Petition for Writ of Certiorari — Kahl v. Breen

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1969

No.

WILLIAM C. KAHL, Petitioner,

Vv.

THOMAS BREEN, a minor, by his mother and

next Of friend, Jane Breen; and JAMES A,

ANTON, a minor, by his parents and next of

friend, William and Marie Anton, Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

ROBERT W. WARREN

Attorney General of Wisconsin

ROBERT D. MARTINSON

Assistant Attorney General

Department of Justice

State Capitol

Madison, Wisconsin 53702

MAX C. ASHWILL

Legal Consultant

Department of Public

Instruction

126 Langdon Street

Madison, Wisconsin 53702

Attorneys for Petitioner.

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SALI LEN ILS

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Opinion below .....-eeereceeceees

Jurisdiction ....cccccccccscccces

Questions presented .............

Statutory provisions involved ...

Statement of the case ........... 3

Reasons for granting the writ ... 5

SET ENRICO Ns

1. THE DECISION BELOW

CONFLICTS WITH THE

DECISION OF ANOTHER

COURT OF APPEALS AS

TO THE PROPER INTER-

PRETATION OF THE

VALIDITY OF A PUBLIC

HIGH SCHOOL REGU-

LATION OF THE LENGTH

OF MALE STUDENTS'

HAIR ....cccccccees i 7

SRR egy

2. THE DECISION BELOW

RAISES SIGNIFICANT AND

RECURRING PROBLEMS

CONCERNING EFFORTS OF

SCHOOL BOARDS TO

OPERATE THE DISTRICT ;

CENITES nccccccssscveses F9 :

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Appendix (Opinion and Judgment of

Court of Appeals)

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CITATIONS i

Page :

Cases: a

Griswold v. State of :

Connecticut, 381 U. S. 479 :

Beppe eee 2,6,7 &§

Ferrell v. Dallas Independent 3

School District, 392 F.2d i

OPT CEE cece scenvedveveueces 6,7,8 f

Leonard v. Attleboro, 349 Mass. F

704, 212 N.E. 2d 468 (1965) ... 7 H

Marshall v. Oliver, Case No. :

B-2932 Cir. Ct. of the City E

of Richmond, December 20,

POTEET ET EUL TET TTT EET 7

Tinker v. Des Moines

Independent Community School

District, 393 U. S. 503

eo Seer ere Te ee eee eens 3,7

Zachary v. Brown, (N.D. Ala., ;

No. 66-719, June 30, 1967, 4

Peer ere Te TTT Te 7

ee ee ee |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1969

No.

WILLIAM C. KAHL, Petitioner,

Vv.

THOMAS BREEN, a minor, by his mother

and next of friend, JANE BREEN; and

JAMES A, ANTON, a minor, by his parents

and next of friend, William and Marie

Anton, Respondents.

SaaS air

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The petitioner William C. Kahl

respectfully prays that a writ of certiorari

issue to review the judgment and opinion of

the United States Court of Appeals for the

Seventh Circuit entered in this proceeding on

December 3, 1969.

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OPINION BELOW

The opinion of the Court of Appeals and

the opinion rendered by the District Court :

for the Western District of Wisconsin appears

in the Record certified herein.

JURISDICTION

The judgment of the Court of Appeals

for the Seventh Circuit was entered on é

December 3, 1969, and this petition for j

certiorari was filed within 90 days of that

date. This Court's jurisdiction is invoked

under Title 28 U.S.C. §1254.

ew .

FER GUAPO R ee

Ra Sears

QUESTIONS PRESENTED

1. Do public high school students,

such as the plaintiffs here, have a personal

fundamental right of free choice of grooming

and dress such as the right of privacy

announced for married persons in the case of

Griswold v. State of Connecticut, 381 U. S.

479 (1965).

2. Is substantial justification, for

public school dress and grooming rules such

as in the one involved in the instant case,

an element of substantive due process

necessary to make such rules constitution-

ally valid.

