CRAIG BY CRAIG v. Buncombe County Bd. of Educ.

343 S.E.2d 222 (1986)

Kim CRAIG, by Howard CRAIG, her Guardian ad Litem and Kevin Russell, by his Guardian ad Litem, Pam Russell v. BUNCOMBE COUNTY BOARD OF EDUCATION, Larry C. McCallum, in his capacity as Principal of Charles D. Owen High School, Vernon E. Dover, Robert E. Greene, James Lewis, Jr., Wendall Begley, Mrs. Grace Brazil, Marshall Roberts and Charles Wykle, in their capacity as members of the Buncombe County School Board.

No. 8528SC924.

Court of Appeals of North Carolina.

May 20, 1986.

*223 C. David Gantt, P.A., Ashville, for plaintiffs-appellants.

Roberts, Cogburn, McClure & Williams by James W. Williams, Isaac N. Northup, Jr., and Glenn S. Gentry, Ashville, for defendants-appellees.

PARKER, Judge.

Appellants contend that the smoking ban imposed by the Buncombe County Board of Education deprives students who smoke of the "fundamental right" to an education. However, in our view, the right deprived is only the right to use or possess tobacco products on school grounds during school hours. A smoker is not denied the right to an education so long as he or she confines the smoking to outside school hours and off school grounds.

The smoking ban is not comparable to hair length regulations or dress codes in high schools which have been invalidated by the courts. See, e.g., Breen v. Kahl, 419 F.2d 1034 (7th Cir.1969); Copeland v. Hawkins, 352 F. Supp. 1022 (E.D.Ill.1973). Both hair length and dress involve First Amendment issues in that both may be used as expressive conduct which enjoys First Amendment protection. Copeland, supra. Even with that protection, greater regulation of speech and conduct is permissible in the school environment than would otherwise be allowed. E.g., Quarterman v. Byrd, 453 F.2d 54 (4th Cir.1971). Thus, a ban on smoking at school is further distinguishable from a hair length regulation in that the latter necessarily involves control of conduct outside the school environment.

The right to smoke in public places is not a protected right, even for adults. In Gasper v. Louisiana Stadium and Exposition District, 577 F.2d 897 (5th Cir. 1978), cert. denied, 439 U.S. 1073, 99 S. Ct. 846, 59 L. Ed. 2d 40 (1979), the Fifth Circuit did deny the right of a group of nonsmokers to enjoin smoking in the Louisiana Superdome, but the court stated:

We assume that Superdome authorities, if they saw fit, could prohibit smoking in the facility, or the City of New Orleans, in the exercise of its police power could prohibit smoking in public stadiums or the State of Louisiana could enact a similar statute of statewide application.

577 F.2d at 898.

In Alford v. City of Newport News, 220 Va. 584, 260 S.E.2d 241 (1979), a case relied upon by appellants, the Virginia Supreme *224 Court ruled that a municipal ordinance prohibiting smoking in restaurants, health care facilities, schools and elevators was unconstitutional as applied to the owner of a private, one-room restaurant. The court invalidated the ordinance only in its impact upon the regulation of the use of private property.

Our State Legislature has delegated to the various local boards of education in North Carolina the power to "adopt policies governing the conduct of students" and to "[establish] procedures to be followed by school officials in suspending or expelling any pupil from school." G.S. 115C-391(c). Under an earlier version of this statute, a local school board adopted a regulation requiring students to sign a pledge that they belonged to no fraternal organization. Despite concluding that such a requirement would be unconstitutional if applied to adults, the Supreme Court held that the need to control the school environment and the school board's position in loco parentis justified the regulation. Coggins v. Board of Education, 223 N.C. 763, 28 S.E.2d 527 (1944). Thus, the power of school authorities to regulate students' conduct while at school is much greater than the State's authority to regulate the conduct of adults. See Breen, supra, at 1037.

The Board of Education has legitimate concerns over students' health, cleanliness of grounds and buildings, fire hazards, the use of "smoking areas" for the smoking of illegal, non-tobacco cigarettes and the effect of smoke inhaled from the air on nonsmokers. These concerns are all reasonably related to the educational process and thus provide a rational basis for the regulation. See generally Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1924) (regulations controlling conduct at schools need only be reasonable to be constitutional).

Appellants contend that the regulation violates the guarantee of equal protection contained in the Fourteenth Amendment to the U.S. Constitution and Article 1, Section 19 of our State Constitution in that the ban applies only to students, while teachers are allowed to smoke in the teachers' lounge. This contention is without merit. Because of their youth and educational goals, there are reasonable differences justifying application of a statute or regulation to high school students but not to adults. See Breen, supra. The primary justification for the smoking bandiscouraging smoking in order to prevent impressionable, susceptible adolescents from becoming addicted to tobacco productsdoes not apply to adults. On that basis alone, for the school board to distinguish between students and teachers is proper. In addition, by being required to confine their smoking to the teachers' lounge, the smoking teachers are not setting a bad example for the students. This is consistent with the policy's justification. The fact that individual teachers violate this requirement does not render the ban on student use of tobacco products void. See Ware v. Estes, 328 F. Supp. 657 (N.D.Tex.1971) (school system policy regulating corporal punishment not rendered invalid because of violations by individual teachers).

Because we hold the ban on the use and possession of tobacco products in the Buncombe County schools to be valid, we need not address the question of whether school officials waived their immunity to suit by obtaining liability insurance pursuant to G.S. 115C-47(25). The ban on the use or possession of tobacco products by students at school is a valid exercise of the authority delegated to the various boards of education by the Legislature, and the entry of summary judgment for appellees is

Affirmed.

WHICHARD and BECTON, JJ., concur.