Breen v. Kahl
| Citation | 296 F. Supp. 702 |
| Decision Date | 20 February 1969 |
| Docket Number | No. 68-C-201.,68-C-201. |
| Parties | Thomas BREEN, a minor, by his mother and next friend, Jane Breen; and James A. Anton, a minor by his parents and next friend, William and Marie Anton, Plaintiffs, v. William C. KAHL, individually and as State Superintendent of Public Instruction of the State of Wisconsin; David Hawley, individually and as Principal of Williams Bay High School; Arno D. Wehle, individually and as Superintendent of Williams Bay Schools; Robert R. Brown, individually and as a member of the Williams Bay Board of Education; Elmer M. Hansen, individually and as a member of the Williams Bay Board of Education; Marilyn Prugh, individually and as a member of the Williams Bay Board of Education; Harold McCarthy, individually and as a member of the Williams Bay Board of Education; Alice Morava, individually and as a member of the Williams Bay Board of Education, Defendants. |
| Court | United States District Courts. 7th Circuit. Western District of Wisconsin |
Sander N. Karp, Percy L. Julian, Jr., Madison, Wis., for plaintiffs.
Max C. Ashwill, Legal Consultant, Dept. of Public Instruction, Robert D. Martinson, Asst. Atty. Gen., Madison, Wis., for defendant Kahl.
R. G. Richardson, Jr., Delavan, Wis., for other defendants.
Plaintiffs have brought this action to challenge a regulation promulgated by the Williams Bay Board of Education. They seek a declaration that the regulation violates the Constitution of the United States, and an injunction against its continued enforcement.
Jurisdiction is asserted under 42 U.S.C. § 1983, and 28 U.S.C. §§ 1343(3) and (4), among other provisions. Jurisdiction is present. The defendants have acted, and they threaten to act, under color of law to deprive each of the plaintiffs of certain freedom of action. The central issue is whether the freedom involved is among the rights, privileges, or immunities secured to plaintiffs by the Constitution of the United States.
Trial has been had to the court, without a jury. Testimony, both by deposition and otherwise, and documentary evidence were received. Briefs have been filed and oral argument heard.
My findings of fact and conclusions of law appear in this opinion. Rule 52(a), Federal Rules of Civil Procedure.
As of September, 1968, the plaintiff Breen was enrolled as an eleventh grade student, and the plaintiff Anton was enrolled as a twelfth grade student, in the Williams Bay High School. Five of the defendants are members of the Williams Bay Board of Education (hereinafter, the Board) which, during the preceding academic year, had adopted this regulation affecting male students in the high school:
The regulation has continued in force until the present.
Each plaintiff was expelled by the Board in early autumn, 1968, for the stated reason that the length of his hair exceeded the Board's standard. Plaintiff Anton had his hair cut to comply and he was readmitted. At the time of trial, he desired to allow it to grow to a length which would be in violation. The defendant Board members threatened that he would be expelled again if he did so. Plaintiff Breen has refused to comply and he has been denied readmission until and unless he does comply.
Each plaintiff petitioned the defendant State Superintendent of Public Instruction (hereinafter, the state superintendent) for review of the expulsion order, as permitted by Wisconsin statutes. Following a hearing in the case of plaintiff Anton, the state superintendent terminated the appeal proceeding as moot. Following a hearing in the case of plaintiff Breen, the state superintendent found that Breen had persistently refused to comply with the haircut regulation, and that this "refusal * * * to obey said rule constituted a disruptive influence or factor within the school. * * *"1 Citing Ferrell v. Dallas Independent School District, 261 F.Supp. 545 (N.D.Texas, 1966), affirmed 392 F.2d 697 (5th Cir., 1968), cert. den., 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (Oct. 15, 1968), the state superintendent concluded that the expulsion was warranted, and he affirmed it. This action against him, the members of the Board, the principal of the Williams Bay High School (hereinafter, the principal), and the Superintendent of Schools in Williams Bay (hereinafter, the local superintendent) ensued.
The length of plaintiff Breen's hair at the time of his expulsion exceeded the Board standard, as the Board asserted, and it has continued to exceed that standard. The length of plaintiff Anton's hair at the time of his expulsion exceeded the Board standard, as the Board asserted, and at the time of the trial he did intend to permit it again to reach a prohibited length. No basis for the expulsion of Breen, or for the expulsion or for the threatened expulsion of Anton, is asserted, and in the record in this action none appears, other than a violation or threatened violation of the haircut regulation. The record contains no suggestion that the length of the hair constituted a health problem or a physical obstruction or danger to any person; I find that it did not. At no time while either plaintiff was in attendance in the high school with hair longer than the Board standard was any disruption or disturbance caused by the length of his hair. It is not suggested that the appearance of either plaintiff at any time, by reason of the length of his hair, was obscene. I find that the appearance of neither has been obscene, and that the appearance of plaintiff Anton, solely because the length of his hair may exceed the Board standard, would not be obscene.
