Hander v. San Jacinto Junior College

• Decision Date: 12 September 1975
• Docket Number: No. 74-2279,74-2279
• Parties: Lecil HANDER, Plaintiff-Appellee, v. SAN JACINTO JUNIOR COLLEGE et al., etc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 273

519 F.2d 273

Lecil HANDER, Plaintiff-Appellee, v. SAN JACINTO JUNIOR COLLEGE et al., etc., Defendants-Appellants.

No. 74-2279.

United States Court of Appeals Fifth Circuit.

Sept. 12, 1975.

B. Jeff Crane, Jr., Francis E. McGovern, II, Houston, Tex., for defendants-appellants.

Larry Watts, Houston, Tex., Stephen J. Pollak, David Rubin, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, Chief Judge, and GEWIN and THORNBERRY, Circuit Judges.

GEWIN, Circuit Judge:

This case involves the right of a public junior college to impose grooming standards on its faculty. The dispute requires that we determine the applicability of Lansdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972) (en banc), cert. denied, 411 U.S. 986, 93 S.Ct. 2268, 36 L.Ed.2d 964 (1973), a case invalidating unreasonable regulation of college students' hair styles, to the regulation of the appearance of college teachers.

I

The appellee Hander began teaching at the appellant San Jacinto Junior College a public "union junior college", V.T.C.A., Tex.Educ.Code § 130.031, in August 1969. At that time, the college had written regulations prohibiting male students from wearing long hair and beards, but officials had a tacit understanding with the faculty that the rule applied with equal force to instructors and other employees. In November 1969, a federal district court declared the student grooming policy to be violative of the First and Fourteenth Amendments. Calbillo v. San Jacinto Junior College, 305 F.Supp. 857 (S.D.Tex.1969). On appeal, this court did not reach the merits of the controversy, but remanded the cause for a determination of whether the case was moot because of the complaining student's withdrawal from school and expungement from his record of references to his suspension. 434 F.2d 609 (5th Cir. 1970). On December 31, 1970, the district court, apparently deciding that the case was moot, dissolved the preliminary injunction against the college and dismissed the complaint.

On December 22, 1970, the college's Board of Regents resurrected the regulation concerning male students' hair which had been the subject of the Calbillo case and simultaneously promulgated the following regulation governing faculty appearances:

Faculty members and all of the male employees of San Jacinto Junior College are required to be clean shaven, wear reasonable hair styles and have no excessively long sideburns.

Hander had grown a beard during the summer of 1970 and has worn it ever since. In January 1971 he was personally informed by the college's president that his beard violated the newly enacted policy, and at his request, the Board of Regents conducted a hearing on January 14, 1971 to determine what action to take against him. The Board gave Hander four days in which to shave his beard or be discharged. He refused to comply and was immediately dismissed, although he was paid the remainder of his salary for the 1970-71 term.

Hander sued under 42 U.S.C. § 1983 for reinstatement in his job, a permanent injunction against continued enforcement of the faculty grooming regulation, and backpay. He based his cause of action on the due process and equal protection clauses of the Fourteenth Amendment, asserting that the regulation was designed to implement the personal tastes of the college administrators and as such bore no relation to their statutory authority to manage the college and that the grooming standard created an arbitrary classification. He did not contend that the regulation violated his right of either free expression or privacy. The district court invoked the abstention doctrine and dismissed the complaint. Hander v. San Jacinto Junior College, 325 F.Supp. 1019 (S.D.Tex.1971), but we reversed and remanded the case for consideration in light of our decision in Lansdale v. Tyler Junior College, supra, a case dealing with the right of college students to wear long hair. 468 F.2d 619 (5th Cir. 1972). The district court subsequently ruled that although the college acted in good faith, Hander's Fourteenth Amendment rights were violated by the discharge which was based solely on his refusal to shave his beard. The court additionally found that Hander had a legitimate objective expectancy and entitlement to continued employment during subsequent school terms and that the Board of Regents' failure to rehire him therefore denied him a property right guaranteed by the Fourteenth Amendment. The district court consequently ordered that the defendant college reinstate Hander and pay him $11,321.70 in backpay. Hander was also awarded $5,112.50 in attorneys' fees.

