# East Hartford Education Association v. Board of Education of the Town of East Hartford

> Court of Appeals for the Second Circuit · August 19, 1977 · 562 F.2d 838

URL: https://www.frixlaw.com/law-library/cases/9464154

## Case

- **Full name:** EAST HARTFORD EDUCATION ASSOCIATION Et Al., Appellants, v. BOARD OF EDUCATION OF the TOWN OF EAST HARTFORD Et Al., Appellees
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** August 19, 1977
- **Citations:** 562 F.2d 838
- **Precedential status:** Published
- **Opinion:** Dissent by Oakes
- **Judges:** Smith, Oakes, Meskill
- **Cited by:** 58 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

OAKES, Circuit Judge
(with whom Judge SMITH concurs) (dissenting):
In an area as fraught with uncertainty as constitutional law, it is particularly incumbent upon judges to explain carefully each analytical step they are making toward a particular conclusion and to evaluate searchingly each contention put forward by the parties. Reasoned analysis is particularly critical in a case of this nature, in which a school board, carrying the legitimacy of popular election, is claimed to infringe upon the liberty and expression interests of an individual employee who after exhausting mediation remedies seeks redress, in the time-tested constitutional framework, from the institution that has historically been charged with the task of guarding the individual’s most precious freedoms against undue infringement by the majority. The en banc opinion, by downplaying the individual’s interests here as “trivial” and giving weight to a school board interest not advanced as such, adds, it seems to me, an unfortunate chapter to this history. I dissent, with regret, not so much at the difference in value judgments that evidently underlies the majority’s opinion but because the case apparently involves so little in the majority’s view.
The panel majority opinion sought to follow a rather straightforward analysis: (1) appellant Brimley has a Fourteenth Amendment liberty interest in his personal appearance; (2) appellant also has a First Amendment interest, involving the right to teach; (3) the school board asserts three interests, two of which are invalid because ultra vires and the third of which (discipline) is not rationally furthered by this teacher dress code; (4) balancing these interests, appellant prevails. This dissent will discuss in the above order the treatment of each of these points in the en banc majority opinion.
First, since the en banc majority purports to follow Kelley v. Johnson, 425 U.S. 238 , 96 S.Ct. 1440 , 47 L.Ed.2d 708 (1976), it presumably assumes, as did the Court in Kelley, id. at 244 , 96 S.Ct. 1440 , that appellant does have a Fourteenth Amendment liberty interest in his personal appearance, even if not a “fundamental” one. If the school board cannot put a proper purpose that is rationally related to its regulation on the other side of the scales, this liberty interest alone, however “trivial,” will carry the day for appellant. See Tardif v. Quinn, 545 F.2d 761, 764 (1st Cir. 1976), quoted in panel majority op., ante, at 846 n.9; Perry, Substantive Due Process Revisited: Reflections On (And Beyond) Recent Gases, 71 Nw.U.L.Rev. 417, 427-30 (1976).
Second, the en banc majority baldly states in a footnote, without citation of authority, that appellant’s asserted First Amendment right to teach is not a constitutionally cognizable interest. Ante, at 857 n.5. But this established constitutional right will not disappear because the en banc majority simply chooses to ignore it. It exists in full-blown form at the college level. See, e. g., Keyishian v. Board of Regents, 385 U.S. 589, 603 , 87 S.Ct. 675 , 17 L.Ed.2d 628 (1967); Barenblatt v. United States, 360 U.S. 109, 129 , 79 S.Ct. 1081 , 3 L.Ed.2d 1115 (1959); Sweezy v. New Hampshire, 354 U.S. 234, 250 , 77 S.Ct. 1203 , 1 L.Ed.2d 1311 (1957) (plurality opinion). Teaching methods in public high schools are in many instances protectible under the *864 First Amendment, as the authorities cited by the panel majority demonstrate, ante, at 843, and as more recent authorities continue to affirm, see Minarcini v. Strongsville City School District, 541 F.2d 577, 582 (6th Cir. 1976); Cary v. Board of Education, 427 F.Supp. 945 (D.Colo.1977). While serious questions arise in measuring the parameters of the right in the context of public high school teaching, as the panel majority fully recognized, ante, at 843, answers to those questions are not aided by the ostrich-like presumption that they do not exist.
To be sure, the en banc majority does discuss at length symbolic speech, a concept quite separate from the right to teach. I do not disagree with the majority’s conclusion that, to the limited extent that appellant is making a symbolic speech claim, it is close to the conduct end of the speech-conduct continuum. But even this conclusion still leaves appellant with a First Amendment constitutional interest that can be overcome only by a state regulation rationally related to a valid purpose.
