Cordova v. Chonko

• Decision Date: 30 July 1970
• Docket Number: Civ. No. C 69-293.
• Citation: 315 F. Supp. 953
• Parties: Colin R. CORDOVA, a minor, 14 years of age, by and through Carlos Cordova, his father and next friend, 711 Findlay Street, Perrysburg, Ohio, Plaintiff, v. Edward W. CHONKO, as Principal of Perrysburg High School, and Robert M. Pierson, as Superintendent of Perrysburg Public Schools, and James M. Fraser, as President of the Perrysburg Exempted Village Board of Education, and John Landwehr, as a member of the Perrysburg Exempted Village Board of Education, and David H. Wilson, Jr., as a member of the Perrysburg Exempted Village Board of Education, and Richard Brittan, as a member of the Perrysburg Exempted Village Board of Education, and George J. Williams, as a member of the Perrysburg Exempted Village Board of Education, Defendants.
• Court: U.S. District Court — Northern District of Ohio

315 F. Supp. 953

Colin R. CORDOVA, a minor, 14 years of age, by and through Carlos Cordova, his father and next friend, 711 Findlay Street, Perrysburg, Ohio, Plaintiff, v. Edward W. CHONKO, as Principal of Perrysburg High School and Robert M. Pierson, as Superintendent of Perrysburg Public Schools and James M. Fraser, as President of the Perrysburg Exempted Village Board of Education and John Landwehr, as a member of the Perrysburg Exempted Village Board of Education and David H. Wilson, Jr., as a member of the Perrysburg Exempted Village Board of Education, and Richard Brittan, as a member of the Perrysburg Exempted Village Board of Education, and George J. Williams, as a member of the Perrysburg Exempted Village Board of Education, Defendants.

Civ. No. C 69-293.

United States District Court, N. D. Ohio, W. D.

July 30, 1970.

Harland M. Britz, Toledo, Ohio, for plaintiff.

Donald DeCessna, Perrysburg, Ohio, for defendants.

OPINION

DON J. YOUNG, District Judge.

This is another "long hair" case. The plaintiff is a fourteen year old boy. The defendant school authorities and the boy's parents appear from the evidence to be functioning at about the same level of maturity. This simplifies the application of the old maxim "All parties stand equal before the law."

Although the facts in the case are relatively simple, the legal problems are of great difficulty and complexity. The principal problems are those which are always involved in the making and enforcement of sumptuary laws, and the role of the state in the life of a child. Linking the two is the involved question of the delegation of legislative authority.

Ostensibly, the Court's jurisdiction is involved under the provisions of 42 U.S. C. § 1983 and 28 U.S.C. § 1343(3) and (4). It is claimed that the defendants have acted and threatened under color of state law to deprive the plaintiff of rights, privileges and immunities secured to him by the Constitution of the United States.

Although the evidence was not without conflicts, most of these lie in areas of opinion, rather than in matters of objective facts. All of the opinion evidence offered is so tainted with subjective biases, conflict with the physical facts, limited skill and experience, and inaccurate or inadequate observation and sampling as to have little or no probative value.

The preponderance of the evidence shows that the plaintiff is a native of Perrysburg, Ohio, a suburb of the City of Toledo, as are his mother and his brother and sisters. Perrysburg has a population of about ten thousand, encompassing a wide variety of socioeconomic classes, ranging from poverty to great wealth. The Perrysburg Exempted Village School District has a pupil population of about twenty-six hundred fifty, of which about eight hundred attend Perrysburg High School.

The plaintiff was about to enter high school in September of 1969. A trombone player, he aspired to membership in the school band. Consequently, about the middle of August he reported, with other entering freshmen, to band practice.

During the preceding summer, plaintiff had let his hair grow. When he reported for band practice, the band director took exception to the length of his hair. She first requested, and then ordered, that he cut it. Upon his declining to do so, the matter was brought to the attention of the defendant Chonko, the high school principal, who ordered plaintiff to cut his hair. Plaintiff again declined, whereupon he was suspended by Chonko from further band activities for ten days. He, his parents, and other school officials, were given written notice of this suspension (P. Ex. 1), in accordance with state law.