3. Assuming substantial justification

to be a necessary element for dress and

grooming rules as here involved, is this

requirement satisfied if the rules regulat-

ing the conduct or dress are not promulgated

out of dislike, are not arbitrary or

Fe ee LORRALLE RPL LA EER PETERS GE tN Ooms lly

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unreasonable and in the judgment of the

school board is reasonably calculated to

provide a proper educational environment.

4. Will a public high school rule,

relating to dress, grooming or deportment,

such as is here involved, require a showing

that the student's activity forbidden by

such rule did or will in fact substantially

and materially disrupt the work and dis-

cipline of the school similar to the require-

ments announced in Tinker v. Des Moines

Independent Community School District,

393 U. S. 503 (1969) for direct, primary

First Amendment rights.

NO STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

The plaintiffs, Thomas Breen and

James A. Anton, were students in Williams

Bay High School, a public school in Williams

Bay, Wisconsin, at the commencement of the

1968-1969 school term. The appellants are

the State Superintendent of Public Instruc-

tion, the members of the Williams Bay High

School Board, the superintendent and

principal of Williams Bay High School (App.

Doc. No. 2, pp. 3-4). In the fall of 1967,

the students of Williams Bay High School

agreed to a dress code and adopted it as a

student council policy. Hearing in District

Court of January 24, 1969 (Plaintiffs'

Exh. #2, pp. 59-60, 87-89). The High

School Dress Code was contained in the Bull-

dog Student Handbook made available to

students at the beginning of the 1968-1969

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school term. Hearings in District Court,

December 19, 1968 (Plaintiffs' Exh. #1).

The rule regulating the length of male

students’ hair was contained in the Student

Handbook and read as follows:

"For boys: Hair should be washed,

combed and worn so it does not hang

below the collar line in the back,

over the ears on the side and must

be above the eyebrows. Boys should

be clean shaven; long sideburns are

out." (District Court Hearing,

December 19, 1968; Plaintiffs' Exh.

#1, p. 19).

The male students’ "long hair" rule was

adopted by the School Board and was not

enacted because of personal dislike of long

hair on the part of board members. District

Court Hearing of January 24, 1969 (Plaintiffs'

Exh. #2, pp. 59-60, 113-114). Both of the

plaintiff students concededly violated the

long hair rule by wearing their hair at a

prohibited length and they were expelled

from school as a result of such violations

(App. Doc. No. 2, pp. 5-6).

Both students appealed their expulsions

to the defendant Kahl, under the provisions

of sec. 120.13 (1) (c) of the Wisconsin

Statutes (App. Doc. No. 2, pp. 6,7,8).

Plaintiff Anton cut his hair during the

pending of his appeal to State Superintend-

ent Kahl and he was readmitted to school

(App. Doc. No. 2, p. 8). The State

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Superintendent, however, affirmed the

expulsion of Thomas Breen.

As a result of the affirmance of the

expulsion of Thomas Breen and the continued

requirement that James Anton conform to the

High School Dress Code rule regulating the

length of his hair, the plaintiffs Breen

and Anton brought the instant action in the

Federal Court for the Western District of

Wisconsin. Judgment was rendered by the

District Court in plaintiffs' favor on the

ground that the School Boards' rule limit-

ing the length of male students' hair was

null and void as violating the due process

clause of the Fourteenth Amendment to the

Constitution of the United States. The

Court of Appeals affirmed the District Court

decision.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH

THE DECISION OF ANOTHER COURT OF

APPEALS AS TO THE PROPER INTER-

PRETATION OF THE VALIDITY OF A

PUBLIC HIGH SCHOOL REGULATION OF

THE LENGTH OF MALE STUDENTS' HAIR.

In reliance upon what it considered to

be a violation of the due process clause of

the Fourteenth Amendment to the United States

Constitution, the Court of Appeals for the

Seventh Circuit affirmed the District Court

decision declaring null and void a rule of

the School Board limiting the length of

male students' hair.

