Law School Writing Sample - Interoffice Memorandum

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MEMORANDUM


CONFIDENTIAL
Attorney Work Product


TO: Idyll Unified School District, Supervising Attorney
FROM: Arash Razavi, Hastings Summer Associate
RE: Casey McNeill: School Suspension
DATE: Monday, November 3, 2014


FACTS

Casey McNeill is a senior at Pacific High School in an extremely conservative
neighborhood near Los Angeles. Mr. McNeill was the star of his school’s recent musical
production of Hair. Mr. McNeill cultivated a long but well-maintained hairstyle for the show.
Following the show, he continued to let his hair grow. Because of his long hair, Mr. McNeill
was the subject of harassment by peers, including gender-related taunts. A school teacher
warned Mr. McNeill that his long hair violated the school’s dress code. The Idyll Unified School
District, where Pacific High School is located, has a dress code that in part provides: “All
student, teachers, and staff shall meet basic standards of good grooming consistent with the
health and safety of the school environment.” The school was concerned that Mr. McNeill’s
long hair would cause more bullying and catch fire in shop class. Mr. McNeill refused to cut his
hair.
In response to alarming statistics of drug use among high school students nationwide, and
the spread of drug use from urban areas such as the city of Los Angeles, the district has
implemented a drug testing policy. The district’s drug policy requires student who wish to
participate in school extracurricular activities to consent to a hair analysis to detect the presence
of illicit drugs. The testing procedure includes taking the sample and assigning a unique

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numerical identifier to protect the confidentiality of the students. The test screens for the
presence of five drugs: cocaine, opiates, marijuana, methamphetamines, and PCP. The results
are only disclosed to school personnel involved, who must use a password to access the results
over the phone. Mr. McNeill was randomly selected to participate in the drug testing. Mr.
McNeill refused to participate and objected to the use of the drug test for suspension claiming
that it was an invasion of his privacy. Mr. McNeill was suspended according to Section 48900
of the California Education Code for two days for refusing to cut his hair and for refusing to take
the drug test.
QUESTIONS PRESENTED
I. Does the First Amendment bar the district’s authority under § 48900 of the California
Education Code to suspend Mr. McNeill when he refused to cut his hair according to the
district’s dress code?
II. Does the Fourteenth Amendment bar the district’s authority under § 48900 of the
California Education Code to suspend Mr. McNeill when he refused to cut his hair according to
the district’s dress code?
III. Does the Fifth Amendment bar the district’s authority under § 48900 of the California
Education Code to suspend Mr. McNeill for refusing to submit to a drug test?
SHORT ANSWERS
I. No. The district did not have the authority to suspend Mr. McNeill for refusing to cut his
hair because Mr. McNeill’s choice of hair style was an expression that is protected by the First
Amendment.
II. No. The district did not have the authority to suspend Mr. McNeill for refusing to cut his
hair because the relevant balancing test suggests that the regulation violates the Fourteenth
Amendment’s liberty and due process rights.

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III. No. the district was not allowed to enforce its drug testing policy and it was not allowed
to suspend Mr. McNeill for refusing to take the test because the district’s drug policy, is an
invasive practice that violates the Fourth Amendment.
DISCUSSION
The California legislator delegates to local school district governing boards the authority
to promulgate necessary rules and regulations controlling student conduct. Cal. Educ. Code §
10601.5 (West 1982). A student may be suspended if he “disrupt[s] school activities or
otherwise willfully defie[s] the valid authority of supervisors, teachers, administrators, school
officials, or other school personnel engaged in the performance of their duties.” Cal. Educ. Code
§ 48900 (West 2013). “Suspension, including supervised suspension . . . shall be imposed only
when other means of correction fail . . . .” Cal. Educ. Code § 48900.5(a) (West 2014).
“Basic to [the] controversy is a determination of whether hair style is a right akin to free
speech protected by the ‘preferred positon’ rational of the First Amendment of the United States
Constitution . . . placing a heavier burden upon the state to justify any interference with such
right.” Montalvo v. Madera Unified Sch. Dist. Bd. of Educ., 21 Cal. App. 3d 323, 331 (1972).
In order for a regulation to be a constitutional infringement on the First Amendment rights of a
student, the school must demonstrate that it: (1) relate to the enhancement of an educational
function; (2) demonstrate that the public benefits produced outweigh the consequent impairment
of students’ constitutional rights; and (3) have no “less restrictive” alternative. See Myers v.
Arcata Union High Sch. Dist., 269 Cal. App. 2d 549, 559 (1969) (applying the three prong test
set forth in Bagley v. Washington Twp Hosp. Dist., 65 Cal. 2d 499, 501-02 (1966)); see also
Akin v. Bd. of Educ. of Riverside Dist., 262 Cal. App. 2d 161, 167 (1968) (applying the three
prong-test set forth in Bagley, 65 Cal. 2d at 501-02). If, on the other hand, a regulation is not
related to a First Amendment right, it may be subject to the reasonability of balancing the