Third, the en banc majority abandons two of the interests asserted by the school board, 1 presumably agreeing with the panel majority that they are outside the scope of the board’s statutory powers, panel majority op., ante, at 845; concurs with the panel in identifying a third interest; and makes up a fourth of its own. I agree fully with the en banc majority that the third and last interest asserted by the board — involving discipline, respect, and decorum in the classroom — is a proper one. The point made by the panel majority was that this interest did not seem furthered in any rational way by the teacher dress code at issue here. The en banc majority opinion makes no attempt whatever to address this critical analytical point. 2 Instead, its logic appears to be: “The interest is furthered by the dress code because the school board says that it is.” Whatever argument might be made that the school board’s ends are furthered by its means, the en banc majority does not make it, and certainly the essential connection between means and ends is not here self-evident. 3 The majority’s less than rigorous inquiry is well short of the least demanding formulation of the inquiry necessary to determine the rationality of a state regulation. See, e. g., Maher v. Roe, - U.S. -, -, 97 S.Ct. 2394 , - L.Ed.2d-(1977).
*865 The en bane majority also makes up an interest, respect for traditional values, 4 that is not put forward by the school board. I understand it to be settled constitutional doctrine that only objectives articulated by the State are to be used in considering whether a regulation is rational. See, e. g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 , 314-15 & n.6, 96 S.Ct. 2562, 2567 , 49 L.Ed.2d 520 (1976) (per curiam) (“the purpose identified by the State”); Johnson v. Robison, 415 U.S. 361, 376 , 94 S.Ct. 1160, 1170 , 39 L.Ed.2d 389 (1974) (“whether there is ... a fair and substantial relation to at least one of the stated purposes”); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973); McGinnis v. Royster, 410 U.S. 263, 276-77 , 95 S.Ct. 1055 , 35 L.Ed.2d 282 (1973). See also Schlesinger v. Ballard, 419 U.S. 498 , 520-21 & n.11, 95 S.Ct. 572 , 42 L.Ed.2d 610 (1975) (Brennan, J., dissenting); Gunther, The Supreme Court, 1971 Term— Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972). I had imagined that the day when courts supplied imaginary purposes for state regulations had passed.
The reason that the school board never asserted this interest, of course, is clear: the tie requirement is not related in any rational way to the admitted responsibility of a school board to inculcate traditional values in its students. The en banc majority does not enlighten us as to which value it has in mind, but in any event a necktie is a mere conventional fashion, with no connection of which I am aware to any traditional value. I fear that the majority simply confuses traditional values with mindless orthodoxy. The inculcation of the latter, of course, as the panel majority pointed out, is constitutionally forbidden. Ante, at 845 n.8.
Finally, the process by which the en banc majority balances the interests involved is defective. As Professor Gunther has pointed out, “responsible” balancing requires careful identification and separate evaluation of “each analytically distinct ingredient of the contending interests.” Gunther, supra, 86 Harv.L.Rev. at 7. This the en banc majority fails to do. Rather, at the end of the majority’s discussion of each of appellant’s two interests, it simply states that a teacher dress code rationally promotes the two interests identified as those of the school board and hence overcomes the interests of appellant. Even if a rational connection between the tie regulation and board interests did exist, as to which see text at notes 2-3 supra, the majority’s assumption that both of appellant’s interests can be disposed of separately under a rational relationship test is in my view not well-founded. If only a Fourteenth Amendment liberty interest were at stake, such a test might be the proper one to apply. See Kelley v. Johnson, supra; Tardif v. Quinn, supra; Miller v. School District No. 167, 495 F.2d 658 (7th Cir. 1974) (Stevens, J.). 5 When, instead, a First Amendment interest is asserted, there must in addition be some inquiry by the court into whether the state had available “ ‘less drastic means for achieving the same basic purpose.’” Wooley v. Maynard, 430 U.S. 705, 716-717 , 97 S.Ct. 1428, 1436 , 51 L.Ed.2d 752 (1977), quoting Shelton v. Tucker, 364 U.S. 479, 488 , 81 S.Ct. 247 , 5 L.Ed.2d 231 (1960); see James v. Board of Education, 461 F.2d 566, 574 , 575 n.22 (2d Cir.), cert. denied, 409 U.S. 1042 , 93 S.Ct. 529 , 34 L.Ed.2d 491 (1972), quoted in panel majority op., ante, at 846. The necessary implication of James is that a less drastic means test must be applied even when it is a public employee *866 who is asserting the First Amendment claim. See 461 F.2d at 571 -72 & n.13.
