Blau v. Fort Thomas Public School Dist.
| Citation | 401 F.3d 381 |
| Decision Date | 08 February 2005 |
| Docket Number | No. 03-6337.,03-6337. |
| Parties | Robert E. BLAU, individually and as parent of Amanda Blau, a minor, Plaintiff-Appellant, v. FORT THOMAS PUBLIC SCHOOL DISTRICT, et al. Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert E. Blau, Jolly, Blau, Kriege & Turner, Cold Spring, Kentucky, for Appellant. David J. Kellerman, Middleton Reutlinger, Louisville, Kentucky, for Appellees.
ON BRIEF:
Robert E. Blau, Jolly, Blau, Kriege & Turner, Cold Spring, Kentucky, for Appellant. David J. Kellerman, Mark S. Fenzel, Rebecca Grady Jennings, Middleton Reutlinger, Louisville, Kentucky, Donald J. Ruberg, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, Kentucky, for Appellees.
Before: SILER, SUTTON, and FARRIS, Circuit Judges.*
In 2001, Highlands Middle School, which is located in Fort Thomas, Kentucky, adopted a dress code for its students. On behalf of his daughter, Amanda Blau, then in the sixth grade at Highlands Middle School, and himself, Robert Blau challenged the constitutionality of the regulation, claiming that it violates (1) Amanda's First Amendment right to freedom of expression, (2) her substantive-due-process right to wear the clothes of her choosing and (3) Robert's substantive-due-process right to control the dress of his child. The district court found no constitutional violation and neither do we.
Highlands Middle School includes students in the sixth, seventh and eighth grades and is part of the Fort Thomas Public School District. Under Kentucky law, each school district has a governing school board and each school has a Site Based Decision Making Council consisting of two parents, three teachers and the school's principal. The Council has responsibility for setting school policy that is consistent with the school board's policies and that is designed to "provide an environment to enhance the students' achievement and help the school meet [its] goals." Ky.Rev.Stat. § 160.345(2)(c)(1).
On May 15, 2001, at a meeting of the Highlands Council, several parents proposed a dress code for the school to "create unity, strengthen school spirit and pride, and focus[ ] attention upon learning and away from distractions." JA 621. The proposal relied on other school districts' findings that dress codes had "enhanced school safety, improved the learning environment, promoted good behavior, reduced discipline problems, improved test scores, improved children's self-respect and self-esteem, bridged socio-economic differences between families, helped eliminate stereotypes and produced a cost savings for families." Id.
On May 22, 2001, Highlands principal Mary Adams sent a letter to all Highlands students and their parents about the dress code proposal and set up a meeting to discuss it. Several Highlands students and their parents attended the meeting, including Amanda and Robert Blau. After the meeting, the Council formed a committee consisting of two council members, two teachers, four parents and four students (including Amanda Blau) to make a recommendation about the proposal. The dress code committee gathered feedback from teachers, parents and students, made modifications to the proposal and eventually proposed a dress code for the middle school, which the Council adopted on August 21, 2001.
Among other prohibitions, the dress code restricts the following:
* clothing that is too tight, revealing or baggy as well as tops and bottoms that do not "overlap";
* "[h]ats, caps, scarves, or sweatbands" except on "special event days" such as "spirit" or "reward" days * non-jewelry chains and chain wallets;
* clothing that is "distressed" or has "holes in it";
* "[v]isible body piercing (other than ears)";
* "[u]nnaturally colored hair that is distracting to the educational process," including "blue, green, red, purple, [or] orange" hair;
* "clothing that is too long, flip-flop sandals, or high platform shoes";
* pants, shorts or skirts that are not of "a solid color of navy blue, black, any shade of khaki, or white";
* "[s]horts, skirts, or skorts" that do not "reach mid-thigh or longer";
* "[b]ottoms made with stretch knits, flannel, or fleece such as sweatpants, jogging pants, or any type of athletic clothing" as well as "[b]aggy, sagging, or form-fitting pants";
* tops that are not "a solid color" and are not "crew neck [style], polo style with buttons, oxford style, or turtleneck";
* tops with writing on them and "[l]ogos larger than the size of a `quarter' ... except `Highlands' logos or other `Highlands Spirit Wear'";
* tops that are not "of an appropriate size and fit"; and
* "form-fitting or baggy shirts" or "[a]ny material that is sheer or lightweight enough to be seen through."
