Robinson v. Sacramento City Unified School Dist.

• Decision Date: 29 September 1966
• Citation: 53 Cal.Rptr. 781,245 Cal.App.2d 278
• Court: California Court of Appeals Court of Appeals
• Parties: Judy ROBINSON, by and through Albert J. Robinson, her guardian ad litem (substituted in the place of Denise Strong, by and through her guardian ad litem, Melvin Strong), Plaintiff and Respondent, v. SACRAMENTO CITY UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants. Civ. 11249.

Page 781

53 Cal.Rptr. 781

245 Cal.App.2d 278

Judy ROBINSON, by and through Albert J. Robinson, her guardian ad litem (substituted in the place of Denise Strong, by and through her guardian ad litem, Melvin Strong), Plaintiff and Respondent, v. SACRAMENTO CITY UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants.

Civ. 11249.

District Court of Appeal, Third District,

California.

Sept. 29, 1966.

Rehearing Denied Oct. 24, 1966.

Hearing Denied Nov. 30, 1966.

John B. Heinrich, Sacramento County Counsel, Sacramento, for appellants.

Jerome Lewis, by George B. Hendry, Sacramento, for respondent.

PIERCE, Presiding Justice.

In a complaint entitled as one 'for declaratory relief and restraining order' substituted plaintiff, Judy Robinson, a member of a club called the 'Manana Club' in Sacramento (through her father as guardian ad litem) seeks to have a rule of the governing board of the Sacramento City Unified School District, known as 'Rule 4,' declared invalid as unconstitutional. In the trial court judgment was for plaintiff, declaring the rule 'void as applied to the plaintiff.' The school district and its agents (presumably including the board) were enjoined from enforcing it. We have concluded that the challenged rule is neither in excess of the powers delegated to the school board by the Legislature, nor in violation of any constitutional right of plaintiff, and therefore reverse the judgment.

The case comes to us on a clerk's transcript which includes the complaint, answer and a stipulation of 'facts' to be discussed below. The complaint sets out Rule 4 in full. By its terms the board decides it is 'detrimental and inimical to the best interests of the public schools' of the district and to the 'government, Discipline and morale of the pupils thereof, for any pupils enrolled in the elementary, junior high, or senior high schools of the district to belong to any fraternity, sorority, or non school club which perpetuates its membership by the decision of its own members, as this Board determines that such organizations engender an undemocratic spirit in the pupils * * *.'

In the next paragraph of the rule is the following: 'A fraternity, sorority, or non school club, membership in which is prohibited by this rule, is one in which the membership is composed wholly or partly of pupils of the public schools of this State and is perpetuated by taking in members from the pupils enrolled in the public schools On the basis of the selection and decision of its own members.' (Emphasis supplied.) Violations of the rule subject pupils to suspension or expulsion. ¹

The complaint contains as exhibit B a copy of the constitution and bylaws of Manana Club to which Miss Robinson belongs. Section II of article I thereof sets forth the objects of the club. Generally, those objects are described as being literature, charity and democracy, each of which the club is to foster. In its promotion of literature it is stated the club shall encourage and promote, within its membership and without, the reading of, and acquaintance with, books and poetry 'in order to assist in creating an enlightened public.' In concluding that the school board had overstepped permissible limits of its powers, the trial court did not look beyond these worthy objects. The constitution and bylaws of the Manana Club, however, reveal other quite different purposes which we shall discuss below.

Rule 4 was adopted by the school board acting, so its argument runs, (1) under Education Code section 10604, (2) Education Code section 1052, and also (3) under the board's inherent powers. Education Code section 10604, to quote its material provisions, makes it 'unlawful for any pupil, enrolled in any elementary or secondary school of this State, to join * * * any secret fraternity, sorority, or club, wholly or partly formed from the membership of pupils attending the public schools * * *.' In the same sentence the trilogy of condemned organizations is referred to as 'any fraternity, sorority, or secret club.' A second paragraph of the section includes the following provision: 'The governing board of any school district may make and enforce all rules and regulations needful for the government and discipline of the schools under its charge.' The section concludes by empowering school boards to enforce rules by suspension or even expulsion 'if necessary.'

Excluded from the prohibited groups under section 10604 are the Native Sons of the Golden West, the Native Daughters, the Foresters and 'kindred organizations not directly associated with the public schools.' ²

RE THE CONTENTION THAT SECTION 10604 LIMITS ITS PROSCRIPTIONS TO 'SECRET' ORGANIZATIONS AND THEREFORE DOES NOT COVER CLUBS LIKE THE MANANA.

