Burkitt v. School Dist. No. 1, Multnomah County

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before BRAND; LUSK
• Citation: Burkitt v. School Dist. No. 1, Multnomah County, 246 P.2d 566, 195 Or. 471 (Or. 1952)
• Decision Date: 03 July 1952
• Parties: BURKITT et al. v. SCHOOL DIST. NO. 1, MULTNOMAH COUNTY et al.

Page 566

246 P.2d 566

195 Or. 471

BURKITT et al. v. SCHOOL DIST. NO. 1, MULTNOMAH COUNTY et al.

Supreme Court of Oregon.

Argued and Submitted Jan. 23, 1952.

Decided July 3, 1952.

C. O. Fenlason and Paul A. Sayre, of Portland, argued the cause for appellants. With them on the briefs were A. I. Bernstein, Arthur D. Platt, Bert S. Gooding, Earl A. Fewless, and Robert L. Myers, of Portland.

Grant T. Anderson, Portland, argued the cause for respondents and Clarence J. Young, Portland, for interveners-respondents. With them on the brief were King, Wood, Miller, Anderson & Nash, and Koerner, Young, McColloch & Dezendorf, of Portland.

Before BRAND, C. J., and HAY, ROSSMAN and LUSK, JJ.

LUSK, Justice.

Since 1909 secret societies in the high schools of this state have been prohibited by law. The statute in O.C.L.A. so providing reads:

§ 111-3004. 'Secret societies of every kind and character, including fraternities and sororities, so called, which may now or hereafter exist among the pupils of any of the public schools of this state, including high schools, either local or county, are hereby declared unlawful.'

§ 111-3005. 'It is hereby made the duty of each school board within the state, to examine, from time to time, into the condition of all schools under its charge and to suppress all secret societies therein, and for this purpose such boards are hereby authorized to suspend or expel from school, in their discretion, all pupils who engage in the organization or maintenance of such societies.'

§ 111-3006. 'This act shall not apply to either the state agricultural college or the state university.'

These provisions were originally enacted as Ch. 215, General Laws of Oregon 1909.

In the high schools of the city of Portland, which embraces School District No. 1, Multnomah County, Oregon, up until the time of the action of the school board of that district which brought on the present litigation, the statute appears to have been more honored in the breach than the observance. Until 1936 the school authorities seem to have done little if anything to discharge their statutory duty to 'suppress all secret societies' in the high schools, although there were for many years in the high schools of Portland a number of secret fraternities and sororities, some of the former being local chapters of national organizations. In 1936 a pledge system was in auguarated under which pupils and their parents were required to sign a pledge that the pupil was not and would not become a member of any such society. If it was discovered that a pupil had violated the pledge he was suspended; afterward he and a parent could come to the superintendent's office and agree that the pupil would resign from the organization, whereupon the suspension would be lifted. The system was found only partially effective. Sometimes, when the issue arose, parents protested that the particular organization involved was not a secret society and that it was not operating in the schools. In 1943 and 1944 the school authorities, because of these protests from parents and their own feeling of uncertainty as to how far they could go in the enforcement of the law, abandoned the pledge system, and adopted a policy of ignoring the societies as long as they kept their activities out of the schools. This did not work either; the pupils then began to wear fraternity and sorority pins openly and to engage in pledging, 'dogging,' and other activities peculiar to their organizations, in the schools.

It was against this background of experience with a problem which, as Mr. Jonathan W. Edwards, deputy superintendent of schools testified, 'has existed in our schools for the last 35 or 40 years,' and with the purpose of discharging the duty imposed upon them by law, that the board of directors of the school district on or about October 27, 1949, adopted a resolution by which were promulgated certain regulations prescribing the conditions under which clubs could be organized and conducted in the high schools of the district. The complete text of the resolution, with certain amendments adopted after October 27, 1949, is attached to this opinion as an appendix.

