Petition for Writ of Certiorari — Ferrell v. Dallas Independent School District

Supreme Court brief1968

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OPREME COURT. UB | WN 1 op

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. SUPREME. COURT OF THE UNITED STATES

OCTOBER TERM, 1968

—_ Lae

L. W. FEerke.t and Jo Puamz, Next Prien Jot

' ‘PHILLIP FERRELL, ET AL., db Py

y Petitioners,

Uv.

. er

DaLLas INDEPENDENT ScHoot Disraicr, ET AL.

bad

PETITION FOR A WRIT OF CERTIORARI TO THE _

| Attorneys for Petitioners.

June 3, 1968 | te |

Conclusion *

the Court’s J udgment

Vis A

, -o : « .

PESO BILE PATE MATA ITIE BIC SiN ORIEN, aE OPMTeS Foe

LE LLL \SEASURNERE: APRN PME NENOUERNER™ ND HE TERZON EES RS-TE' ReRERNORNTRSTeETE_‘ISSYENR: NE ean ene

ii : 4 Citations .

Cases: :

_ Alvin Ind dent School District v. Coop- |

. er, 404 § .W. 2d 76 ... REE RR, aan ASE oa

. Anderson v..Canyon Tadeo School

District, 412 SW. ee 3... choke ae Trane

| Brown v. Board of Education of seieatbiaie eee

3 Bidenelde v. Byars, 363 F. Rare 7 :

Byrd v. Sexton, 277 F. | Se RISER anna it

- Carrollton-Farmers Branch - Independent

ee Yi Knight, 418 S.W. 2d.

. Dennis v. Vales States, 341 U.S. 494 ooo.

West Virginia State Board of Education Vv.

Sn neti Bi 319 US. 624 .. a eee bn

" Statutes: | a eB .

Civil Rights Act, 42 US.C. Fl ae ;

- Vernori’s Annotated Texas ‘Statutes, Arti: -

= 2902 and FOE Fon csaseoecsteseesipeetCiastnnnninnsssogensonngnotn

: Paul Jarvis, pray that a writ of certiorari issue to review

.” the judgment of the United States Court of Appeals for

* March 29, 1968. . -

“In the |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968 |

No. ee

L. W. Fenner, and Jo Ferrett, Next Friends of

PHILLIP FERRELL, ET AL.,

ae Petitioners,

v. : 3 :

_ Datras Inpepenpent ScHoot Disraicr, ET AL.

PETITION F FOR A WRIT OF CERTIORARI TO THE

' UNITED STATES COURT OF APPEALS j

| FOR _ FIFTH CIRCUIT

6 .

‘Petitioners: L. W. and Jo Ferrell, Next Friends of

Phillip Ferrell, June Webb,. Next Friend of Stephen

‘Webb, and V. R. and Margaret Jarvis, Next Friends of

the Fifth Circuit entered in the above entitled case on

| _ OPINIONS. BELOW |

7 The majority, concurring and . dissenting opinions of

the Court of Appeals are not yet reported but dre print- _

_ ed in Appendix B hereto together with the judgment

and order denying rehearing, infra, p. B-1. The opinion

__ of the District Court is reported at 261 F. Supp. 545 - :

~- (Northern District of Texas v7 and i is _— in a

—_ A mareto, shen p. Al, ‘ | Pe

JURISDICTION |

The Sealine of the Circpit Court of nals 9 was |

. entered on March 29, 1968. Rehearing was denied on

April 30, 1968. The jurisdiction of this Court is invoked |

under 28 USC., Section 1254 (1). ° |

QUESTIONS PRESENTED

. Whether a state free public school's nid veiie”

_ ing petitioners to wear their hair in a manner satisfac-

tory to school authorities as a prerequisite to enrollment . . i

~ is (1) a denial of due process under the Fourteenth.

Amendment, (2) unlawful under the laws and Constitu- _

- tion of the State of Texas, and (3) violative of the Civil _

Rights Act, 42 U.S.C., Sections 1981 and 1983.

STATUTES INVOLVED oe:

ee The statutes involved are the Constitution of the

. State of Texas, Article VII, Section 1, Vernon’s An-

notated Constitution of the’ State of Texas, Articles

2902 and 2904, Vernon’s Annotated Téxas Civil Statut-

av ngreets . ee PSers ALN GOS A AEE I IID DELI STEROL OT OO Reiss sols ss ada eam ta een tae

beg aa te ne : os 3 ; 2

a es, the Fourteenth Amendment to the U. S. Constitu-

|. > + tion, and Sections 1981 and 1983 of the Civil Rights Act, |

|.» *.42 U.S.C. The Texas statutes and the cited portions of

| * the Civil Rights sie imate iki ariiai ne infra,

i ° : 1 | p. C-1. is }

STATEMENT OF THE CASE - |

| Petitioners are minors of school age residing 1 in Dal- ee

las, Texas, and represented by their natural ts as

next friends. In September, 1966, Petitioners a

to enroll in the W. W. Samuell High School, a facility of ;

the Dallas Independent School District, located-in the

| City of Dallas, Texas. On the opening day of school Pe- i

titioners reported to ‘the office of Mr. Lanham, the

Principal of W. W. Samuell High School: Prior to the },

commencement of the 1966 school year, school person- |

nel had-adyised Petitioners that they would not be al- ,

_ lowed to register: for admission to the — school be- \

'. cause of their hairstyle.

Mr. Lanham refused to admit Petitioners 1 to ston

unless and until they cut and trimmed their hair to his

| , satisfaction. Petitioners sought admission to other

| __— schools within the school district but admission or trans- _

| _° fer was denied. The Principal gave: as his reason for ©

denying Petitioners the right to enroll that their hair-:

style would be a disturbing influence in the school. |

. ~-Petitioners filed suit in the U. S. District Court for

| _ °° the Northern District of Texas to. compel the Dallas —

_ ‘Independent School District, its officers and agents, i in-

| cluding its s superintendent, W. T. White, and the prin-

| : ae 4

? . ,

cipal of W. W. Samuell High School, W. S. Lanham, to

permit their registration, and to restrain the school

district, its agents and employees from interfering with

- their proper matriculation. Petitioners raised in their

- pleadings in the District Court: the same questions that

are-presénted to this Court. The District Judge filed a.

_ ‘memorandum. opinion containing his findings of fact

and coriclusions of law in which a temporary restrain-

ing order against the school district and its representa-

tives was dissolved and the request of ‘potitionses for

injunctive reliéf was denied. >...) 5 +

The Fifth Circuit. Court of Appeals by its majority

opinion, Judge Tuttle dissenting, affirmed the judg-

ment of the trial court. . , :

REASONS: FOR GRANTING THE WRIT

1. This case presents important issues of interfer-

ence with constitutional rights of free.expression as the

basis for denying Petitioners a free public school edu-

cation. The majority opinion. of the Circuit Court con-

flicts with the’ principles established by this Court in

Dennis v. United States, 341. U.S. 494. The majority

below assumed that Petitioners’ haitstyle was “ a con-

stitutionally protected miode of expression.” .The ma-

jority then concluded that interferen¢e with this right

was justified by reason of the Principal’s fear of dis-

turbances if Petitioners were permitted to enroll. How-

ever, since Petitioners were never pérmitted to enroll

or enter classes, such fears were entirely speculative

AE " ’ : . TT TT ey ee am *

and conjectural. This interference with Petitioners’

rights was clearly unlawful under the Dennis rule that

“in each case courts must ask whether the gravity of

the ‘evil’, discounted by its probability, justifies such »

invasion of free speech as is necessary to avoid the

. difnger”

Ot particular tiaportance in this case is the natare of

the rights which the ‘majority opinion protects. These

protected rights are summarized in the majority opin-

ion (infra, pp. B-7, 8) as follows:

1. The.right of a “group of boys” to decide that

a classmate’s hair-was too long and “to take the

matter in their own hands and trim it themselves.”

2. alee ee

substantial harrassment.”

3. The right to use “obscene Janguage” with ref-

erence to classmates with long hair.

_ 4, The right to challenge long-haired boys to

fight because other boys “did not like long hair.”