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Fourteenth Amendment rights of the student against the public interest advanced by the
regulation. Montalvo, 21 Cal. App. 3d at 335.
I. The District Did Not Have the Authority to Suspend Mr. McNeill When He Refused to
Cut His Hair Because Mr. McNeill’s Hair Style, as a Pure and Symbolic Expression,
Falls Under the First Amendment’s Protection.
Whether the First Amendment protects a dress code choice depends on whether it is an
aesthetic choice or a “group action or demonstration.” Id. In Montalvo, the plaintiff was
suspended for wearing long hair. Id. at 326. The court reasoned that “hair style, without more,
is not per se an expression of speech, symbolic or pure, within the protection of the First
Amendment.” Id. at 334 (emphasis added). The court held that the plaintiff’s choice of hair
style did not involve a First Amendment protection because it was a personal choice that did not
concern “aggressive, disruptive action or even group demonstrations.” Id. at 333. Thus, where
the violation of a dress code regulation does not involve an expression, action or demonstration,
it is not protected by the First Amendment. Id. at 333-24.
Where in Montalvo the plaintiff’s choice of hair style did not involve a First Amendment
expression, Mr. McNeill’s long hair is both a symbolic and pure expression of group
demonstration. It is pure expression because it represents his self-expression. It is symbolic
because it is related to his recent role in a cultural theatrical production. The pure and symbolic
nature of expression is further evidenced by the contradicting dissatisfaction of school authorities
in Montalvo and Mr. McNeill’s school: one more concerned with grooming than harassment, the
other mainly concerned about Mr. McNeill’s peers’ social intimidation. Mr. McNeill’s haircut is
associated with his role in a recent award-winning theatrical musical in which he starred. It is
well maintained. It is also representative of a group action or group demonstration because it
reflects his cultural conflict with his conservative community as evidenced by the criticism

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directed at the musical. Thus, the First Amendment related three-prong test applied in Bagley is
the applicable standard.
A. The dress code regulation underlying Mr. McNeill’s suspension is related to
enhancement of the educational function and thus meets the first prong of the test.
Where a dress code regulation relates to sustaining the educational environment, it serves
an educational function. Myers, 269 Cal. App. 2d at 559. The Myers court relied on witness
testimonies that described the plaintiff’s long hair as a source of disturbance of the educational
environment. Id. at 554. The court held that because the harassment associated with the dress
code interrupts of an educational process, the dress code regulation is related to an enhancement
of an education function. Id. Thus, where a violation of a dress code regulation causes
intimidation and harassment, the corresponding regulation is related to the enhancement of the
educational function. Id. The court held that a dress code intended to burn disruptions thus
providing an environment conducive to learning meets the prong test. Id. at 560.
Similar to the plaintiff in Myers, Mr. McNeill has been the subject of harassment by
peers because of his long hair. Furthermore, similar to Myers, the harassment associated with
Mr. McNeill’s long hair disturbs the educational environment. As in Myers, the school
authorities have an interest and obligation to prevent the disruption of the educational
environment to the educational function. Thus, the first prong of the Bagley test is met.
B. The benefits of the regulation do not outweigh the consequent impairment of the
constitutional infringement on Mr. McNeill’s interest in wearing long hair.
Where a dress code regulation relates to an educational process and the student’s interest
does not, the public interest in imposition of the regulation outweighs the student’s First
Amendment interest. Akin, 262 Cal. App. 2d at 168-69. In Akin, plaintiff’s choice to grow a
beard was not related to an educational or career interest. Id. at 163. The court reasoned that the
public assumes the cost of maintaining the public school system and is entitled to have its

