East Hartford Ed. Ass'n v. Board of Ed. of Town of East Hartford, 118

• Decision Date: 19 August 1977
• Docket Number: D,No. 118,118
• Citation: 562 F.2d 838
• Parties: EAST HARTFORD EDUCATION ASSOCIATION et al., Appellants, v. BOARD OF EDUCATION OF the TOWN OF EAST HARTFORD et al., Appellees. ocket 76-7005.
• Court: U.S. Court of Appeals — Second Circuit

Page 838

562 F.2d 838

EAST HARTFORD EDUCATION ASSOCIATION et al., Appellants, v. BOARD OF EDUCATION OF the TOWN OF EAST HARTFORD et al., Appellees.

No. 118, Docket 76-7005.

United States Court of Appeals, Second Circuit.

Argued Sept. 15, 1976.

Decided Feb. 22, 1977.

On Rehearing En Banc Aug. 19, 1977.

Martin A. Gould, Hartford, Conn. (Gould, Killian & Krechevsky, Hartford, Conn., of counsel), for appellants.

Brian Clemow, Hartford, Conn. (Coleman H. Casey, Shipman & Goodwin, Hartford, Conn., of counsel), for appellees.

Before SMITH, OAKES and MESKILL, Circuit Judges.

OAKES, Circuit Judge:

Appellants unsuccessfully sought below a declaratory judgment of the unconstitutionality of, and injunction against the enforcement of, the East Hartford public school teachers' dress code. Suit was brought under 42 U.S.C. §§ 1983 and 1988, and jurisdiction was invoked under 28 U.S.C. §§ 1331, 1343, 2201, and 2202. The appellant teacher, Richard P. Brimley (hereinafter "appellant"), was joined as a plaintiff below, and is joined as an appellant here, by his local and state teachers' unions. Appellant exhausted his administrative remedies by seeking to use his union's grievance procedures, his grievance going to arbitration before Professor Archibald Cox; the grievance was dismissed as not arbitrable because its subject was not covered by the collective bargaining agreement. East Hartford Education Association v. East Hartford Board of Education, Amer. Arb. Ass'n No. 12-39-0184-72 (Jan. 25, 1973). Chief Judge Clarie granted summary judgment to the appellees and dismissed the complaint below, 405 F.Supp. 94 (D.Conn.1975), finding no violation of any Fourteenth Amendment or First Amendment rights and a legitimate governmental interest. We reverse and remand for hearing on the merits.

I. FACTS

Appellant Brimley teaches English and film-making in an East Hartford public high school. He objects to so much of the Board's dress code, set out in the margin, ¹ as requires him to wear a shirt and tie with his sport jacket; he seeks to wear a turtleneck sweater or opennecked sport shirt with his jacket. In the present posture of the case, there is involved no claim whatsoever that appellant's desired dress would cause any disruption of the classroom, any problem of pupil discipline, any challenge to school board curricular authority, or any other interference with school operations. Nor is there any suggestion that appellant has at any time been otherwise than moral, neat and clean in person and in dress, or that he has in any way defied the orders of the school board. He has at all times complied with the dress code, albeit under protest, and he has made his challenge through the proper legal channels. Cf. Doran v. Salem Inn, Inc., 422 U.S. 922, 929, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (distinguishing, for equitable abstention purposes, between challengers to local ordinance who obeyed it while injunctive action pending and one who violated it).

As Professor Cox, the arbitrator, found, and as we must assume, appellant feels "very deeply and very strongly that his personal integrity is invaded and his effectiveness as a teacher diminished by the dress regulation." Appellant in his brief alleges, and we must accept at this summary judgment stage, that he wishes to present himself to his students as a person "not tied to 'establishment conformity' " but rather as one associated with the ideas and social outlook of the student generation. He feels that his dress "enables him to achieve a closer rapport with his students and thus enhances his ability to teach." The Board's own interpretation of its dress code, as set forth in its answers to interrogatories, is that the code presumes that a jacket, shirt and tie is the appropriate attire for male teachers in "ordinary classroom situations" (which do not in the Board's view include physical education, industrial arts, science laboratories and field trips); the presumption may be rebutted in individual cases if a teacher can establish that "more informal attire would be more appropriate to the subject matter and/or method of instruction involved (e. g. small group instruction involving drug education or sex education where the method of instruction is a 'rap session')." Appellant apparently made a sufficient showing that informal attire was appropriate for his film-making classes, but failed to win approval to wear such attire in his English classes.

