Gere v. Stanley

• Decision Date: 27 December 1971
• Docket Number: No. 71-1025.,71-1025.
• Citation: 453 F.2d 205
• Parties: Jerald GERE, a minor by his father and next friend, Paul Gere, Appellant, v. Emory R. STANLEY, as Superintendent of Blue Ridge School District, et al.
• Court: U.S. Court of Appeals — Third Circuit

453 F.2d 205 (1971)

Jerald GERE, a minor by his father and next friend, Paul Gere, Appellant, v. Emory R. STANLEY, as Superintendent of Blue Ridge School District, et al.

No. 71-1025.

United States Court of Appeals, Third Circuit.

Argued September 16, 1971.

Decided December 27, 1971.

Seymour Kurland, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa. (Judith Dean, Philadelphia, Pa., on the brief), for appellant.

Paul A. Barrett, Nogi, O'Malley & Harris, Scranton, Pa. (Eugene Nogi, Scranton, Pa., on the brief), for appellees.

Before BIGGS, ADAMS, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

This case presents the perplexing question whether a student may be suspended because the length of his hair does not conform to the standards prescribed by the local school board.¹

Plaintiff-appellant, Jerald Gere, transferred from New York and entered the tenth grade of Blue Ridge High School in New Milford, Pennsylvania, in September, 1969. The principal of the school had previously informed parents and students that certain rules pertaining to dress and appearance had been adopted. Included was a regulation concerning hair length which differed slightly from that challenged on this appeal in that it did not set a specific maximum length but relied on rather vague, general standards of neatness and good grooming.

Some time after the school year 1969-70 commenced, Gere permitted his hair to grow to shoulder length and grew a goatee. Both actions violated the then-existing rule. For the remainder of the year, Gere's long hair caused disturbances to the extent that fellow-students approached the principal on several occasions with substantial complaints. In each case, action by the principal was required to alleviate the condition of unrest or turmoil in the school. Because the length of Gere's hair continued to exceed the norm set out in the regulation and because Gere refused to cut his hair, the principal suspended him on March 19, 1970. This step was ratified by the Board of Education on March 24th.

Gere then instituted suit, Civil No. 70-157, in the District Court seeking to enjoin the enforcement of the rule regulating the length of hair. Pending an adjudication of his claim, Gere was permitted to return to classes for the remainder of the school year.²

During the Summer of 1970, various components of the Blue Ridge High School—faculty, administrative staff, and student council—drafted and approved a new dress code which included the regulation reproduced supra, note 1. The School Board then voted that the code should go into effect for the school year 1970-71. Gere returned to school in September, 1970 with hair reaching his shoulders, in clear violation of the new rule. After refusing to cut his hair, he was again suspended, and has not attended school since. The present lawsuit, Civil No. 70-477, challenging the validity of the hair length regulation was filed shortly after Gere was suspended. The actions were consolidated, and in an able opinion, reported at 320 F.Supp. 852 (M. D.Pa.1970), Judge Nealon held that although Gere's freedom to choose his hair style was a liberty embraced by the Fourteenth Amendment, the freedom was properly limited by a reasonable school board regulation aimed at maintaining an atmosphere conducive to learning. The District Court accordingly entered judgments for the defendants. Gere appeals only from the judgment in Civil No. 70-477.

Neither in the District Court nor on this appeal does Gere contend that the challenged regulation interfered with an exercise of his First Amendment rights.³ Rather, Gere states that he wears long hair because he "just likes it." He argues that such a preference constitutes a protected liberty within the meaning of the Fourteenth Amendment which may not be abridged without due process of law.⁴

Although the parties in this case have not questioned the power— jurisdiction—of the federal courts to adjudicate this matter, the question of jurisdiction is always at issue, and we may not proceed to the merits of the dispute without first having the power to adjudicate. In the view expressed by the late Mr. Justice Black, acting as a Circuit Justice in Karr v. Schmidt, 401 U.S. 1201, 91 S.Ct. 592, 27 L.Ed.2d 797 (1971), and by the concurring opinion in this case, federal courts lack the power to decide hair length controversies which implicate matters of local school board rules. With this proposition, we respectfully disagree.