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schools operate with minim of interruptions. Id. at 168. The court held that where the deviation
on the part of one student leads students causing interruptions in the educational process, the
public interest outweighs the “peripheral right to grow a beard.” Id. Thus, where the public
interest in an uninterrupted educational process is at stake, the public interest outweighed the
plaintiff’s non-education related First Amendment interest. Id.
Mr. McNeill’s interest in wearing long hair relates to an educational and career-related
activity and thus, it is consistent with the educational process. Mr. McNeill’s choice to wear
long hair, in contrast to Akin, relates to his recent role and activity as an actor in school musical
theater, and related self-promotion thereafter. Thus, the weighing of the educational and career
related interest of Mr. McNeill in wearing long hair against the regulation, in light of the fact that
Mr. McNeill’s hair is well maintained, supports the holding that the private interest is consistent
with the educational process and serves an educational purpose. Thus, Mr. McNeill’s private
First Amendment interest, consistent with the educational process, is not outweighed by the
public interest. Therefore, the current case does not meet the second prong of the test in Bagley.
C. The regulation is too vague to be enforceable and less restrictive alternate means
are available to pursue the objectives of the regulation.
The “[f]irst Amendment’s “standards of permissible statutory vagueness are strict and
government may regulate ‘only with narrow specificity.’” Myers, 269 Cal. App. 2d at 559. In
Myers, the court held that the language of the regulation: “[e]xtremes in dress, in style, and in
individual taste are to be avoided,” to be vague and indefinite as to “render said rule
unconstitutional and unenforceable.” Id. at 555. The court reasoned that “‘[e]xtremes of hair
styles’ . . . are not facts: whether a given style is ‘extreme’ or not is a matter of opinion . . . .” Id.
at 559. The court reasoned that “[a] ‘law’ violates due process ‘if it is so vague and standardless
that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to

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decide, without any legally fixed standards, what is prohibited and what is not in each particular
case.” Id. at 560 (citing Giaccio v. Pennsylvania, 382 U.S. 399, 402-03). The court held that a
‘policy’ prohibiting ‘extremes of hair style’ cannot be enforced by the suspension of
noncomplying students” because it is vague and ambiguous. Id. at 558. Thus, where the
language of a regulation is vague and ambiguous, it is unenforceable. Id. at 559-61.
Similar to the regulation applied in Myers, the regulation under which Mr. McNeill was
suspended is vague and ambiguous. The regulation states: “[a]ll students, teachers and staff shall
meet the basic standard of good grooming consistent with the health and safety of the school
environment,” and lacks further specificity. Similar to the dress code regulation in Myers, this
language cannot be interpreted and applied on its own and leaves the students uncertain as to the
specific choice in dressing that it prohibits. It is subjectively determined by the principal,
making it an unenforceable regulation. Due to its vagueness, the dress code regulation is
unenforceable and unconstitutional. Thus, the current case does not meet the third prong of the
Bagley test.
Though the regulation is related to the enhancement of an educational function, Mr.
McNeill’s exercise of the First Amendment, involving an educational purpose, outweighs the
school’s interest in implementing the regulation. Furthermore, the regulation is vague and
ambiguous, and thus more restrictive alternative approaches to achieving the policy objective are
available. Therefore, under a First Amendment analysis, the school did not have the authority to
suspend Mr. McNeill for refusing to cut his hair because the dress code regulation is
unenforceable and unconstitutional.

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II. The District Lacked Authority to Enforce and Suspend Mr. McNeill When He Refused to
Cut His Hair Because the Dress Code Policy Violates the Fourteenth Amendment.
Where a hair style choice that violates a dress code regulation is not protected by the First
Amendment, it may fall under the ill-defined, but numerous rights under the ‘liberty’ assurances
of the Fourteenth Amendment. Montalvo, 21 Cal. App. 3d at 333. In Montalvo, the court held
that the hair style is not pure or symbolic expression per se. Id. The Montalvo court
distinguished the plaintiff’s aesthetic choice to wear a beard from the plaintiff’s “group
demonstration” in Tinker where the First Amendment protected the choice to wear a black arm
band. Id. at 333. In considering whether a policy is constitutional under the Fourteenth
Amendment, the Montalvo court held that “in the absence of a clear violation of the
constitutional right, the regulation is presumed valid and the burden is upon those who assail it to
prove its invalidity and the regulation need only be justified by some reasonable relationship
between legitimate concerns of the school administration relating to the educational process and
controlling the length and style of hair.” Id. at 335. The court then weighed the interest of the
public to an uninterrupted educational process against the public’s interest in an uninterrupted
educational process against the interest of the student of the student to emulate his father’s
stylistics and held that the public interest outweighed that of the plaintiff’s. Id. at 334-36.
Unlike In Montalvo, where the choice to wear a beard did not classify the plaintiff, Mr.
McNeill’s hair is an expression of his gender and political classification. It was a pure aesthetic
choice; the plaintiff declared that he wore a beard simply because he liked its appearance. In the
current case, however, the dress code distinguishes the plaintiff’s gender and political
classification. Similar to Montalvo, the school’s regulation that ambiguously requires
conformity to the preference of certain echelons of the populous while banning others is an
unreasonable burden on the Fourteenth Amendment’s liberty and due process rights.

