Pubdate: Sun, 25 Feb 2001
Source: Medford Mail Tribune (OR)
Copyright: 2001 The Mail Tribune
Contact:  PO Box 1108, Medford OR 97501
Fax: (541) 776-4376
Website: http://www.mailtribune.com/
Forum: http://www.mailtribune.com/speak_out/
Author: Russell Sadler
Note: Veteran columnist Russell Sadler teaches journalism and environmental 
studies at Southern Oregon University in Ashland

PRESIDENT PRECEDENT: THE KEANON FERGUSON CASE

The Oregon Court of Appeals, overturning decades of well-settled 
administrative law, recently ruled that a school district does not need 
previously written, established procedures to remove a student body 
president from office.

On June 13, 2000, Keanon Ferguson was caught by a security guard with less 
than an ounce of marijuana and a pipe in his possession on the grounds of 
Phoenix High School. Ferguson, who had just been elected student body 
president by his peers for the following year, was suspended for five days 
- -- the prescribed punishment for such an offense.

During the summer, a group of parents active in anti-drug organizations 
told the school administration they did not feel the prescribed written 
punishment was severe enough. Under pressure from these parents, the school 
board stripped Ferguson of his office.

Ferguson's father, a lawyer, sued the school board, arguing the school 
district's written rules prescribed only a five-day suspension for such an 
offense and the school board lacked the authority to remove his son from 
office.

Jackson County Circuit Judge Phil Arnold correctly ruled the Phoenix-Talent 
School District did not have the authority to depose a properly elected 
student body president. Arnold, relying on decades of established 
administrative law, reinstated Ferguson as student body president, ruling 
the school district did not have the authority to remove him in absence of 
specific rules allowing them to do so.

The school district's written rules did, however, permit a recall election. 
Encouraged by some of the same parents who had demanded Ferguson be removed 
from office, students collected enough signatures to stage a recall 
election. The recall failed by some margin the school district will not 
make public. Ferguson remained student body president while the school 
district appealed.

In a rare act, the Court of Appeals advanced the Ferguson case to the head 
of its crowded docket and heard the case Jan. 16, 2001, months before it 
was originally scheduled to be heard. On Feb. 14, the Court of Appeals, in 
a decision written by Chief Judge Mary Deits, swept away decades of 
administrative law and reversed Arnold. Deits held that although state law 
requires "consistent" and "fair" rules in public schools, administrators 
have some "residual authority" and are not required to make an "exhaustive 
list" of every form of misconduct.

This decision should be promptly appealed to the Oregon Supreme Court. 
Whatever Deits' motives, her decision overturns established administrative 
law limiting government agencies -- including school districts -- to 
exercising only that authority delegated to them by the Legislature, not 
some mystic, unwritten "residual authority."

In fact, ORS 339.240(3) says, "Every district school board shall enforce 
consistently and fairly its written rules regarding pupil conduct, 
discipline and rights." Notice the words "written rules." It is a bedrock 
principle of American jurisprudence that citizens -- including minors -- 
are entitled to know the rules and the price to be paid for violating them 
before they engage in any conduct.

The written punishment for the first offense of possessing marijuana on 
school property in the Phoenix-Talent district is a five-day suspension, 
whether the student is sports star, a student body president or a student 
in a black raincoat with purple hair. School district officials, nor any 
other government bureaucrat, are not permitted to make up rules and 
punishment as they go along, especially under pressure from loud, insistent 
people.

The significance of written administrative rules is summarized in a 
December 24, 1973, decision by Court of Appeals Judge Jacob Tanzer in the 
case of Sun Ray Drive-in Dairy v. The Oregon Liquor Control Commission.

The OLCC had denied Sun Ray Dairy a liquor license for its convenience 
store in Ontario. The OLCC found there were 15 package licenses in Ontario 
and decided that was sufficient. The OLCC also decided Sun Ray Dairy's 
convenience store was not really a convenience store because it only 
stocked three packages of creamed peas.

The OLCC was unable to produce written standards to show how it determined 
the number of liquor licenses in any one town would be considered 
"sufficient." It also failed to produce rules showing how many packages of 
creamed peas or any other products stores were required to stock to qualify 
for a liquor license.

The OLCC had no such written rules or standards. In 1973, OLCC regulations 
had the quality of folklore, handed down from one generation of agents to 
another, unwritten and unreviewable. Tanzer ordered the OLCC to stop 
issuing liquor licenses until it prepared written rules and standards the 
court and the public could review. It took six months.

"Without written, published standards, the entire system of administrative 
law loses its keystone," wrote Tanzer in Sun Ray Dairy.

"The policies of an agency in a democratic society must be subject to 
public scrutiny. Published standards are essential to inform the public," 
wrote Tanzer. "Further, they help assure public confidence that an agency 
acts by rules and not from whim or corrupt motivation."

Tanzer made the case for written rules so persuasively, the Oregon Supreme 
Court did not review the Sun Ray dairy case. It remains one of the 
influential legal precedents in Oregon administrative law.

Although Chief Judge Deits did not mention the Sun Ray Dairy case in her 
opinion, its specter loomed over the courtroom the day the case was argued. 
Its author, Judge Jacob Tanzer, now in private practice, argued the 
appellate case for Keanon Ferguson.

Judges Deits, Rick Haselton and Robert Wollheim ignored the principles 
Tanzer laid down 27 years ago in Sun Ray Dairy, carving out a special 
exemption from the discipline of administrative law for school districts 
alone. The Oregon Supreme Court should restore that discipline promptly.

Whatever vague message the Ferguson case may send to the drug war's 
ideological battlefields, containing arbitrary bureaucratic improvisation 
to assure the public that "an agency acts by rule and not from whim or 
corrupt motivation" is far more important -- especially for impressionable 
high school students.
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