Breen v. Kahl

DUFFY, Senior Circuit Judge

(dissenting) .

I respectfully dissent. Although no other United States Court of Appeals has done so, in a similar case, the majority of this panel embraces the opportunity to hold that a deliberate violation of the Dress and Grooming Code of the Williams Bay High School is justified because, they say, such a regulation is a violation of the United States Constitution.

The District Court in this case held that the students had a constitutional right to express their “individuality” and “individual taste” by wearing long hair in admitted violation of a published school code.

The school regulation which was deliberately violated by these two teenage students was not vague. Hence, there is no question in this case of procedural due process. However, the District Court found there was a violation of substantive due process, and the majority opinion agrees.

In the Dress and Grooming Code here under consideration, the school officials established norms of conduct in accord with prevailing norms in that area and which were accepted by all but two of the student body at Williams Bay High School.

The United States Supreme Court has not decided the points here at issue although that Court had the opportunity so to do. In Ferrell, et al. v. Dallas Independent School District, et al., 392 F.2d 697 (5 Cir., 1968), the Fifth Circuit was presented with a similar problem. In that case, three students of the Dallas High School claimed that a school regulation requiring them to trim or cut their hair as a prerequisite to enrollment, was a denial of due process under the Fourteenth Amendment. These boys were members of a musical group. The Court, at page 703, held: “We conclude there was no denial of substantive due process * * A petition for certiorari to review this decision was denied by the United States Supreme Court. ( 393 U.S. 856 , 89 S.Ct. 98 , 21 L.Ed.2d 125 (1968)).

Certiorari was also denied by the United States Supreme Court in Mar *1039 shall, et al. v. Oliver, President of Richmond Professional Institute, et al., 385 U.S. 945 , 87 S.Ct. 319 , 17 L.Ed.2d 225 (1966) which was an unreported Virginia case which involved the wearing of long hair and beards by college students.

The majority opinion quotes from and relies on Tinker, et al. v. Des Moines Independent Community School District, et al., 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969) where a number of students, in violation of a School Board ruling, wore black arm bands to school to protest the war in Vietnam. While concluding that such a regulation was non-enforceable as being in violation of the First Amendment, the Supreme Court specifically noted (393 U.S. at 507-508, 89 S.Ct. at 737): “The problem presented by the present ease does not relate to regulation of the length of skirts or the type of clothing, to hair style or deportment * * *. Our problem involves direct, primary First Amendment rights akin to ‘pure speech.’ ”

In the case at bar, these two long-haired students do not contend that their long hair symbolizes any specific viewpoint except possibly the defiance of school regulations. Of course, it may have expressed their “individuality,” a point deemed to be of great importance by the District Judge.

A point emphasized by the District Court and apparently approved by my colleagues, is that there was no sufficient proof that the long hair worn by Breen was a disruptive influence. However, if Breen had gone to his classes carrying a sign which stated “I am defying school regulations as to required hair lengths”, the effect would not be different. Why is formal proof necessary for something that is so obvious? All of the students were aware of the rule forbidding the boys wearing long hair and every time Breen appeared with his flowing locks, he was showing his defiance of and his contempt for the school authorities and the regulations as to hair length.

Suppose Breen required extra time each morning to comb and train his long hair. Could he demand, as a constitutional right, and to show his individuality, that morning classes commence at 10 a. m. instead of 9 a. m.? Where is the line to be drawn? Who is the final arbiter? The majority seems to believe it is the United States District Judge, subject to possible review by this Court.

By citing the case three times, the majority places great emphasis on the holding in Griswold et al. v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965). That case held that the use of contraceptives was part of marital “privacy” and therefore, within the “penumbra” of guarantees of the Bill of Rights. The Supreme Court there found the law forbidding the use of contraceptives was unconstitutionally broad and would involve difficult enforcement problems. In the case at bar, there is no evidence that appellees’ long hair had any “penumbral” characteristic.

School Boards in Wisconsin have been delegated legislative authority and responsibility to enact and enforce rules and regulations governing conduct of students attending the public schools under their jurisdiction. In fact, Wisconsin Statutes vest in the local board the management of affairs of the school district. Wis.Stats. sec. 120.12(1) (1967). The Board is empowered to make rules for the government of the schools and the district. Wis.Stats. sec. 120.13(1) (1967).

I think the majority opinion is clearly wrong in its pronouncement “The right to wear one’s hair at any length or in any desired manner is an ingredient of personal freedom protected by the United States Constitution.” I assume this broad statement includes boys or girls attending.High School. If so, the statement is unwarranted. Thus boys, imitating the style of the “Wild Man from Borneo” with hair unkempt and reaching down to the waist would, according to the majority opinion, have a federal constitutional right to defy school rules and regulations to the contrary.

*1040 I assume there are more than one hundred School Boards operating in the Western District of Wisconsin. If the District Judge is to be the arbiter of the length and style of hair and of various other items and practices included in school regulations, he will have little or no time to take care of ordinary federal district court business.

I would reverse the judgment of the District Court.