As correctly pointed out in Judge Tuttle’s dissent, it

is the disruptive acts of the harrassing students that

should be regulated, not the expressions of individuality

by Petitioners. The majority opinion enforces conform-

ity on Petitioners in violation of this Court’s opinion in

West Virginia State Board of Education v. Barnette,

oF 319 U.S. 624, wherein it was held that the symbolism

; :

é 6 ;

of a flag salute could not constitutionally be imposed

upon students, this Court ruling as follows:

If there is any fixed star in our constitutional con-

stellation, it is that no official, high or petty, can

prescribe what shall be orthodox in politics, nation-

alism, religion, or other matters of opinion or force

citizens to confess by word or act their faith there-

in. If there are any circumstances which pot an

exception, they do not now occur to us.

The majority opinion also conflicts with the prior

opinion of the Fifth Circuit in Burnside v. Byars, 363

_ F. 2d. 744 (5th Cir. 1966), where it was held that

children could not be expelled from school for wearing

“freedom buttons” where there was no commotion or

disruption of classes. The Fifth Circuit there held that

the presence of the buttons did not unduly hamper

‘the school “nor would it seem likely that the simple

wearing of buttons unaccompanied by improper con-

duct would ever do so.”

The denial of a free public school education to Peti-

tioners solely by reason of their hairstyle conflicts

with the decision of this Court in Brown v. Board of

Education of Topeka, 347 U.S. 493, in which it. was

held that where the state undertakes to provide an

educational opportunity, it is “a right which must be

made available to. all on equal terms.” As stated by

Judge Tuttle in his dissent below, the classification of

students by hairstyle is “utterly unreasonable.”

2. The majority decision conflicts with the Texas

statutes and decisions in the crucial area of the'right to

per er ge ee -- . ~~

free public education. Article 2902 provides that Peti-

tioners are entitled to the benefit of public school funds.

Article 2904 provides that pupils may be suspended

only when found guilty of. “incorrigible conduct” and

even then, may be suspended only for the current term.

The Dallas Independent School District has perma-

nently suspended Petitioners, without any finding by

the courts below that Petitioners have been guilty of

incorrigible conduct.

Texas courts have ruled in several cases that the dis- .

cretion of a school board is limited in denying enroll-

ment or suspending students for conduct which merely

violates the standards of conformity adopted by the

trustees, without interfering with the operation of the

schools. In Carrollton - Farmers Branch Independent

School District v. Knight, 418 SW 2d 535 (Texarkana

Civ. App. 1967) err. ref.,.n.r.e. the court held that the .

school district had no power to suspend for a period of

three weeks studerits who married and to require such

students to reapply for admission. In Alvin Independent

School District v. Cooper, 404 SW 2d 76, (Houston Civ. -

App. 1966) the regulation of # school district excluding

from school the mother of a child was held invalid. In

Anderson v. Canyon Independent School District; 412

SW 2d 387 (Amarillo Civ. App. 1967) the school board

was not permitted to compel students who married

during the school term to withdraw from school for the

~ remainder of the school year.

Sinan gig es

er e

8. The majority opinion below conflicts with Section

1983 of the Civil Rights Act, 42 U.S.C. In finding no

violation of the Civil Rights Act reliance was- made

. upon Byrd v. Sexton, 277 F. 2d 418 (8th Cir. 1960).

The Sexton opinion applies a two part test as a stand-

ard to obtaining relief under the Civil Rights Act, first,

whether there has been a violation of state law, and

second, whether the plaintiff is a member of a class

which the Civil Rights. Act was designed to protect.

The Sexton opinion. concludes that relief under the

Civil Rights Act is limited to racial questions. This

construction of the Civil Rights Act should be reviewed

and reversed by this Court because it violates the -ex-

‘press terms of this important statute, and engrafts on

. the Civil Rights Act the very kind of Gipcrimination. ae

which the Act was intended_to eliminate.’ :

pera ‘CONCLUSION

The Petition for a Writ of Certiorari should be grant-

Respectfully submitted,

‘ eS aa , Attorneys for Petitioners

PCL REE ee 8 re “ ~S feows vige ’ aw . eens -_

_ APPENDIX A

In the |

UNITED STATES DISTRICT COURT

For The Northern District of Texas

‘Dallas Division*

' Civil Action

No. 3-1670

L. W. Ferrecy and Jo FERRE,

Next Friends of Pott FErre.:

JUNE Wess, Next Friend of STEPHEN .

Wess, and V. R.: Jarvis and MARGARET —

Jakvis, Next Friends of Paut Jarvis, ~’ .

fet Plaintiffs,

DALLAS INDEPENDENT SCHOOL District,

‘- W. T. Wurre and W. S. Lanuam,

| | Defendants.

OPINION

Plaintiffs brought this action for an alleged violation

of the right of the minor plaintiffs, Phillip Ferrell,

Stephen. Webb, and Paul Jarvis, to attend W. W.

Samuell High School in the Dallas Independent School

- District, alleging that jurisdiction of this court was

— 2, PALER ELIGLE NIE LE OE OR I A I LE Og OO ede ee

a ee a _

A-2

based upon §1 of Article 14 of the United States Con-

Stitution and the Civil Rights Act of 1964, Public Laws -

‘ 88-352, Title 42, U.S. Code Annotated, and particularly

§§ 1981, 1983 and 2000A. Plaintiffs alleged that the

minor plaintiffs were, in all respects, qualified: to enter

the academic facilities of the Defendant, Dallas Inde-. .

_- pendent School District, but were being denied the

right to admission and enrollment solely because of

the length and style of the minor plaintiffs’ hair; that

Defendant W. S. Lanham, Principal of W: W. Samuell

High School, discriminated against the minor plaintiffs

and that such action was arbitrary, discriminatory,

and violated the constitutional right of ‘plaintiffs to

equal opportunity for a public education. Because of

the recognized importance of an education.and the im-:

portance of classroom work at the commencement of

school, a temporary order requiring admission of the

_ minor plaintiffs was granted pending hearing and was

- made returnable to the Court on September 22, 1966.

_ Defendants, Dallas Independent School District, W.

T. White, Superintendent of: the Dallas Independent

School System, and Defendant W. S. Lanham, Prin-° -

cipal of the W. W. Samuell High School, answered and _

among other things questioned the jurisdiction of this

Court on the ground that no question arising under the

Constitution or laws of the United States was before

this Court. The Defendants also claimed that the al-

Jeged Fedeéral questions were frivolous and unsub-

stantial, and also that the Court had no jurisdiction for

(COR AE REBT ALP OLIN OE ETI Eg TT TE, RUE NGS “SR DONE RMR EVAR FSG GAR RE NENA RST OI Be ERT A gmt

—_- . 3 gd wt 2a - _— -_ :

A-3

the reason that plaintiffs had. failed to exhaust their

administrative remedies by submitting or presenting to

the Board of Education of the Dallas Independent

-+School District, State Commissioner of Education, —

and the State Board of Education, the alleged claim.

These legal defenses were taken under advisement and

the Court proceeded to hear the testimony offered by

plaintiffs and Defendants.

~» It appears from the tote that on the morning ©

i a of September 7, 1966, the opening day of school, instead

: -. of reporting to their home rooms, as was the usual

procedure, the Plaintiff Stephen Webb, accompanied by

his mother, the Plaintiff Phillip Ferrell, accompanied by _

his mother, and Plaintiff Paul Jarvis, accompanied and

’ represented by Kent Alexander, the booking agent of

the minor plaintiffs, went to the office of Mr. Lanham, .

the Principal of W. W. Samuell High School. The pur-

pose of this visit was to confer with Mr. Lanham, it be-

. ing understood that admission to the high school would ~

be denied by Mr. Lanham because of the hair style of

the boys. Mr. Lanham refused to admit the boys to

school and advised them to get their hair cut: or trimmed

before coming back to enroll. 2

_ The minor plaintiffs are members of a musical group —

or “combo” known as’‘Sounds Unlimited, and insisted |

‘to Mr. Lanham that they were under contract with Mr.

