AUTHORITY OF BOARD OF DIRECTORS TO BAR OR EXCLUDE MARRIED STUDENTS FROM SPECIFIED SCHOOL ACTIVITIES

SCHOOLS - DISTRICT - AUTHORITY OF BOARD OF DIRECTORS TO BAR OR EXCLUDE MARRIED STUDENTS FROM SPECIFIED SCHOOL ACTIVITIES.

The board of directors of a school district may adopt reasonable rules and regulations to protect the welfare, good order, discipline and morality of pupils attending high schools in the district.  Whether there exists a reasonable basis in fact for any board adopting a rule excluding automatically, either permanently or temporarily, married students from any specific activity is a question which must be decided by each board of directors and not this office, after a sufficient investigation has been made of all necessary factors.

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                                                                  March 10, 1960

Honorable Pat Nicholson
State Representative
23rd District
P.O. Box 66
Bremerton, Washington                                                                                Cite as:  AGO 59-60 No. 105

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            Does the board of directors of a school district in the state of Washington have the power to bar or exclude students from specified public school activities because they are married?

            We answer this question in the manner set forth in our analysis.

                                                                     ANALYSIS

            A school district is a municipal corporation and, as such, has only those powers expressly granted by the legislature, those necessarily or fairly implied in or incident to the powers granted, and those essential to the declared objects and purposes of the municipal corporation.  Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930);Juntila v. Everett School District No. 24, 178 Wash. 637, 35 P. (2d) 78  [[Orig. Op. Page 2]] (1934).  The governing body of the district, empowered to exercise the foregoing powers, is, of course, the elected board of directors, (RCW 28.58.080).  State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P. (2d) 94 (1934).

            The general laws governing all class districts are found in chapter 28.58 of the Revised Code of Washington, among which we find the following pertinent statutes:

            "Every board of directors, unless otherwise specifically provided by law, shall:

            ". . .

            "(2) Enforce the rules and regulations prescribed by the superintendent of public instruction and the state board of education for the government of schools, pupils and teachers, and enforce the course of study lawfully prescribed for the schools of their districts;

            ". . .

            "(6) Suspend or expel pupils from school who refuse to obey the rules thereof; . . ." (RCW 28.58.100)

            "Any board of directors may make bylaws for its government, and the government of the common schools under its charge, not inconsistent with the instructions of the superintendent of public instruction or of the state board of education."  (RCW 28.58.110)

            In the early case ofWayland v. Hughes, 43 Wash. 441, 86 Pac. 642 (1906) the Supreme Court of this state had an opportunity to pass upon the rule making power of a school board.  The court stated therein:

            ". . . It would be difficult to confer a broader discretionary power than that conferred by these sections.  Manifestly it was the intention of the legislature that the management and control of school affairs should be left entirely to the discretion of the board itself, and not to the judicial determination of any court.  These powers have been properly and legally conferred upon the board, and unless it arbitrarily exceeds its authority, . . . the courts cannot interfere with its  [[Orig. Op. Page 3]] action.  Kinzer v. Directors etc. (Iowa), 105 N.W. 686; Board of Education v. Booth, 110 Ky. 807, 62 S.W. 872;Watson v. Cambridge, 157 Mass. 561, 32 N.E. 864."  (Emphasis supplied)

            This same rule was stated, in different language in State v. Marion County Board of Education, Tenn., 302 S.W. (2d) 57, 59 (1957).  In that case, which we will discuss at length hereinafter, the court said:

            "Boards of Education, rather than Courts, are charged with the important and difficult duty of operating the public schools.  So, it is not a question of whether this or that individual judge or court considers a given regulation adopted by the Board as expedient.  The Court's duty, regardless of its personal views, is to uphold the Board's regulation unless it is generally viewed as being arbitrary and unreasonable.  Any other policy would result in confusion detrimental to the progress and efficiency of our public school system."  (Emphasis supplied)

            Thus, it is quite clear that the board of directors of any school district has the power to prescribe reasonable rules and regulations governing all matters affecting the education and well being of students attending schools in the district.  See 79 C.J.S., Schools and School Districts, §§ 446, 495.  In determining whether or not a rule or regulation is reasonable, all the surrounding circumstances and conditions should be taken into consideration.  A rule which might have been considered reasonable when adopted, may be considered extremely unreasonable and arbitrary at a later date.  See attorney general's opinion written to the Honorable Franklin Heuston, Prosecuting Attorney, Mason County, dated November 23, 1942.