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Furthermore, Mr. McNeill’s interest relates to his participation in theatrical production. It is
educational and vocational in nature, and thus it is consistent with the public goal of advancing
the educational process. The interest of the plaintiff in Montalvo would be served by compliance
with the uniformity of the dress code choices in favor of cohesion to advance the educational
process. Mr. McNeill and the public’s interest, on the other hand, would suffer by enforcement
of a uniform dress code that bars clothing related to particular political and career interests.
The association with the musical, Hair, echoes the counter-culture choice of clothing
similar to Tinker and not Montalvo. Even if the group demonstration in Tinker had not received
First Amendment protection, it would receive Fourteenth Amendment protection. In addition,
the problem in the vagueness and ambiguity applies both under a First and Fourteenth
Amendment analysis. Thus, an alternative dress code that allows for the incorporation of the
interest of Mr. McNeill is required. Therefore, the district’s dress code regulation, an
unreasonable burden on Fourteenth Amendment rights, is unconstitutional. Thus, under a
Fourteenth Amendment analysis, the school did not have the authority to enforce the district’s
dress code and suspend Mr. McNeill when he refused to comply with it.
III. The District Was Not Allowed to Insist that Mr. McNeill Submit to the Drug Test and
Suspend Him When He Refused to Do So.
The Fourth Amendment provides the individual’s protection from unreasonable searches
and seizures. U.S. Const. amend. IV. “[T]he governing board of any school district may initiate
and carry on any program, activity, or may otherwise act in any manner which is not in conflict
with or inconsistent with, or preempted by, any law and which is not in conflict with the
purposes for which school districts are established.” Cal. Educ. Code § 35160 (West 2013).
“[A] school official may properly conduct a search of a student’s person if the official has a . . .
reasonable cause to believe that the search is necessary to maintain school discipline or enforce

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school policies.” New Jersey v. T.L.O., 469 U.S. 325, 329 (N.J. 1985) (quoting State ex Rel.
T.L.O., 428 A.2d, 1327 (N.J. 1980)). “[T]he permissibility of a particular [search or drug
testing] practice ‘is judged by balancing its intrusion on the individual’s Fourth Amendment
interests against its promotion of legitimate governmental interests.’” Skinner v. Ry. Labor
Executives’ Ass’n, 489 U.S. 602, 619 (1989) (quoting Delaware v. Prouse, 440 U.S. 648, 653-
654 (1979)). The reasonability of a public school search or drug testing policy can be
determined by a three-prong balancing test that balances: (1) the nature of the privacy
compromised, and (2) the character of the intrusion imposed by the policy, against (3) the nature
and immediacy of the government’s concern and the efficacy of the policy. Bd. of Educ. of
Indep. Sch. Dist. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830-35 (2002) (citing
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995).
A. Public school students, especially those participating in extracurricular activities,
have a limited expectation of privacy.
The Fourth Amendment privacy interest of minor public school students is limited. Id. at
830. In Earls, the Supreme Court reasoned that the student’s interest in privacy is limited
because the school, as a state actor, is burdened with establishing and maintaining order among
minors in its temporary custody. Id. The Court referenced existing school physical examination
and vaccination practices limiting the privacy expectation of the student. Id. The Court further
noted that the students who participate in extracurricular activities voluntarily subject themselves
to greater intrusions on their privacy. Id. at 831. The Court noted students who participate in
extracurricular activities, subjecting themselves to communal undress and regular physicals,
lowering the participants’ expectation of privacy. Id. Thus, there is a limited expectation of
privacy where the health and safety of children who have been committed to a state actor’s