~ Alexander to maintain their dress and’ personal ap-

pearance, including the so-called “Beatle” type hair

style. The contract, Plaintiffs’ Exhibit 11, is in evidence

———————————————

A-4

and does so provide. There seems to be little question,

however, under Texas law, that this contract is unen-

forceable insofar as the minors are concerged. 30.Tex.. -

Jur. 2d 678, Infants, § 19, et seq.

As described by the mother of Stephen Wébb, who

was 18 years of age on September 7, 1966, Stephen’s —

. hair “is over his ears, but one can see the lobe of his ear.

It is not over his collar, but is over his forehead and

down to his eyebrows.” As described by the mother of

Paul Jarvis, “his hair is about 1 inch over his ears and

about 1% inches above his eyebrows.” Phillip Ferrell’s- |

hair, if hanging straight forward, would come below his ~

eyebrows, but is combed and turned to the side 80 as to

be a very short distance above his eyebrows. The hair

extends dawn to the ear lobe on the side and to. the

collar in the back. This hair style adopted by these

plaintiffs i is in conformity with the so-called “Beatle”

type hair style. There are numerous pictures admitted

in evidence in the record, not only of plaintiffs, but also

of other.musical combos, more accurately showing this

| Beatle type hair style. Among other things, the boys :

testified that they had attended W. W. Samuell High

- School the year before and that their hair during that

school year had been as long as it was on September 7,

_ After being refused admission to W. W. Samuell

High School, the boys went. to several other Dallas

High Schools seeking admission by transfer from the

Samuell High School District. — were advised by

| AS -

Mr. Lanham that it was too late to make application

for transfer to another high school. Within a short time

_the boys went to the Administration Building of.the .

‘Dallas Independent School District to see the Superin-

tendent, and according to the testimony of Paul Jarvis,

were met on the steps by a Mr. Allen, whom he under-

_ stood to be the Assistant Superintendent. They were

advised by Mr. Allen that there was no rule concerning

the length of a boy’s hair and that the Principal of each _

‘school set. his own rules and regulations in this regard

- and that there was no written rule in the book. It also

appears that Mr. Lanham first told Paul Jarvis that |

he would be admitted, but would have to have his hair

trimmed in a couple of days. However, when Jarvis

went to school the next day he was advised by Mr.

Lanham that the matter had been reconsidered and °

_ that. he would not be admitted until he did have his

hair trimmed.

Plaintiffs called to the witness und some seven

“young boys, ages 17 and 18, who had the Beatle type

_ hair style, three of whom attended W. W. Samuell High

School, two of whom attended Mesquite High School,

one of whom attended W. T. White High School, and ©

one of whom was attending Dallas Junior Collége.

From their testimony it appeared that this type. hair

style had been in vogue about three to three and a half

years and that some problems had developed in the.

_ beginning, but that this type of hair style was now

— eT by other students, and occasioned

A-6

no difficulties at this tigne. One of the Mesquite High —

School students testified that he thought that the |

coaches, athletes and teachers created whatever prob- .

_ lems developed in regard to the long hair. There was |.

some testimony to the effect that some of the athletes

at a nearby high school were now wearing the Mohawk

style haircut.

Plaintiffs called Principal Lanham to the aiid ‘and

, on this examination it appears that in his administra-

tion of the W. W. Samuell High School he was governed ~

by the Policy Book of the Dallas Independent School ©

District; that he was charged with controlling the at- .

__ tire of a student; that the boys’ long hair caused trouble ‘.

and commotion; that the long hair frequently caused ~

the exchange of obscene remarks to the long-haired.

boys; that the long. hair did attract attention and was .

disruptive i in the classroom; that he had not ruled out

long hair, but did not accept the extreme Beatle type

~ hair style. It also developed from Mr. Lanham’s testi-' .

mony that on the night of September 6 Kent Alexan-

der, the boys’ agent, had called him at home inquiring.

whether or not these particular boys would be admitted - |

~ and, among other things, Mr. Alexander advised him

- that he $4000.00 invested in these boys and that he

was to invest another $1000.00. Mr. Lanham

further testified that the boys in question should have

gone to their home room to get their schedules and then

to later enroll, in which event he would not have seen

them for possibly two or three weeks; that the Alexan-

SS ee pe

ncn”

ander phone call and the appearance of the boys at his

office on the opening day of school constituted a chal- —

lenge to his authority and his responsibility to maintain ~

good order and discipline in the school. Mr. Lanham

_ also said that there was a correlation between discipline

and dress or attire.

Plaintiffs also called to the stand Dr. W. T. White,

Superintendent of the Dallas Independent School Dis-.

trict. Dr. White produced the “Book”, which, is entitled

_ “Administrative Policies and Procedures of the Dallas _

: Independent School District.” It appears in the record

as Defendants’ Exhibit 2. Among other things, these |

administrative policies and procedures peor, Page

83; as follows: ,

“PUPILS — CONDUCT, OFFENSES, AND .

PUNISHMENTS a |

“ATTIRE ae

“Principals will determine when attire of stud-

~ ents is in good taste. .

“CONDUCT —

“Children may. be held responsible for their con-

duet to and from school if it affects school o

_ zation, school morale, or destruction of public or

private property.”

| In this cohnection, Dr. White said that attire had to do |

with the appearance of the child. With reference to dut-

ies and responsibilities of the Principal and Assistant

Principal, (page 164), it is provided. that,the Principal

is the Chief Administrator in his building and, as-such,

he is fully responsible: for all areas of ee, either.

hee YP Gyr AEE IO NE AIA ITE ES PE LRT OSEAN TOTEM SIE BOET - aaaaaniiniateiadsaPed ciensiass = 2s

Coad Feri Ia Pe Saks kA A TE ae “sr

A-8.

__ through personal action or through assignment to per- °

: sonnel in the building. Dr. White testified that this book -

is partially the Principal’s guide and that there must be

by the Superintendent of Schools or from an authorized

» staif member; that results of the program in his build-

ing come to him for credit or discredit; and that the

Principal’s areas of responsibility are in administration,

vision, personnel, pupil management, budget, parent re-

lations, public information, and leadership. Dr. White

furthef testified that the matter of length of a boy’s hair

was within the authority of the Principal and that in:

this case he felt that the authority of the Principal to

run his school had been called into question. Dr. White —

further sdid that:through a telephone call he advised

_ one of Plaintiffs’ attorneys that he, as Superintendent

of the schools, would stand behind the Principal. It ap-

pears further from the testimony that there was a

perv pre salwar ages Lanham on the follow- |

ing day, September 8. Prior to this incident, the booking

‘agent, Alexander, ‘affectionately called “Alexander, the

Great” by the boys, had notified ‘three television sta- -

tions and about half-a-dozen radio stations of the situa-

tion at the school and suggesting the presence of these

news media at the school on the coming day. The radio .

and television reporters responded and following this

‘conference with Mr. Lanham, the group conducted in-

terviews with and were photographed - .

ene ew mere wo

AS ©

representatives. The story was subsequently reported

on all television channels complete with films and inter-

views, in both of the local newspapers and received na-

tionwide attention through the wire services.

__ It was also developed by the defendants that immedi-

ately after being refused admittance the “Sounds

_ Unlimited” proceeded to a local recording studio and

' recorded a song entitled, “Keep Your Hands Off of It.”

- Copies of the record were produced and: distributed by

the agent to the various radio stations in the area, and

was subsequently played on the air by these stations.

This record was played in open court, and to say the

least, it was an excursion into cacaphony. The words

- went something like this: |

“Went to school, got kicked out,

Said. it was too long, now we're going to shout.

(Chorus)

“Bopped upon the steps, Principal I met,

Yous nok getting in, now what do you want to

' (Chorus)

. “Went this morning, tried to get in,

The kids were for us, but we still couldn’t win.

(Chorus) |

“HAIR, THAT IS.” (Defendants’ Ex. #1)

The first legal point to consider is vhether this court

has jurisdiction over this cause of action. One of de-

A-10

fendants’ grounds for dismissal is the failure of the

plaintiffs to exhaust their administrative remedies by

submitting or presenting it to the Board of Education

of the Dallas Independent School District, the State

Commissioner of Education and the State Board of

Education. (Vernon’s Ann. Tex. Stats., Art. 2654-5,

§.1; Art. 2656, 2654, § 2, 2654-7 § 1). Under Title 42,

U.S.C.A., §1983, one of the alleged grounds for juris-

diction of this cause, the failure to first seek remedies

under state law, will not defeat an application for re-

_ lief under this Act. (McNeese v. Bd. of Education,

_ Cahoka, Ill., 83 S.Ct. 1433, 373 U.S. 668, 10 L.Ed. 2d

622; Monroe v. Pape, Ill. 1961,.81 S.Ct. 473, 365 U.S.

