Stevenson v. Board of Ed. of Wheeler County, Georgia

Decision Date26 May 1970
Docket NumberNo. 28875.,28875.
PartiesGeorge STEVENSON et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF WHEELER COUNTY, GEORGIA et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

C. B. King, Elliot Holden, Albany, Ga., Thomas M. Jackson, Macon, Ga., for plaintiffs-appellants.

Wilbur D. Owens, Jr., Macon, Ga., for defendants-appellees.

Before JONES, BELL, and GODBOLD, Circuit Judges.

BELL, Circuit Judge:

This is a civil rights case brought under 42 U.S.C.A. §§ 1981 and 1983, and 28 U.S.C.A. § 1343(3), by three male Negro high school students who were suspended from school for refusing to shave. The school authorities deemed them to have been in violation of good grooming rule. The proof disclosed that the rule was applied to all students alike, white and Negro. Two and only two issues are presented. First, whether the school board could constitutionally maintain a good grooming rule for its students which, as a part thereof, required that male students shave. Second, if so, whether the rule was unconstitutionally applied to the three students in question.

The case is such that the district court felt somewhat put-upon by having to fit a controversy over shaving into an inordinately busy schedule. It was viewed as a problem for school administrators. We share this view. The entire problem seems minuscule in light of other matters involving the school system. The district court had just required the conversion of the Wheeler County school system from a dual to a unitary system. Beginning in September 1969, the particular school attended by the three students here was converted from a predominantly white school into a school with a student body having a racial ratio of 50-50 and a faculty consisting of 15 white teachers and 8 Negro teachers.

The district court, after a full hearing, and as part of a comprehensive opinion, concluded that the good grooming rule which had been promulgated by the board of education was reasonable and that it was also reasonable to include a shaving requirement as a part of it if, as was the case, the faculty determined that such a requirement contributed to the educational environment. Stevenson v. Wheeler County Board of Education, S.D.Ga., 1969, 306 F.Supp. 97. The faculty adopted this requirement at a meeting prior to the beginning of school and all students, including the three here involved, were notified of the requirement.

At the outset, it is important to state that this case does not involve the right to wear a mustache; it is limited by its facts to three young men who, having entered puberty, have determined that they are not yet ready to shave or to otherwise remove the hair growth which has accumulated about their faces. In each instance, their parents were of the view that they did not need to shave. Neither the students nor the parents opposed the practice of shaving once the students have reached the point where they need to shave. The school officials say that point has been reached. The students and parents say it has not. The good grooming rule, as to hair style and shaving, had been applied to several other students, Negro and white, who promptly complied and remained in school.1

This court and the district courts of this circuit have become increasingly involved in the administration of the education process. Problems concerning the length of hair, and now whether male students should shave, have become federal cases. Ferrell v. Dallas Independent School District, 5 Cir., 1968, 392 F.2d 697; Davis v. Firment, 5 Cir., 1969, 408 F.2d 1085; Griffin v. Tatum, 5 Cir., 1970, 425 F.2d 201; Zachry v. Brown, N.D.Ala., 1969, 299 F.Supp. 1360. Cf. such cases as have involved the right to protest the Vietnam conflict. Tinker v. Des Moines Community School District, 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed. 2d 731, or the right to wear freedom buttons in school, Burnside v. Byars, 5 Cir., 1966, 363 F.2d 744; Blackwell v. Issaquena County Board of Education, 5 Cir., 1966, 363 F.2d 749.

We have not to date required finality on the part of complaining students in the sense of making certain that expulsion is final from the institutional viewpoint prior to seeking federal court relief. We mean by finality that the expulsion decision is not ripe for adjudication absent the denial of relief to the student by the school board or the designee of the school board, for such purposes. Indeed, in Dixon v. Alabama State Board of Education, 5 Cir., 1961, 294 F.2d 150, we held that due process required such an institutional remedy as a prerequisite to suspending students. Counsel for plaintiffs sought a hearing before the school board but was unable to be present on the date offered him. Suit was then filed in the federal court and no hearing before the school board was required by the district court although defendants contended that the court should not act until the school board had considered the matter.

The district court, as indicated by a statement made from the bench, seemed to be of the opinion that students in the category of these are not required to exhaust administrative remedies. It is true that in Damico v. California, 1967, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647, a welfare case, the Supreme Court described a 42 U.S.C.A. § 1983 remedy as being supplementary to state remedies. This holding was first made in Monroe v. Pape, 1961, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492. See also Houghton v. Shafer, 1968, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319; King v. Smith, 1968, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Note, Exhaustion of State Remedies Under the Civil Rights Act, 68 Colum.L.Rev. 1201 (1968).

We do not take these cases to hold, however, that federal courts are to intervene in school personnel and management problems without requiring such prior reference to local institutional authority as may be necessary to assure that the action complained of is final within the institution in the sense that it is ripe for adjudication. On finality, cf. Scoggin v. Lincoln University, W.D. Mo., 1968, 291 F.Supp. 161, 173 (dictum in student suspension case).2 Cf. also Whitner v. Davis, 9 Cir., 1969, 410 F.2d 24, 28; American Commuters Assoc. v. Levitt, 2 Cir., 1969, 405...

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