JA 697-98. The dress code is reprinted in full at Appendix A.
According to the policy,
The objective of this dress code is to provide an appropriate educational environment while allowing students to dress comfortably within limits to facilitate learning. Students' attire can have a positive or negative effect on the learning process, contribute to students' success, and generate a safe and positive learning environment. We expect students to maintain the type of appearance that is not distracting to students, teachers, or the educational process of the school. Parents and children are equally responsible for the appearance of the child. There is appropriate and inappropriate attire for all of life's activities. Keeping these ideas in mind, please help your student adhere to these guidelines.
JA 697.
On November 21, 2001, Robert Blau, a lawyer, filed this action against the Fort Thomas Public School District on his and Amanda's behalf in federal court. The lawsuit sought injunctive and monetary relief and invoked 42 U.S.C. § 1983, the First and Fourteenth Amendments of the United States Constitution and certain sections of the Kentucky Constitution as grounds for relief. The lawsuit sought to invalidate the dress code on its face (which is to say, in essentially all of its applications) and as applied (which is to say, in its application to Amanda and Robert Blau). The Blaus did not claim that the dress code was incompatible with any religious beliefs that they may hold. In addressing whether there was "any particular message" that she wished to convey through her clothing, Amanda stated that there was not. JA 708. She opposes the dress code because she wants to be able to wear clothes that "look [ ] nice on [her]," that she "feel[s] good in" and that express her individuality. JA 707. Robert Blau likewise has not pointed to any particular message that the dress code prohibits Amanda from conveying, instead complaining that the dress code inhibits her "ability to wear clothing that she likes." JA 732.
Before the 2002 school year had begun and while this lawsuit was pending, the Highlands Council modified the dress code. The amendment loosened the dress code in some respects (pants, shorts or skirts may be any solid color, and striped and patterned tops are permitted) and tightened it in others (blue jeans are prohibited, "[c]lothing that promotes drugs, alcohol, tobacco, sex, or is offensive or degrading" is prohibited and tops with "[l]ow, scoop, plunging or revealing necklines" are prohibited). JA 699-700. Otherwise, as readers can see for themselves, the new dress code is essentially the same as the old dress code. See Appendix B.
In granting the school district's motion for summary judgment, the district court rejected each of the Blaus' claims with respect to the first version of the dress code and the Blaus' one claim with respect to the second version of the dress code — the ban on blue jeans. It held that the dress codes did not violate Amanda's First Amendment right to freedom of speech, that there is no fundamental right under the Fourteenth Amendment to wear the clothes of one's choosing to public school and that a parent's fundamental right under the Fourteenth Amendment to control the education of his or her child does not bar a school district from adopting a reasonable dress code. The district court also determined that the Blaus were afforded procedural due process, that the Council did not exceed its statutory authority in enacting the code and that the Council's actions did not violate the Kentucky Open Meetings Act. The Blaus appeal the district court's decision, which we review de novo. Black v. Roadway Express, Inc., 297 F.3d 445, 448 (6th Cir.2002).
Before turning to the merits, we first address the school district's argument that we no longer have Article III jurisdiction over this dispute. The school district is right that we must consider this argument before reaching the merits but wrong in asserting that our authority over this dispute has vanished. Fort Thomas argues that this challenge to the dress code became moot when Amanda Blau entered high school and freed herself from the restrictions of the Highlands Middle School dress code. But in bringing this claim, Robert Blau not only sought injunctive and declaratory relief but also sought damages as well. Thus, even if Amanda's matriculation from middle school to high school mooted the claim for injunctive and declaratory relief (a point we need not decide), the existence of a damages claim ensures that this dispute is a live one and one over which Article III gives us continuing authority. See Boag v. MacDougall, 454 U.S. 364, 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982) (); Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir.2004) (...
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