167, 5 L. Ed. 2d 492.)

Another ground for dismissal for lack of jurisdiction

is that the alleged federal questions are “frivolous and

unsubstantial.” With this contention we do not agree,

and are of the opinion that the matter is controlled by

a or

of Topeka, et al, infra:

“Today, education is the most

ant function of state chaps the mos i,

pulbory school attendance laws and the great ex-

gg arte M ed ate Our 72

uca our

cention of the It is required in the perform-

ance of our most responsibilities,

pe poh me + Today it « prin ~—

, is a

ment in awakening the values, in

Seapaina WHE ar taker guiientonsd tealning, cond

” i’

A-l1

helping him to adjust normally to his environment.

In these days it is doubtful that any child may

reasonably be expected to succeed in life if he is

denied the opportunity of an education. Such-an

opportunity, where the state has undertaken to

- provide it, is a right which must be made available

to all on equal terms.” Brown v. Board of Educa-

tion, 347 U.S. 493, 74 S. Ct. 691. 7

The Constitution of the State of Texas, Art. 7, § 1, reads

as follows: sd pads oe :

“A general diffusion of knowledge being essen-

tial: to the egy: of the liberties and rights

e, i -

of the peop shall be the duty of the Legisla

ture of the State.to establish and make suitable

provision for the support and maintenance of an

efficient system of public free schools.”

The Defendants’ Motion to Dismiss for lack of fed-

eral jurisdiction is overruled and it is our opinion that

_ the Federal District Court is a proper forum for the

determination of the question presented here. —

_ The problem that causes this court the most concern

is whether or not the actions by the school authorities

deprive plaintiffs of any rights guaranteed by the Con-

stitution and Laws of the United States. The plaintiffs

contend they are arbitrarily being denied the right to

a public school education which the state has under-

taken to provide for all. These facts are considered be-

cause the determination here becomes more specifically:

- Were the actions of the school authorities in excluding

the plaintiffs from high school unlawful under state law?

This was the first part of a two-part test used in Byrd.

A-12

vp. Sexton, 277 F. 2d 418 (cert. den.). The remainder of

the test used by the court in that case then became:

Were the school authorities motivated to act the way

they did by reason of plaintiffs’ membership in some

class or group of persons which the United States has

determined to protect? There, the plaintiffs had to

prove the first requirement before this second part of

the test would be applied. In that case, the court as-

sumed that state law had been violated, but determined,

after consideration of recent segregation cases (Brown

v. Bd. of Ed., supra, etc.) the history of the civil rights

statutes’, the atmosphere under which the statutes were

enacted’, and the statutes’ limited recognition in the -

courts, that the plaintiff claimed no invalidity of ‘state

tiffs cause of action, if any, was for invasion of person-

al rights for which state laws and state forums provide.

the avenue of relief and “because the decisions which

"These sections come into the present Code from the old Re-

"vised Statutes, § 1979°and §1980, respectively, and those in turn

their origin in the early Civil Rights Acts, particularly the

had ly

Act of April 20, 1871, 17 Stat. 13, adopted soon after the Civil

War to

linea specific and narrow. area of applicability of ‘the

om -- - Ba.

have been promulgated, hei: seem to us clearly to. |

statutes and one which the plaintiffs’ case does not

reach.” (Byrd v. Sexton, supra.)

Counsel for plaintiffs contend that Byrd v. Sexton

is distinguishable on the grounds that it was a suit for -

damages and the instant case is one seeking equitable

relief. The Supreme Court has made passing references

to these sections as- providing relief in appropriate

situations’, and has used them as a basis for granting

equitable relief*. However, Where the Court felt that

the complaint established a case within the adjudica-

tory power of the federal courts under the'statutes, or

. assumed that it did, it has been cautious in granting

relief where to do so would interfere with state court

proceedings or where “the proper balance between the

States and the federal government in law enforcement”

- would be affected. See Screws v. United States, 325

_U.S. 91, 108; 65 S.Ct. 1031, 1039, 89 L. Ed. 1495, and

Stefanelli v. Minard, at page 121 of 342 U.S.; at page

120 of 72 S.Ct., or until every chance has been given the

state courts first to construe the challenged state reg-

ulations, Harrison. v. NAACP, 360 U.S. 167, 79

S.Ct. 1025; 3 L.Ed. 2d 1152. These contingencies are

perhaps best illustrated by Mr. Justice Frankfurter’s

». Blair, 343 U.S: 214; 72 S.Ct. 654; O’Sullivan v. Felix, 233

Us 18, 34 S.Ct. 596; see Mr. Justice Frankfurter’s dissent in

Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164

' _ ‘Hague v. C.1.0., 307 U.S. 496, 59 S. Ct. 954; Brown v. Bd. of

Education, supra; US. v. Raines, 80 S.Ct. 519.

A-14

comment, concurring in Snowden v. Hughes, at page

16 of 321 U.S.; at page 405 of 64 S.Ct::

“Our question is not whether a remedy is avail-

able for such illegality (if any), but whether it is |

available in the first instance in a federal court.

Such a problem of federal judicial control must .

be placed in the historic context of the relationship

of the federal courts, with due regard for the nat-

ural sensitiveness of the states and for the appro-

priate responsibility of state courts to correct the

action of lower state courts and state officials.”" —

_ With these ideas in mind we desire to at least com-

ment on.the merits of this case insofar as they affect

the jurisdiction of this court. This case has received a

great deal of publicity and aroused a great deal of -

feeling in the community. It is felt therefore that we —

should say more than merely whether or not this Court

has jurisdiction to rule on ‘this case. At, the outset it

should be emphasized that this is a case involving high

school students and their administrators; we in no way

- even propose to consider such a situation arising be-

tween college students and their administrators. (Mar-

shall, et al v. Dr: George Oliver, Pres. Richmond Prof.

Inst., et al., cert. den. Nov. 14, 1966, 385 U.S. 945; in-.

volving the rights of students at the institute to wear

long hair and beards. Here the action of the school

authorities was upheld.) RIO eho

Having determined now that this court has jurisdic-

tion of this case, what are the questions the court must

resolve? Referring to the first part of the test an-

A-15

nounced in the Byrd case — were. the school authorities

legally authorized to formulate the regulation that-

students’ hair shall not be of “Beatle-length”? There

"are two ways to approach this problem of authorization. |

The court could focus-on the school administration and

- attempt to justify the regulation by emphasizing the |

educational need for an academic atmosphere and the

resulting demand that disturbances be kept to a mini-

_ mum. Or, it can focus more directly on the individual

_ student and evaluate the‘need for régulation by examin-

ing the purpose of public school education in terms of

. the individual. The regulation must serve both purposes.

We feel that where the effects of the regulation extend

beyond the classroom and bear directly on the student’s

' person and his freedom of expression, the latter ap-

proach provides a more reasonable basis for school con-

cern, and it is here that the court should look to justify ~ -

the regulation. (The Power of School Officials to Re-

gulate Student Appearance, 3 Harv. Legal Comm.)

Since confusion and anarchy have no place in the

classroom, school authorities must control the behavior

of their students. If the student’s dress is lewd or his

_ appearance is a‘studied effort to draw attention to him-

self, his presence is disruptive — such behavior is no

different than verbal rudeness.

_ “Where the student’s deviant appearance is not

a manifestation of a negative antisocial personality,

the problem becomes more difficult. It puts a strain

on the words to prohibit the wearing of clean,

: combed, long hair in the name of educational e-

A-16

ficiency. And such reasoning can be circular 1 since

the school’s effort to single out such behavior as dis-

| —_ ive often penton the disruption. This is espec-

y true when the issue is long hair. The Beatle-'

ae ha is the pr geen’ Bese summer’s end, iy:

. long bangs are not a nove among teenagers. ‘The

educational system suffers many minor ae niy, at

every day; the interstudént feud that starts during

school hours, and the classes that are cut to man-

ufacture prom decorations. It should not be so

finely tuned that it clogs on an extra two inches of

‘haie.” (3.Harv. Legal Comm., ma.)

