Breen v. Kahl

• Decision Date: 03 December 1969
• Docket Number: 17553.,No. 17552,17552
• Citation: 419 F.2d 1034
• Parties: Thomas BREEN, a minor, by his mother and next friend, Jane Breen; and James A. Anton, a minor, by his parents and next friends, William and Marie Anton, Plaintiffs-Appellees, 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-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

419 F.2d 1034 (1969)

Thomas BREEN, a minor, by his mother and next friend, Jane Breen; and James A. Anton, a minor, by his parents and next friends, William and Marie Anton, Plaintiffs-Appellees, 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-Appellants.

Nos. 17552, 17553.

United States Court of Appeals Seventh Circuit.

December 3, 1969.

Robert D. Martinson, Asst. Atty. Gen., Benjamin Southwick, Dept. of Justice, Max C. Ashwill, Madison, Wis., for defendants-appellants.

Percy L. Julian, Jr., Sander N. Karp, Melvin F. Greenberg, Madison, Wis., for plaintiffs-appellees.

James F. Clark and Walter P. Ela, Madison, Wis., amicus curiae.

Before DUFFY, Senior Circuit Judge, and FAIRCHILD and KERNER, Circuit Judges.

KERNER, Circuit Judge.

Plaintiffs-appellees, Thomas Breen and James Anton, filed suit under 42 U.S.C. § 1983 against defendants-appellants, the State of Wisconsin's Superintendent of Public Instruction and the Members of the Williams Bay Board of Education attacking as unconstitutional the Williams Bay High School dress code regulating the length of students' hair. The district court held the regulation unconstitutional and defendants appeal.

In 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. During the preceding academic year, the Williams Bay Board of Education (Board) had adopted the following regulation:

Hair should be washed, combed and worn so it does not hang below the collar line in the back, over the ears on the side and must be above the eyebrows. Boys should be clean shaven; long sideburns are out.

The plaintiffs were expelled by the Board at the beginning of the school semester in the Autumn of 1968, for the stated reason that the length of their hair had exceeded the Board's standard. Plaintiff Anton had his hair cut to comply with the regulation and was readmitted to school. At the time of the trial below, Anton, however, desired to allow his hair to grow to a length which would be in violation of the regulation. The defendant Board members threatened him with expulsion again if he did so. Plaintiff Breen at all times refused to comply with the regulation and has been denied readmission until and unless he did comply.

Each plaintiff petitioned the defendant State Superintendent of Public Instruction (State Superintendent) for review of the expulsion order, as permitted by Wisconsin statutes. Following a hearing, the State Superintendent determined the appeal as to plaintiff Anton was moot, and found that as to plaintiff Breen, the expulsion order was warranted, and he affirmed it. Plaintiffs then brought this action in the district court, seeking a declaration that the regulation was violative of the Constitution and an injunction against its continued enforcement.

The right to wear one's hair at any length or in any desired manner is an ingredient of personal freedom protected by the United States Constitution. See Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala.1969); Zachary v. Brown, 299 F.Supp. 1360 (N.D.Ala.1969); Richards v. Thurston Sept. 30, 1969, 304 F.Supp. 449 (N.D.Mass.1969). Whether this right is designated as within the "penumbras" of the first amendment freedom of speech, see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), or as encompassed within the ninth amendment as an "additional fundamental rights * * * which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments" Griswold v. Connecticut, 381 U.S. at 488, 85 S.Ct. at 1684 (J. Goldberg concurring), it clearly exists and is applicable to the states through the due process clause of the fourteenth amendment.

To limit or curtail this or any other fundamental right, the state has a "substantial burden of justification." Griswold v. Connecticut, 381 U.S. at 505, 85 S.Ct. 1678 (J. White concurring). See McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). The United States Supreme Court in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), in explaining what is meant by "substantial justification" stated:

* * * 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. Id. at 377, 88 S.Ct. at 1679.

Although there may be different justifications for a statute which is applicable to adults and one which applies to students of a high school, the Constitution protects minor high school students as well as adults from arbitrary and unjustified governmental rules.

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are `persons\' under our Constitution. They are possessed of fundamental rights which the State must respect, just as they must respect their obligations to the State. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1968).

The School Board specifically raised below two justifications for its hair regulation. The Board asserted that (1) a Williams Bay male high school student whose hair is longer than the Board's standard so departs from the norm that his appearance distracts his fellow students from their school work, and (2) students whose appearance conforms to community standards perform better in school. As to these two justifications, the trial judge found, and we agree that:

Defendants here have fallen far short of showing that the distraction caused by male high school students where hair length exceeds the Board standard is so aggravated, so frequent, so general, and so persistent that this invasion of their individual freedom by the state is warranted. The same is true of defendant\'s showing with respect to the differential in school performance between male students with long hair and those with short hair.

In addition, the trial court found that there was no showing of any other possible justification for the school 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 nor was any disruption or disturbance caused by the length of his hair."

While we do not decide whether a valid showing of any single or combination of justifications, which the School Board did or did not raise, would be sufficient to satisfy the state's substantial burden, in the absence of a valid showing of any of these justifications, such burden is clearly not met.

The failure of appellants to sustain any burden of substantial justification distinguishes the case at bar from the situation in Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir. 1968), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968), upon which the appellant School Board heavily relies. In Ferrell, the court in upholding the constitutionality of the school regulation found that wearing of long hair by students created disturbances and problems during school hours. Although we are more inclined to agree with Judge Tuttle's dissenting opinion in Ferrell that "courts are too prone to permit a curtailment of a constitutional right of a dissenter, because of the likelihood that it will bring disorders, resistance or improper and even violent action by those supporting the status quo," in the case at bar there is no evidence of any disturbance created by the long hair of the students. Consequently, we are not faced with the problem of evaluating whether regardless of some disorder constitutional rights must still be protected, see Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1948).¹

The appellant School Board also argues that regardless of the lack of justifications for its regulation, the disciplinary powers of the school authorities will be diminished if the Board's regulation is not upheld and these expulsions and threatened expulsions are not vindicated by the court. Although courts are reluctant to interfere with conflicts which arise in the operation of school systems, courts will interfere when such conflicts "directly and sharply implicate basic constitutional values." Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). To uphold arbitrary school rules which "sharply implicate basic constitutional values" for the sake of some nebulous concept of school discipline is contrary to the principle that we are a government of laws which are passed pursuant to the United States Constitution.

In addition, the doctrine invoked by the School Board of "in loco parentis" does not bolster its discipline argument. Although schools need to stand in place of a parent, in regard to certain matters during the school hours, the power must be shared with the parents, especially over intimately personal matters such as dress and grooming. Since the students' parents agree...