Sherling v. Townley

• Decision Date: 25 July 1972
• Docket Number: No. 71-1474.,71-1474.
• Citation: 464 F.2d 587
• Parties: Britt SHERLING, a Minor by his Parents and Next Friends, Ray and Polly Sherling, etc., et al., Plaintiffs-Appellants, v. Dr. John F. TOWNLEY, Individually and as Superintendent of the Irving Independent School District, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 587 (1972)

Britt SHERLING, a Minor by his Parents and Next Friends, Ray and Polly Sherling, etc., et al., Plaintiffs-Appellants, v. Dr. John F. TOWNLEY, Individually and as Superintendent of the Irving Independent School District, et al., Defendants-Appellees.

No. 71-1474.

United States Court of Appeals, Fifth Circuit.

July 25, 1972.

John P. Knouse, Irving, Tex., for plaintiffs-appellants.

James W. Deatherage, Irving, Tex., for defendants-appellees.

Before JOHN R. BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges.

PER CURIAM:

This appeal involves a constitutional challenge to a school dress code adopted by the Irving (Texas) Independent School District. The District Court denied declaratory and injunctive relief against the enforcement of regulations governing the hair length of male students.

Our recent en banc decision in Karr v. Schmidt, 5 Cir., 1972, 460 F.2d 609, dictates an affirmance of that judgment.

Affirmed.

TUTTLE, Circuit Judge (concurring specially):

With extreme reluctance I concur in the decision of the court. I do so, because, as indicated in the opinion, our judgment of affirmance here is coerced by the recent en banc decision of this court in Karr v. Schmidt, 5 Cir., 1972, 460 F.2d 609, a decision which was concurred in by eight of the judges of this court in active service, but dissented from by seven members of the court. Although I was not a member of the en banc court, since I am not a member of the court on active service, I nevertheless am a member of the court in this case, the disposition of which was withheld pending the action of the court en banc in Karr v. Schmidt. This, therefore, is the only opportunity I have to express my views on the issue which was presented to the court en banc in Karr v. Schmidt. I do so by stating that were I a member of the en banc court, I would have associated myself with the carefully written dissenting opinion authored by Judge Wisdom and concurred in by Chief Judge Brown, and Judges Thornberry, Goldberg and Simpson. I would have also concurred in the dissenting opinion by Judge Roney in that I would have agreed with him that the intrusion into the private lives of eighteen year old high school students is prohibited by the Ninth Amendment as explicated in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, 1965.

It seems to me that the majority opinion in Karr posed the wrong question when it stated it as follows: "Is there a constitutionally protected right to wear one's hair in a public high school in the length and style that suits the wearer?" I would say that the question before the court was rather, "May the principal of a high school or the board of education of a county school system constitutionally deny a public education to a student solely because he elects to wear his hair longer than prescribed by the rigid requirements of the school board?" Another way to put it might be, "Can a local school board constitutionally divide otherwise eligible male students into two classes consisting of `short hairs,' on the one hand, and `long hairs' on the other, and expend publicly raised funds for the education of the `short hairs' and deny such education to the `long hairs'?"

I first faced this issue in the case of Ferrell v. Dallas Independent School District, 5 Cir., 1968, 392 F.2d 697, where the majority opinion assumed that "for...