It is difficult moreover to determine in a specific case

the extent to which school authorities should concern

themselves with what they consider improper student

appearance or behavior when such regulation would .

_ impinge on the student’s freedom and the individual |

parent’s right to raise his child as he sees fit.

The testimony here showed that Mr. Lanham, the

- Principal, acted on the basis of some prior incidents in-

‘volving students with long hair. Further testimony

from high school students revealed that there were no

longer any disturbances resulting from long hair on

boys because it “had been around three or four years

‘and everyone was used to it.” Other evidence tended to

show that long hair on men was part of a “total look”

called the “Mod” look. | :

The regulation . in question here arises from the

generally accepted proposition that the superintendent,

principal, and board of trustees may officially exercise

whatever powers of control, restraint, and correction

PESO 2, PEELING POR EE RENIN LEED OE ky BSI LINC NEN a AP I 181 RELIG IE py i GROOT ARETE wD a

< 2 Eh! Da 8 .

A-17

over pupils as may be reasonably necessary to “enable

teachers to perform their duties and to effect the gener-

al purposes of the educational system. (51 ‘Tex. Jur. 2d.,

§237; Bishop v. Houston Ind. School Dist., 119 Tex.

403, 29 S.W. 2d 312; Dallas v. Mosely, CA 286,/S.W.

497; Boseman v. Morrow, CA 34 S.W. 2d 654). Two

_ other cases involving students with long hair, although |

from other jurisdictions, have influenced the decision in

this case. Foremost of these is the case of Marshall et al

'_v. Dr. George Oliver (supra), where the U. S. Supreme

Court dismissed an appeal from the Supreme Court: of

- the State of Virginia. If a state has constitutional

authority to regulate the appearance of college stu-

dents, a fortiori, it has the samé power over high school

students. The other case is Leonard et al v. School

Committee of Attleboro et al, 212 N.E. 2d 468, where

the Supreme Court of Massachusetts held that regula-

tions which barred a student with an extreme haircut

from attending classes solely because of length or ap-

pearance were not unreasonable or arbitrary and had

a reasonable connection with the successful operation

‘ of public school. _

This court is concerned for. the welfare of the in-

dividual plaintiffs i in this case, but feels that the rights of

other students, and the interest of teachers, adminis-

trators and the community at large are paramount. It

also appears that there is a fairly reasonable indication

that this situation could have been deliberately planned

by the previously mentioned “agent” for the boys. The

A-18

phone call to the principal’s home and the subsequent’

confrontation of the principal by the boys and their —

agent;“followed immediately by a song and news inter-

views (previously arranged by the agent), give support

to this supposition. Plaintiffs contend naturally that

their primary interest is to get an education, but it ap-

pears that they want this education on their own terms.

It is inconceivable that a school administrator could

operate his school successfully if required by the courts

to follow the dictates of the students as to what their

appearance shall be, what they shall — what hours |

they will attend, etc. :

_- One of the most important aims of the wile should

be to educate the individual to live successfully with

‘other people in our democracy. Since the. school author-

_ ities, by legislative grant, control the public educational

system, their regulations play a part in the educational

_ process. This is but another way of stating that society

expects public education to concern itself with building

young citizens as well as teaching the “3 R’s”. It does

not appear from the facts of this particular case that

-_ there has been any abuse of discretion on the part of the"

school authorities. On the contrary, it appears that |

they acted reasonably under the circumstances, taking -

into consideration these individual students and the

need for an academic atmosphere. The school principal

felt that his authority was being. challenged when the

boys did not follow the’ usual registration procedure,

but came instead to his office with the proposition that

_ motion for temporary injunction is denied.

\. Ad

: = \ ;

_ they wereiunder contract to keep their hair “Beatle.

Length” and did not intend to cut it. It is, therefore, the

opinion of this Court that there has been no violation of

minor plaintiffs’ rights, either state or federal, by the _

school authorities. For this reason Plaintiffs’ case fails

to pass this first part of the test heretofore announced.

Further, the terms upan which a public free education

is granted i in the high schools of Texas cannot be fixed

or determined by the pupils themselves. Nor is a con-

tract which is unenforceable against the minor plaintiffs \

in this State to be considered determinative of the right. © ~—

__ The temporary restraining order is dissolved and the

This Memorandum Opinion is in. lieu of findings of:

fact and conclusions of law.

/s/ W. M. Taytor, Je. |

W.M. Taylor, Jr.

United States. District Judge —

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- APPENDIX B

In the .

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 24301

L, W. Fanantz ond. do Famtnz, Neat Felends of

PHILLIP FERRELL, ET AL.,

Appellants,

_ DALLAs INDEPENDENT ScHoo. Disrrict, ET AL.,

Appellees.

Appeal from the United States District Court i. the

Northern District of Texas.

(March 29, 1968.)

Before TUTTLE, GEWIN and GODBOLD, Circuit

Judges.

GEWIN, Circuit Judge: Appellants, Phillip Ferrell,

Stephen Webb and Paul Jarvis, all minors, were de-

nied enrollment at the W. W. Samuell High School of

Dallas, Texas, because of their “Beatle” type hair-

cuts. Suit was brought on September 12, 1966, in the

United States District Court for the Northern District

* B-2.

of Texas by their natural parents as next friends against

the Dallas Independent School District for injunctive

relief. Appellants’ application for a temporary restrain-

ing order was granted by the district court on Septem-

ber 13. However, following a full and complete hearing

on the matter, the court dissolved the temporary re-

straining order and denied appellants’ motion for a tem-

porary injunction. 261 F. Supp. 545. We affirm. |

Appellants contend that the school’s regulation re- .

quiring them to cut or trim their hair as a prerequisite

to enrollment is (1) unlawful under the laws and con-

stitution of the State of Texas, (2) a denial of due

process under the fourteenth amendment and (3) is

discriminatory under the Civil Rights Act, 42 U.S.C.

§§ 1981 and 1983. Before we resolve these several con-

tentions,; we feel that a detailed statement of the facts

of this case is necessary. !

Appellants are members of a musical group or combo

known as “Sounds Unlimited”. Each has what is com- _

monly known as a Beatle type haircut.’ Appellants are

ears, but can see the lobe of his ear not over his collar,

But is over his and down to his eyebrows.’ As described

by the mother of Jarvis, ‘his hair is about 1 inch over his

B-3

of the opinion that their hair style conforms to the

standards, customs and usage within the field of enter-

tainment and is a noommaly element of attraction and

performance.’

Prior to the comniencement of the 1966-67 school

year, appellants were aware that the length and style

of their hair would be objectionable to school authori- |

ties. In fact, one of them, Paul Jarvis, had cut his hair

so as to attend summer school during the summer of

1966. ) a ‘

Enrollment in the W. W. Samuell High School for

the school year 1966-67 was scheduled for September

7. On the evening of September 6, the business man-

ager or booking agent of Sounds Unlimited, Mr. Kent

Alexander, ‘sometimes referred to as “Alexander the.

. Great,” called the school principal, Mr: W. S. Lanham,

at his home to discuss the matter of enrollment. He ad-

vised the principal that he had $4,000.00 invested in

appellants and planned to invest an additional $1,000.

Mr. Alexander also advised the principal that he was

na A Portion of the contract between appellants and their business

manager, Mr. Alexander, reads as follows:

B-4

_coming to the school in connection with appellants’ en-.

rollment. However, he was told that the principal would

talk only to the boys and their parents. Mr. Alexander

then stated that he would bring the radio and television

media to the school.

To enroll, students had been informed to report to —

their previously assigned homerooms on September 7.

Contrary to this usual procedure of enrollment, the ap-

pellants accompanied by the mothers of two of them

and Mr. Alexander went to the principal’s office.’ A’

conference was held between the principal, the boys and

the two mothers, Mr. Alexander being excluded.‘ At ~

this conference there was a discussion about the boys’

rights, school: discipline and the principal’s. position.

