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-Talent High School in Southern Oregon. 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 January 16, 2001,
months before it was originally scheduled to be heard. On February 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.

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.

Russell Sadler teaches journalism and environmental studies at
Southern Oregon University. You may write to him at 391 Beach St.,
Ashland, 97520.