Richards v. Thurston

• Decision Date: 06 October 1969
• Docket Number: Civ. A. No. 69-993.
• Citation: 304 F. Supp. 449
• Parties: Robert RICHARDS, Jr., a minor, by his father and next friend, Mr. Robert Richards v. Roger THURSTON, as Principal of Marlboro High School.
• Court: U.S. District Court — District of Massachusetts

304 F. Supp. 449

Robert RICHARDS, Jr., a minor, by his father and next friend, Mr. Robert Richards v. Roger THURSTON, as Principal of Marlboro High School.

Civ. A. No. 69-993.

United States District Court D. Massachusetts.

September 23, 1969.

Supplementary Opinion September 29, 1969.

Second Supplementary Opinion October 3, 1969.

Third Supplementary Opinion October 6, 1969.

COPYRIGHT MATERIAL OMITTED

Daniel D. Levenson, Boston, Mass., for plaintiff.

William J. Brennan, City Sol., Marlborough, Mass., for defendant.

OPINION

WYZANSKI, Chief Judge.

Plaintiff, 17 years old, by his next friend, his father, has filed in the United States District Court, against the principal of the Marlboro High School, a comprehensive general high school, a complaint seeking restoration to his status as a member of the senior class there. He alleges that the defendant principal suspended him on the sole ground that he refused to have his hair, which he wears in a style reminiscent of the English singers called "The Beatles", and in a tidy style that Albert Einstein as scholar or master rarely displayed, cut to an extent approved by the principal. Plaintiff contends that he has a cause of action under the Civil Rights Act, 42 U.S.C. Sec. 1983, and under the Fourteenth Amendment to the United States Constitution. He claims that the Court has jurisdiction under 28 U.S.C. Sec. 1343(3).

There is no evidence that a formal written regulation of any school authority sets the maximum length or other aspects of a student's hairdress. Nor has any party shown any reason for the principal's official act except possibly the principal's personal prejudice, the community conventions of the first half of the Twentieth Century, and the views of some contemporaries, who may or may not be a majority of Marlboro's population, or of its parents, or of its students.

No factual foundation has been offered to show that plaintiff's hair style involves a health or sanitary risk to him or to others, or will interfere with plaintiff's or with others' performance of their school work, or will create disciplinary problems of a kind reasonably thought to be a concern of public officials.

This Court takes judicial notice that hairstyles have altered from time to time throughout the ages. Samson's locks symbolically signified his virility. Many of the Founding Fathers of this country wore wigs. President Lincoln grew a beard at the suggestion of a juvenile female admirer. Chief Justice Hughes' beard furnished the model for the frieze over the portico of the Supreme Court of the United States proclaiming "equal justice under law." Today many of both the younger and the older generations have avoided the increased cost of barbering by allowing their locks or burnsides to grow to greater lengths than when a haircut cost a quarter of a dollar.

Whether hair styles be regarded as evidence of conformity or of individuality, they are one of the most visible examples of personality. This is what every woman has always known. And so have many men, without the aid of an anthropologist, behavioral scientist, psychiatrist, or practitioner of any of the fine arts or black arts.

The Commonwealth of Massachusetts, at least since the desuetude of the Puritans' blue laws, has not attempted to regulate hair styles.

Massachusetts G.L. c. 76, which governs school attendance, and cognate provisions of Massachusetts law do not include any clauses regarding hirsute adornment.

But it may be argued that the principals of public schools are free to set their own standards for their own pupils, especially because the laws of the Commonwealth do not purport to require attendance at public schools but, on the contrary, merely create an opportunity, and leave every minor child, such as plaintiff, (or, more accurately, his parents, as his natural guardians,) free to choose a private school more to his taste.

The contention, in effect, is that inasmuch as plaintiff chose, without being required to do so, to attend the particular institution called the Marlboro High School he voluntarily became subject to the prejudices of its governing authorities and has no right to set his own terms and no standing to complain of an official direction that he can avoid by going to some other school. Such an argument might seek support in McAuliffe v. City of New Bedford, 155 Mass. 216, p. 220, 29 N.E. 517, a case where local authorities dismissed a policeman because of his political activities and Justice Oliver Wendell Holmes, Jr., wrote for the state court an opinion denying the policeman's claim for a reinstatement on the ground that "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."