The principal informed the parties that pursuant to

authority delegated to him as principal by the Dallas

. principal’s office rather than reporting to their home-rooms as was

the custom. Two of the boys testified that they preferred getting

the matter of their hair settled from the be rather than

running the risk of being ronted with it later or sneaking

ing to avoid detection. The third boy testified

that he was advised by. Mrs. Gilbert, Dean of the Girls, that he

would not be admitted to school on account of his hair but would

Mr. Matthews, Assistant Principal, or Mr.

‘Apparently there was some confusion as to Mr. Alexander’s

status on the day of the conference. It appears from the record that

a representative of Mr. Jarvis, Paul’s father, with

authority to speak for’ Mr. Jarvis. However it seems that in the

confusion was not understood the school au-

q was not permitted to attend

at the school.’ It was the opinion of the principal that —

the length and style of the boys’ hair would cause

- commotion, trouble, distraction and a disturbance

in the school and, therefore, it was necessary for

their hair to be cut or trimmed before admittance

would be allowed. Appellants advised the principal that

they would not cut their hair. Accordingly, Stephen .

Webb and Phillip Ferrell were thereupon denied admis-

sion to the school. Paul Jarvis, whose hair had not yet

attained the length of the other two, having been pre-

viously trimmed for summer school, was not refused ad-

mission until later at which time his hair had apparently

grown to a point where in the opinion of the principal

it would be a disturbing influence in the school.

True to his word, Mr. Alexander had called news-

papers, radio stations and television stations to be

present at the school on September 7. At the conclu-

sion of the conference in the principal’s office, the boys

left the school building and proceeded to the sidewalk —

on the west side of the school grounds where the three

boys and Mr. Alexander held a press interview, and

pictures, motion pictures and sound tapes were made.

Later the three boys went to a recording studio to

write and record a “protest” song about the matter.

The recording was completed and the record entitled

Apparently the school also had rules and policies with respect

come to

Bs.

“Keep Your Hands Off It” was first played on the air

Friday morning, September 9. For several days there-

after it was played numerous times on several radio

stations. :

. Adrninistrative procedures established by the. Dallas

_ Independent School District for review ci a principal’s

ruling include appeal to the Assistant Superintendent

of Administration, then to the Superintendent of

Schools and finally to the Board of Education. Efforts

were made by or on behalf of the appellants to present

their problem to higher school authorities. A conversa-

tion on September 7 between. the three boys and the

Assistant Superintendent of Administration was held

on the steps of the school administration building. Ap-

-pellants went to the office of the Superintendent of

Schools but the Superintendent was not there at the |

time. Later their attorney discussed the matter by tele-

phone with the Superintendent. The attorney was ad-

vised that the Superintendent would support the prin-

cipal’s ruling. The President of the Board of Education

made a public statement over television that th: Super-

“The words of the recording are as follows:

mana

your i

your hands off of it,

cuneate te chee, Go petecinad 1 nat

upon Ps, princi met,

you’re not getting in, now what do you want to bet.

B-7

_intendent would be backed by the Dallas School Board

and that he approved the action of the principal. On

September 8 and 9 the boys inquired into the possibility

of transferring schools.: They were informed by. the

principal that since the next period for atceptance of

applications for transfer did not begin until September

21, he could not take an application for a transfer at

that time. The boys also went to seven different schools

on September.8 seeking to be admitted, but were un-

succéssful. _

At the isang held in the district court iasielh testi-

mony was given. regarding the fact that the wearing

- of long hair by young men and boys is currently in

vogue. This fact. was said to be especially true in the

case of youthful entertainers, particularly rock and roll

musicians. The object of such testimony was to demon- —

’ strate that long hair was no longer a rare or unusual

' feature among teenagers and that it had become well

accepted by the younger generation. |

Nevertheless, Mr.-Lanham had a different story to

tell about long hair. He recited several examples of the

problems caused by boys wearing the Beatle type hair

style in school. On one occasion a group of boys in his

school had decided that a classmate’s hair was too long

_ and that they were going to take the matter in their

own hands and trim it themselves. Mr. Lanham stated

that boys with long hair were subjected to substantial

harassment. Obscene language had been’ used by some

students in reference to others with long hair and girls

" BS”

had come to his office complaining about the language

being used. The long hair boys had also been chal-

lenged to a fight by other boys who did not like long

hair. Also, long hair boys had been told by others that

the girl’s restroom was right down the hall. Mr. Lanham

mentioned one long hair boy who refused to go to the

boy’s restroom until the other boys had left. He referred —

to other incidents where the boys would eat in the -

lunchroom only with the girls and never eat with the

boys.

Several students, sporting a Beatle type haircut also.

testified at the hearing. Some testified that they had -

encountered no problems with regard to ‘their hair:

However, some of these boys stated that remarks had

‘been made to them by other boys about their hair. Also

one student. admitted a fight had ensued over the fact

that the football “guys” at the school didnot like long .

During the hearing Mr. Lanham stated on numerous

occasions that his decision to refuse appellants admis-

sion to school was based solely on the length and style

of their hair and was not influenced by other considera-

tions. Appellants’ attorney tried..in vain to establish

that the ‘principal’s decision was based, in part, on the .

actions of Mr. Alexander in calling his home on the .

evening of September 6 and in alerting the press the

next day and the fact that appellants had recorded a .

protest song about the matter, However, Mr. Lanham ~~

did state that he felt that Mr. Alexander by calling —

| BY

.. him at his home the evening before enrollment had

‘: challenged him. Further, Mr. Lanham stated that he

_viewed the recording made by appellants as directed

towards him personally rather than just a general pro-

test song about hair, and that the récording held him

up to ridicule, and that he did not particularly appreci-'

ate’ it. He related the fact that other people had com-

mented on. the record and had observed that it did

refer to him. :

_ The district court concluded that the school author-

ities had not acted arbitrarily, capriciously nor un-

reasonably in refusing to admit. appellants to Samuell

High School, and therefore, the court denied appel- .

_ lants’ application for injunctive relief.

Appellants contend that the action of the school au-

thorities was unlawful under the constitution and laws _

of the State of Texas. We donot agree.

The Constitution of Texas, Article 7, 8 1, Vernon’s

Ann. Stat., is as follows:

4h general diffusion of knowledge bein ‘essential

id the preservation of the liberties and rights of .

mag a. it shell be the duty of the laghelstus of

the to establish and make suitable provision

for the support and maintenance of an efficient

system of public free schools.”

Pursuant to this authority, the legislature did so ‘eli

lish a state system of public schools. The legislature

also, again pursuant to the constitutional mandate, au-

' thorized the authorities of the various public schools

so established to adopt such rules and regulations as

B-10.

they deemed proper in order to effectively nianage and

‘govern the schools. See Article 2780, Revised Civil

Statutes of Texas which provides in part: |

_ “Said trustees shall adopt such rules, regulations,

and by-laws as they may deem proper; and the

public free schools of such independent district

shall be under their control; and they shall have

the rs _— to wmnect and govern said

schools, .

The cohatituitoted grant,of power and asitheeiity to

* ‘school officials was thoroughly discussed by the Texas

Court of Civil Appeals in Wilson v. Abilene Indep.

School Dist., 190 S.W.2d 406 (1945) in its decision up-

holding the action of the school which, in effect, pro-

hibited students from having membership in high

school fraternities and sororities. We quote from the

Texas court’s opinion at page 412:

“Tt will be seen that the grant rok, re and author-

ity to school boards is in general terms. The Leg-

islature could not possibly foresee all problems and ~

situations that would arise in the oceninemtzntion

of the schools. .

; But, necessarily, ‘school boards are given : a wide

discretion in such matters. They may make all

such rules and regulations as in their judgment are.

necessary. to maintain an ‘efficient’ system of

schools subject to thé limitation that there be no

abuse of discretion, and that such regulations be

not arbitrary, unreasonable or in violation of law.”