            In our research, we have failed to find any case in this state or any other jurisdiction or, for that matter, any text authority which would provide the basis for a definitive answer to the question you have submitted.  However, there is authority available on the general subject of the relationship and duty of a school district to a married student.

            This office, in an opinion written to the State Superintendent of Public Instruction, datedAugust 6, 1952, (AGO 51-53 No. 366, a copy of which is attached hereto for your consideration) concluded that the board of directors of a school district lacked the authority to exclude a student from attendance at school solely for the reason that such student was married.  This conclusion was based primarily upon the holding of the Supreme Court of Mississippi inMcLeod v. State, 154 Miss. 468, 122 So. 737 (1929). In discussing that case we said:

             [[Orig. Op. Page 4]]

            ". . . the school trustees adopted an ordinance under which married students were barred from the schools, although such students were in all other respects eligible to attend school.  The court pointed out that reasonable regulations for the government of schools are valid and that the presumption is always in favor of the reasonableness and propriety of rules passed by the trustees.  However, the court held that the rule which automatically barred married students was, as a matter of law, so unreasonable and unjust as to amount to an abuse of discretion in its adoption.  The court there said:

            "'. . . It is argued that marriage emancipates a child from all parental control of its conduct, as well as such control by the school authorities; and that the marriage relation brings about views of life which should not be known to unmarried children; that a married child in the public schools will make known to its associates in schools such views, which will therefore be detrimental to the welfare of the school.  We fail to appreciate the force of the argument.  Marriage is a domestic relation highly favored by the law.  When the relation is entered into with correct motives, the effect on the husband and wife is refining and elevating, rather than demoralizing.  Pupils associating in school with a child occupying such a relation, it seems, would be benefited instead of harmed.  And, furthermore, it is commendable in married persons of school age to desire to further pursue their education, and thereby become better fitted for the duties of life.  And they are as much subject to the rules of the school as unmarried pupils, and punishable to the same extent for a breach of such rules.

            "'We are of the opinion that the ordinance in question is arbitrary and unreasonable, and therefore void.'"  (Emphasis supplied)

            See also, 47 Am. Jur. Schools 155; 79 C.J.S. Schools and School Districts, §§ 446, 495; Hamilton and Reuther, Legal Aspects of School Board Operation, p. 14.

            Five years after this office issued the above opinion, the Supreme Court of Tennessee, in 1957, decidedState v. Marion County Board of Education, supra.  The facts giving rise to that litigation may be briefly summarized  [[Orig. Op. Page 5]] as follows:  A county school board adopted a resolution in which it recited that there had arisen a serious problem concerning the marriage of high school students in the various high schools; that the board was of the opinion that the practice was detrimental to the progress and general well being of the operation of the schools; that, therefore, it was resolved that any student who married during the term would be automatically expelled for the remainder of the current term.  After the adoption of the resolution a young girl married during the final term of her senior year and was automatically expelled from school for that term.  An action was commenced to require that she be readmitted to school.  The trial court refused to intervene, finding, "the rule imposed was neither arbitrary nor unreasonableunder the facts disclosed by this record."  On appeal the judgment was affirmed.  The court said:

            "If the representations made to the County Board of Education by every high school principal in Marion County as to their respective observations and experiences on this subject is at all accurate, then married students, and by virtue of the psychological effect thereof, for a few months immediately following marriage, have a detrimental influence upon fellow students, hence, a detrimental effect upon the progress and efficiency of the school.  Therefore, if these principals know whereof they speak, the attendance during such period of such married students in the schools is within the bounds of reasonable regulation by the Board."

