Request By:
Mr. Landon C. Sexton, Principal
Whitley City Middle School
Whitley City, Kentucky 42653
Opinion
Opinion By: Robert F. Stephens, Attorney General; John F. Zink, Assistant Attorney General
As the principal of the Whitley City Middle School, you have written to this office concerning a request for an opinion regarding the authority of the principal of a public common school in Kentucky to impose regulations over the conduct of teachers supervised by that principal. Specifically, your questions are:
1. Does the principal of a public common school have the authority to institute dress regulations for teachers?
2. Is a teacher guilty of insubordination when he or she writes an article for a newspaper which is critical of the school in which that teacher works, and is such an action punishable by the school authorities?
In answer to your first question, it is first necessary to examine several pertinent sections of the Kentucky Revised Statutes governing school employees. KRS 161.170 provides:
Each teacher in the public schools shall enforce the course of study, the use of the legally authorized textbooks, and the rules and regulations prescribed for the schools. If any teacher willfully refuses or neglects to comply with the law or such rules and regulations the board of education, upon recommendation of the superintendent, may remove him at any time . . . (Emphasis added).
The language of the above-cited statute clearly indicates that a teacher is obligated, not only to enforce the rules and regulations for the school system, but also to comply with those rules and regulations. However, the question then arises as to what extent can rules and regulations be promulgated governing the actions of a teacher within the bounds of that teacher's constitutional rights. In order to answer this question, it is necessary to first examine several important recent federal court cases. In
Kelley v. Johnson, 425 U.S. 238, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976) the United States Supreme Court dealt with the questions of whether and to what extent a person has a constitutionally cognizable liberty interest in his or her personal appearance. The issue involved whether a police department could constitutionally require the officers to obey certain regulations in the form of a hair code. In upholding the hair code for policemen, the Supreme Court in Kelley, id., emphasized the employment status of the police officer and that as such there was an unquestioned need for discipline and uniformity in a police force.
In
Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961), the Supreme Court recognized that generally governments are given wide latitude in the dispatch of their own internal affairs. As such, most legislative decisions are presumed to be valid. See
Dean v. Gadsden Times Publishing Co., 412 U.S. 543, 93 S. Ct. 2264, 37 L. Ed. 2d 137 (1973). The burden is on the plaintiff to demonstrate that the challenged law is so irrational that it could serve no legitimate state interest.
Williamson v. Lee Optical Co., 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 2d 563 (1955);
United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947).
While some commentators and lower courts have attempted to narrow the scope of Kelley, supra, by urging that regulations and restrictions which may be applicable to members of a uniformed paramilitary force on the basis of a need for discipline and "esprit de corps," are not applicable to all public employees, there is nothing ambiguous in the Supreme Court's language going to the question of whether a public employee has a fundamental constitutional right to dress as he or she pleases. Kelley, id., clearly holds that there is no fundamental constitutional right. Indeed, the governmental unit or agency involved would not carry the burden of justification of the rule or regulation in this type of case. The complaining employee must demonstrate that the dress code is so arbitrary that it serves no legitimate interest of the board.
In the recent case of
East Hartford Education Association v. Board of Education, 562 F.2d 838 (2d Cir. 1977) the Court dealt with a similar problem as you have expressed in your letter. There the board of education had adopted "Regulations For Teachers Dress; " as part of these regulations, male teachers were required to wear a tie and sport jacket. One male teacher, Mr. Brimley, opposed this regulation and made the claim that his refusal to wear a tie was "symbolic speech" protected against governmental interference by the First Amendment. The Court stated that the applicable test in such cases is one of balancing the alleged interest in free expression against the goals of the school board in requiring its teachers to dress somewhat more formally than they might like. In addition, the Court noted that as conduct becomes less and less like "pure speech" the showing of governmental interest required for its regulation is progressively lessened.
In East Hartford Education, id., the Court stated that such "symbolic speech" made through an individuals choice of clothing is vague and unfocused. That on one side, the teacher in question had other more direct and effective means of communicating his social statements at his disposal. Balanced against the teacher's alleged interest in free expression was the school board's interest in promoting respect for authority and traditional values, as well as discipline in the classroom, by requiring teachers to dress in a professional manner. As such, the Court held that the dress code was a rational means of promoting these goals. As such, the Court ruled that a school board may impose reasonable regulations governing the appearance of the teachers it employs.
At this point, it is necessary to look to the language of KRS 161.140:
Each board of education shall prescribe the duties to be performed by all persons in public school service in the district. (Emphasis added).
In addition, KRS 161.170 states, in part, that a teacher must comply with such rules and regulations" and that the board of education is to enforce this compliance. It is therefore clear from this statutory language that the authority to promulgate such rules and regulations rests solely with the board of education. As such, the school administrators, such as principals, do not have the authority to set rules and regulations; only the board may promulgate such administrative procedures. Therefore, in answer to your first question, it is the opinion of this office that as principal you may not create and enforce rules and regulations governing the dress of teachers at your school.
Your second question requires a brief answer. As I understand your facts, the teacher in question wrote a critical article in a local newspaper concerning the physical condition of the school. It is clear beyond a doubt that such a form of expression would be categorized as "pure speech." As such, the expression by the teacher in question is a proper exercise of that teacher's right of free speech as protected by the First Amendment of the United States Constitution.