424 F.2d 1281 (1st Cir. 1970), 7455, Richards v. Thurston

Docket Nº:7455.
Citation:424 F.2d 1281
Party Name:Robert RICHARDS, Jr., a minor by his father and next friend Robert Richards, Plaintiff, Appellee, v. Roger THURSTON, as Principal of Marlboro High School, Defendant, Appellant.
Case Date:April 28, 1970
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1281

424 F.2d 1281 (1st Cir. 1970)

Robert RICHARDS, Jr., a minor by his father and next friend Robert Richards, Plaintiff, Appellee,

v.

Roger THURSTON, as Principal of Marlboro High School, Defendant, Appellant.

No. 7455.

United States Court of Appeals, First Circuit.

April 28, 1970

Heard March 2, 1970.

David G. Hanrahan, Boston, Mass., with whom William J. Brennan, City Solicitor, George A. McLaughlin, Jr., and The McLaughlin Brothers, Boston, Mass., were on brief, for appellant.

Henry P. Monaghan, Boston, Mass., with whom Daniel D. Levenson, Spencer Neth and John H. Henn, Boston, Mass., were on brief, for appellee.

Gerard F. Doherty, Boston, Mass., on brief for Massachusetts Secondary School Principals Association, amicus curiae.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Plaintiff, a seventeen year old boy, was suspended from school at the beginning

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of his senior year because he refused to cut his hair, which a local newspaper story introduced into evidence described as 'falling loosely about the shoulders'. Defendant, the principal of the high school in Marlboro, Massachusetts, admits that there was no written school regulation governing hair length or style but contends that students and parents were aware that 'unusually long hair' was not permitted.

On these sparse facts the parties submitted the case posed by plaintiff's request for injunctive relief against the deprivation of his rights under 42 U.S.C. § 1983. Each relied on the failure of the other to sustain his burden of proof, plaintiff claiming that he should prevail in the absence of evidence that his appearance had caused any disciplinary problems, and defendant maintaining that plaintiff had failed to carry his burden of showing either that a fundamental right had been infringed or that defendant had not been motivated by a legitimate school concern. The district court granted plaintiff's request for a permanent injunction and ordered plaintiff reinstated. Richards v. Thurston, 304 F.Supp. 449 (D.Mass.1969).

Defendant, apart from his argument on the merits, insists that the district court erred in not abstaining pending consideration by the courts of the Commonwealth of Massachusetts. We are in entire sympathy with the proposition that questions involving school board authority ought to be resolved whenever possible on a nonconstitutional basis. 1 In this case, however, we agree with the district court that Leonard v. School Committee of Attleboro, 349 Mass. 704, 212 N.E.2d 468 (1965), a case containing similar facts, forecloses that nonconstitutional approach and clearly suggests that the courts of Massachusetts would have ruled against plaintiff on these facts. 2

Plaintiff, too, advances a narrow argument for prevailing-- the lack of any specific regulation authorizing suspension for unusual hair styles. We do not accept the opportunity. We take as given defendant's allegation in his answer that parents and students-- including plaintiff-- were aware that unusually long hair was not permitted. Moreover, we would not wish to see school officials unable to take appropriate action in facing a problem of discipline or distraction simply because there was no preexisting rule on the books.

Coming to the merits, we are aware of a thicket of recent cases concerning a student's wearing of long hair in a public high school. 3 While several of the

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decisions holding against the student have relied on the prior occurrence of disruptions caused by unusual hair styles, 4 we think it fair to say hair many of those courts would hold against the student on a barren record such as ours, on the grounds that the student had not demonstrated the importance of the right he asserts. On the other hand, in few of the cases holding for the student was there any evidence of prior disruptions caused by hair styles. Despite the obvious disagreement over the proper analytical framework, each of the 'pro-hair' courts held explicitly or implicitly that the school authorities failed to carry their burden of justifying the regulation against long hair.

What appears superficially as a dispute over which side has the burden of persuasion is, however, a very fundamental dispute over the extent to which the Constitution protects such uniquely personal aspects of one's life as the length of his hair, for the view one takes of the constitutional basis-- if any-- for the right asserted may foreshadow both the placement and weight of the evidentiary burden which he imposes on the parties before him. For this reason, we resist the understandable temptation, when one is not the final arbiter of so basic a constitutional issue, to proceed directly to an application of the constitutional doctrine without attempting to ascertain its source as precisely as possible.

It is perhaps an easier task to say what theories we think do not apply here. We recognize that there may be an element of expression and speech involved in one's choice of hair length and style, if only the expression of disdain for conventionality. However, we reject the notion that plaintiff's hair length is of a sufficiently communicative character to warrant the full protection of the First Amendment. United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 507-508, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); see Cowgill v. California, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970), Harlan, J. concurring; cf. Close v. Lederle, 424 F.2d 988 (1st Cir. 1970), filed this date. That protection extends to a broad panoply of methods of expression, but as the non-verbal...

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