II. THE INDIVIDUAL INTERESTS AT STAKE

A. The Liberty Interest In One's Personal Appearance

Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976), is the principal Supreme Court case ² bearing on the questions whether and to what extent a person has a constitutionally cognizable liberty interest in his or her personal appearance. Kelley did not decide these questions, although it did indicate that whatever the interest is, it is somewhat less weighty than the interests implicated in cases involving "procreation, marriage, and family life." Id. at 244, 96 S.Ct. 1440. In upholding a hair code for policemen, the Supreme Court emphasized the employment status of the police officer and the unquestioned "need for discipline, esprit de corps, and uniformity" in a police force. Id. at 246, 96 S.Ct. at 1446. See also Stradley v. Andersen, 478 F.2d 188, 190-91 (8th Cir. 1973); Yarbrough v. City of Jacksonville, 363 F.Supp. 1176, 1179 (M.D.Fla.1973); Note, On Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U.L.Rev. 670, 768-69 (1973). We commence with the premise that quite different considerations apply here. Even though both teachers and policemen are employees of the state through local governmental units, terms like "discipline" and "esprit de corps," appropriate for members of a uniformed paramilitary force, are manifestly inappropriate for high school teachers. Compare Kelley v. Johnson, supra, 425 U.S. at 245-46, 96 S.Ct. 1440 (policemen must salute flag), with Russo v. Central School District No. 1, 469 F.2d 623 (2d Cir. 1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1899, 36 L.Ed.2d 391 (1973) (public high school teacher need not salute flag). Mr. Justice Powell's concurring opinion in Kelley reinforces the view we share that "no negative implication" as to the more general liberty interest in personal appearance is to be drawn from the Kelley majority opinion. Id. at 249, 96 S.Ct. 1440. On this assumption, we examine the liberty interest asserted by appellant.

The right to control one's own body, recognized by Supreme Court decree as constitutionally derived, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), extends in the minds and hearts of many individuals to the body's teguments, be they clothing or hair. People have been conscious of personal appearance and fashion from the time the first of our forebears crawled out of what Judge Learned Hand so onomatopoetically referred to as the "primordial ooze." Samson, for one, was thought to be deprived of his strength when shorn of his hair by Delilah. Our Roman, Grecian, and European antecedents made much of their styles of dress and hair. See Op. Vt. Att'y Gen. No. 23 (1967), reprinted in (1966-1968) Vt. Att'y Gen. Biennial Rep. 199-200.

Substantial creative efforts of mankind have been devoted to matters of dress, from the robes of the ancient Egyptians to King Henry VIII's armor, and dress has often conveyed a message, whether it be one of martyrdom in the sackcloth and ashes of the early Christians, respect for God in the skullcaps worn by many Jews, or achievement and calling in the regalia worn in academic processions. The mark of authority for priest and judge alike has been a robe, for monks baldness has been a sign of asceticism, and for English judges and our own founding fathers powdered wigs were a symbol of wisdom, authority, and sometimes affluence.

Id. at 326, 95 S.Ct. at 1003 (citations omitted).

Because the appellant's clash with his employer has failed to "directly and sharply implicate basic constitutional values," we refuse to upset the policies established by the school board.

II.

Mr. Brimley claims that by refusing to wear a necktie he makes a statement on current affairs which assists him in his teaching. In his brief, he argues that the following benefits flow from his tielessness:

(a) He wishes to present himself to his students as a person who is not tied to "establishment conformity."

(b) He wishes to symbolically indicate to his students his association with the ideas of the generation to which those students belong, including the rejection of many of the customs and values, and of the social outlook, of the older generation.

(c) He feels that dress of this type enables him to achieve closer rapport with his students, and thus enhances his ability to teach. ⁵

Appellant's claim, therefore, is that his refusal to wear a tie is "symbolic speech," and, as such, is protected against governmental interference by the First Amendment.

We are required here to balance the alleged interest in free expression against the goals of the school board in requiring its teachers to dress somewhat more formally than they might like. United States v. Miller, 367 F.2d 72, 80 (2d Cir. 1966), cert. denied, 386 U.S. 911, 87 S.Ct. 855, 17 L.Ed.2d 787 (1967). Compare Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Review 75, 77-81 with Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 912-14 (1963). When this test is applied, the school board's position must prevail.

Obviously, a great range of conduct has the symbolic, "speech-like" aspect claimed by Mr. Brimley. To state that activity is "symbolic" is only the beginning, and not the end, of constitutional inquiry. United States v. Miller, supra, 367 F.2d at 78-79; see Note, Desecration of National Symbols as Protected Political Expression, 66 Mich.L.Rev....