Since 1877, the Supreme Court has instructed the lower federal courts that federal question jurisdiction is to be determined from the pleadings submitted by the plaintiff. Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 24 L.Ed. 656 (1877). Gere, in his complaint, asserts federal jurisdiction under 28 U.S.C. §§ 1343(3), (4). The applicable portion of Section 1343 reads:

"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;"

The leading case interpreting this provision is Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). The tribunal there was confronted with the difficult question whether a federal court had jurisdiction as a result of § 24(14) of the Judicial Code now 28 U.S.C. § 1343(3) in a suit brought under § 1 of the Act of 1871, R.S. § 1879, 42 U.S.C. § 1983, without regard to the jurisdictional amount. Justice Stone stated:

"The conclusion seems inescapable that the right conferred by the Act of 1871 to maintain a suit in equity in the federal courts to protect the suitor against a deprivation of rights or immunities secured by the Constitution, has been preserved, and that whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights, there is jurisdiction in the district court under § 24(14) of the Judicial Code to entertain it without proof that the amount in controversy exceeds $3,000."

Thus, without regard to the ultimate disposition on the merits, if an action is brought within the terms of 42 U.S.C. § 1983, it follows that a federal court has jurisdiction to hear the case. See Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

Section § 1983 gives rise to a federal claim when any "person acting under color of State law subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . ." Gere's complaint asserted that:

"The actions of all the Defendants violated and continues to violate the due process clause of the Fourteenth Amendment to the Constitution of the United States of America . . ."

The complaint then went on to list the specific ways in which Gere considers that the defendants violated his Fourteenth Amendment rights. We cannot say that these allegations are so "wholly insubstantial and frivolous" that we are thereby divested of jurisdiction. Bell v. Hood, supra, at 682-683, 66 S.Ct. 773.⁵ Although it might be tempting to disclaim jurisdiction in controversies such as this one, a careful consideration of the statutes and cases impels the conclusion that we have the power to adjudicate the issues presented here.⁶

It has been additionally proposed that, notwithstanding Gere's constitutional claim and the existence of federal jurisdiction, the District Court and, consequently, this Court should abstain from deciding this lawsuit in favor of a state adjudication of the same issues. We also find this suggestion to be unpersuasive. A federal court should abstain when a decision concerning a question of state law is necessary to a disposition of the case, and the answer to the state question involves unclear state law or a matter of paramount interest to the state. See, e. g., Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); R. R. Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). If the above factors are not present in the suit, it is not enough to justify abstention that the state courts are as competent to decide federal questions as are the federal courts. Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L.Ed.2d 515 (1971). Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).

At oral argument, both the plaintiff and the defendants conceded that Gere's suspension was authorized by state law, Tit. 24 Pa.Stat.Ann. § 13-1318, a conclusion with which we tend to agree. This Court was, therefore, squarely faced with a federal question, and accordingly may not abstain. Wisconsin v. Constantineau, supra; Zwickler v. Kotta, supra.

Assuming arguendo that Gere has a right to wear his hair long while attending public high school,⁷ the test which we must apply to determine the validity of the hair regulation is that set out by Mr. Chief Justice Hughes in West Coast Hotel Co. v. Parrish, 300 U.S. 397, 391, 57 S.Ct. 578, 581, 81 L.Ed. 703 (1937): "Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process." Or to put it another way, the liberty guaranteed by the Fourteenth Amendment implies absence of arbitrary interferences, but not immunity from reasonable regulations.⁸

In order to evaluate the reasonableness of the regulation here in question, we are faced with the delicate task of reconciling, on one hand, a right which is arguably protected by the Fourteenth Amendment, and on the other, the...