Craig by Craig v. Buncombe County Bd. of Educ.

• Decision Date: 20 May 1986
• Docket Number: No. 8528SC924,8528SC924
• Citation: 80 N.C.App. 683,343 S.E.2d 222
• Parties: , 32 Ed. Law Rep. 320 Kim CRAIG, by Howard CRAIG, her Guardian ad Litem and Kevin Russell, by his Guardian ad Litem, Pam Russell v. BUNCOMBE COUNTY BOARD OF EDUCATION, Larry C. McCallum, in his capacity as Principal of Charles D. Owen High School, Vernon E. Dover, Robert E. Greene, James Lewis, Jr., Wendall Begley, Mrs. Grace Brazil, Marshall Roberts and Charles Wykle, in their capacity as members of the Buncombe County School Board.
• Court: North Carolina Court of Appeals

Page 222

343 S.E.2d 222

80 N.C.App. 683, 32 Ed. Law Rep. 320

Kim CRAIG, by Howard CRAIG, her Guardian ad Litem and Kevin

Russell, by his Guardian ad Litem, Pam Russell v. BUNCOMBE COUNTY BOARD OF EDUCATION, Larry C. McCallum, in his capacity as Principal of Charles D. Owen High School, Vernon E. Dover, Robert E. Greene, James Lewis, Jr., Wendall

Begley, Mrs. Grace Brazil, Marshall Roberts and Charles

Wykle, in their capacity as members of the Buncombe County

School Board.

No. 8528SC924.

Court of Appeals of North Carolina.

May 20, 1986.

C. David Gantt, P.A., Ashville, for plaintiffs-appellants.

Roberts, Cogburn, McClure & Williams by James W. Williams, Isaac N. Northup, Jr., and Glenn S. Gentry, Ashville, for defendants-appellees.

PARKER, Judge.

Appellants contend that the smoking ban imposed by the Buncombe County Board of Education deprives students who smoke of the "fundamental right" to an education. However, in our view, the right deprived is only the right to use or possess tobacco products on school grounds during school hours. A smoker is not denied the right to an education so long as he or she confines the smoking to outside school hours and off school grounds.

The smoking ban is not comparable to hair length regulations or dress codes in high schools which have been invalidated by the courts. See, e.g., Breen v. Kahl, 419 F.2d 1034 (7th Cir.1969); Copeland v. Hawkins, 352 F.Supp. 1022 (E.D.Ill.1973). Both hair length and dress involve First Amendment issues in that both may be used as expressive conduct which enjoys First Amendment protection. Copeland, supra. Even with that protection, greater regulation of speech and conduct is permissible in the school environment than would otherwise be allowed. E.g., Quarterman v. Byrd, 453 F.2d 54 (4th Cir.1971). Thus, a ban on smoking at school is further distinguishable from a hair length regulation in that the latter necessarily involves control of conduct outside the school environment.

The right to smoke in public places is not a protected right, even for adults. In Gasper v. Louisiana Stadium and Exposition District, 577 F.2d 897 (5th Cir.1978), cert. denied, 439 U.S. 1073, 99 S.Ct. 846, 59 L.Ed.2d 40 (1979), the Fifth Circuit did deny the right of a group of nonsmokers to enjoin smoking in the Louisiana Superdome, but the court stated:

We assume that Superdome authorities, if they saw fit, could prohibit smoking in the facility, or the City of New Orleans, in the exercise of its police power could prohibit smoking in public stadiums or the State of Louisiana could enact a similar statute of statewide application.

577 F.2d at 898.

In Alford v. City of Newport News, 220 Va. 584, 260 S.E.2d 241 (1979), a case relied upon by appellants, the Virginia Supreme Court ruled that a municipal ordinance prohibiting smoking in restaurants, health care facilities, schools and elevators was unconstitutional as applied to the owner of a private, one-room restaurant. The court invalidated the ordinance only in its impact upon the regulation of the use of private property.

Our State Legislature has delegated to the various local boards of education in North Carolina the power to "adopt policies governing the conduct of students" and to "[establish] procedures to be followed by school officials in suspending or expelling any pupil from school." G.S. 115C-391(c). Under an earlier version of this statute, a local school board adopted a regulation requiring students to sign a pledge that they belonged to no fraternal organization. Despite concluding that such a requirement would be unconstitutional if applied to adults, the Supreme Court held that the need to control the school environment and the school board's position in loco parentis justified the regulation. Coggins v. Board of Education, 223 N.C. 763, 28 S.E.2d 527 (1944). Thus, the power of school authorities to regulate students' conduct while at school is much greater than the State's authority to regulate the conduct of adults. See Breen, supra, at 1037.

The Board of Education has legitimate concerns over students' health, cleanliness of grounds and buildings, fire hazards, the...