Bahr v. Jenkins, Civ. A. No. 82-70.

• Decision Date: 20 May 1982
• Docket Number: Civ. A. No. 82-70.
• Parties: Sheila BAHR, as next of friend of Nancy Bahr, Plaintiff, v. James JENKINS, Principal of Dixie Heights High School, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

539 F. Supp. 483

Sheila BAHR, as next of friend of Nancy Bahr, Plaintiff, v. James JENKINS, Principal of Dixie Heights High School, et al., Defendants.

Civ. A. No. 82-70.

United States District Court, E. D. Kentucky, Covington Division.

May 20, 1982.

David E. Davidson, Kevin D. Hill, Covington, Ky., for plaintiff.

Robert E. Ruberg, Covington, Ky., for defendants.

BERTELSMAN, District Judge.

Introduction

Some explanation is due the reader for the informality of the following opinion, which apparently concerns an issue of first impression. Because an immediate decision was required it had to be delivered orally, before the plaintiff's suspension expired, and edited for inclusion in the record and publication later.

Essentially, the facts are that on a spring day at the Dixie Heights High School in Kenton County, Kentucky, the work of the school was disrupted by numerous miscreant students setting off "party poppers," a type of small legal firecracker. Several of the youthful culprits, on being apprehended, implicated the plaintiff, a freshman, as the source of this distracting influence. The authorities demanded that she open or surrender her purse so that they could see if she was the one who was distributing the party poppers. Upon her refusal to surrender the purse, she was suspended for five school days. Thus are the origins of this federal case. A full statement of the facts appears in the stipulation of the parties attached as an appendix. It should be noted in addition that all persons involved are of the same race, so that there are no racial overtones involved.

Findings of Fact Conclusions of Law

I am going to follow my usual custom in these cases where it is necessary to get a decision out with some rapidity. I am going to deliver an oral opinion which will contain the findings of fact and conclusions of law of the court. It will be written up by the court reporter. I reserve the right to edit the opinion. I will probably, because of the public interest in this matter, deliver this oral opinion in a somewhat conversational manner. For the version that goes into the record, I certainly will add some citations. So I am going to omit in these oral remarks any citations to cases. They will be supplied later. The principles of law that I will refer to are well supported by cases but for the purposes of this oral opinion, I think it would not be appropriate for me to be citing and discussing cases. It wouldn't mean much to most of you who are listening to me, anyway.

The findings of fact in this case are contained in the stipulation and the attachments, including the letter and the Code of Conduct and anything else that might have been attached to the stipulation. I think it's appropriate perhaps in the beginning to state as I have on many occasions my philosophy, and I think the proper philosophy, as to the role of the federal court vis-a-vis state institutions.

Many of us forget that the primary protection of liberty that the founders put into our Constitution is the division of powers between the federal and state governments. We have a Bill of Rights that receives most of the attention. But what many forget is that in the original document there was no Bill of Rights. The men who drafted the original document, Washington, Madison and the others, relied primarily, for the protection of individual freedom, on the limitations of the powers granted to the federal government by that document. This principle has come to be known as the separation of powers. The framers thought that this was sufficient in and of itself to be a preservation of liberty. Subsequently the Bill of Rights, with the enumerated rights with which most of us are familiar, were added, and even later yet these rights were made applicable to the states. I think that this history requires that we all remember in coming to the federal court with some complaint about what is going on in a state institution that the federal court has no general supervisory power over any state institution, such as a school, prison, hospital or college.

The role of this court is that if there is a clear violation of federal constitutional rights, then it should interfere insofar as it is necessary to correct that violation. And when those cases have come in here where that has been clearly presented that is what we have done. On the other hand, though, we have no general supervisory role over state institutions. We are not a super board of education. We haven't been elected or appointed as a superintendent or the board of education of any school, the president of any college, the governor of any state, or the warden of any prison. And we have only the right, in my opinion, to intervene when there is a clear and convincing showing that some right guaranteed by the Constitution of the United States has been violated. That is my general philosophy in all of these cases.

Let us apply these considerations to cases regarding schools. The importance of the education of the young cannot be overemphasized. Every philosopher of government, from Plato on down, has emphasized the importance of educating the young to preserve the country for future generations and has recognized the young as a natural resource, if you want to call it that, that has to be developed. There is nothing new about that.

What makes our society unique in history is that as far as I know we have been the only one that undertakes to try to educate just about everyone who is capable of receiving an education. In the past, while the importance of education has been recognized, education has been confined to an elite ruling class. Most of the philosophers that I spoke of devised in their theories a system whereby an elite ruling class would be educated. Our system, however, while recognizing the undoubted importance of education, requires that everyone who is capable of absorbing an education report to school and try to have one administered to them, and has established an elaborate school system for that purpose. And this is rightfully so in the light of our democratic traditions.

In our system, if democracy is to work, we must educate all, because people in order to make intelligent decisions with regard to electing their public officials, have to have some education; in our society the average citizen has to be able to evaluate what these officials do, try to make some evaluation of economics and even international relations; they have to know history and language. There can be no communication with the citizens if they can't understand and read the English language. Therefore, we have a system of compulsory education.

To some extent, this is a restraint of liberty, but that is an aspect that should not be overemphasized, in my opinion. Many of the cases and authorities I have read in connection with this case seemed to look at education more as an adversary situation, where the student is a kind of prisoner of the school.¹ The approach of these articles is then, that the student should have an array of rights as prisoners or criminal suspects do. I think this approach has gone too far. I don't agree with many of those articles.

As I see it, just because the government is involved in education, there is no reason — as has been argued here — that the full rigor of those portions of the Constitution applicable to criminal proceedings should be employed in trying to preserve discipline in a public school.

Now I want to make clear throughout these remarks that I am not talking about a case where a criminal prosecution is a likely result of whatever investigation or proceeding is going on. Almost all of the cases that were cited to me and which we discovered involve searches for drugs.² And many of them disapprove searches in schools when the school authorities were looking for drugs and where the police were standing by to arrest students who were found with them. I think that presents a different situation. A technical argument can be made for applying the full rigors of the criminal law amendments to the Constitution to ordinary disciplinary situations in schools, but I do not think that such an application would be in accord with common sense.

A young lawyer said to me recently, "Judge, don't let your common sense get in the way of your interpretations of constitutional law." He was joking, but I certainly disagree with his statement. In my view, those men who wrote our Constitution were among the wisest who ever lived, a remarkable group of men, if you study your history. In my opinion, they devised the best form of government ever yet devised. In my personal opinion, they were guided by a higher power in doing so. But you will never convince me that these men were not men of common sense, or that they intended the Constitution that they wrote to be applied in a manner not in accord with common sense.

Now let's take a look at the application of the Constitution to the schools in general and to this case in particular, in the light of common sense. Again, I want to emphasize that I am not talking about cases where the authorities are trying to catch some student in some criminal activity so he can be prosecuted, but about cases where, as here, we are trying to preserve discipline in the schools.

There is no doubt that a student does not leave, as one case says, his constitutional rights at the schoolhouse gate when he enters a public school.³ Thus, he obviously could not be made to sign a petition for a political candidate or be suspended, or to sign a petition in support of a tax levy as a condition of attendance. As various cases have held, he can't be made to say a prayer⁴ or salute the flag.⁵ He can wear a black arm band, if it doesn't cause a disturbance, as a form of political expression, as one case has held.⁶ He has those rights. And he has a right to privacy as well, as I will discuss in a minute. But as I had occasion to say in another case that came in here about a...