# John E. Zeller v. Donegal School District Board of Education > Court of Appeals for the Third Circuit · January 8, 1975 · 517 F.2d 600 URL: https://www.frixlaw.com/law-library/cases/9461829 ## Case - **Full name:** John E. ZELLER Et Al., Appellants, v. DONEGAL SCHOOL DISTRICT BOARD OF EDUCATION Et Al. - **Court:** Court of Appeals for the Third Circuit - **Decided:** January 8, 1975 - **Citations:** 517 F.2d 600 - **Precedential status:** Published - **Opinion:** Dissent by Seitz - **Judges:** Seitz, Aldisert, Oct, Rule, Weis, Jan, Van Dusen, Adams, Gibbons, Rosenn, Hunter, Garth - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9461829 ## Opinion text SEITZ, Chief Judge (dissenting). I dissent from the holding of the plurality opinion that the complaint in this case may be dismissed for failure to state a constitutional claim upon which relief can be granted. I am also unable to subscribe to the position taken by Judge Rosenn that dismissal of the complaint can be sustained on the basis of-the qualified immunity of school officials. I will treat the immunity question before turning to the rationale of the plurality holding. The district court disposed of this cause of action by treating a motion for judgment on the pleadings as a “motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure.” Although the court withheld its ruling on the motion until completion of a hearing on plaintiff’s petition for preliminary injunction, nothing in the court’s opinion of October 29, 1971, indicates that reliance was placed on any matter other than the complaint in dismissing the suit. Furthermore, there was no entry of judgment for the defendants. This shows that the district court did not, on its own initiative, treat the defendants’ motion as a motion for summary judgment and consider matters outside the pleading in reaching its decision. See Duane v. Altenburg, 297 F.2d 515 (7th Cir. 1962). The absence of an entry of judgment for defendants also underscores the fact that the district court did not attempt to consolidate trial on the merits with the hearing on the application for a preliminary injunction pursuant to Rule 65(a)(2), F.R.Civ.P. The subject of consolidation was never broached by the court at any time. What we have before us, then, is the granting of a motion to dismiss for failure to state a claim on the ground that the basis for Brent Zeller’s exclusion from the soccer team presented no sub *612 stantial federal question. The issue of immunity was not raised by defendants’ motion for judgment on the pleadings and was not considered by the district court in dismissing the action. 1 The notion of sustaining dismissal on a ground neither raised nor treated in the court below gives me pause. When such an affirmance is on the basis of the defendants’ immunity from a suit for damages, I am forced to conclude that such action by an appellate court is impermissible. A necessary predicate of Judge Rosenn’s position is that the burden was on the plaintiff to allege facts necessary to negative the possibility that the defendants possessed a qualified immunity from liability for damages under 42 U.S.C. § 1983 . Indeed, he relies on the fact that “the complaint makes no allegations indicating a malicious intent on the part of defendants. . . But it is my understanding that immunity is an affirmative defense which must be pleaded either by motion or by answer. Smith v. Losee, 485 F.2d 334 (10th Cir. 1973), cert. denied, 417 U.S. 908 , 94 S.Ct. 2604 , 41 L.Ed.2d 212 (1974); Green v. James, 473 F.2d 660 (9th Cir. 1973); McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir. 1968); see Lasher v. Shafer, 460 F.2d 343 (3rd Cir. 1972); 2A J. Moore, Federal Practice, Para. 8.27[4] (Cum. Supp.1973). Certainly the defense of “good faith,” closely akin to the qualified immunity described by the court in Wood v. Strickland, 420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975), is a “matter of defense, the determination of [which] must await proceedings beyond a Rule 12(b)(6) motion.” Safeguard Mutual Ins. Co. v. Miller, 472 F.2d 732, 734 (3rd Cir. 1973); Fidtler v. Rundle, 497 F.2d 794 (3rd Cir. 1974). Although Wood establishes a qualified immunity for school board members, I see nothing in that opinion which would reorder the burden of pleading and proving that immunity. Thus, I am unable to agree that plaintiff’s failure to allege facts in his complaint negativing a potential defense makes the complaint susceptible to a motion to dismiss for failure to state a claim. Nor am I persuaded that dismissal can be justified on the ground that “the absence of malice is confirmed by the statement of facts stipulated by the parties and the evidentiary hearing conducted pursuant to Zeller’s motion for a preliminary injunction.” In reviewing the district court’s granting of the motion to dismiss, the stipulation and evidence adduced at the injunction hearing appear irrelevant (1) because the burden was not on plaintiff at this stage of the proceedings to negate defendants’ immunity and (2) because the district court did not rely on either the stipulation or the hearing record in dismissing the complaint for failure to state a claim upon which relief could be granted. Consideration of a motion to dismiss requires the court to look solely to the well-pleaded allegations of the complaint, as the district court did in this case. Grand Opera Co. v. Twentieth Century-Fox Film Corp., 235 F.2d 303 (7th Cir. 1956). A distinction between this case and Wood reinforces my conclusion that that case cannot be relied on to dispose of the complaint of Zeller. While Wood establishes an immunity standard to be applied to school board members, 2 in the “specific context of school discipline,” it intimates nothing with respect to the immunity or good faith defense of officials such as a school superintendent, principal, athletic director or soccer coach, all defendants in this case. Certainly the individual defendants here are cloaked with different types of authority and are charged with performing different acts which may not involve the “exercise of *613 discretion, the weighing of many factors, and the formulation of long-term policy” which the Court found to be involved in the functioning of a school board. 