Schwartz v. Galveston Independent School District

Decision Date10 March 1970
Docket NumberCiv. A. No. 69-G-185.
Citation309 F. Supp. 1034
PartiesSenator A. R. SCHWARTZ, anf Richard Austin Schwartz, Plaintiff, v. The GALVESTON INDEPENDENT SCHOOL DISTRICT; the Board of Trustees of the Galveston Independent School District; Dr. Henry Jameson, Chairman; Superintendent of Galveston Independent School District, Eli Douglas; Principal of Ball High School, Richard F. Streiff; and Assistant Principal of Ball High School, Reginald Pope, Defendants.
CourtU.S. District Court — Southern District of Texas

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

Levy, Levy, Schwab & Coughlin, Ed Schwab, III, Galveston, Tex., for defendants.


NOEL, District Judge.

This is a suit for injunctive relief by a student against school officials. Plaintiff complains of his threatened suspension for the violation of a regulation restricting the way he may wear his hair. The issue is not whether the plaintiff has the right to wear long hair in the usual context, for the regulation permits hair to be worn much longer than what might be termed conventional or usual in Galveston, Texas. The issue is whether the School Board has the right to regulate to any extent the length of a student's hair and therefore plaintiff's hair.

Plaintiff says the real issue is what is best for students, which he interprets to be what is best for him in this instance. He feels that it is best for him to be permitted to wear his hair at whatever length he cares to, and that there is no constitutional foundation for any limitation on that right. Plaintiff casts his complaint in constitutional terms, asserting that by attempting to regulate his hair style, the school officials violate his rights of privacy, due process, equal protection, and freedom of expression.

Defendants in response deny that their regulation violates any right protected by the Constitution of the United States. They also move to dismiss for failure to exhaust available state remedies, and allege that even if plaintiff's desire to wear his hair contrary to the regulation is protected by the Constitution, their regulation is a reasonable and permissible restriction.

At the hearing set to receive evidence on plaintiff's request for a permanent injunction, this suit thus framed in constitutional terms emerged as a controversy over school policy and choice of curriculum. The significance of this change is profound.

1. Background

The Superintendent of Schools of Galveston has promulgated a regulation entitled "Dress." It was revised September 3, 1969, but has been in effect as a written regulation at least since March 30, 1967. For many years there has been either a written or an understood oral regulation on dress which includes hair and clothing. The current regulation applies to the matter here in controversy, and provides that "Boys must keep their hair clean, combed out of the eyes, and neatly cut."1

The September revision of the dress regulation was drafted in the summer of 1969. Before asking the Superintendent to amend the regulation, the Principal of Ball High School gathered together a number of representative students, students which he considered representative in the sense that they had been honored by their peers; they had been elected to various student offices and were believed to represent fairly the thinking of the student body. These students then were asked to designate a few faculty members in whom they placed their trust to assist them in reviewing the regulation. Other student leaders were also asked to participate.

The committee thus was finally composed of student leaders and faculty members selected by students, as well as the principal and associate principal. It met, discussed what standards were consistent with sound school policy, and gave the principal the benefit of its thinking in the matter. The draft prepared by the committee was carried up through administrative channels, was approved by the superintendent, and emerged as the current regulation.

The record shows that the regulation was left somewhat vague deliberately to permit students some freedom of expression and administrators some flexibility in enforcement. The record reflects it has been uniformly applied. And the record reflects that it has been liberally applied. For example, Afro-haircuts as such are not prohibited at Ball High School. Neither is the wearing of hair longer than what is commonly referred to as conservative prohibited at Ball High School. In the vernacular, the requirement at Ball High School (as applied to haircuts other than Afros) has been that boys' hair be over or above the collar, behind the ears, and out of the eyes.2

Plaintiff was first told by the Associate Principal, and then by the Principal, and then by the Assistant Superintendent, and then by the Superintendent, that the length of his hair exceeded the length allowed by the regulation. But plaintiff declined to have his hair cut. He appealed the Superintendent's ruling to the School Board, which found the regulation valid and declined to set aside the Superintendent's decision that plaintiff was in violation. Plaintiff then filed the instant suit.