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In so holding, the Court of Appeals :

determined that the right of a male student :

in a public high school to wear his hair at

any length or in any desired manner is an

ingredient of personal freedom designated

as withir the penumbras of the First Amend-

ment, freedom of speech (See, Griswold v.

State of Connecticut, 381 U. S. 479 (1965)), :

or encompassed within the Ninth Amendment as

an additional fundamental right which exists

alongside those fundamental rights specific-

ally mentioned in the first eight amendments

and applicable to the states through the due

process clause of the Fourteenth Amendment

(Page $a, Appendix A).

Semen TERRA A te) «

It is submitted that the application

of the Griswold standard of "substantial

burden of justification,'' Griswold v.

Connecticut, 381 U. S. at p. 505, which

protects the privacy of married couples in

their homes to rules of a school board

regulating students' dress and length of

hair is a plain misapplication of the

Griswold rule. The dissenting opinion in

the Seventh Circuit decision points out

that in the instant case there is no evidence

that the students' long hair had any pen- :

umbral characteristic similar to the Griswold ~

holding (Page 14, Appendix A).

It is further submitted that the Court

of Appeals decision in the case at bar, by

applying the Griswold rule, conflicts with

the decision in Ferrell v. Dallas Independent

School District, 392 F.2d 697 (1968). In

the Ferrell case, at p. 703, although it was

contended that a similar hair rule was an

invasion of the right of privacy, the Fifth

Tee Ker «FLIES FRIIS OULD CAO

Circuit concluded that there was no denial

of substantive due process.

The decision of the Seventh Circuit

(Page 5a, Appendix A), insofar as it cites

the Ferrell case as being based on disruption

and student discipline problems, conflicts

with that decision, 392 F.2d 703, where the

Fifteh Circuit cites, approvingly, Leonard v.

Attleboro, 349 Mass. 704, 212 NE2d 468

(1965) and Marshall v. Oliver, Case No. B-

2932 Cir. Ct. of the City of Richmond,

December 20, 1965. The Fifth Circuit in

Ferrell cites both the Leonard and Marshall

cases, as noted for lack of student dis- 4

cipline or disruption problems, with the

court in both cases holding the school rule

regulating length of students' hair as not

unreasonable or arbitrary, in that the rule

was reasonably calculated to maintain school

discipline.

PPR AARON VRE To rte Sess

The facts in the present case, where

the regulation was not promulgated out of

dislike of board members, as noted above in

the Statement of the Case, are not unlike :

those in Ferrell, 392 F.2d at p. 703. There, ;

the court distinguished Zachary v. Brown, é

(N.D. Ala., No. 66-719, June 30, 1967, un-

published) where a hair regulation was de- i

clared invalid on the basis that it was i

enacted solely because the school administra- |

tors disliked what they considered exotic é

hair styles. e

The reliance of the Court of Appeals in

the case at bar on the decision in Tinker v.

Des Moines Independent Community School

District, 393 U.S. 503 (1968), conflicts

directly with the Supreme Court in Tinker,

393 U.S. at pp. 507-508 and cited here :

in the dissenting opinion (Page 12a , ‘

Appendix A), where the Supreme Court states:

". . . 'The problem posed by

the present case does not relate to

regulation of the length of skirts

or the type of clothing, to hair

style, or deportment. Our problem

involves direct, primary First Amend-

ment rights akin to "pure speech".' "

Ne claim was made here that the long hair

symbolized any viewpoint.

2. THE DECISION BELOW RAISES

SIGNIFICANT AND RECURRING PROBLEMS

CONCERNING EFFORTS OF SCHOOL BOARDS

TO OPERATE THE DISTRICT SCHOOLS.

The Seventh Circuit's opinion in this

case reflects important policy considerations

growing out of the directly opposite con-

stitutional interpretation given a similar

school rule by the Fifth Circuit in Ferrell

v. Dallas Independent School District, 392

F.2d 697 (1968).

