Pritchard v. Spring Branch Independent School District, Civ. A. No. 69-H-1235.

• Decision Date: 22 January 1970
• Docket Number: Civ. A. No. 69-H-1235.
• Citation: 308 F. Supp. 570
• Parties: Austin E. PRITCHARD, and Michael Pritchard, Petitioners, v. The SPRING BRANCH INDEPENDENT SCHOOL DISTRICT; the Board of Trustees of the Spring Branch Independent School District, Truitt Lively, President; David Mathias, 11th Grade Principal of Spring Woods Senior High School; Jack Ballard, Executive Director of Secondary Education; and Mary Jane Riddle, Tennis Coach, Respondents.
• Court: U.S. District Court — Southern District of Texas

308 F. Supp. 570

Austin E. PRITCHARD, and Michael Pritchard, Petitioners, v. The SPRING BRANCH INDEPENDENT SCHOOL DISTRICT; the Board of Trustees of the Spring Branch Independent School District, Truitt Lively, President; David Mathias, 11th Grade Principal of Spring Woods Senior High School; Jack Ballard, Executive Director of Secondary Education; and Mary Jane Riddle, Tennis Coach, Respondents.

Civ. A. No. 69-H-1235.

United States District Court S. D. Texas, Houston Division.

January 22, 1970.

David H. Berg, Houston, Tex., for petitioners.

Knipp & Sedgeley, Ernest A. Knipp and James Kelly, Baker, Heard & Elledge, Dow H. Heard, Jr., Houston, Tex., for respondents.

MEMORANDUM AND OPINION:

HANNAY, District Judge.

A.

This suit for federal injunctive relief purports to call into question the action of Respondents as violative of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution of the United States and is urged pursuant to the authority conferred by Title 42, U.S.C.A. § 1983 and Title 28, U.S. C.A. § 2201.

I.

The suit is brought by Austin E. Pritchard, the father and next friend of the co-suitor, Michael Pritchard, a minor. Petitioners are residents of Harris County, Texas. The Respondent, Independent School District and subordinate Co-Respondent institution and individuals are located or resident in Harris County, Texas, and are therefore likewise within the territorial and venue jurisdiction of this Court.

The controversy arises out of disciplinary action taken against the Petitioner Michael Pritchard at the Spring Woods Senior High School where, prior to such action, he was a student in the 11th Grade. The Court has permitted an extensive, indeed exhaustive, evidentiary hearing upon the merits of the controversy. A pertinent preliminary question arises as to whether Petitioners have first properly exhausted their available administrative remedies. The adequate administrative machinery set up by Respondents for appeal and review in the area of student discipline, and the instances of judicially known adjustments and fair administrative solutions with respect thereto, do not support Petitioners' claim of exemption by reason of foredoomed futility. Controlling here is the principle that the Federal Civil Rights Act, Title 42, U.S.C.A., Section 1983 creates supplementary original federal jurisdiction independent of the prior remedial exhaustion requirement, Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647; McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, and that instant case under the Civil Rights Act is under all the present and immediate circumstances not so insubstantial as to compel withholding of federal jurisdiction at this time without more. See: King v. Smith, 392 U.S. 309, at 312, 88 S.Ct. 2128, 20 L.Ed. 2d 1118, footnote 4. This suit concerns discretionary state activity in an area of many possible variables rather than the constitutionality of a state statute per se or its particular application. Title 28, U.S.C.A. Section 2281. The Court will reach the merits in this case.

II.

The disciplinary action taken against the student Michael Pritchard resulted from his failure and refusal to comply with regulations at the Spring Woods Memorial High School governing male hair grooming. Responsibility for the maintenance of suitable attire by students during school hours, which includes the grooming of hair, is placed upon the principal of each school building by the Respondent Board of Trustees. Notice of this is provided to the students and their parents through an individual Student Handbook issued at the beginning of the school year. The established and uniform practice of the Board of Trustees is to vest in each individual building principal the authority to promulgate and enforce standards for acceptable male hair grooming in school. The standard in effect at Spring Woods Senior High School forbade male hair styling and growth to fall below the level of the eyes forward the head and forbade it to fall below the level of the collar in the back of the head. Sideburns of more than hitherto conventional length have been countenanced. The disciplinary enforcement of these standards is within the authority of each principal. The demeanor of each individual student concerned is considered in administering disciplinary enforcement of these standards and in evaluating the degree of administrative insistence that must be brought to bear in each case.