            The court noted the expulsion of the student under the rule was not permanent but merely for one term, and, on that basis, distinguished the case from theMcLeod case,supra.  It said:

            "Whatever else may be said of that case [the McLeod case], it is distinguishable from the instant case by the fact that the resolution there adjudged unreasonable, hence void, expelled such married students permanently from the public schools."  (Emphasis supplied) (302 S.W. (2d) 57, 59)

            There is one case in this state, Wayland v. Hughes, supra, decided by the Supreme Court in 1906, the reasoning of which is of assistance to us in determining the extent of a school board's power in respect to excluding students from certain privileges rather than attendance at school.  In that case the Seattle School Board adopted a rule depriving members of the Greek Letter Fraternities of the privileges of the high school, except for attending classes.  An action was commenced to restrain the enforcement of the rule.  The trial court made findings of  [[Orig. Op. Page 6]] facts, among which it determined the high school authorities instituted a careful investigation to ascertain the probable effect of such societies on the school; that after such investigation and after receiving reports from many prominent educators, all of whom unqualifiedly condemned the influence of such societies as highly deleterious and injurious, the school board adopted its rule.  The trial court further found:

            ". . . that in adopting the various rules and regulations aforesaid, and in denying certain privileges of said school to pupils who refused to comply therewith, the respondents [school board] at all timesacted in good faith and in the exercise of an honest judgment; that such action was at all times general in its application and at no time special, malicious, or arbitrary;and that all such rules and regulations, and particularly those in force and effect at the time of the institution of this suit,were reasonable and necessary and were wholly within the powers of the respondents."  (Emphasis supplied) (43 Wash. 441, 445)

            The Supreme Court said:

            "It will be observed that no attempt is being made by the respondents to deny appellant any instruction afforded by class work or by the required curriculum of the school.  He is only denied certain other privileges such as participation in athletic, literary, military, musical, or class organizations.  In other words, the respondents made it optional with appellant to determine whether, against the known wishes of the school authorities, he would continue his membership in said secret society, and thereby forfeit participation in the privileges above mentioned, which were no part of the class work or curriculum, or whether by complying with the adopted rules, he would elect to enjoy the privileges of which he is now deprived."  (Emphasis supplied) (43 Wash. 441, 445)

            ". . . Respondents are only seeking to prevent appellant and his associates from dictating the terms on which they shall enjoy certain privileges which are merely incidental to the regular school work, and this they have authority to do."  (43 Wash. 441, 448)

             [[Orig. Op. Page 7]]

            The court went on to say:

            "The evidence of this witness, [principal of high school] with that of the president of the school board and other school authorities, overwhelmingly establishes the fact that such fraternities do have a marked influence on the school, tending to destroy good order, discipline and scholarship.  This being true, the board is authorized, and it is its duty, to take such reasonable and appropriate action by the adoption of rules as will result in preventing these influences.  Such authority is granted by § 2339 and subdivisions 5 and 6 of § 2362, Bal. Code (P.C. §§ 7300, 7323).  It would be difficult to confer a broader discretionary power than that conferred by these sections. . . ." (Emphasis supplied)

            The court thereafter concluded, as we have previously noted, that the school board did not arbitrarily exceed its authority and, therefore, the courts could not interfere with its action.

            The judgment entered by the trial court denying the injunctive relief sought was affirmed.  (In passing it should be noted that schools which allow secret societies to exist among its students must be denied accreditation by the State Board of Education (RCW 43.63.140 (5)).

            From the foregoing, we feel that you will understand the reason why we are not in a position to give you a definitive answer to your question.  This is particularly true in this instance where you have not indicated the nature of the "activities" in question; the facts surrounding the problem; investigations or reports available to the board of directors; and, whether or not any board has or desires to exercise its rule making power in this area.

            Accordingly, we can only advise you, as we have many others on similar questions, that the board of directors of a school district has been vested by the legislature with very broad powers and, therefore, may, acting in good faith and in the exercise of honest judgment, adopt reasonable rules to protect the welfare, good order, discipline and morality of pupils attending the high schools in the district.  Whether there exists areasonable basis in fact for any board adopting a rule excluding automatically, either permanently or temporarily, married students fromany specific activity is a question which must be decided by each board of directors, and not this office, after a sufficient investigation has been made of all necessary factors.  In making this determination the board must, of course, determine whether students participating in a given activity, will be adversely or injuriously affected by the presence of married students.  Furthermore, any rule or regulation adopted by a  [[Orig. Op. Page 8]] board of directors may be challenged by some student adversely affected thereby and the court then will have to decide from the evidence presented whether the rule is reasonable or abritrary and capricious.

            We regret that our opinion cannot be more definite but we trust our discussion of this matter will be of some assistance to you.  In the event that you have any further questions concerning this problem, please feel free to contact this office.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General