Parker v. Fry

• Decision Date: 28 January 1971
• Docket Number: No. J-70-C-44.,J-70-C-44.
• Citation: 323 F. Supp. 728
• Parties: Stephen PARKER, for himself, and by his father, Henry L. Parker, and mother, Bernice Parker, his legal guardians v. Robert FRY, Gerald Sale, Bill Morgan, Herschel Toombs and Delaine Campbell, in their capacity as members of the Bd. of Educ. of the Piggott, Arkansas School Distr., J. B. Swift in his capacity as Supt. of Schools of the Piggott, Arkansas School District and Herschel Smith in his capacity as Principal of the Piggott High School of Piggott, Arkansas.
• Court: U.S. District Court — Eastern District of Arkansas

323 F. Supp. 728

Stephen PARKER, for himself, and by his father, Henry L. Parker, and mother, Bernice Parker, his legal guardians v. Robert FRY, Gerald Sale, Bill Morgan, Herschel Toombs and Delaine Campbell, in their capacity as members of the Bd. of Educ. of the Piggott, Arkansas School Distr., J. B. Swift in his capacity as Supt. of Schools of the Piggott, Arkansas School District and Herschel Smith in his capacity as Principal of the Piggott High School of Piggott, Arkansas.

No. J-70-C-44.

United States District Court, E. D. Arkansas, Jonesboro Division.

December 11, 1970.

Final Order and Permanent Injunction January 28, 1971.

John P. Sizemore, Little Rock, Ark., for plaintiff.

Guy Brinkley, Piggott, Ark., for defendants.

MEMORANDUM OPINION

EISELE, District Judge.

Stephen Parker, a seventeen-year-old male student enrolled as a senior in the Piggott High School of Piggott, Arkansas, was suspended from school on or about September 4, 1970, because of the length and style of his hair. On September 23, 1970, he filed this suit seeking to enjoin deprivation under color of state law of plaintiff's rights, privileges and immunities under the Constitution of the United States. Plaintiff alleges violations of his civil rights under 42 U.S.C. §§ 1981 and 1983. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343 (3) and (4) and also 28 U.S.C. §§ 2201 and 2202.

Plaintiff's application for a temporary injunction was tried to the Court in Jonesboro on October 5, 1970, the issue being at that time submitted upon the evidence presented and the arguments and written briefs of counsel. Counsel did not agree to have the entire case heard upon its merits on October 5 and, therefore, only the issues with respect to the application for temporary injunction are before the Court.

The Court has had great difficulty with the legal issues, not only because of the lack of consistency in the many "hair" cases (most of which have been decided in the last eighteen months), but also because of the necessity to determine the scope of 42 U.S.C. § 1983 and the limitations and conditions, if any, that do apply, or, possibly, should apply, to its use.

Once it is conceded, on the one hand, that students do not shed the basic rights conferred upon them as "persons" by the Constitution when they enter the schoolhouse gate, and, on the other hand, that school authorities have the right and power to promulgate rules and regulations reasonably related to, or having an effective relationship with, educational processes and objectives, then one naturally becomes concerned about the restrictions or conditions, if any, on the district court's duty to vindicate such constitutional rights. Although this Court agrees with the general principle set forth in the rather pat statement of the majority in Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), to wit:

"Finally, we find unpersuasive the argument that to hold such school regulations unconstitutional would open the floodgates to litigation by students challenging all sorts of school regulations and practices. To fail to hold such arbitrary regulations unconstitutional because of fear of opening the floodgates to litigation, some meritorious and some not, would be an abdication of the judiciary's role of final arbiter of the validity of all laws, and protector of the people, young and old, from the governmental exercise of unconstitutional power."

it is still not a bit sanguine about the possible consequences of "opening the floodgates." It is not a question of abdicating one's responsibility; it is a question of putting things in perspective— of distinguishing between big and little issues and handling each accordingly.