However, recent decisions about public school teachers (see the cases beginning with Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 and culminating in Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629) and about civil servants generally (see United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed 754) indicate that Holmes, J.'s epigram somewhat simplified the problem.

The current view is that a state has not upon an arbitrary basis an absolutely unlimited right to refuse, opportunities such as education in the public schools, or employment in the public service. Often this, in somewhat circular terms, is referred to as the principle that there is a distinction between constitutional and unconstitutional conditions. At other times, this is said to present the problem of weighing the state's claims or interests against the individual's claims or interests.

Order can be defined properly only in terms of the liberties for which it exists, as liberty can be defined properly only in terms of the ordered society in which it thrives. As Albert Camus implied in The Rebel, order and liberty must find their limits in each other.

Whatever be the formulation of the governing principles under our Constitution, the duty of a court is to give scope to the state's claims of order, organization, and public purposes, yet not to allow such claims to prevail over individual liberty in the absence of a demonstrated rationality in the state's claims. Merely arbitrary choices of states or their official representatives cannot be enforced against any individual's serious claims of liberty. This is as true of minors as it is of adults. Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731; Griffin v. Tatum, (M.D.Ala.) 300 F.Supp. 60, 64. And when the personal liberty claimed by a minor or an adult has a high order of importance the state must make a strong showing of the need of its curtailment. United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672.

Clear illustration of this approach is given by the decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. There a public school authority sought to make attendance contingent upon a pupil saluting the American flag. A student whose religious faith precluded a flag salute was held to have a right to have the school authorities enjoined from enforcing its demand upon him.

It is the flag salute case rather than the City of New Bedford case which supplies the precedent which today has the greater relevance to this case. To be sure, plaintiff's claimed liberty to appear as he wills is not so significant as a Jehovah's Witness' claimed liberty to worship as he wills. But a principal's personal prejudice against the long hair of his pupils is not so significant as a state's claim to indoctrinate students by such patriotic symbolism as may inhere in saluting the American flag.

In summary, the state in the case now at bar has no such rational ground for dictating hair style to a pupil in a general high school as to support an official order interfering with his liberty to express in his own way his preference as to whatever hair style comports with his personality and his search for his own identity.

Plaintiff's claim to liberty as to his appearance is entitled to protection from action by the state or its agents both under the broad terms of the "due process" clause of the Fourteenth Amendment (see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510) and under the specific provisions of the Civil Rights Act which treat that claim to liberty as a civil right, 42 U.S.C. Sec. 1983, and give to the United States District Courts jurisdiction to enforce that right against an interfering agent seeking to exercise state authority. 28 U.S.C. Sec. 1343(3).

Nothing herein refers to the problems which might arise not in a general high school but in a school or other educational institution having a military or like disciplinary character. Arguably, uniformity may have some substantive merit in such specialized training establishments where individual liberty may need to be weighed against other rational, legitimate objects of a peculiar applicability. See Breen v. Kahl, W.D. Wis., 296 F.Supp. 702, 708.

But in schools of general comprehensiveness the constitutional premise is that "from different tones comes the best tune." Heraclitus frag. 8; Jaeger Paideia (1939) I, 18. They illustrate our national motto E PLURIBUS UNUM.

This Court's opinion is consistent with opinions of three other United States District Courts. Those are by Johnson, C. J. of the Middle District of Alabama in Griffin v. Tatum, 300 F.Supp. 60 (which at p. 62 states that "the Constitution protects the freedoms to determine one's own hair style and otherwise to govern one's personal appearance."), by James E. Doyle, D. J. of the Western District of Wisconsin in Breen v. Kahl, 296 F.Supp. 702 (which at pp. 705-706 declares that with respect to adults, "freedom to wear one's hair at a certain length or to wear a beard is constitutionally protected, even though it...