See also Waugh v. Board of Trustees of University of

_ Mississippi, 237 US. 589, 59 L.ed. 1131.

| B-11

In view of the testimony of Mr. Lanham as to the —

various problems which arise in the school due to the

wearing of long hair by members of the student body

and the testimony of certain students that their hair

style had indeed created some problems during school

hours, we cannot say that the requirement that appel-

lants trim their hair as a prerequisite to enrollment is

arbitrary, unreasonable or an abuse of discretion. There-

fore, the school regulation as promulgated by the prin-

cipal, banning Jong hair, is not violative of the state =.

a constitution or statutes. .

| Appellants also contend that the action of the school

authorities was a denial of substantive and procedural _

due process under the fourteenth amendment. We con-

clude, after careful and thoughtful study, that the ac-

tion ‘complained of does not violate the. fourteenth

amendment.

Appellants categorize the length and _ é their -

hair as a form of expression, not unlike that of thought

- and speech, which is constitutionally protected from

infringement: by the state. We shall assume, though —

.. we do not decide, for the purpose ‘of this opinion that

‘a hair style is a constitutionally protected mode of ex-

pression. Consequently we are confronted with the

, . question whether a state can prohibit this type of ex-

pression in the circumstances here present without |

running afoul of the fourteenth amendment.

This case brings into focus a sensitive area of the

‘law. Constitutional issues which arise under the Bill of

B-12

Rights have been before the courts many times. The

decided cases clearly demonstrate that each case must

be decided in its own particular setting and factual

background and within the context of the entire record

before the court in determining whether the rule or the

-action about which complaint is made is arbitrary, ca-

to the problem is clearly demonstrated by the authori-

ties hereinafter cited as well as the following: Thorn-

hill v. State of Alabama, 310 U.S. 88, 101, 84 L.ed. 1093,

1102; West Virginia Board of Education v. Barnette,

319 U.S. 624, 627, 87 L.ed. 1628, 1637; Dennis v. United

States, 341 U.S. 494, 510, 95 L.ed. 1137, 1153; Whitney -

v. People of the State of California, 274 U.S. 357, 376,

71 L.ed. 1094, 1106. In Dennis v. United States, supra,

the Supreme Court approved, as a general rule, the fol-

lowing statement by Chief Judge Learned Hand:

“In each case [courts] must ask whether the grav-

- ity of the ‘evil,’ discounted by its improbability,

_ justifies such invasion of free speech as is necessary

to avoid the danger.”

- . The. Constitution does not establish an absolute

right to free expression of ideas, though some might

disagree.’ The constitutional right to free exercise of

"Mr. Justice Black made the statement in his dissent

in Binzburg v. United States, 383 U.S. 16 L.ed.2d 31 (1966):

B-13

speech, press, assembly, and religion may be infringed

by the state if there are compelling reasons to do so.’

_The compelling reason for the State infringement

with which we deal is obvious. The interest of the

state in maintaining an effective and efficient school

system is of paramount importance. That which so

interferes or hinders the state in providing the best

education possible for its people, must be eliminated

or circumscribed as needed. This is true even when

that which is condemned is the exercise of a con-

stitutionally protected right. ~

In Blackwell v, Issaquena County Board of Ed., 363

F. 2d 749 (5 Cir. 1966) we denied school children the

right to wear freedom buttons to school. Unquestion-

ably those wearing the buttons were exercising their

protected rights of free speech and free communica-

tion of ideas. However, we upheld the school’s rule

prohibiting the-wearing of the buttons during school

hours on the ground that the evidence clearly demon-

strated that such activity interfered with the efficient

operation of the school.’

Several cases have been before the courts with fac-

tual situations similar to the instant case. In each the

* For see Konigsberg v. State Bar of

OF SS 205 (1961); Roth v. ‘United States, 364 US. 476,

1 1498 (1957); So

Lied. 244 (1878)

UNI UINSSIIititns ,

B-14

students were denied admission to or suspended from

school until they acquired an acceptable haircut. The

students contended, inter alia, that the school’s regu-

lation was unconstitutional, that it was unreasonable

or arbitrary, and that it was an invasion of the right

of privacy. These contentions were rejected by the

courts in Leonard v. School Committee.of Attle-

boro, 212 N.E. 2d 468 (Mass. Sup. Jud. Ct. 1965) and

Marshall v. Oliver (Case No. B-2932, Cir. Ct. of the

City of Richmond, Dec. 20, 1965).” Iri both cases

the court held that the regulation which barred a stu-

dent with an extreme haircut because of its length

and style was not unreasonable or arbitrary in that

the regulation was reasonably ¢alculated to maintain

school discipline. However, the district court in

Zachry v. Brown (N.D. Ala., No. 66-719, June 30,

‘ 1967, unpublished) agreed with plaintiffs, who. were

suspended from Jefferson State Junior College, a pub-

lic institution of the State of Alabama, for failure to

conform-to regulations pertaining to permissible hair

styles, that such regulation was unreasonable and

failed to “pass constitutional muster.” However, the -

* . Bed

that such haircut had any effect upon the health, dis-

cipline, or decorum of the institution. Thus Zachry is

essentially different from this case.

We conclude that there was no denial of substantive

due process; and further, we find no evidence in the

record to support appellants’ contention that they were

denied procedural due process.

We recognize that appellants are sadliiuash musi-

cians performing as a musical combo. Their right to

‘ follow this chosen business or occupation free from un-

reasonable governmental interference comes within the

liberty and property concepts of the Fifth Amendment.

Green v. McElroy, 360 U.S. 474, 3 L.ed. 2d 1377 (1959).

The action taken by the school authorities does not,

in our view, interfere with appellants’ right to continue

in their chosen occupation of professional rock and roll

musicians. It is common knowledge that many per-

formers are required to use special attire and make-up,

including wigs or hairpieces, for their public appear-

~ ances. At this stage in appellants’ lives school may be

more important than their commercial activities. In

any event, we do not feel that their business activity

is eliminated, as a practical matter because of the

school’s rules and regulations.

Appellants’ final contention is that the school regu- .

lation is discriminatory under the Civil Rights Act, 42

U.S.C. §§ 1981 and 1983. We find no violation of the

civil rights statutes: Byrd v. nescence 2d 418 (8

Cir. nee

B-16

As noted earlier the district court conducted a full

and extensive hearing during which a number of wit-

nesses appeared and documentary evidence was intro-

duced.-The parties were afforded ample opportunity

to present their evidence and the facts were fully de-

veloped. The parties clearly presented the controlling

' legal authorities to the court. Thereafter, the court

- rendered a full opinion in which there were findings of —

fact and conclusions of law, denying the motion of the

appellants for a temporary injunction. We are unable

to find an abuse of discretion. Brewer v. Huger, 358 F.

2d 739 (5 Cir. 1966); United States v. Edwards, 333 F.

2d 575 (5 Cir. 1964); Detroit Football Company v. Rob-

-_ inson, 283 F. 2d 657 (5 Cir. 1960).

For the several reasons hereinabove discussed, we

affirm the judgment of the district court.

JUDGMENT AFFIRMED.

GODBOLD, Circuit Judge, SPECIALLY CONCUR.

RING: ,

I concur fully in the opinion of Judge Gewin and add

some views of my own. |

The American: community groups together in its

schools hundreds, even thousands, of energetic, volatile

and sometimes aggressive young people in close con-

tact with one another and in confined areas, during a

- substantial part of each school day for three fourths of

- each year and twelve years of their lives. |

B17 _

The bare process of teaching them in the traditional.

sense demands the best that the profession can offer.

But in addition we call upon the schools to give our

children driver training, vocational skills, public

speaking, music instruction, and sex education, and

to maintain their physical fitness, to carry on ever-

broadening athletic programs, engage in fund rais-

ing, and plan, produce and chaperone social events.

Whether it should or should not do so, the. American

community calls upon its schools to, in substance, stand

in loco parentis to its children for manny hours of each

school week. :

Citizens expect and demand that their children jbe

physically safe in the schools to whose supervision

they are consigned, and the citizenry is outraged if the

schools are less than:safe and orderly. At the same

time we expect that the requirements of order, and

of protection and implementation of the educational

program of the school, will be met by limited enforce-

ment means — the force of the school establishment it-

self and the school-related disciplines of reprimand,

suspension, and expulsion — recognizing that the

schoolroom is an inappropriate place for the police-

man to be either called or needed.