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temporary custody is involved, especially among students who participate in extracurricular
activities. Id. at 830-32.
Similarly, these participants have a reduced expectation of privacy. Similar to the burden
imposed on the school authorities in Earls, Pacific High School is a state actor responsible for
maintaining order, discipline, health and safety of children temporarily committed to its custody.
Furthermore, in addition to being minors temporarily in a state actor’s custody, Mr. McNeill
participates in extracurricular activities, further lowering his expectation of privacy. Thus, Mr.
McNeill’s has a lowered expectation of privacy.
B. The district’s drug testing policy’s intrusion on privacy may be significant.
Where the results are kept confidential, the nature of the test is not too intrusive, and the
disciplinary action is limited, a student drug-testing policy is not a significant invasion of
students’ privacy. Id. at 854. In Earls, the test results were kept in confidential files separate
from a student’s other educational records and released to school personnel only on a “need to
know” basis. Id. The results were not turned over to any law enforcement authority, nor did the
test results lead to the imposition of discipline or any academic consequences. Id. The Court
particularly noted that the consequences of a positive result did not “lead to imposition of
discipline or have any academic consequence.” Id. The Court reasoned that the minimally
intrusive nature of the sample collection and the limited uses to which the test results were put
demonstrated an insignificant intrusion on the student’s right to privacy. Id. at 834. Thus, where
the testing is relatively confidential and the use of the results are limited to participation in
extracurricular activities; the intrusion on privacy is not significant. Id. at 835.
The district’s drug policy applies a relatively confidential procedure as well, but uses the
results for suspension from school which is academically consequential. The drug testing policy
involves a procedure that assigns unique numerical identifiers to preserve anonymity and only

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notifies the school personnel for the purpose of assigning passwords for call-in receipt of the
laboratory results. Only certain school officials have access to the passwords. The results are
disclosed on a “need-to-know” basis. Thus, similar to the policy in Earls, the results are
reasonably confidential. In contrast to the policy in Earls, the results of the drug test are used for
suspension from school, which is academically consequential. Thus, the district’s drug policy
may be a significant intrusion on the student’s privacy.
C. The district’s interest in protecting the safety and health of its students is an
important public interest.
Where a programs calls for drug testing in absence of a warrant or individualized
suspicion, the school must demonstrate an “interest that appears important enough to justify the
particular [program]. . .” Vernonia, 515 U.S. at 661. The interest in eliminating drug use among
students, especially role models such as athletes, is a compelling state interest justifying
systematic drug testing without warrant or suspicion. Id. at 663. In Vernonia, the Court noted
the special physiological and psychological vulnerability of children combined with the side
effects of the enumerated drugs to be a significant consideration. Id. at 662. Moreover, the
Court reasoned that “[d]eterring drug use by our Nation’s schoolchildren is at least as important
as enhancing efficient enforcement of the Nation’s laws against the importation of drugs . . . .”
Id. at 661 (comparing the state interest involved in student drug testing to the one in Nat’l Emp.
Union v. Van Rehab, 489 U.S. 656 at 668 (1989) and Skinner v. Railroad Labor Exec. Assoc.,
489 U.S. 602 at 628 (1989)). The Court further noted that a special interest existed in deterring
drug use among student role models. Id. at 663. Thus, the school has an important interest in
preventing drug use among students, especially among student role models.
The district has an important interest in implementing its drug testing policy to protect the
health and safety of its students. Similar to Vernonia, students at Pacific High School are minors

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and especially vulnerable to physiological and psychological damage caused by drug use. The
district’s drug test detects the same particularly harmful drugs as those enumerated in Vernonia.
While the district’s policy tests students at random, Mr. McNeill’s role-model status as the star
of the theatrical musical calls for an increased interest in the school’s implementation of drug
testing policy. Thus, the school has an important interest in implementing the district’s drug
testing policy.
The current case does not necessarily satisfy the Vernonia balancing test. Though the
students participating in extracurricular activities have a lowered expectation of privacy and the
policy relates to an important state interest, the drug testing may be too intrusive due to its
potential to lead to suspension, compromising students’ academic interest. Thus, the district’s
drug policy is not necessarily a permissible search of a student’s person. Therefore, Pacific High
School was not necessarily allowed to insist that Mr. McNeill submit to the drug test, and did not
necessarily have the authority to suspend him for refusing to submit to the test.
CONCLUSION
Pacific High School did not have the authority to suspend Mr. McNeill for refusing to cut his
hair because the regulation that required him to do so was unconstitutional and unenforceable
both under a First and Fourteenth Amendment analysis. Furthermore, the school did not
necessarily have the authority to suspend Mr. McNeill due to his refusal to comply with the drug
testing policy because the drug policy was extensively intrusive due to its academically
consequential application and thus a violation of Fourth Amendment. In addition, the suspension
was not permissible because it was imposed before the failure of “other means of correction,”
violating section 48900.5(a) of the California Education Code.