Plaintiff testified here that he wears his hair at the length he wears it solely as a matter of personal preference, but with the approval of his parents.

By plaintiff's direct testimony and upon the record as a whole, I find that he does not intend that the length or style of his hair should express any idea, opinion, or point of view. At most, it is a mere expression of his personality which might be likened to the meaning conveyed by an artist who has painted a picture. It is plaintiff's view that he and his parents should be the sole judges of what length his hair should be.

2. Jurisdiction
a. Generally

Plaintiff is an eleventh grade student at the high school operated by the defendants as part of the Galveston Independent School District. Named defendants are the Galveston Independent School District, its Board of Trustees, Chairman, and Superintendent, and the Principal and Associate Principal of Ball High School. Also named in the complaint, but not in the caption, is Ball High School. The complaint does not indicate whether the respective individual defendants are sued in their individual or official capacity, or both.

The Court has jurisdiction over the parties and of the subject matter. 28 U.S.C. § 1343(3); 42 U.S.C. § 1983; Harkless v. Sweeny Ind. School Dist., 300 F.Supp. 794, 800 (S.D.Tex.1969). However, the complaint fails to state a claim upon which relief can be granted against any but the respective individual defendants in their individual capacity. Harkless, supra. This question has not been raised by counsel, but it is akin to jurisdiction, and it is the duty of the court to examine its jurisdiction.

In this case, as in most others brought under § 1983, dismissal of the District, Ball High School, and the respective individual defendants in their official capacity does not affect the pendency of or the issues in this lawsuit. This case is not like Harkless. There, because the plaintiffs had dismissed the respective individual defendants in their individual capacity during voir dire examination of the jury panel, dismissal of the remaining defendants required dismissal of the entire case. In most other cases, as in Harkless initially, suit is brought against the individual defendants in both capacities. Dismissal of the improper parties does not preclude prosecution of the suit against the proper ones. See, e. g., Graham v. Houston Ind. School Dist., Civ. No. 69-H-1019, S.D.Tex., Jan. 21, 1970 (Ingraham, J.).

In a suit like this for injunctive relief only, dismissal of the improper parties has no other effect at all. The relief sought is injunctive. In a suit against individual school officials in their individual capacity only, an injunction may issue binding all defendants and those acting in concert with them. Rule 65(d), F.R.Civ.P. See generally 7 J. Moore, Federal Practice ¶ 65.13 (1954). Such an injunction provides relief as effective as an injunction operating against a school district directly. See Ex parte Young, 209 U.S. 123, 173-174, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (Harlan, J., dissenting).

Only in a suit, like Harkless, for damages, is dismissal of the improper parties likely to have any practical effect. There, as the record of the voir dire examination of the jury panel after trial was commenced clearly reflects, counsel for plaintiffs made a tactical decision to dismiss the school board members in their individual capacity. The reason for this decision was that from questions asked the Court by a few members of the jury panel, it appeared that the jury would be more likely to award damages against the school district, a governmental unit, than against the school board members individually, all of whom were serving as a public service without pay.

A similar belief may have motivated Senator Sherman's attempt to amend § 2 of the Act of April 20, 1871, discussed at length in Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and Harkless, supra, 300 F. Supp. at 803-808. In support of his amendment, the Senator declaimed:

Let the people of property in the southern States understand that if they will not make the hue and cry and take the necessary steps to put down lawless violence in those States their property will be holden responsible, and the effect will be most wholesome. * * * It the amended provision connects the property of the county with the necessity of preserving the people against lawless and tumultuous violence.3

But Senator Sherman's amendment was rebuffed. Monroe, supra, at 188-190, 81 S.Ct. 473; Harkless, supra, at 803-804. The Congress determined that only delinquent officials and others acting in concert with them should be liable in damages. Courts should respect...

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    ...308 F.Supp. 570; Davis v. Firment (E.D.La.1967), 269 F. Supp. 524, aff. 408 F.2d 1085 (C.A. 5, 1969); Schwartz v. Galveston Independent School District (S.D.Tex.1970), 309 F.Supp. 1034; Southern v. Board of Trustees for Dallas Independent School District (N.D.Tex.1970), 318 F.Supp. 355; Leo......
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