Arnold v. Carpenter

¶4KILEY, Circuit Judge.

¶5Defendant Community School Corporation (Board) appeals from a judgment for plaintiff Carpenter declaring Wawa-see High School’s1 1970-71 dress code provisions regulating the length and style of hair for male students void as violative of due process. The district court enjoined enforcement of that part of the code. We affirm.

¶6The dress code was developed by a committee of students, teachers and administrators. The student committee members were elected by the student body. The code was adopted by a majority of the students. In general the code 2 sought “to insure the best possible overall appearance” of the student body and was expressly intended as a guide to students, “where common sense fails to be a sufficient code of appearance.”

¶7A consent provision 3 authorized noncompliance with the code requirements *941when “absolutely necessary” if at the beginning of each semester a parent appeared before the school principal and gave written consent for the exception of his child. Under the code an offending student was punishable by separating him from classmates, assigning him to a different room and depriving him of any classroom participation until he adhered to the code.

¶8Parents were given written notice, before the 1970 school year, of the adoption of the code and its provisions, including the consent provision. When school opened in the fall of 1970, parents of four students, including Carpenter, refused to consent.4 The code penalty was imposed on Greg. Carpenter’s suit, the hearing and judgment before us followed.

¶9The district court effectually concluded on the above facts that Greg Carpenter had the right to wear his hair “at any length or in any stylethat the Board had the “substantial burden”— which it did not sustain — to justify the code limitation of that right; and that the consent provision of the code was “an attempt to discourage” Greg’s exercise of that right and that it accordingly violated the due process clause of the Fourteenth Amendment. The court ordered defendants permanently enjoined from enforcing the hair provision of the code and from imposing a penalty for its violation.

¶10I.

¶11The board argues that because the code was formed by a committee of “students, teachers and administrators” and adopted by a majority of the students, it was not an unreasonable and arbitrary interference with Greg Carpenter’s Fourteenth Amendment right.

¶12In Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969), and Crews v. Clones, 432 F.2d 1259, 1263 (7th Cir. 1970), this Circuit5 decided that “the right to wear *942one’s hair at any length or in any desired manner is an ingredient of personal freedom protected by the United States Constitution,” and that to limit or curtail that right, the state bore a “substantial burden of justification.” In Breen we held that since the students’ long hair did not create a disturbance of the efficient operation of the school, the state did not bear its burden of justification. In Crews we held that the disturbance shown was insufficient justification and we also considered and rejected as insufficient the Board’s reliance for justification upon “health and safety reasons.”

¶13The Board here does not claim that Greg’s long hair disturbed classroom decorum, distracted other students, interfered with the efficient operation of the school, or that the hair provision of the code was reasonably related to safety or health. It does not dispute the right to wear one’s hair in any manner or style. It argues that decisions upholding that right (Breen and Crews) do not control here because of the “unique” democratic formulation of the dress code by Wawa-see High School. The Board’s case stands or falls therefore upon the sole claim that the adoption of the code by the democratic teacher-student-parent process, with the consent provision, justifies enforcing the code.

¶14The Board relies on Wood v. Alamo Heights Independent School District, 308 F.Supp. 551 (W.D.Tex.1970). The decision in Wood, however, did not rest precisely upon the ground urged by the defendants before us. In that case, aside from the student participation in adopting the code, there was expert testimony that “extremes” in hair style had in the past created classroom distractions and disturbances. The court thought that the student participation “seem[ed]” to demonstrate a “reasonable and considerate approach” by the school authorities. Wood, at 553. The court also thought there was a not unreasonable basis for expert opinions “that lack of reasonable limits for student grooming would substantially affect discipline and decorum.” Wood, at 553.

¶15In Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971), the court held that the school board regulation against long hair was invalid and unenforceable since it infringed the student’s Ninth Amendment constitutional right to govern one’s personal appearance. Following the holdings in Breen and Crews, the court’s opinion by Judge Myron Bright held that the defendant school board failed to demonstrate the necessity of the long hair regulation. The court also viewed the manner in which the code was adopted and then stated:

Nor does the acceptance of the dress code by the majority of the St. Charles community and students justify the infringement of Stephen’s liberty to govern his personal appearance. Toleration of individual differences is basic to our democracy, whether those differences be in religion, politics, or life-style. 450 F.2d at 1077. (Emphasis added.)

¶16In Massie v. Henry, 455 F.2d 779 (4th Cir., decided Feb. 2, 1972), the court held that the school’s long hair regula*943tion violated the student’s right to be secure in one’s person guaranteed by the due process clause of the Fourteenth Amendment, even though the regulation there had been “recommended by a student-faculty-parent committee.” In striking down the regulation, the court looked not to the student participation in its formulation, but to the reasons given by the board as justification for the code.6

¶17We conclude that the democratic process used in adopting the code does not per se justify the denial of Greg Carpenter’s constitutional right to wear his hair in the mode he chooses.

¶18The school code hair provision, to justify impinging Greg’s constitutional right, must have a reasonable relation to some purpose within the school’s competence, such as avoiding substantial disruption of school activities or discipline. See generally Tinker v. Des Moines School District, 393 U.S. 503, 507, 514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1942). And in the absence of justification, the long hair provision must fall. Breen, Crews, Bishop, Massie, supra.

¶19We hold, on authority of this court’s decisions in Breen and Crews, as expanded in Bishop and Massie, that mere student participation in adoption of the code alone did not justify the limitation imposed on Greg Carpenter’s constitutional right to wear long hair.

¶20II.

¶21Defendants contend that nevertheless the consent provision saves the dress code hair provisions from fatal constitutional infirmity. The argument is that under Breen, 419 F.2d at 1037, the school and parent must share responsibility in the matter of hair grooming, and that the parent has the primary function for the child’s care and nurture in preparation for life in our society. Accordingly, the defendants claim that the consent provision of the code places responsibility for noncompliance with the parent where it belongs. They also rely upon various provisions 7 of Indiana law which place primary responsibility upon the parent for fundamental supervision of the child’s welfare.