420 U.S. at 319 , 95 S.Ct. 992 . As the Supreme Court stated in Scheuer v. Rhodes, 416 U.S. 232, 243 , 94 S.Ct. 1683, 1689 , 40 L.Ed.2d 90 (1974), where immunity is not absolute the scope of [the] immunity will necessarily be related to facts as yet not established, either by affidavits, admissions or a trial record. Final resolution of this question must take into account the functions and responsibilities of these particular defendants in their capacities as officers of the state government, as well as the purposes of 42 U.S.C. § 1983 . The necessity of considering the factors detailed by the Court at least with respect to the non-school board member defendants appears to me an additional reason to conclude that it would be erroneous to sustain the district court’s dismissal of the complaint on the basis of an immunity of undefined scope. I now turn to the constitutional issues raised by this case. In his complaint plaintiff alleges that application of the Donegal High School “Code of Conduct for Athletes,” which regulated hair length, violated his right of free speech and his rights to due process and equal protection guaranteed under the 1st and 14th Amendments to the United States Constitution. The plurality votes to affirm the dismissal of the complaint on the ground that plaintiff’s complaint fails to assert a substantial federal question. They would overrule our previous decisions in Gere v. Stanley, 453 F.2d 205 (3d Cir. 1971) and Stull v. School Board, 459 F.2d 339 (3d Cir. 1972), which held that choice of hair length was protected under the liberty provision of the Due Process Clause. If the complaint asserts a constitutional claim, I believe it was error to dismiss the complaint. I address that issue. The question, as I see it, is whether a public school student’s right to choose hair length is so constitutionally trivial that the state may regulate the right without being called upon to demonstrate a rational basis for its action. In short, the court must decide whether the doctrine of de minimus non curat lex applies in the context of a federal action to vindicate an element of an individual’s personal liberty under the Constitution. As the plurality notes in its opinion, the Circuits are split over the answers to these questions. The plurality has chosen to answer both questions in the affirmative. My answer is in the negative. Of course one’s response to either question implicates the importance one attaches to the concept of personal liberty. Our personal liberties are protected by the admonition in the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” This phrase has been construed to mean that personal liberties can be invaded by the state only if the state can demonstrate a rational basis for its action. In a very real sense this protection from arbitrary state action is what our constitutional system is all about. An attack on state regulation of hair length is viewed by some as not worthy of federal consideration. Those so concluding necessarily bring personal value judgments to bear. Others feel that under the Constitution the authoritative value judgment belongs to each individual, and that state infringement of any aspect of personal liberty may only occur when the state can provide adequate justification for its action. I endorse this latter view. I believe that access to the protection of constitutional rights afforded by the federal courts should not turn on the value which jurists attach to various personal liberties. Moreover, I think that it is particularly important for the courts to uphold individual liberties against non-rational state action in an age where the sanctity of the individual personality is being eroded by a variety of forces. Ju *614 dicial vigilance is the price of individual liberty. Every unchallenged invasion of such liberties makes the next one that much easier to rationalize. I am not impressed with the contention that federal courts have better things to do with their time than vindicate the right of a citizen to determine how he shall wear his hair in the absence of a rational explanation from the state for its regulation of that right. Certainly the federal courts are busy, but to sacrifice constitutional rights for the sake of alleviating the workload is to abdicate our responsibility. In my view, the federal courts’ most fundamental task is the protection of constitutionally guaranteed personal liberties. If, based on our value standards, we pick and choose what constitutional aspects of personal liberty we will protect in the federal courts, we shall not only negate the primary function of these courts but, more importantly, denigrate the importance of individual rights in American society. Certainly the list of rights and privileges contained in the Bill of Rights is not an all-inclusive enumeration of the individual rights of American citizens. The first eight amendments to the Constitution contain only a skeleton of highly visible and significant rights that were thought by the Framers to be vital to the form of government which they sought to perpetuate in this country. The Bill of Rights presumes the existence