Wisconsin School Boards are empowered

to make rules for the government of the

schools of the district, Wis. Stats.,

sec. 120.13 (1) (1967). Since the enactment

of the Williams Bay dress and grooming code

involved in the instant case, the Wisconsin

Legislature has amended sec. 120.13 (1) as

"including the power to make rules pertain-

ing to conduct and dress of pupils in order

to maintain good decorum and favorable

academic atmosphere."' Laws of Wisconsin,

1969, ch. 301, sec. 2, effective January 11,

1970.

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At this date, there are 457 public

school districts in the State of Wisconsin

with a total enrollment of 980,064. Of this

number, 403,986° are enrolled in the public

high schools of the state. On the national

level there are 18,904 public school districts

with 45,480,980 students enrolled; 17,588,078

of them enrolled in the public high schools.

Research Report 1969--R.15, Research Division,

National Education Association, Washington,

D. C.

If the rule is held to be that a

school board has a "substantial burden of

justification" of a dress code or grooming

rule to validate its enactment, then this

Court should set forth appropriate guidelines

for school boards in the Seventh Circuit

and the rest of the nation to follow in that

regard.

CONCLUS ION

For these reasons, a writ of certiorari

should issue to review the judgment and

opinion of the Seventh Circuit.

Respectfully submitted,

ROBERT W. WARREN

Attornev General of Wisconsin

ROBERT D. MARTINSON

Assistant Attorney General

MAX C. ASHWILL, Legal

Consultant and Attorney

Department of Public

Instruction

Counsel for Petitioner

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APPENDIX

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APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

, SEPTEMBER TERM, 1969--SEPTEMBER SESSION, 1%9

NOS. 17552, 17553

THOMAS BREEN, a minor, by

his mother and next

friend, JANE BREEN; and

JAMES A. ANTON, a minor,

by his parents and next

friends, WILLIAM and

MARIE ANTON,

Appeal from the

Plaintiffs-Appellees, United States

Vv. District Court

for the Western

WILLIAM C. KAHL, individ- District of

ually and as State Super- Wisconsin.

intendent of Public In-

struction of the State

of Wisconsin; DAVID

HAWLEY, individually

and as Principal of

Williams Bay High School;

ARNO D, WEHLE, individ-

ually and as Superinten-

dent of Williams Bay

Schools; ROBERT R, BROWN,

individually and as a

member of the Williams

Bay Board of Education;

APPENDIX A

ELMER M. HANSEN, individ-

ually and as a member of

the Williams Bay Board of

Education; MARILYN PRUGH,

individually and as a mem-

ber of the Williams Bay

Board of Education; HAROLD

McCARTHY, individually and

as a member of the Williams

Bay Board of Education;

ALICE MORAVA, individually

and as a member of the

Williams Bay Board of Edu-

cation,

Defendants-Appellants.

December 3, 1969

APPENDIX A

17552, 17553 3a

Before DUFFY, Senior Circuit Judge and

FAIRCHILD and KERNER, Circuit Judges.

KERNER, Circuit Judge. Plaintiffs-appel-

lees, Thomas Breen and James Anton, filed

suit under 42 U.S.C. §1983 against defen-

dants-appellants, the State of Wisconsin's

Superintendent of Public Instruction and

the Members of the Williams Bay Board of

Education attacking as unconstitutional the

Williams Bay High School dress code regu-

lating the length of students' hair. The

district court held the regulation unconsti-

tutional and defendants appeal.

In September 1968, the plaintiff Breen

was enrolled as an eleventh grade student,

and the plaintiff Anton was enrolled as a

twelfth grade student in the Williams Bay

High School. During the preceding academic

year, the Williams Bay Board of Education

(Board) had adopted the following regula-

tion:

Hair should be washed, combed and worn

so it does not hang below the collar

line in the back, over the ears on the

side and must be above the eyebrows.

Boys should be clean shaven; long

sideburns are out.

