Westley v. Rossi

• Decision Date: 09 October 1969
• Docket Number: No. 5-69 Civ. 50.,5-69 Civ. 50.
• Parties: Bruce Daniel WESTLEY, a minor by his mother and natural guardian, Mrs. Jane Westley, Plaintiffs, v. Douglas ROSSI, Alfred Norberg, Stanley Wilenski, Dr. John Weber, Lyle Bourdon, Spencer Nelson, Robert Smith and Harry Norr, Defendants.
• Court: U.S. District Court — District of Minnesota

305 F. Supp. 706

Bruce Daniel WESTLEY, a minor by his mother and natural guardian, Mrs. Jane Westley, Plaintiffs, v. Douglas ROSSI, Alfred Norberg, Stanley Wilenski, Dr. John Weber, Lyle Bourdon, Spencer Nelson, Robert Smith and Harry Norr, Defendants.

No. 5-69 Civ. 50.

United States District Court D. Minnesota, Fifth Division.

October 9, 1969.

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William I. Kampf, St. Paul, Minn., for plaintiff.

Rosenmeier & Simonet, by Gordon Rosenmeier, Little Falls, Minn., for defendants.

Korstad, Pokorny, Brophey & Lucas, by William B. Korstad, Minneapolis, Minn., for Minnesota Ass'n of School Administration.

Minnesota Ass'n of Secondary School Principals requested and was granted permission to file a brief amicus curiae.

NEVILLE, District Judge.

In conflict here is a 17 year old boy (appearing by his mother as natural guardian) who wears his hair at shoulder length and the members of the Board of Education, having jurisdiction over the Little Falls, Minnesota public high school where the school authorities adopted a rule providing: "Boys should have neat conventional male haircuts and be clean shaven." On August 25, 1969 at the opening of the fall term which would have started plaintiff's senior year he was brought or sent into the principal's office. The principal testified at trial that plaintiff's long hair was not combed, that he wore sandals and no socks and that his feet were dirty. He was told in substance by the principal to "shape up and cut your hair" before he attempted, or would be allowed, to enroll in school. "Shape up" to the principal meant clean up.

The next day plaintiff attended school in the same condition but was not permitted to stay even through the first hour of classes. The third day, August 27th, after the principal had called plaintiff's mother on the telephone, plaintiff and his mother appeared at the principal's office. At this time plaintiff wore socks but his hair was the same shoulder length. Since that time he has not attended school nor has he been permitted so to do without shortening his hair. On the witness stand the principal testified in effect that as of today he would not recommend readmission of plaintiff with his present hair style. The school's superintendent and another member of the Board testified along similar lines, although the superintendent decried the fact that plaintiff did not have an appearance at school's opening as he had in court, for he anticipated some middle ground might have been found and negotiated. In court plaintiff was neat appearing and cleanly, though his hair fell below his coat collar in the rear.

Plaintiff testified that he recognized he was an individualist, that he differed from the norm, first, because he was not athletic and did not compete in sports; second, because his family is a well-to-do family in Little Falls; and third, because his political and other beliefs are not the same as the majority of his peers, i. e., his contemporaries. He recognized that resentment of other students toward him has existed since the time of his sophomore year when his hair was not long, identified by him as a fairly small group of larger boys who both threatened him and on one or more occasions beat him physically. He stated that even with short hair, this same group of boys still might resent him.

Plaintiff was an A and B student in grade school and through the first year of high school. In his sophomore and junior years at high school his grades apparently became B's and C's. Plaintiff testified that he had not cut his hair since last March or early April; that he feels he has a right to wear his hair as he wishes; that he is and has been aware of a rule against long hair and expected on his return to school for his senior year in August that he might well be the subject of attention, suspension or expulsion.

Plaintiff asserted over and over again on the witness stand that he is perfectly willing to and will comply with all of the rules and dress code of the Little Falls Public High School except for the length of his hair; that he will wear socks and sandals and will govern his other dress according to the rules. He testified that he washes his hair every two days at the same time he takes a shower bath and that he keeps it combed.