of a substantial body of rights not specifically enumerated but easily perceived in the broad concept of liberty and so numerous and so obvious as to preclude listing them. See 3 Story, Commentaries on the Constitution of the United States, 715-16 (1883). Unquestionably the most significant activities that fall within the scope of the concept of liberty are those that bear with immediacy upon the unencumbered functioning of economic or governmental processes in this country. Thus, it has been recognized that there is a constitutionally protected right to contract and to travel. Other activities, somewhat less significant, are included in the concept since they have traditionally been thought of as elementary freedoms or of great personal moment, such as the decision to marry or to procreate. Yet I feel that even such great and significant freedoms would be meaningless if other personal aspects of citizens’ lives could be manipulated by the government without justification. 3 I perceive the same assumptions in the guarantee of liberty in the 14th Amendment as exist in the 5th Amendment and throughout the Bill of Rights. I therefore interpret the liberty guarantee of the 14th Amendment as according all. personal conduct or activity that falls within the sphere of individual liberty protection from unjustified state intrusions. But, where the conduct or activity is highly personal, as in the case before us, and is not one of the momentous liberties that underlies our freedom in this country, it is subject to “regulation which is reasonable in relation to its subject and is adopted in the interests of the community. . . .” West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 , 57 S.Ct. 578 , 81 L.Ed. 703 (1937), quoted with approval in Gere v. Stanley, supra, at 209 . My interpretation finds support in numerous decisions of the Supreme Court that deal with the concept of liberty under the 14th Amendment. The Court has held, for example, that the concept of liberty encompasses not only the right of a citizen “to be free from mere physical restraint of his person, as by incarceration,” but also “to be free in the enjoyment of all his faculties,” Allgeyer v. Louisiana, 165 U.S. 578, 589 , 17 S.Ct. 427, 431 , 41 L.Ed. 832 (1897), and that *615 “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251 , 11 S.Ct. 1000, 1001 , 35 L.Ed. 734 (1891). The case before us involves an exercise of this essential right of the individual to the “control of his own person,” a right that may be overborne only by a rationally based exercise of state authority. In Jacobson v. Massachusetts, 197 U.S. 11 , 25 S.Ct. 358 , 49 L.Ed. 643 (1905), the Supreme Court found that the state’s compulsory innoculation plan was a justified invasion of the citizen’s personal liberty. However, it was careful to point out that generally the citizen was constitutionally entitled to be left alone. Thus it said: There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. Id. at 29 , 25 S.Ct. at 362 . I believe that choice of hair length is within that sphere of personal liberty where the individual has the right, under Jacobson , to assert the supremacy of his own will absent a rational basis for state regulation. As a noted judge said as long ago as 1879: There is and can be no authority in the state to punish as criminal such practices or fashions as are indifferent in themselves, and the observance of which does not prejudice the community or interfere with the proper liberty of any of its members. No better illustration of one’s rightful liberty in this regard can be given than the fashion of wearing the hair. Ho Ah Kow v. Nunan, 12 Fed.Cas. No. 6, 546, pp. 252, 254, n. 2 (Circuit Ct. D.Calif.1879) [quoting from 18 Am.Law Reg. 685 (remarks of Judge Cooley)]. I would reaffirm this court’s opinions in Gere and Stull and hold that plaintiff has stated a claim cognizable under the liberty provision of the Due Process Clause of the Constitution. The plurality, joined by Judge Rosenn, read Stull as requiring more than a reasonable showing by the state to justify the regulation of hair length. Although some language therein may be so construed, I read Stull as requiring no more than the “reasonable relation” showing of West Coast Hotel, supra. In any event, on the basic issue in this case — whether a constitutional claim is asserted in the present context — I believe Gere and Stull represent the view of a majority of this Court. Because I have concluded that plaintiff asserted a claim under the 14th Amendment, which would, therefore, require a reversal of the judgment of the district court, I find it unnecessary to take a position on plaintiff’s “equal protection” claim or his claim under the 1st Amendment. I would reverse the judgment of the district court. VAN DUSEN, ADAMS and GIBBONS, Circuit Judges, join in this dissent. . Nor was immunity pleaded in defendants’ answer except to the extent that an immunity defense may be read into defendants’ assertion that they were not required to give any hearing to students since they were “acting under their responsibility under the laws of the Commonwealth of Pennsylvania in executing the athletic programs” of the school district. . The only parties before the Court in Wood were the individual members of the school board. 420 U.S. at 309 , 95 S.Ct. 992 . . In Kent v. Dulles, 357 U.S. 116 , 78 S.Ct. 1113 , 2 L.Ed.2d 1204 (1957), the Supreme Court, in upholding the right to travel abroad as an aspect of liberty protected by the Due Process Clause stated: Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Id. at 126 , 78 S.Ct. at 1118 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9461829. Public record. Not legal advice.