The plaintiffs were expelled by the

Board at the beginning of the school semes-

ter in the Autumn of 1968, for the stated

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APPENDIX A

reason that the length of their hair had

exceeded the Board's standard. Plaintiff

anton had his hair cut to comply with the

regulation and was readmitted to school.

At the time of the trial below, Anton,

however, desired to allow his hair to grow

to a length which would be in violation of

the regulation. The defendant Board mem-

bers threatened him with expulsion again

if he did so. Plaintiff Breen at all times

refused to comply with the regulation and

has been denied readmission until and un-

less he did comply.

Each plaintiff petitioned the defendant

State Superintendent of Public Instruction

(State Superintendent) for review of the

expulsion order, as permitted by Wisconsin

statutes. Following a hearing, the State

Superintendent determined the appeal as to

plaintiff Anton was moot, and found that

as to plaintiff Breen, the expulsion order

was warranted, and he affirmed it. Plain-

tiffs then brought this action in the dis-

trict court, seeking a declaration that

the regulation was violative of the Consti-

tution and an injunction against its con-

tinued enforcement.

The right to wear one's hair at any

length or in any desired manner is an

ingredient of personal freedom protected

by the United States Constitution. See

Griffin v. Tatum, 300 F. Supp. 60 (M.D.

Ala. 1969); zachary v. Brown, 299 F. Supp.

1360 (N.D. Ala. 1969); Richards v.

Thurston, (38 U.S.L.W. 2187 [Sept. 30,

1969])...... F. Supp. oe. (N.D. Mass.

7 1969). Whether this right is designated

ee a x

LEER TREES SIE OER IE 2 IY i lll

APPENDIX A

as within the "penumbras" of the first

amendment freedom of speech, see Griswold

v. Connecticut, 381 U.S. 479 (1965), or as

encompassed within the ninth amendment as

an "additional fundamental right[s]. .

which exist alongside those fundamental

rights specifically mentioned in the first

eight amendments" Griswold v. Connecticut,

381 U.S. at 488 (J. Goldberg concurring),

it clearly exists and is applicable to the

states through the due process clause of

the fourteenth amendment.

To limit or curtail this or any other

fundamental right, the state has a "sub-

stantial burden of justification."

Griswold v. Connecticut, 381 U.S. at 505

(J. White concurring). See McLaughlin v.

Florida, 379 U.S. 181, 196 (1964). The

United States Supreme Court in United

States v. O'Brien, 391 U.S. 367 (1968),

in explaining what is meant by "substan-

tial justification" stated:

* * * [A] government regulation is

sufficiently justified if it is within

the constitutional power of the govern-

ment; if it furthers an important or

substantial governmental interest; if

the governmental interest is unrelated

to the suppression of free expression,

and if the incidental restriction on

alleged first amendment freedoms is

no greater than is essential to the

furtherance of that interest. Id. at 377.

Although there may be different justi-

fications for a statute which is applicable

to adults and one which applies to students

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a | APPENDIX A

: 6a

of a high school, the Constitution protects

minor high school students as well as adults

from arbitrary and unjustified governmental

rules ©

In our system, state-operated schools

may not be enclaves of totalitarianism.

| School officials do not possess

absolute authority over their students.

Students in school as well as out of

school are 'persons' under our Constitu-

tion. They are possessed of funda-

mental rights which the state must

respect, just as they must respect

their obligations to the state. Tinker

v. Des Moines Independent Communit

School District, 393 U.S. 503 (1968).

The School Board specifically raised below

two justifications for its hair regulation.

The Board asserted that (1) a Williams Bay

male high school student whose hair is

longer than the Board's standard so departs

from the norm that his appearance distracts

his fellow students from their school work,

and (2) students whose appearance conforms

to community standards perform better in

school. As to these two justifications, the

trial judge found, and we agree that:

Defendants here have fallen far short of

showing that the distraction caused by

male high school students where hair

length exceeds the Board standard is so

aggravated, so frequent, so general,

and so persistent that this invasion

of their individual freedom by the

state is warranted. The same is true

of defendant's showing with respect to

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, APPENDIX A eis |

the differential in school performance

between male students with long hair

and those with short hair.

