregon
    • May 19, 1993
    ...statutory authority to make such a regulation, see Hysong v. Gallitzin School Dist., 164 Pa. 629, 30 A. 482 (1894); Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939 (1973), and an individual claim to exemption on religious grounds. * * * But ORS 342.650 is not neutral toward religion. On t......
  • 723 P.2d 298 (Or. 1986), SC S32472, Cooper v. Eugene School Dist. No. 4J
    • United States
    • Oregon Supreme Court of Oregon
    • July 29, 1986
    ...statutory authority to make such a regulation, see Hysong v. Gallitzin School Dist., 164 Pa. 629, 30 A. 482 (1894); Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939 (1973), and an individual claim to [301 Or. 369] exemption on religious grounds. See, e.g., Goldman v. Weinberger, 475 Page 3......
  • Request a trial to view additional results

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