The resolution contains the following recitals:

'Whereas, secret societies of every kind and character, including fraternities and sororities, so called, are contrary to state law, and

'Whereas, the state law imposes upon the School Board the duty of suppressing such organizations within the public schools of this district and to that end authorizes the School Board to suspend or expel from schools in its discretion all pupils who engage in the organization or maintenance of such societies, and

'Whereas, clubs and organizations other than secret societies, organized and maintained by school pupils can become and be inimical to the best interests of the school pupils, the community or the effective operation of the schools'.

The superintendent of schools is then directed to suppress secret societies 'and also clubs and organizations other than secret societies which the Superintendent in his discretion considers inimical to the best interest of the school pupils, the community, or the effective operation of the schools, by suspending or expelling' pupils who are members thereof. It was further resolved that school clubs should not be banned which have been approved and chartered by the high school principal on conditions established by the superintendent of schools. These provisions are followed by what are termed 'tenative conditions,' which provide that all organizations of pupils must be approved by the central school administration and chartered by the particular school from which organized; that the application for a charter must show the sponsoring group, adult supervisor or advisors, the purposes of the organization and standards for membership, a list of officers and members, a copy of any ceremonial or initiation, and a pledge against secrecy. Then follow 18 rules designed to keep the school authorities advised of the membership and financial condition, and to regulate the activities of these chartered organizations. It is required that at all functions of the organizations adult advisors approved by the school principal shall be present; any initiation ceremonies not approved by the principal are prohibited, and such ceremonies are required to be open to the school staff and parents of inductees; no more than a two-thirds vote shall be required for admission to membership; hazing, 'dogging' and all other types of preinitiation activities, rush periods, and postbid screening of members are prohibited. Membership in an organization not chartered is made a ground for suspension or expulsion.

The particular rule, however, which is involved in this case is No. 7, which reads as follows:

'Members of any chartered organizations shall be regularly enrolled high school students from one high school student body. Graduates or students who have dropped from school shall not be permitted to retain membership. Public school students who were bona fide members of an inter-school club prior to October 27, 1949, may retain membership in any such club that qualifies for a charter.'

The validity of this rule is the principal question in the case. There is also a subordinate question concerning discretion in the enforcement of this rule vested in the Superintendent of Schools.

Plaintiffs are three adults and four minors. Of the adults one has a son and a daughter attending Lincoln High School, a public school of the district; another has a daughter attending St. Helen's Hall, a private school in Portland; and another has two daughters attending St. Mary's Academy in Portland, erroneously referred to in the record as a parochial school, actually a private school under Catholic auspices. The two private schools give a high school education. Each of the children of the adult plaintiffs is a member of one or another of the four organizations named in the complaint whose status is here involved. Plaintiffs refer to these organizations as 'unincorporated clubs,' defendants and intervenors as sororities and fraternities. We shall call them simply 'clubs.' Each of the minor plaintiffs is a pupil of a Portland public high school and a member and officer or representative of one or another of the following named clubs: Alpha Sigma, Joma Joma, Wiki and Pierrette, and they appear on behalf, not only of themselves, but of the clubs named and all other clubs similarly situated. The defendants are the school district, its board of directors, and school clerk. Waiting with the defendants are the intervenors, who are the parents of children who are either now or shortly will be attending high schools of the district.

The suit was brought to enjoin enforcement of the 'tentative conditions'. Prior to hearing on the merits a temporary restraining order pending the trial was entered. The trial lasted nearly two weeks, and there are nearly a thousand pages of testimony. The court took the case under advisement, and thereafter rendered and filed an opinion in writing adverse to the plaintiffs' contentions. A decree of dismissal was entered from which the plaintiffs appealed.

The record shows that for some time before the adoption of the resolution the school board had been exploring the problem of secret societies and that the parents of some of the children who were members of the plaintiff clubs met with the school authorities for the purpose, if possible, of reaching a common ground as to the extent of the restrictions to be imposed. It is unnecessary to relate the details of these negotiations. It is enough to say that the school board did not act hastily or without due deliberation and careful consideration, and that ultimately the plaintiffs offered, in their pleadings in this case, to adopt constitutions for the clubs which would in effect constitute a compliance with all the 'tentative conditions' except Rule 7, an offer...