A school may not stifle dissent because the sub-

ject matter is out of favor. Free expression is itself a

vital part of the educational process. But in measur-

ing the appropriateness and reasonableness of school

B-18

regulations against the,constitutional protections of

_ the First and Fourteenth Amendments the courts

must give full credence to the role and purposes of

the schools and of the tools with which it is expected

that they deal with their problems, and careful recog-

nition to the differences between what are reasonable

‘restraints in the classroom and what are reasonable

restraints on the street corner.

TUTTLE, Circuit Judge, DISSENTING:

With deference to the views of my colleagues; I dis- -

sent. It does seem as though this issue is something of —

a tempest in a teapot. However, we are faced with

the problem of three teenage school children in Dallas,

Texas, being denied a high school education because

the length of their hair did not suit the school authori- _

ties. Upon the assumption made by the court in-its -

opinion that “for the purpose of this opinion a hairstyle

is a constitutionally protected mode of expression,” I

would say that there is no countervailing state need or

requirement that would warrant such interference with

the constitutional first amendment right under the

standard adopted by the Court in the quotation from

Dennis v. United States, 341 U.S. 494: “In each case

[courts] must ask whether the gravity of the ‘evil’ dis-

counted by its improbability, justifies such invasion of |

free speech as is necessary to avoid the danger.”

Moreover, even though the method of wearing the

hair is not constitutionally protected under the First

B-19

Amendment, it appears to me, without the slightest

doubt that this is an utterly unreasonable classifica-

tion of students by the state in granting or denying

the right of a public education. This of course, if true,

is violative of the Fourteenth Amendment.

So far as the majority opinion finds support in Black- .

well v. Issaquena County Board of Education, 363 F.

2d 749, I take this first opportunity, with deference, to

note my disagreement with the holding there.’ I think

both in that case and upon the record before us here, ~~

we find courts too prone to permit a curtailment of a.

constitutional right of a dissenter, because of the likeli-

hood that it will-bring disorder, resistance or improper

and even violent action by those supporting the status

quo. It seems to me it cannot be said too often that the

constitutional rights of an individual cannot be denied

him because his exercise of them produces violent reac-

tion by those who would deprive him ot the very rights

he seeks to assert. In Terminiello v. Chicago, 337 U.S.

1, the United States Supreme Court said:

“Accordingly a function of free speec nat ane

our system of government is to invite t

may indeed best serve its high purpose when it —

induces a condition of unrest, creates dissatisfac-

tion with ‘conditions as they are, or‘even stirs peo-

~TIn Is Issaquena the trial court denied an injunction to prohibit the

continued suspension of some 300. Mississippi students for wearing —

“freedom” buttons. It will be noted that the inion of this court

affirming the judgment cited at length, in three footnotes, disorderly -

conduct by some of the button-wearing students, after the principal

= issued his order to the original small number of wearers to

p wearing the buttons. No effort was made to discipline the

Sail number of button-wearers who created noise and disturbance.

Instead the principal ae ee a itself.

= B-20

- to anger. Sp is often provocative and chal-

fenging. t might strike at prejudices and precon-

ceptions and have profound unsettling effects as

‘it presses i acceptance of an idea. That is why

freedom of speech, though not absolute, Chap-

linsky v. New- Hampshire, supra, pp. 571-572, is

nevertheless protected against censorship or pun-

ishment, unless shown likely to produce a clear and

present "danger of a serious substantive evil that .

rises far above public inconvenience, annoyance, |

or unrest * * * * There is no room under our Con-

' stitution fora more restrictive view * \* * The

ordinance as construed by the trial court seriously

invaded this province. It permitted coriviction of

petitioner if his speech stirred people to anger, in-

vited public dispute, or brought about a ‘condition

of unrest. A conviction wid on any of these

grounds may not stand.” — :

_ These boys were not barred on school because of

any actions carried out by them which-were of them-

selves a disturbance of the peace. They were barred

because it was anticipated, by reason of previous ex-

periences, that their fellow students in-some instances

would do things that would disrupt the serenity or calm _ .

of the school. It is these acts that shguld be prohibited,

not the expressions of individuality by the suspended

cole.

B-21

UNITED STATES COURT OF. APPEALS

_For the Fifth Circuit

October Term, 1967

No. 24301

D.'C. Docket No. CA 3-1670

: L. W. FERRELL and Jo FERRELL,

Next Friends of PHILUP ™ERRELL, ET AL..,.

~ Appellants,

DALLAS IND ScHOOL ‘iid ET AL.,

vi Appellees.

Appeal-from the thted States Court for the.

Northern District of Texas.

Before TUTTLE, GEWIN and GODBOLD, Circuit

_ Judges. |

_ This cause came on to be heard on the transcript

of.the record from the United States District Court for

_ the Northern District of — and was 8 argued by |

counsel]; .

ON CON SIDERATION. WHEREOF. It is now here

ordered and adjudged by this Court that the judgment _ -

of the said District Court in this cause be, and the

. same is hereby, affirmed;

B-22

It is further ordered and adjuaied that ie appel-

lants, L. W. Ferrell and Jo Ferrell, ‘Next Friends. of

._ Phillip Ferrell, and others, be condemned}. in solido, to

pay the costs of this cause in this Court for’ which ex-

ecution may be issued out of the said District’ Court.

GODBOLD, Circuit Judge; specially concurs.

TUTTLE, Circuit Judge, dissents.

Issued as Mandate: May 8, 1968 |

. Veen March 29, 1968

| ~B-23

In the

_ UNITED STATES COURT OF APPEALS

- For the Fifth Circuit

No. 24301

L. W. FERRELL and Jo FERRELL,

Next Friends of PHILLIP FERRELL, ET AL.,

Da.ias INDEPENDENT SCHOOL DISTRICT, ET AL.,

eaoueen

Appeal from the United States District Court for the S

Northern District of Texas.

( April 30, 1968)

ON PETITION FOR REHEARING

Before TUTTLE, GEWIN and GODBOLD, Circuit

Judges. —

PER CURIAM:

_IT IS ORDERED. that the petition for rehearing —

, in the above entitled and numbered cause e be, and the.

same is hereby DENIED. /

TUTTLE, — Judge, Dissents

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. APPENDIX C

» ‘The Conistitution of the State of Texas, Article VIL,

Section 1, provides as follows: cae

_ A-general diffusion of knowledge

‘to the preservation of the liberties rights of

oo it shall be the duty of the Legi |

of the State to establish and make suitable pro-

vision for the — and maintenance of an. .

efficient system 0

public free schools.

Article 2902, Vernon’s Annotated.Texas Civil Stat-

utes, provides as follows:

All children, without regard to color, over six years -

of age and under eighteen yeats of age at the be-

way tid scholastic year, shall be included in

stic census and shall

entitled to the

‘benefit of the public school fund for that year. The

board -of school trustees of any city or town or

ind ent or common school district shall admit

to benefits of the public schools any person

over six and not over twenty-one

at the

beginning of the scholastic year, if such person or.

his ts or legal guardian reside within said

paren district ie.

- city, town or

Article 2904, Vernon’s Annotated ‘Texas Civil Stat-

utes, provides as follows:

C-2.

guilty of incorri rrigible conduct, but such suspension

—_ “.7 exten

Section 1981 of 42 U.S.C., the Civil Rights nen

beyond the current term of the

vides as follows:

§ baer! Equal rights under the law

rsons within the agnor of the Unit-

a tates shall have the same right in every

State and Territory to: make and enforce con-

_ teacts, to sue, be Las wr give evidence, and

to the full and ay benefit of all laws and

proceedings for security of persons and

rty as is enjoyed by white citizens, and

Shall be subject to like punishment, pains, pen-

alties; taxes, licenses, and exactions of every

‘kind, and to no other. R.S. § 1977.

Section 1983, 42 USC, baw Civil Rights Aah, pro-

vides as follows:

ry 1983. Civil action for iisisnctiihals of rights

Every person who, under color df any statute, . |

ordinance, regulation, custom, or usage, of any -

State or Territory, subjects, or causes to be

‘’ gubjected, any- 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 PRS io7 or other proper

proceeding for redress. 979.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.