However, recent cases seem to indicate that there is only a very limited and restricted area in which the Court might decline to act in such cases. And yet, when one contemplates trying cases in the federal courts involving the in-school rights of third-graders to dress or wear their hair in a manner contrary to their schools' rules or, indeed, involving the determination of the limits upon, say, the First Amendment rights of a fifth-grader, one is naturally overwhelmed by the possibilities. This is not to suggest that it is not, probably, as mentioned in Breen, supra, the most important obligation of the federal courts to be most sensitive to, and diligent in, the enforcement of constitutional and federally confirmed rights, but it is to suggest that some reasonable limitations, classifications or restrictions might be considered.¹

But it is this Court's reading of the decisions of our Supreme Court and of the courts of appeal which indicates that no such limitations or restrictions have yet been recognized. In fact, it appears quite clear that it is the obligation of this Court to assume jurisdiction of, and to adjudicate, the issues in such cases as the one presently before the Court. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970); and Moreno v. Henckel, 431 F.2d 1299 (5th Cir., 1970).

For the plaintiff to prevail upon his application for temporary injunction, he must show that there exists a reasonable probability that he will ultimately be entitled to the relief sought when the case is disposed of upon its merits. See, for instance, Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 781 (10th Cir. 1965).

Before reviewing the facts it is necessary to consider the various theories advanced by the plaintiff.

The plaintiff argues that the rule here is unconstitutionally vague. The "hair" rule, quoted infra, simply prohibits "extreme hair styles." The Court rejects this argument. In the school context detailed, specific rules are not required. See Esteban v. Central Missouri State College, 290 F.Supp. 622, 630 (W.D.Mo.1968). It is true that Judge Doyle held to the contrary in Soglin v. Kauffman, 295 F.Supp. 978, 990 (W.D. Wis.1968), but upon the appeal of Esteban, Judge Blackmun (now Justice Blackmun) specifically disavowed Judge Doyle's view:

"Fourthly, we see little basically or constitutionally wrong with flexibility and reasonable breadth, rather than meticulous specificity, in college regulations relating to conduct. Certainly these regulations are not to be compared with the criminal statute. They are codes of general conduct which those qualified and experienced in the field have characterized not as punishment but as part of the educational process itself and as preferably to be expressed in general rather than in specific terms.

* * * * * *

"We regard as quite distinguishable cases such as Hammond v. South Carolina State College, 272 F.Supp. 947 (D.S.C.1967), and Dickey v. Alabama State Bd. of Educ., supra 273 F.Supp. 613, D.C.1967, where the focus was on an attempted restraint of peaceful assembly or speech. Our attention has been called to the fact that Judge Doyle, in his recent opinion in Soglin v. Kauffman, 295 F.Supp. 978, 990-991 (W.D.Wis.1968), expresses disagreement with the observations of Judge Hunter on this aspect of the case. To the extent that, in this area, Judge Doyle is in disagreement with Judge Hunter, we must respectfully disagree with Judge Doyle." 415 F.2d at 1088, 1089.

And there can be no doubt that the plaintiff had adequate notice of what was expected of him. So we have no valid procedural due process issue.

The factual situation (see infra) probably gives rise to a stronger First Amendment argument here than in any of the other "hair" cases. Still the Court does not rely heavily on that theory, because the Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), specifically distinguished "hair style" cases. Furthermore, the defendants here by their hair rule were not attempting to stifle free expression or any symbolic visual expression of dissent or protest even though the enforcement of the rule might have just such an incidental effect (incidental, that is, to the rule's purpose).

The Court does not reject the idea that the right here asserted might be encompassed within the Ninth Amendment as an "additional fundamental rights * * * which exist alongside those fundamental rights specifically mentioned in the first eight * * * amendments" (emphasis added). Griswold v. Connecticut, 381 U.S. 479, 488, 85 S.Ct. 1678, 1684, 14 L.Ed.2d 510 (1965). In identifying these non-specified rights it is important to remember the language of Justice Brandeis in his dissent in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928).

"The protection guaranteed by the Fourth and Fifth Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men."

Indeed, the right to be let alone is greatly cherished by free men.

And, although the Court does not reject the equal protection argument, it should be pointed out that the defendants here have not engaged in invidious discrimination or selective enforcements. The Court is convinced that they would apply their rule "across the board" in good faith, letting the chips fall where they might. Still there is an onerous classification: Those males with extreme hair styles cannot attend school; the others can. Also, it does not appear that the hair regulation has been applied, or has even been thought to apply, to girls in...