In addition, the trial court found that

there was no showing of any other possible

justification for the school regulation.

"The record contains no suggestion that

the length of the hair constituted a health

problem or a physical obstruction or danger

to any person [nor] was any disruption or

disturbance caused by the length of his

hair."

While we do not decide whether a valid show-

ing of any single or combination of justi-

fications, which the School Board did or

did not raise, would be sufficient to satisfy

the state's substantial burden, in the absence

of a valid showing of any of these justifica-

tions, such burden is clearly not met.

The failure of appellants to sustain any

burden of substantial justification dis-

tinguishes the case at bar from the situation

in Ferrell v. Dallas Independent School

District, 392 F. 2d 697 (5th Cir. 1968),

cert. denied, 393 U.S. 856 (1968), upon which

the appellant School Board heavily relies.

In Ferrell, the court in upholding the

constitutionality of the school regulation

found that wearing of long hair by students

created disturbances and problems during

school hours. Although we are more inclined

to agree with Judge Tuttle's dissenting

opinion in Ferrell that "courts are too

prone to permit a curtailment of a

constitutional right of a dissenter, because

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APPENDIX A i

8a f

of the likelihood that it will bring dis-

orders, resistance or improper and even

violent action by those supporting the

status quo," in the case at bar there is

no evidence of any disturbance created by

the long hair of the students. Consequently,

we are not faced with the problem of

evaluating whether regardless of some dis-

order constitutional rights must still be

protected, see Terpinello v. City of Chicago,

337 U.S. 1 (1948).

The appellant School Board also argues that

regardless of the lack of justifications for

its regulation, the disciplinary powers of

the school authorities will be diminished if

the Board's regulation is not upheld and

these expulsions and threatened expulsions

are not vindicated by the court. Although

courts are reluctant to interfere with con-

flicts which arise in the operation of school

: As the United States Supreme Court

recently stated in Tinker v. Des Moines

Independent Community School District, 393

U.S. at 507 (1969):

[I]n our system, undifferentiated fear

or apprehension of disturbance is not

enough to overcome the right to freedom

of expression. Any departure from ab-

solute regimentation may cause trouble.

Any variation from the majority's opinion

may inspire fear. Any word spoken, in

class, in the lunchroom or on the campus,

that deviates from the views of another

person, may start an argument or cause

a disturbance. But our Constitution says

we must take this risk.

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Rriococn THO HLIiICN PHOOR CORY

APPENDIX A

systems, courts will interfere when such

conflicts "directly and sharply implicate

pasic constitutional values."' Epperson v.

Arkansas, 393 U.S. 97, 104 (1968). To up-

hold arbitrary school rules which "sharply

implicate basic constitutional values" for

the sake of some nebulous concept of school

discipline is contrary to the principle that

we are a government of laws which are passed

pursuant to the United States Constitution.

In addition, the doctrine invoked by the

School Board of "in loco parentis" does not

bolster its discipline argument. Although

schools need to stand in place of a parent,

in regard to certain matters during the

school hours, the power must be shared with

the parents, especially over intimately

personal matters such as dress and grooming.

Since the students' parents agree with their

children that their hair can be worn long

and because it would be impossible to comply

with the long hair regulation during school

hours and follow the wishes of the students

and their parents as to hair length outside

of school, in the absence of any showing of

disruption, the doctrine of "in loco parentis" /

has no applicability. See generally, Gold- :

stein, The Scope and Sources of School Board

Authority to Regulate Student Conduct and

Status: A Non-Constitutional Analysis, 117

U. Pa. Le Rev. 373, 377-402 (1969).

Pe ae Ee ee

Discipline for the sake of discipline and &

uniformity, is indeed not compatible with

the melting pot formula which brought this

country to greatness. As Judge Wyzanski

stated in holding a school hair regulation

unconstitutional, "in schools of general ;

i APPENDIX A |

10a F

comprehensiveness the constitutional premise

is that 'from different tones comes the

best tune.'" Richards v. Thurston, 38 U.S.

