Original jurisdiction in case of Girard School District, et al. v. John C. Pittenger, as Secretary of Education and Chief Executive Officer of the State Board of Education, The State Board of Education, Grace M. Sloan, Treasurer of the Commonwealth of Pennsylvania, and Robert P. Casey, Auditor General of the Commonwealth of Pennsylvania.
Reed B. Day, with him Robert T. Crothers, and Peacock, Keller, Yohe & Day, for plaintiffs.
Edward A. Miller, Deputy Attorney General, for defendants.
Steven S. Goldberg, with him Irene Solet and Stephen C. Miller, for amicus curiae, Parents Union for Public Schools in Philadelphia.
William Fearen, with him Michael I. Levin, and Cleckner & Fearen, for amicus curiae, Pennsylvania School Boards Association.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Dissenting Opinion by Judge Rogers.
[ 29 Pa. Commw. Page 178]
Plaintiffs, twenty-nine (29) local school districts and three (3) taxpayers residing in three of those school districts, filed a complaint in equity and a petition for declaratory judgment in this Court alleging that the State Board of Education (State Board) lacks authority to promulgate certain regulations entitled "Students Rights and Responsibilities" and found at 22 Pa. Code § 12.1 et seq. Plaintiffs pray that these regulations be declared null and void and that the defendants*fn1 be enjoined from enforcing them. The defendants had filed preliminary objections, which were
[ 29 Pa. Commw. Page 179]
overruled by an equally divided Court but ordered for reargument after close of the pleadings upon either party's motion for summary judgment. The plaintiffs have now so moved and all legal issues are ripe for our disposition.*fn2
The challenged regulations purport to establish statewide policies and rules on a number of subjects, including student responsibilities, corporal punishment, procedural requirements for suspensions and expulsions from school, and student rights with respect to freedom of expression (including student publications), hair and dress codes, and searches of student lockers.*fn3 Plaintiffs contend that the State Board is without authority to promulgate and enforce these regulations inasmuch as the legislature has delegated exclusive authority in the area of student conduct and discipline to local boards of school directors (and their principals and teachers) by Sections 510, 511(a), 1317, 1318 and 1338 of the Public School Code of 1949 (School Code).*fn4 These sections provide, in pertinent part:
[ 29 Pa. Commw. Page 180]
The board of school directors in any school district may adopt and enforce such reasonable rules and regulations as it may deem necessary and proper, regarding the management of its school affairs . . . as well as regarding the conduct and deportment of all pupils attending the public schools in the district, during such time as they are under the supervision of the board of school directors and teachers, including the time necessarily spent in coming to and returning from school.
(a) The board of school directors in every school district shall prescribe, adopt, and enforce such reasonable rules and regulations as it may deem proper, regarding (1) the management, supervision, control, or prohibition of exercises, athletics, or games of any kind, school publications, debating, forensic, dramatic, musical, and other activities related to the school program, including raising and disbursing funds for any or all of such purposes and for scholarships, and (2) the organization, management, supervision, control, financing, or prohibition of organizations, clubs, societies and groups of the members of any class or school, and may provide for the suspension, dismissal, or other reasonable penalty in the case of any appointee, professional or other employe, or pupil who violates any of such rules or regulations.
Every teacher, vice principal and principal in the public schools shall have the right to exercise the same authority as to conduct and behavior over the pupils attending his school, during the time they are in attendance, including
[ 29 Pa. Commw. Page 181]
the time required in going to and from their homes, as the parents, guardians or persons in parental relation to such pupils may exercise over them.
Every principal or teacher in charge of a public school may temporarily suspend any pupil on account of disobedience or misconduct, and any principal or teacher suspending any pupil shall promptly notify the district superintendent or secretary of the board of school directors. The board may, after a proper hearing, suspend such child for such time as it may determine, or may permanently expel him. Such hearings, suspension, or expulsion may be delegated to a duly authorized committee of the board.
In case any child of compulsory school age cannot be kept in school in compliance with the provisions of this act, on account of incorrigibility, truancy, insubordination, or other bad conduct, of [sic] if the presence of any child attending school is detrimental to the welfare of such school, on account of incorrigibility, truancy, insubordination, or other bad conduct, the board of school directors may, by its superintendent, secretary, or attendance officer, under such rules and regulations as the board may adopt, proceed against said child before the juvenile court, or otherwise, as is now or may hereafter be provided by law for incorrigible, truant, insubordinate, or delinquent children.
Undaunted by this comprehensive and specific grant of authority to local boards, the State Board asserts that it too has authority over student conduct and ...