Stevenson v. Wheeler County Board of Education

• Decision Date: 17 November 1969
• Docket Number: Civ. A. No. 731.
• Citation: 306 F. Supp. 97
• Parties: George STEVENSON et al., Plaintiffs, v. WHEELER COUNTY BOARD OF EDUCATION et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

306 F. Supp. 97

George STEVENSON et al., Plaintiffs, v. WHEELER COUNTY BOARD OF EDUCATION et al., Defendants.

Civ. A. No. 731.

United States District Court S. D. Georgia, Dublin Division.

November 17, 1969.

C. B. King, Albany, Ga., Thomas M. Jackson, Macon, Ga., for plaintiffs.

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

ORDER

LAWRENCE, Chief Judge.

On September 15th I handed down an opinion in six cases brought by the United States against School Boards in the Southern District of Georgia seeking injunctions against the continued failure on their part to comply with commitments made to the Department of Health, Education and Welfare as to desegregation plans to be put into effect at the beginning of the present school year.

Up to that time freedom of choice existed in Wheeler County. During the school year 1968-69 Wheeler County High School, embracing all grades through the 12th, had an enrollment of 556 white and 63 black students. Wheeler County Training School, covering the same grades, had 477 colored and no white pupils. Despite the commitment to the Department of Health, Education and Welfare, the Board kept the choice plan in effect at the commencement of the current school year. Three hundred and twenty-nine black and no white students enrolled at Wheeler County Training School and 532 white and 198 black students enrolled at Wheeler County High School.

The desegregation plan agreed on provided that all students in grades 9 through 12 (the high school level) would attend Wheeler County High School. As a result of the court order mentioned, desegregation of the public school system has been achieved. At the present time the racial proportion of students in high school is 50-50 and the faculty consists of 15 white teachers and 8 colored teachers. The transition from freedom of choice to an integrated system has been accompanied by the problems inevitably connected with the adjustment to integration in a rural Georgia school system. By and large, the new order of things has been accepted. The School Board, Superintendent, principals, faculty and students have tried to make the unitary system work. In the main, the elimination of the dual system has been accomplished orderly and successfully.

All this is suddenly jeopardized by a lilliput of a lawsuit—a legal controversy that has upset everybody in the school system—a cause celebré that attracted a courtroom full of spectators when the matter was heard before me on November 12th. How has this new school crisis come about? What does it involve? It concerns the monumental question of the constitutional right of a student to wear a mustache in violation of a regulation of the school authorities.

I have previously expressed my disrelish of the job thrust upon me of saying how public schools should be run. I not only do not have the time but the task is far beyond my competence. Acree v. County Board of Education of Richmond County, D.C., 301 F.Supp. 1285, at 1288. Once again, I am cast in the role of a school administrator. With all my overload of work, I must decide the precise point at which the fuzz or down above the lips of a teenager becomes a mustache.

The issue, however, is not so miniscule as I have made it out to be. The head-on collision between student license and faculty authority possesses serious implications for the successful operation of the Wheeler County schools.

In preparation for the approaching term the Board of Education adopted on August 5, 1969, certain "Policies Governing Students." These included:

"Good personal grooming as well as behavior lends much to a good learning environment. All students will be expected to meet the standards of good grooming as set by the faculty and administration and interpreted by the principal or assistant principal of the school. These shall include items such as hair cuts, shorts, cullots, length of dresses, shirt tails, etc. These standards in detail will be presented to each student as a supplement to this handbook and will be discussed at length by your homeroom teacher."

At a pre-school planning session the policies were discussed by the members of the faculty. They were implemented in certain respects by spelling out "Neat Haircuts," proper length of dresses, etc. At some point, it is not exactly clear when, the faculty adopted a "clean-shaven" rule for male students. None of these faculty regulations were printed or posted; they are still only in the form of notes.¹ However, they were announced to all the students at a school assembly. This included the "clean-shaven" regulation. The policies were also announced by the teachers to the students in the various classrooms.

The "good grooming" policies have been uniformly enforced and there has been no racial discrimination. Four white students have been warned by teachers to cut their hair or shave, otherwise not to come back to school. In each case they complied. Nine colored youths have been similarly warned. All of them complied. Three others (the plaintiffs) refused to do so. They were respectively suspended on October 17th, 20th and 23rd. They are still out of school.

Each of the plaintiffs belongs to the Negro race. George Stevenson who is 16 testified that he objected to shaving until he is old enough. He says that he is not yet ready to put a razor to his face and stated that he, not the School Board, is the one to decide when he should do so. Like the other two plaintiffs, he testified that he has never shaved. Stevenson has a small but perceptible mustache. His mother testified that he would shave when he gets old enough and knows of no law requiring him to do so. Larry D. Harvey who is 15 years old but is large for his age proposes to grow a mustache. In fact, he has. He also has a fair growth of fuzz on his chin and his jaws. Avery W. Harvey, Jr., who is 17 objects to shaving and desires to grow a mustache. He already has.

The complaint charges that the expulsion of the plaintiffs has deprived them of rights protected by the Fourteenth Amendment. While petitioners do not allege a First Amendment right to wear a mustache and to attend school unshaven they assert that the constitutionally protected right to express one's individuality is involved. Ethnic factors are also claimed. The suit alleges that as a result of slavery the ancestors of petitioners were dehumanized and their manhood emasculated. They claim that the wearing of mustaches and facial hair growths are symbols for them and other black youths of their masculinity.

There were no racial overtones in the adoption of the "clean-shaven" policy. Among the witnesses for the Board was a colored high school teacher who strongly stressed the importance of good grooming in the educational process. She testified that shaving comes under it. All members of the faculty approved the rule that young men should be clean-shaven. School officials testified that any unusual diversion from the norm has a diverting influence on the student body. The basis of the rule in controversy is that mustaches and facial hair growth are distractive.²

In Ferrell v. Dallas Independent School District, 392 F.2d 697, cert. denied 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125, the Fifth Circuit Court of Appeals was faced with a case in which several students had been expelled for wearing Beatle-type haircuts. The Court initiated its discussion by attempting to determine the basis or authority for the right claimed to be infringed by the School Board in derogation of the Fourteenth Amendment. It assumed, for purpose of argument, that its origin is to be found in the First Amendment. "We shall assume, though we do not decide, for the purpose of this opinion that a hair style is a constitutionally protected mode of expression." Proceeding on this premise, the Court adopted the arbitrary-capricious-unreasonable principle applied in earlier First Amendment cases. The majority opinion stated:

"The decided cases clearly demonstrate that each case must be decided in its own particular setting and factual background and within the context of the entire record before the court in determining whether the rule or the action about which complaint is made is arbitrary, capricious, unreasonable or discriminatory. This approach to the problem is clearly demonstrated by the authorities hereinafter cited as well as the following: Thornhill v. State of Alabama, 310 U.S. 88, 101, 60 S.Ct. 736, 84 L.Ed. 1093, 1102; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 627, 63 S.Ct. 1178, 87 L.Ed. 1628, 1637; Dennis v. United States, 341 U.S. 494, 510, 71

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