On appeal, the appellant junior college contends that teachers in public institutions enjoy no constitutionally protected right to wear beards, that the Eleventh Amendment bars recovery of backpay and attorneys' fees, and that an award of attorneys' fees is inappropriate in the circumstances of this case. We affirm in part and reverse in part, finding that the discharge did infringe upon Hander's constitutional rights and that there is no constitutional bar to the backpay award, but that attorneys' fees are not permissible under the facts and in the circumstances of this case.

II

The seminal case involving grooming regulations in the college environment is Lansdale v. Tyler Junior College, supra, in which we held that absent unusual circumstances, the regulation of the length of a male college student's hair is irrelevant to any legitimate educational or administrative interest and creates arbitrary classifications of college students and therefore violates both the due process and equal protection clauses of the Fourteenth Amendment. The Lansdale decision differentiated between the college and high school settings and concluded that while grooming restrictions for high school students might be permissible, see Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972) (en banc), cert. denied, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256 (1972), regulation of college students' tonsorial styles was not rationally related to educational objectives.

The college seeks to distinguish the Lansdale decision since it prohibits arbitrary grooming regulations for junior college students while this case concerns regulation of junior college faculty members. The underlying theory of Lansdale, the college argues, is that an unreasonable grooming regulation might deny a hirsute student access to a public education. It contends that dismissal for violation of a faculty grooming standard does not deny Hander any right whatsoever, and that regulation of a public employee's appearance is recognized as a legitimate exercise of statutory authority. The college, in effect, argues that our decision in this dispute is controlled by cases upholding a public institution's right to regulate the appearance of its employees, and not by those cases dealing with students' grooming standards. Additionally, it argues that regulation of faculty members' appearance is significant to the maintenance of high educational standards. The first argument misperceives the import of both the Lansdale decision and the public employee cases on which the college relies. The second contention is unsupported by the record.

While the Lansdale decision dealt with junior college students and not teachers, the significant aspect of that case was the distinction between the high school and college environments. While we acknowledged that the application of differing legal standards to circumstances often separated only by several months was sometimes arbitrary, we nonetheless concluded that as a general rule, the maturity of college students and the marginal relation of a college student's hirsute appearance to administrative and educational processes rendered grooming restrictions in institutions of higher learning constitutionally impermissible. Thus, although Lansdale itself applies to college students, its underlying rationale strongly supports Hander's position. As Judge Clark, writing for the court, observed:

Today the court affirms that the adult's constitutional right to wear his hair as he chooses supersedes the State's right to intrude.

470 F.2d at 663. If college freshmen are treated as members of the adult population, college teachers a fortiori enjoy this status. See Conrad v. Goolsby, 350 F.Supp. 713 (N.D.Miss.1972).

The plethora of public employee cases on which the college relies does not provide convincing precedent for this case. In the majority of cases in which federal courts have upheld dismissals in the face of constitutional challenges, the public employer has presented evidence of a compelling interest in enforcing the grooming regulation in question. In Yarbrough v. City of Jacksonville, 363 F.Supp. 1176 (M.D.Fla.1973), aff'd memo, 504 F.2d 759 (5th Cir. 1974), for example, the city offered evidence that beards and long hair might interfere with the proper wearing of a fireman's oxygen mask. Cases upholding a city's or state's right to regulate the appearance of policemen or firemen recognize the need for establishing discipline and maintaining the public's confidence in employees working in such sensitive and highly visible roles. See, e. g., Stradley v. Andersen, 478 F.2d 188 (8th Cir. 1973). Teachers, even at public institutions such as San Jacinto Junior College, simply do not have the exposure or community-wide impact of policemen and other employees who deal directly with the public. Nor is the need for "discipline" as acute in the educational environment as in other types of public service.

The college's attempt to justify its grooming regulation on educational grounds is equally unpersuasive. School authorities may regulate teachers' appearance and activities only when the regulation has some relevance to legitimate administrative or educational functions. E. g., Fisher v. Snyder, 476 F.2d 375 (8th Cir. 1973). In ...