L.W. 2187 (Sept. 30, 1969).

Finally, we find unpersuasive the argument

that to hold such school regulations un-

constitutional would open the floodgates to

litigation by students challenging all sorts

of school regulations and practices. To

fail to hold such arbitrary regulations

unconstitutional because of fear of opening

the floodgates to litigation, some meritorious

and some not, would be an abdication of the ‘

judiciary's role of final arbiter of the :

validity of all laws, and protector of the 5

people, young and old, from the governmental

exercise of unconstitutional power.

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AFF IRMED

Since we are not faced with the problen,

we express no opinion as to the constitution-

ality of hair regulations in schools other

than those of general comprehensiveness.

STL TTA BS EMAL IIT EINE OTOL EIN Me tse ee me all

SEBEL PO SAL DRE BS ARIE EM OP HED

‘APPENDIX A

lla

17552,17553

Nos. 17552,17553, DUFFY, Senior Circuit

Judge, dissenting.

I respectfully dissent. Although no other

United States Court of Appeals has done so, :

in a similar case, the majority of this panel ;

embraces the opportunity to hold that a

deliberate violation of the Dress and Groom-

ing Code of the Williams Bay High School is

justified because, they say, such a regulation

is a violation of the United States

Constitution.

;

The District Court in this case held that

the students had a constitutional right to

express their "individuality" and "individual

taste'' by wearing long hair in admitted

violation of a published school code.

The school regulation which was deliberately

violated by these two teenage students was

not vague. Hence, there is no question in

this case of procedural due process. However,

the District Court found there was a vio-

lation of substantive due process, and the

majority opinion agrees.

In the Dress and Grooming Code here under

consideration, the school officials estab-

lished norms of conduct in accord with pre-

vailing norms in that area and which were

accepted by all but two of the student body

at Williams Bay High School.

The United States Supreme Court has not

decided the points here at issue although

that Court had the opportunity so to do.

_ :

—_ PEE ERLE I ERA ELIE ELE LINES LEE IIIT LL COTE RYS SILI Y ETE NEI ORI TE I I a ani a |

’ APPENDIX A

12a

In Ferrell, et al. v. Dallas Independent

School District, et al., 393 F. 2d 697

(5 Cir., 1968), the Fifth Circuit was pre-

sented with a similar problem. In that case,

three students of the Dallas High School

claimed that a school regulation requiring

them to trim or cut their hair as a pre-

requisite to enrollment, was a denial of

due process under the Fourteenth Amendment.

These boys were members of a musical group.

The Court, at page 703, held: "We conclude

there was no denial of substantive due

process. . . .'' A petition for certiorari

to review this decision was denied by the

United States Supreme Court. (393 U.S.

856 (1968))

| Certiorari was also denied by the United

States Supreme Court in Marshall, et al. V.

Oliver, President of Richmond Professional

Institute, et al., 385 U.S. 945 (1966) which

was an unreported Virginia case which in-

volved the wearing of long hair and beards

by college students.

The majority opinion quotes from and relies

on Tinker, et al. v. Des Moines Independent

Community School District, et al., 399 Usse

503 (1969) where a number of students, in

violation of a School Board ruling, wore

black arm bands to school to protest the

war in Vietnam. While concluding that

suh a regulation was non-enforceable as

being in violation of the First Amendment,

the Supreme Court specifically noted (393

U.S. at 507-8): "The problem posed by the

present case does not relate to regulation

of the length of skirts or the type of

clothing, to hair style, or deportment. « © «

BLEED THROUGH POOR COPY

APPENDIX A

13a

Our problem involves direct, primary First

Amendment rights akin to 'pure speech.'"