Plaintiff, pointing to the provisions of section 10604 which declares any 'secret fraternity, sorority, or club' to be unlawful, states that the Manana Club is not secret and is therefore not within the provisions of the first paragraph of the section; and argues that the second paragraph, inviting school board rules implementing the section, necessarily relates back to the first paragraph of the act and concludes, under the principle Expressio unius est exclusio alterius, that Nonsecret fraternities, sororities and clubs are organizations regarding which school boards have been impliedly commanded by the Legislature to maintain a 'hands off' position. The school board's counterargument is that the broad powers granted by the Legislature to the board in the second paragraph of the section are not narrowed by the first paragraph; also that the general rule-making power granted by school board 'for the government of the schools under its jurisdiction' by Education Code section 1052 in 1959 (Stats.1959, ch. 2, p. 636--then numbered sec. 984; renumbered sec. 1052 by Stats.1963, ch. 629, p. 1509) authorizes the rule in question; also contends that the board had inherent power to adopt Rule 4. Although we find case law authority for the latter two positions taken by the school board (see e.g., Holroyd v. Eibling, 116 Ohio App. 440, 188 N.E.2d 797, 800), we think the correct solution of the problem centers upon the discovery of the real legislative intent in section 10604. To what type of organization was the Legislature referring when it outlawed 'any secret fraternity, sorority, or club' and taking part 'in the organization or formation of any fraternity, sorority, or secret club'? Our search begins with the origin of the law and, indeed, the history of that origin suggests the answer to the problem.

Although the section in its present code position was enacted in 1959 (Stats.1959, ch. 2, p. 861), its language with only immaterial changes is practically identical with an act dating back to 1909 (Stats.1909, ch. 218, p. 332), and the law was declared constitutional by the District Court of Appeal of the First Appellate District as early as 1912 in Bradford v. Board of Education, 18 Cal.App. 19, 121 P. 929 (hearing by Supreme Court denied). In the opinion in that case the court (speaking through Justice Kerrigan) traced the origin and development of high school fraternities (on pp. 23--24, 121 P. on p. 931): 'The first Greek letter society in a secondary school was Alpha Phi, a literary society, which became a part of a fraternity in 1876. Subsequently secret societies, patterned after college and university fraternities, sprang into existence in the high schools all over the country until now they have 'become so numerous,' says a writer on the subject, 'as to make it necessary to manipulate the Greek alphabet in an artful way in order to make the necessary distinctions.' In time many educators came to believe that whatever good might be claimed for college fraternities was not shared by secret fraternities organized among boys and girls attending the preparatory schools whose characters are yet unformed. It has been said of such societies that they tend to engender an undemocratic spirit of caste, to promote cliques, and to foster a contempt for school authority. Doubtless these organizations have many redeeming features, and, we may say, the standard of excellence of some of them is such that they are not opposed by school authorities. (Citations.) Nevertheless, in order to curb what is said to be their evil effects in secondary schools, rules and regulations have recently been adopted by boards of education in many of the cities of the country; laws have also been enacted in Ohio, Indiana, Minnesota, Kansas, and other states, either absolutely forbidding them or placing them under control. Cases arising under these laws and local regulations have come before the courts of those states, and such courts have uniformly held valid reasonable rules adopted by school authorities to prevent the establishment and development of these secret societies in preparatory schools. (Citations.)'

Justice Kerrigan in Bradford v. Board of Education, supra, traced the history of the high school fraternity to 1912. In doing so he was taking judicial notice of that history as a matter of common knowledge. ³ The Bradford case held that under the 1909 statute a certain sorority, Omega Nu, was outlawed. If we may be permitted to extend that history since the Bradford decision, we state, for illustrative purposes, the transmutation which took place (at least locally) thereafter. After the Bradford decision the Omega Nus promptly reorganized themselves into a club called the 'K.Ts.' A competing high school sorority, Alpha Sigma, became Manana, the very club here involved, and similarly, the male counterpart, the high school fraternities, became clubs. Although these clubs called themselves 'nonsecret,' and have continued so to style themselves in the half century which has elapsed since, there was and is no real distinguishing difference between them and the original fraternities and sororities which had been their parent organizations. True, there were no longer secret...