517 F.2d 600 (3rd Cir. 1973), 72-1009, Zeller v. Donegal School Dist. Bd. of Ed.

Docket Nº:72-1009.
Citation:517 F.2d 600
Party Name:John E. ZELLER et al., Appellants, v. DONEGAL SCHOOL DISTRICT BOARD OF EDUCATION et al.
Case Date:July 25, 1973
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 600

517 F.2d 600 (3rd Cir. 1973)

John E. ZELLER et al., Appellants,



No. 72-1009.

United States Court of Appeals, Third Circuit

July 25, 1973

Resubmitted Under Third Circuit Rule 12(6) Oct. 29, 1973. Resubmitted Under Third Circuit Rule 12(6) before the Court en banc Jan. 8, 1975

Page 601

Richard A. Ash, Lyman & Ash, Philadelphia, Pa., for appellants.

K. L. Shirk, Jr., Shirk, Reist & Buckwalter, Lancaster, Pa., for appellees.

Submitted July 25, 1973, Under Third Circuit Rule 12(6).

Before SEITZ, Chief Judge, and ALDISERT, Circuit Judge.

Resubmitted Oct. 29, 1973, Under Third Circuit Rule 12(6).

Before SEITZ, Chief Judge, and ALDISERT and WEIS, Circuit Judges.

Resubmitted Jan. 8, 1975, Under Third Circuit Rule 12(6).



ALDISERT, Circuit Judge.

The question is whether a schoolboy's complaint for money damages, filed after his exclusion from a soccer team for noncompliance with an athletic code regulating hair, states a claim for which relief can be granted under the Civil Rights Act, 42 U.S.C. § 1983.

Defendants are the Donegal School District, its president and chief executive officer, its superintendent of schools, the principal of Donegal High School, the school's athletic director and the coach of the soccer team. Plaintiffs contend that the code, which defendants promulgated, trenches upon rights guaranteed to Brent Zeller by the Constitution. Accordingly, plaintiffs seek damages on behalf of their son. 1

Appellants have summarized the proceedings in the district court: "(A) hearing was held . . . on plaintiff's (sic) request for preliminary injunctive relief. At the commencement of this hearing defendants moved to dismiss the complaint for failure to state a claim, and decision was reserved on this motion. The Court then heard extensive testimony offered by both sides as well as receiving a stipulation of agreed upon facts that had been entered into by the parties for purpose of the hearing. Thereafter . . . the Court entered an order granting defendants' motion to

Page 602

dismiss without making any finding of facts on the basis of 'the lack of a substantial federal question in Donegal School District's refusal to allow plaintiff to participate in soccer'." Appellants' Brief at 5. We affirm.

The protracted history of this appeal discloses that the members of this court have agonized over the troublesome issues presented. A panel first pondered the matter in July, 1973, and affirmed the judgment. No. 72-1009 (3d Cir., July 25, 1973). Upon presentation of a petition, that judgment was vacated and panel reconsideration ordered for October, 1973. However, deliberation was suspended when another case, posing a kindred issue and promising to give guidance, was set for in banc determination. Unfortunately, that case became moot. Comunale v. Mier, 505 F.2d 729 (3d Cir. 1974). Subsequently and on recommendation of the panel, a majority of the full court ordered in banc consideration of this case.

What divides this court today is not so much a disagreement as to abstract nuances of constitutional law as it is a difference in policy how broadly the Constitution should be interpreted to provide actionable relief when asserted individual student rights collide with regulations of a school system.

We recognize that a strong case indeed, one philosophically and academically sound may be made for the point of view that, if a complaint is couched in the proper language asserting a constitutional deprivation, federal courts should provide the judicial forum in school hair cases. In addition to this court's previous decisions in Gere v. Stanley, 453 F.2d 205 (3d Cir. 1971), and Stull v. School Board, 459 F.2d 339 (3d Cir. 1972), the First, 2 Second, 3 Fourth, 4 Seventh, 5 and Eighth 6 Circuits have been hospitable to such claims. The District of Columbia, 7

Page 603

Fifth, 8 Sixth, 9 Ninth, 10 and Tenth 11 Circuits, on the other hand, have not been receptive to claims that tonsorial tastes are subsumed in substantial rights protected by the federal Constitution and, therefore, warrant federal court consideration. 12 On nine occasions now, the Supreme Court has denied certiorari to hair cases, 13 and on three of these, strong dissents have been filed. 14