Pursuant to Article VII, Section 1, of the Constitution of the State of Texas, Vernon's Ann.St., which empowers the state legislature "* * * to establish and make suitable provision for the support and maintenance of an efficient system of public free schools", the Board of Trustees of the several Independent School Districts have hitherto derived their regulatory authority over their respective schools through Article 2780, Vernon's Ann.Texas Civil Statutes. This authority of the School Boards of Trustees is preserved in the amendatory Texas Education Code, V.A.T.S., effective September 1, 1969. The pertinent provisions of this statute are Section 23.25 and Section 23.26(b) and (d):

"§ 23.25. Powers and Duties

The Board of trustees of an independent school district shall have the powers and duties described in this subchapter, in addition to any other powers and duties granted or imposed by this code or by law.

§ 23.26. In General

(b) The trustees shall have the exclusive power to manage and govern the public free schools of the district.

(d) The trustees may adopt such rules, regulations, and by-laws as they may deem proper."

III.

The student Pritchard, as the record and testimony reveal, had a record in the previous school year of 1968-1969 at Spring Woods Senior High School on the question of excessive hair growth. In the present school year of 1969-1970, on December 8, 1969, the student Pritchard appeared before his 11th grade principal for a conference regarding his hair. He was given until the following Wednesday, December 10, 1969, to have his hair properly trimmed. This he failed or refused to do, and on the latter date he was sent home from school. (It is material that his readmission to school is contingent only upon his compliance with the grooming regulation in question). By this time his parents had made it known to the grade principal, or were soon to make it known to him, that they were not going to require their son to comply with the school directive. The elder Pritchard testified at the hearing. He contacted the grade principal to request reconsideration of the order. He contacted and sought advice from other officials within the school system on an individual basis. There is no proof that the matter was ever presented before a duly constituted reviewing panel of the school. By his own testimony the father decided to become adamant after conferring with the grade principal. His position was that the matter was one of parental prerogative and responsibility rather than school authority; that he would first have to be convinced that a school disciplinary problem existed or that school disruption was being caused; and that the word of the school authorities on this subject in this case was insufficient.

The student Pritchard testified at the hearing. He admitted full awareness of the regulations and that he was in knowing violation of these regulations at times material herein. He further testified that he knew of altercations and name calling episodes between exponents of long hair for males at the school and the students there who objected to it. The student Pritchard is a musician. He has in his spare time played in a band for some two years and earned a degree of remuneration for this work. He testified that his audiences are less appreciative of short hair. He did not testify that they in effect demand of him male hair grooming in excess of the school regulations. If so, it is not shown that this could not be accomplished by an artificial wig at appropriate times.

School officials brought forth by Respondents testified emphatically and with corroboration of a growing disciplinary and decorum problem in school relating to male student long hair. An incident of this has been a noticeable diminution in academic excellence. This fact is fairly reflected in the student Pritchard's academic performance at Spring Woods High School over the last two and one-half years — the latter half of which period is identified with the long hair problem. Academically, the record reveals Pritchard to be an acceptable but not a superior scholar. Over the period in question his general grades have ranged from A to C, that is, from excellent progress to average progress. A closer look reveals that there has been a discernible trend downward in hard core subjects not related to music. For instance, in his ninth grade, the school year 1967-1968, his grade in algebra dropped from B to C. In the same year his grade in physical science fell the same. In the following year, 1968-1969, which includes both semesters, his only grade above C in a non-music related course was in English. In the first two periods of the first semester of the current academic year, 1969-1970, the case was the same except for American History; and his curriculum for the current year as shown by the record reveals no courses in math or science and three different courses that are music related. His conduct record has been somewhat erratic on the basis of the positive proof before the Court. The student Pritchard further testified that he has pressed his case substantially in reliance on what he deems to be his constitutional rights vis-a-vis the school authorities in light of recent cases and his understanding of them.

The record and the testimony of the Petitioners do not disclose that the student Pritchard was attempting to express any particular ideological, political, religious, or philosophical...