Scott v. Board of Ed., Union Free School Dist. No. 17, Hicksville

• Decision Date: 18 November 1969
• Citation: 305 N.Y.S.2d 601,61 Misc.2d 333
• Parties: Application of Lori SCOTT, a minor fifteen years of age, by leave of her mother and natural guardian, Dorothy Scott, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules, enjoining and nullifying the enforcement of the Hicksville School dress code v. The BOARD OF EDUCATION, UNION FREE SCHOOL DISTRICT #17, HICKSVILLE, New York, and Raymond Rusch, Principal, Hicksville High School, Respondents.
• Court: New York Supreme Court

Page 601

305 N.Y.S.2d 601

61 Misc.2d 333

Application of Lori SCOTT, a minor fifteen years of age, by

leave of her mother and natural guardian, Dorothy Scott,

Petitioner, For a Judgment under Article 78 of the Civil

Practice Law and Rules, enjoining and nullifying the

enforcement of the Hicksville School dress code v. The BOARD OF EDUCATION, UNION FREE SCHOOL DISTRICT #17,

HICKSVILLE, New York, and Raymond Rusch,

Principal, Hicksville High School, Respondents.

Supreme Court, Special Term, Nassau County, Part I.

Nov. 18, 1969.

Leonard S. Clark, Hempstead, Nassau Law Services Committee, Inc., for petitioner; Jack Weiner, of counsel.

Joseph C. Catalano, Plainview, for respondents.

BERNARD S. MEYER, Justice.

Does a School Board have power to proscribe the wearing of slacks in school by female students? The court holds that Board regulation of dress is valid only to the extent necessary to protect the safety of the wearer, male or female, or to control disturbance or distraction which interferes with the education of other students. Since Paragraph 3 of the Dress Regulations For the Secondary School adopted by the respondent Board is a flat prohibition 'of girls wearing slacks' except when 'permitted by the principal between December 1 and March 31 on petition by the student council when warranted by cold or inclement weather,' judgment will be entered annulling that Paragraph of the Regulations.

In addition to the above stated question, the pleadings present a number of subsidiary questions which will be disposed of first. The petition alleges that petitioner is a tenth grade student at Hicksville High School, that she and her family are receiving assistance from the Department of Social Services, that the Board adopted a dress code after it was approved by the majority of those who replied to a questionnaire sent out by the Board, that on October 21st ^* and again on October 30th, petitioner wore slacks to school and was 'placed in detention, thereby missing her classes,' that on October 29th, petitioner made known to the Board her objections to the Code and the Board, when informed of the fact that petitioner was on public assistance agreed to consider procedures for hardship cases, and that the Code is unreasonable and unlawful because (1) it fails to adhere to standards set by the Commissioner of Education, (2) Paragraph 3 of the Regulations is unenforceable for vagueness, (3) none of her clothing conforms to the Code and her family does not have the means to buy new attire, wherefore there is a violation of the equal protection clause of the United States Constitution, (4) the regulation bears no reasonable relation to health or welfare or the educational processes, (5) the Code violates petitioner's rights of free speech and expression under Article 1, Sec. 8 of the State Constitution and the First and Fourteenth Amendments of the United States Constitution. She asks that the Board be enjoined from enforcing the dress code, from placing her in detention for wearing slacks to school, and be directed to revoke the dress code. The answer alleges the adoption of procedures for modification of the Code and sets up four affirmative defenses: (1) that the Board acted within its powers and the Commissioner's standards in adopting the Code, (2) that petitioner has not exhausted administrative remedies, (3) that the petition does not demonstrate a clear legal right, and, therefore, does not state a cause of action, (4) that 'serious doubt exists whether petitioners (sic) are real parties in interest'.

The first and third defenses simply raise the issue of the Board's authority. For the reasons stated below, the court concludes that the Board was without authority to adopt Paragraph 3 of the Regulations and dismisses these two defenses. The administrative remedy defense is likewise dismissed. As pleaded it concerns not appeal to the Commissioner of Education pursuant to § 310 of the Education Law, but the failure to follow the procedures for modification established by respondent or to allow the Board sufficient time after the October 29th meeting to act on her presentation. While service of the petition on November 3rd was precipitate if petitioner really was pressing for relief from the regulations on a hardship basis, her petition presents the issue whether the Board had any authority at all to adopt a regulation proscribing slacks, not whether it properly exercised administrative discretion in so doing. That being so, there was no necessity for her to seek administrative relief at all, whether from the Board or the Commissioner, see Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 121 N.E.2d 517; Matter of Lombardo v. Board of Higher Education, 18 A.D.2d 444, 240 N.Y.S.2d 119, aff'd 13 N.Y.2d 1097, 246 N.Y.S.2d 631, 196 N.E.2d 266; Matter of Buffalo Audio Center Arrolite Co. v. Union Free School District No. 1, 29 Misc.2d 871, 208 N.Y.S.2d 760, aff'd 15 A.D.2d 991, 226 N.Y.S.2d 1024. Since it is clear that the regulations continued in effect after the October 29th meeting, petitioner's failure to take advantage of the procedure for modification of the code or await further Board action is irrelevant.

That the real party in interest defense is nothing more than a red herring is evident on its face and from the affidavits in support of it which suggest only that petitioner consulted one or more lawyers before she came to school in slacks and was acting under his or their advice on the days that the two episodes occurred. The real party in interest rule is a rule of substantive law intended to protect one being sued from having to defend against the same claim a second time because someone other than the petitioner or plaintiff was the owner of the claim and, therefore, the only person entitled to sue. The answering papers (Exhibits B and C to the Rusch affidavit) establish that Lori Scott was excluded from classes on October 20th and October 30th solely because she was wearing slacks. As a student residing in the district administered by respondent, Lori Scott has a constitutionally guaranteed right to an education, New York State Constitution, Article XI, Sec. 1, and, therefore, has the standing to sue for the annulment of any regulation imposed by the Board which unlawfully interferes with that right. That she may be acting in cncert with others in so doing is beside the point. That her capacity to sue has somehow been affected because she sought legal advice about her rights before pressing for them can only be characterized as an astonishingly erroneous concept. The fourth defense is, therefore, dismissed.

The petition is,...