The starting point for our approach is that federal courts have jurisdiction to entertain complaints brought under 42 U.S.C. § 1983 15 because of its jurisdictional counterpart, 28 U.S.C. § 1343(3). 16 Gere v. Stanley, supra, 453

Page 604

F.2d at 208. We recognize that the current § 1983 was part of the Civil Rights Act of 1871, passed by the Reconstruction Congress to effectuate the Fourteenth Amendment which, in turn, was adopted to guarantee recently emancipated blacks constitutional protections. See Hague v. C.I.O., 307 U.S. 496, 510, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). In the three-quarters of a century after its enactment, only a smattering of decisions invoked § 1983. Cf. Monroe v. Pape, 365 U.S. 167, 214 n.21, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (Frankfurter, J., dissenting) (collecting cases). In 1960, 280 civil rights cases were filed. 17 Then came the landmark case of Monroe v. Pape, supra, which judicially expanded available federal relief under the Act of 1871. From that day in February 1961 forward, the federal judiciary at all levels district court, court of appeals and Supreme Court has added new strength and increased vigor to the Act in the form of thousands of judicial decisions. 18

The Director of the Administrative Office of the United States Courts has reported that 12,530 of 75,945 private civil actions filed in the United States District Courts during 1974 were civil rights actions; in the district courts of this circuit, 886 of 7,359 filings involved civil rights. 19 It therefore becomes apparent that a sizeable percentage of the constitutional questions presented to our federal courts are grounded in allegations of constitutional deprivation under color of state law, all of which tends to prove the incisive observation of Karl N. Llewellyn: "(T)he focus of study, the point of reference for all things legal has been shifting, and should now be consciously shifted to the area of contact, of interaction, between official regulatory behavior and the behavior of those affecting or affected by official regulatory behavior . . .." 20

The sheer number of § 1983 suits, of its own momentum, has spawned a host of new interpretations of rights assured by the Fourteenth Amendment. That these dimensions to constitutional protections were unrecognized and undefined a few short years ago is among the meekest of understatements. Claims for relief which heretofore had taken the form of traditional tort, property and contract substantive law in the state courts are now being couched in terms of constitutional deprivation and presented to federal forums. 21 One of the realities of this innovativeness is that the federal decisions are being made, not on the basis of visible, time-tested rules or principles of substantive law, but on the basis of jural impressionism subjective judgments of individual judges as to what constitutes protectable "liberty" or a denial of due process or equal protection.

Admittedly, the very nature of constitutional interpretation calls more for the making of value judgments than for the application of specific rules, principles, conceptions, doctrines or standards. 22 As Learned Hand said in describing

Page 605

the broad clauses of the Constitution, "these fundamental canons are not jural concepts at all, in the ordinary sense; and in application they turn out to be no more than admonitions of moderation, as appears from the varying and contradictory interpretations that the judges themselves find it necessary to put upon them." 23 But this does not mean that a constitutional interpretation need not be "entirely principled." As Professor Wechsler emphasized: "A principled decision . . . is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved. When no sufficient reasons of this kind can be assigned for overturning value choices of the other branches of the Government or of a state, those choices, must, of course, survive. Otherwise, as Holmes said in his first opinion for the Court, 'a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions . . ..' " 24

We construe the Constitution as containing "fundamental rules of right" and we recognize that the concept of liberty may embrace certain personal and individual rights vaguely described as coming "within the protected penumbra of specific guarantees of the Bill of Rights". Griswold v. Connecticut, 381 U.S. 479, 487, 85 S.Ct. 1678, 1683, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). But our interpretative analysis may not stop there. We agree with Dean Griswold that "(i)t is not . . . a question of strict construction or of activism. It is both. Construction is strict only to those who agree with the interpretation; to those who do not, it is simply wrong. Activism that carries us beyond the proper exercise of the judicial function is not legitimately called activism. The limits either way cannot be demonstrated. But there are limits. That is inherent in the idea of the judicial process. The supreme function of the judge is to recognize that there must be limits, both ways, avoiding undue literalism on the one hand, and too wide...

To continue reading