When an individual has more than one constitutional interest at stake, at least when one involves the First Amendment, a higher degree of scrutiny is required. 6 In Police Department of City of Chicago v. Mosley, 408 U.S. 92, 98-99 , 92 S.Ct. 2286 , 33 L.Ed.2d 212 (1972), for example, the Supreme Court “carefully scrutinized” justifications for selective prohibitions against picketing near schools under the equal protection clause because expressive conduct within the protection of the First Amendment was involved; the governmental interest served by the regulation was therefore required to be “substantial.” Only in this way, with the interests on each side aggregated rather than viewed separately, can any meaningful balancing take place. If, instead, the en banc majority’s pro for-ma, sequential “balancing” is all that is required, a new and dimmer day is dawning, at least for public employees, and perhaps more broadly for all forms of constitutional adjudication involving individual rights.
I think the en banc majority gives away the real basis for its simple bow in the direction of balancing when it suggests that to hold otherwise is to give federal judges “a ‘roving commission’ to right wrongs and impose our notions of sound policy upon society.” Ante, at 862. I had always thought that the federal courts were given by Article III of the Constitution and the doctrine of judicial review not a “roving commission” but a sworn duty to interpret and uphold that document equally for all who come before them. Constitutional doctrines have evolved that we may be aided in this awesome task, and, in my view, we must strive with as much intellectual clarity as possible to apply those doctrines to the case at hand. It is when we do not do this that we are truly imposing our own notions of sound policy on society, for our conclusions are then rooted in the shifting sands of our own prejudices and not in the rich, well-furrowed soil of the Document we are sworn to interpret. An individual’s rights in this sense can never be “trivial.” They are constitutionally based or they are not; they are opposed by rational state interests or they are not; they prevail in the balancing process or they do not. Here, they should prevail.
I dissent.
. These were establishing “a professional image for teachers” and promoting “good grooming among students.” Ante, at 844.
. The panel majority opinion dealt with this interest as follows:
It is far from clear that a tie code like that in issue here has any connection with respect or discipline. Indeed, appellant puts forward the seemingly more reasonable proposition, which we must accept at this stage, that being tieless helps him to maintain his students’ respect. Teenagers, who are so often rebellious against authority, may find a tieless teacher to be a less remote, more contemporary individual with whom they can more easily interact, and hence to whom they are better prepared to listen with care and attention. It is highly questionable, and certainly not established on this motion for summary judgment, that the Board’s valid end of promoting discipline is substantially, or even incrementally, furthered by its tie regulation.
Ante, at 845 (footnotes omitted). I see no reason to alter this view at this stage, which is still one of summary judgment.
. By contrast, in Kelley v. Johnson, 425 U.S. 238 , 96 S.Ct. 1440 , 47 L.Ed.2d 708 (1976), the connection was explicitly made between the hair regulation at issue and the state interests of discipline esprit de corps, and uniformity in the police force.
The majority’s statement, ante, at 861 n.12, that Quinn v. Muscare, 425 U.S. 560 , 96 S.Ct. 1752 , 48 L.Ed.2d 165 (1976) (per curiam), “points toward a general application of Kelley to all public employees” is simply not correct. Quinn involved a fire department appearance regulation, and the same state interests detailed in Kelley were involved, as the Court in Quinn recognized, id. at 562, 96 S.Ct. 1752 . Even the en banc majority does not assert that the state has any interest in the discipline, esprit de corps, or uniformity of its teachers. Different state interests are involved here, and they must be balanced against appellant’s asserted rights on their own merits. See Perry, Substantive Due Process Revisited: Refíections On (And Beyond) Recent Cases, 71 Nw.U.L. Rev. 417, 427-30 (1976).
. Respect for “authority” is also mentioned, but I assume that this refers to the maintenance of discipline or to the inculcation of a traditional value.
. The en banc majority’s claim that Miller and Tardif were stronger cases than the instant one for appellant’s position, because “[b]oth involved dismissals rather than, as here, a reprimand,” ante, at 862, is groundless. The only reason that appellant was not dismissed is because, rather than defy the tie code, he chose to comply with it and make his challenge through the proper legal channels. See panel majority op., ante, at 840.
. This is a common technique in the equal protection area, where “strict scrutiny” is mandated when a claim of unequal treatment is combined with a claim that a fundamental interest is implicated. This is not to say, however, that appellant’s interest here is “fundamental” in the equal-protection-analysis sense or that “strict scrutiny” is required.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9464154. Public record. Not legal advice.