I find that the dress and hair styles of the males in Williams Bay, generally, are conservative by current standards, and that few, if any males in Williams Bay wear their hair at lengths which exceed the Board standard.
I find that to deny a 16 year old eleventh-grade male and a 17 year old twelfth-grade male access to a public high school in Wisconsin is to inflict upon each of them irreparable injury for which no remedy at law is adequate. I make this finding by taking judicial notice of the social, economic, and psychological value and importance today of receiving a public education through twelfth grade.
Plaintiffs make no contention that the Board regulation is too vague. The complaint includes a contention that the Board's "dress code" is "overbroad on its face". I conclude that the provision of the code relating to hair styles, quoted above, is a discrete and independent section of the dress code. It may or may not be valid, but it is not "over" broad. Plaintiffs raise no contention here that procedural due process has been denied.
The issue is squarely raised: Does the Board regulation as applied to these plaintiffs violate the Constitution of the United States?
To achieve perspective, it may be useful to consider the validity of a similar regulation which might be applicable to adults: for example, a state statute or city ordinance making it punishable by fine or imprisonment for a male inhabitant to wear a beard; or, for example, a statute or ordinance denying enrollment in a public adult education class in bookkeeping to males whose hair exceeds a certain length; or, for example, a statute or ordinance forbidding access to public buildings or parks to adult females whose hair exceeds a certain length.
It defies credulity that a legislature or council would promulgate such a regulation. But if it should, it seems clear that the regulation would fall.
If, for adults wearing one's hair at a certain length or wearing a beard is viewed in part as a form of expression, that is, as a "course of conduct" in which "`speech' and `nonspeech' elements are combined", only a "sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). "* * * A government regulation is sufficiently justified if it is within the constitutional power of the government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." 391 U.S. at 377, 88 S.Ct. at 1679. Presumably, justification of the kinds of regulations of the hair styles or beards of adults, which I have hypothesized above, would be asserted in terms of the power of the state to regulate matters of health or safety, or perhaps, with respect to the adult education class, education. It cannot seriously be supposed that, with respect to adults, the regulations would be considered "no greater than is essential to the furtherance" of "an important or substantial governmental interest".
Whether wearing one's hair at a certain length or wearing a beard is a form of constitutionally protected expression is not a simple question.2 Unquestionably, it is an expression of individuality, and it may be, although the record in this case is silent on the subject, that the manner in which many younger people now wear their hair is an expression of a cultural revolt.3 In the view I take of this matter, however, it is unnecessary to reach a conclusion whether wearing one's hair at a certain length or wearing a beard falls within that category of "expression" protected by the First Amendment.
In my view, with respect to adults, freedom to wear one's hair at a certain length or to wear a beard is constitutionally protected, even though it expresses nothing but individual taste. Difficulty might arise, as it did in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.Ed.2d 510 ...
To continue reading
Request your trial
-
Rumler v. BOARD OF SCH. TR. FOR LEXINGTON CTY. DIST. NO. 1 SCHOOLS
...the school authorities the right to prescribe and/or declare that such enforcements are unconstitutional deprivations: Breen v. Kahl (W.D.Wis.1969), 296 F.Supp. 702, cert. den., 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268; Richards v. Thurston (D. Mass.1969), 304 F.Supp. 449, aff. 424 F.2d ......
-
Pritchard v. Spring Branch Independent School District, Civ. A. No. 69-H-1235.
...primary burden of proof on the constitutional issue in these cases is deemed relevant here in light of the recent case of Breen v. Kahl, D.C.W.D. Wis, 296 F.Supp. 702, affirmed in Breen v. Kahl, 7 Cir., 419 F.2d 1034 (December 3, 1969) and the rationale of which appears to have received acc......
-
Farrell v. Smith
...733; Ferrell v. Dallas Independent School District, supra, 392 F.2d at 703; Griffin v. Tatum, supra, 300 F.Supp. at 62; Breen v. Kahl, supra, 296 F.Supp. at 707. The line to be drawn is a delicate one. On the one hand, in Epperson v. Arkansas, supra, the Supreme Court has very recently Judi......
-
Watson v. Thompson
...force of the state, just as surely as it is applied by the police, the courts, the prison warden, or the militia." Breen v. Kahl, 296 F.Supp. 702, at 707 (W.D.Wisc.1969), aff. 419 F.2d 1034 (7th Cir. 1969), cert. den. 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 The ultimate rationale for se......