¶22We recognize, of course, the primary responsibility of parents during out-of-school hours. We noted in Breen and Crews the conflict that arises between a school’s short hair requirements during school hours and a parent’s consent to long hair outside of school hours. True, had the father given written consent here, there would be no “conflict” between operation of the code during school hours and the student’s or parent’s wishes outside of school hours. However, we think that the mere failure of the parents to sign the consent form should not be used by the school as a basis for denying Greg the constitutional right to determine his own hair length. Moreover, since he appeared at school with long hair, it would seem prima facie that his parents were agreeable to it. We think the father could well with reason have decided, for instance, not to chill his son’s dissent from conforming to the requirements of the code. And if *944the father had that purpose, we are not persuaded he violated a paternal duty even if the father’s refusal to consent was “induced by certain political or sociological motivations,” as suggested by defendants. Not all fathers prefer to have their student sons conform unquestionably to the decision of the majority, or look upon dissent as meriting punishment.

¶23In our opinion the consent clause does not cure the fatal constitutional infirmity in the hair provision. See School District of Abington Tp. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), where the provision authorizing student absence from public classroom religious exercises — which violated the First Amendment free exercise and establishment clauses — did not save the Pennsylvania statute.

¶24Having followed Breen and Crews in establishing Greg Carpenter’s constitutional right, and finding no countervailing state interest justifying a limitation of that right, we see no basis upon which the Board can justify limitation by requiring a parent’s written consent for a student’s exercise of his right.

¶25III.

¶26We think the district court’s findings are sufficiently comprehensive to show the basis for the court’s conclusions. Atwood v. Fidelity & Dep. Co., 379 F.2d 498, 500 (7th Cir. 1967). The court expressly found that Greg Carpenter had a constitutional right to wear his hair at any length, that the defendants bore the burden of substantial justification of the hair provision, and that they failed to satisfy that burden. There were the legal elements necessary for the court’s judgment that the hair length limitation provision of the code violated Greg Carpenter’s constitutional right and is “null and void,” and that the consent provisions attempted to “discourage” or chill Greg’s exercise of that right.

¶27Affirmed.

¶41STEVENS, Circuit Judge

¶42(dissenting).

¶43If the sovereign elects to provide its citizens with protection against violence, disease and ignorance through public police, garbage collection and schools, such protection must be afforded to all on an equal basis. It is not necessary to decide that an individual has a constitutional right to appear as he pleases to recognize that a state may not deprive a child of a public education because he is ugly or ignorant, or because his hair style differs from that preferred by the majority at any given point in time.

¶44On the other hand, the fact that absurd arguments have been advanced to support certain dress codes, or the fact that the older generation has overreacted in its response to the younger generation’s desire to do its own thing, should not obscure the fact that society does have a legitimate interest in both the continuity and the mutability of its mores.

¶45Personal appearance, which comprises forms of dress and cleanliness, as well as hair styles, is merely one aspect of social behavior which the British broadly describe as “manners.” For centuries the older generation has forcefully imposed its manners on the young. With equal regularity the young have demonstrated that particular manners have no rational basis or cannot be justified by any compelling social interest. So manners continually change at varying rates. Conformity and nonconformity both serve legitimate ends.

¶46In the process of requiring the young to conform to the manners of their elders, parents and teachers are necessarily partners. If they agree that a child should be compelled to observe a given form of tradition, no matter how irrational it may be, the child has no legitimate recourse but to obey. To the extent that parents and teachers stand together, a child has no enforceable constitutional right to do his own thing.

¶47It is only when the parent supports a child’s attempt to accelerate a change in *945customs that a meaningful conflict arises. Regardless of whether parental support of a child’s attack on one aspect of our manners has a constitutional predicate, as a matter of policy that support is certainly entitled to respect. If that respect produces an accommodation which avoids an irreconcilable confrontation (such as a choice between a denial of education on the one hand and conformity to manners unacceptable to the child’s own parents on the other), the need for judicial participation in the process of 'social change can be obviated.1 Such an accommodation is reflected by this case.

¶48As in so many matters of school administration which appropriately recognize a parent’s interest in nonconformity,2 this dress code excused the child from compliance upon the request of his parents. Since the child has no enforceable right to remain unshorn or unwashed without parental consent, I find nothing offensive in a dress code which merely requires conformity unless excused by a child’s parents.3

¶49I would not open the federal courts to a parent who, by simply giving the school administrators appropriate evidence of his consent, has available an adequate remedy to protect his child’s interest in nonconformity or in a particular mode of appearance.4 The interest which plaintiff and his child seek to vindicate by this litigation does not, in my opinion, warrant invasion of an area in which other parents, in partnership with the teachers, and possibly also a substantial majority of the student body,5 have agreed that a measure of conformity to tradition is desirable. Just as the majority must learn to tolerate the nonconformist, so must he learn to tolerate the transient customs of his elders.6

¶50*946In sum, there are three reasons why the federal writ should not have issued: (1) the record discloses no danger that a child may be arbitrarily deprived of an education, nor any threat to the fundamental values of freedom of speech, of inquiry, and of belief' — the threat of irreparable injury is wholly absent; (2) if we ignore the admonition not to “intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values,” 7 the quality of our work, and the respect which it commands in the community, must inevitably decrease as our workload increases; and (3) of greatest importance, I believe the decision nourishes the pernicious seed of intolerance by encouraging confrontation rather than accommodation. I would not force Gregory to fast on Saturday when he visits Rome, but I would teach him not to sneer at Romans who do.

¶51I respectfully dissent.