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.