Defendants contend fundamentally that their action is reasonable and appropriate in the premises and that they are not unreasonably discriminating against plaintiff and have good cause for enforcing the rule, at least as to this student. Plaintiff foundations his cause of action on the Civil Rights Act, 42 U.S. C. § 1983 which provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

It long has been settled that actions of a school board are "state action" within the meaning of the above statute. The question here is whether there has been a violation of plaintiff's constitutional rights.

Several reasons are cited in support of defendants' contentions and will be treated seriatim: First, defendants have attempted to show and apparently to rely to some extent on the fact that plaintiff is different, a nonconformist, an individualist, apparently not well liked by his contemporaries and guilty of deviating conduct other than hair style. No other reason than the dress code was seriously asserted by defendants at the trial or in the pleadings. Though the court received defendants evidence directed along this line, its materiality can well be questioned as applied to this case. The fact of prior trouble with other boys before he had long hair was stressed on cross-examination by defendants. The defendants also introduced and the court received in evidence a school notebook which plaintiff admitted was his and which contained on the cover in his hand-writing an obscene word written in two or three different ways. Defendants offered a photostatic copy of pages of plaintiff's 1968-69 high school annual publication which, had been found together with the notebook in a laboratory in the school and delivered into the possession of the principal. The first several pages contained obscene words. Plaintiff denied that any of this was his writing, however, and in the absence of any other showing the court rejected the exhibit on the grounds of lack of foundation, there being no proof that while the book was in the laboratory some other students with malicious intent might not have written in it and then caused it to be delivered to the principal. In any event, it is clear to the court that unless plaintiff were one who deviated from the norm, he would not insist on his present hair style. Other deviations from the norm, even to unpublicized obscenities — and there is no evidence that anyone other than the school authorities ever saw such — do not bear on the issue of plaintiff's constitutional right, if such it be, to wear his present hair style.

Second, defendants contend that the rule as to hair styles is merely advisory in nature and seem to urge that plaintiff never in fact was expelled. The court is unable fully to appreciate defendants' contention in this regard. The facts are quite clear that plaintiff was not allowed to enroll in school. The principal testified that he had authority to issue such a suspension as plaintiff received. While it is undoubtedly true that the principal may not have the final authority of ultimate expulsion it is clear that he was deputized in the case of this and several other boys to deny them the privilege of attending classes. Any inference attempted to be created that in reality plaintiff had not been denied admission to school for the last six weeks is not sound. The court suggested at the trial that if such were the fact, then plaintiff should be permitted to return tomorrow to school. The defendants were not willing so to agree. Thus whether or not the rule is advisory in the sense of being discretionary, discretion has been exercised adversely to plaintiff and he has been excluded from class.

Third, defendants contend that "* * * the school must assume its share of responsibility for seeing to it that students dress neatly and appropriately and that they develop habits of cleanliness and good grooming." The court does not deny that to some extent — though it does not attempt to define the limits — the school has functions in loco parentis; that for its own preservation it must exclude persons who are unsanitary, obscenely or scantily clad, carrying communicable diseases, persons with ulterior motives desiring to disrupt procedures, dangerous persons, etc. The court is impressed with the sincerity of witnesses Hill and Rossi that they believe they are carrying out the proper functions of an educational institution in the action that has been taken. The court does not impute to them any bad faith attempt to discriminate against this plaintiff. It seems to the court however from the evidence that there is no health hazard in permitting a student to attend with long hair whether or not combed, so long as it is clean. Certainly some if not most girls in attendance have hair as long as plaintiff's. The court cannot sustain the school board's position that it is entitled to control expression of opinion by students as evidenced by their manner of wearing their hair and dress if in fact such was clean, sanitary and no hazard to other students. A point was made that at the opening of school plaintiff appeared with dirty feet and no socks and wearing sandals. Despite plaintiff's statement on the stand that he is entitled to come to school filthy dirty if he wishes the court...