With respect to the band, the evidence showed that the band members were both boys and girls. The evidence conflicted as to the proportions, ranging from 60/40 to 34/66 girls. Whatever the proportion, it was clear that all band members, regardless of sex, wore identical uniforms, consisting of trousers, jackets, and plumed garrison caps. Obviously, therefore, a boy with long hair would appear no different from a girl, so that the plaintiff's hair length could not possibly have interfered with that uniformity of appearance which defense witnesses testified was absolutely essential to prevent the entire band from being humiliated and ridiculed. Although there was evidence tending to indicate that long hair blowing about in the autumn breezes could cause problems in marching by obstructing the wearer's vision, this same evidence demonstrated that the distaff members of the band were able to cope with these problems by the use of such devices as hairpins and rubber bands, which the band director always had available. There was no evidence whatsoever that plaintiff's long hair had caused any such problems. The band director complained that audiences were distracted from proper observation of and attention to the band's performance by their efforts to distinguish the plaintiff from his female colleagues. The Court takes the liberty of doubting both the accuracy and the importance of this observation. In any event, it could not have posed a problem at any time before the plaintiff's suspension and the commencement of this action, as the band had given no public performances up to that point.

On September 3rd, 1969, school opened. The plaintiff, suspecting that he had not heard the last of the matter of his coiffure, had armed himself with a letter from his attorney directed to the defendant Chonko (P. Ex. 6) warning him that any further efforts on the part of the school authorities to change the plaintiff's hair style would result in litigation.

On the opening day of school, the defendant Chonko called plaintiff to his office and ordered him to get a haircut. Plaintiff presented the attorney's letter, which was ignored. After some period of bickering and correspondence, on September 26th, the defendant Chonko, by a letter dated September 26, 1969 (P. Ex. 3), suspended the plaintiff from school. This suspension was not in conformity to the Ohio statutes, which give school principals authority to suspend only for a fixed period not to exceed ten days. § 3313.66 O.R.C. The letter ordered suspension until the plaintiff cut his hair to a reasonable length, and was thus clearly in excess of the defendant Chonko's authority.

At the same time that plaintiff was suspended, another pupil was also suspended on the same terms and for the same reason. The evidence did not disclose what happened to him. Presumably he rode back into school on the plaintiff's coattails.

Promptly after receiving notice of suspension, the plaintiff commenced this action. A motion for a preliminary injunction was heard and granted, and the defendants were enjoined from excluding the plaintiff from the school or its activities pending final hearing.

The evidence disclosed considerable dispute about the actual length of plaintiff's hair at the time of the actions complained of. At the time of trial, plaintiff's hair was what can best be described as a "page-boy bob," to use the language of another era, somewhat shorter than shoulder length. Various of defendants' witnesses testified that in August and September of 1969, it was at least as long, if not longer, than at the time of trial. Photographs taken on August 19, 1969, the day after plaintiff's first suspension, introduced in evidence as plaintiff's exhibits 7 and 8, and as exhibit A attached to the complaint, show his hair considerably shorter than it appeared in the courtroom, when the ends curled outward. Plaintiff's exhibits 9 and 11, taken by the school sometime in the fall of the year, also show the hair shorter than at the time of trial, although in those it also curls outward.

Various teachers and students offered testimony to the effect that plaintiff was a well-behaved and courteous student; that he caused no disturbance of any kind in his classes, nor did he ever comb or fuss with his hair in class; that they had heard other students make remarks about plaintiff's hair, but that when plaintiff heard such remarks, he ignored them; that on two occasions teachers had mistaken plaintiff for a girl wearing slacks, which was forbidden, but neither did anything about it, although one was embarrassed; that after the plaintiff returned to school under this Court's order, other male students were emboldened to emulate him and wear their hair longer; that one boy who did so got into an altercation about it with some fellow students, who threatened forcibly to cut his hair; and that this resulted in a complaint from his mother to the defendant Chonko, who was thus forced to reprimand the boys who made the threat. One student who testified, and who at the trial was wearing hair nearly as long as plaintiff's, although not so full, and a handsome set of sideburns which extended almost to his chin, and well below the corners of his mouth, stated that he and some fellow-students had once discussed forcibly cutting plaintiff's hair, but concluded that they would get in trouble if they attempted to do so, and so did nothing.

The plaintiff himself testified that he wore his hair the way he did simply because he liked it that way; that he had suffered some joshing by his fellow students, but ignored it. It might be observed that to some extent the plaintiff did more than ignore the teasing. To borrow a psychological term, he "suppressed" it, since he had no recollection of one incident where the boys in the toilet told him the girl's toilet was down the hall. Plaintiff denied that the incident happened, although testimony of one of the other students involved established that the incident did in fact happen. Case law indicates that this episode is standard with high school students protesting non-conformity of hair style.

Although the evidence has been recited in great detail, there was much more evidence on the part of the defendants that after the plaintiff's return to school under the Court order,...