861 F.2d 335 (1st Cir. 1988), 87-2140, Johnson v. Pinkerton Academy

Docket Nº:87-2140 to 87-2142.
Citation:861 F.2d 335
Party Name:Kenneth JOHNSON, Plaintiff, Appellant, v. PINKERTON ACADEMY, et al., Defendants, Appellees. Kenneth JOHNSON, Plaintiff, Appellee, v. PINKERTON ACADEMY, et al., Defendants, Appellants.
Case Date:November 18, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 335

861 F.2d 335 (1st Cir. 1988)

Kenneth JOHNSON, Plaintiff, Appellant,

v.

PINKERTON ACADEMY, et al., Defendants, Appellees.

Kenneth JOHNSON, Plaintiff, Appellee,

v.

PINKERTON ACADEMY, et al., Defendants, Appellants.

Nos. 87-2140 to 87-2142.

United States Court of Appeals, First Circuit

November 18, 1988

Heard Sept. 7, 1988.

Rehearing and Rehearing En Banc Denied Dec. 22, 1988.

Page 336

I. Michael Winograd with whom Peter C. Hildreth, Scott Hood and Winograd P.A., Concord, N.H., were on brief, for Kenneth Johnson.

Jack B. Middleton with whom Kevin M. Fitzgerald and McLane, Graf, Raulerson & Middleton, P.A., Manchester, N.H., were on brief, for Pinkerton Academy, et al.

Before CAMPBELL, Chief Judge, and ALDRICH and SELYA, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

In 1981, plaintiff Kenneth Johnson was hired as a teacher by defendant Pinkerton

Page 337

Academy on a one year, renewable, contract, subsequently renewed. He agreed to conform to defendant's rules of conduct, of which he was given a copy. One of the rules was that teachers could not wear beards. Plaintiff was clean shaven at the time, and voiced no objection. Thereafter he engaged in much civil rights discussion with his classes, and his views ultimately caused him to decide to grow a beard as a means of assertion. The confrontation with the school authorities proving a stalemate, plaintiff was discharged in January, 1984. He now seeks declaratory and injunctive relief, and money damages under 42 U.S.C. Sec. 1983.

While it may be difficult for some to see why this matter was so important, 1 plaintiff's interest clearly not being cosmetic, Shakespeare's recitation of the seven ages of man is not condemnatory. 2 However, plaintiff initially had to realize that he was obliged to come within the confines of 42 U.S.C. Sec. 1983 and show that defendant's objected-to conduct was, at least in part, state action. In this the district court held in his favor, but it ultimately found against him on the merits, viz., finding that defendant's forbidding beards to teachers was not inherently unreasonable. On this appeal we do not reach this latter finding, but hold that, in spite of a very thoughtful opinion, the court erred with respect to state action.

Before discussing the authorities, we note the error in plaintiff's approach. Defendant's principal case is Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), also involving a private school, in which this court was affirmed in its conclusion that the school was not a state actor. As here, the school was privately formed and privately owned, operating on private property and conducted by private individuals, all of whom were chosen, and administered, by private management. Plaintiff says the...

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