In the case at bar, these two long-haired

students do not contend that their long hair

symbolizes any specific viewpoint except

possibly the defiance of school regulations.

Of course, it may have expressed their

"individuality," a point deemed to be of

great importance by the District Judge.

A point emphasized by the District Court

and apparently approved by my colleagues, is

that there was no sufficient proof that the

long hair worn by Breen was a disruptive in-

fluence. However, if Breen had gone to his

classes carrying a sign which stated "I am

defying school regulations as to required

hair lengths", the effect would not be

different. Why is formal proof necessary for

something that is so obvious? All of the

students were aware of the rule forbidding

the boys wearing long hair and every time

Breen appeared with his flowing locks, he was

showing his defiance of and his contempt for

the school authorities and the regulations

as to hair length.

Suppose Breen required extra time each

morning to comb and train his long hair.

Could he demand, as a conscitutional right,

and to show his individuality, that morning

classes commence at 10 a.m. instead of

9 a.m.? Where is the line to be drawn? Who

is the final arbiter? The majority seems

to believe it is the United States District

Judge, subject to possible review by this

Court.

TRIP Ay ret

SF PERI RK Ie 5 Pearson te

~~. -——_—o. ee coe eee eee es ee ee ee. ee

APPENDIX A

l4a

By citing the case three times, the majority

places great emphasis on the holding in

Griswold et al v. Connecticut, 381 U.S. 479

(1965) That case held that the use of

contraceptives was part of marital "privacy"

and therefore, within the "penumbra" of

guarantees of the Bill of Rights. The Supreme

Court there found the law forbidding the use

of contraceptives was unconscitutionally

broad and would involve difficult enforce-

ment problems. In the case at bar, there is

no evidence that appellees’ long hair had

any "penumbral" characteristic.

2 LTR POTENT Ear ee

, - ene OO rar

School Boards in Wisconsin have been

delegated legislative authority and respon-

sibility to enact and enforce rules and

regulations governing conduct of students

attending the public schools under their

jurisdiction. In fact, Wisconsin Statutes

vest in the local board the management of

affairs of the school district. Wis. Stats.

sec. 120.12 (1) (1967). The Board is em-

powered to make rules for the government of

the schools and the district. Wis. Stats.

sec. 120.13 (1) (1967).

OE ~ ner? Vee Io

I think the majority opinion is clearly

wrong in its pronouncement "The right to

wear one's hair at any length or in any

desired manner is an ingredient of personal

freedom protected by the United States

Constitution." I assume this broad state-

ment includes boys or girls attending High

School. If so, the statement is unwarranted.

Thus boys, imitating the style of the "Wild

Man from Borneo" with hair unkempt and

reaching down to the waist would, according

to the majority opinion, have a federal

a ol — of. eter el la ) on on) ~~ a on on te be

APPENDIX A

15a

constitutional right to defy school rules and

regulations to the contrary.

I assume there are more than one hundred

School Boards operating in the Western

District of Wisconsin. If the District Judge

is to be the arbiter of the length and style

of hair and of various other items and practices~

included in school regulations, he will have

little or no time to take care of ordinary

federal district court business.

I would reverse the judgment of the

District Court.

A true Copy:

Teste:

/s/ Kenneth J. Carrick

Clerk of the United

States Court of Appeals

for the Seventh Circuit.

POISE RIOR ION ar PONE Ne HEHAQRE

IT ARE ee yor

APPENDIX A

l6a

UNITED STATES OF AMERICA, SS:

THE PRESIDENT OF THE UNITED STATES OF

AMERICA i

To the Honorable the f

Judges of the United r

States District Court

for the Western

District of

Wisconsin

GREETING:

WHEREAS, lately in the United States

District Court for the Western District

of Wisconsin before you, or some of you,

in a cause between THOMAS BREEN, a minor,

by his mother and next of friend, Jane

Breen; and JAMES A, ANTON, a minor, by

his parents and next of friend, William

and Marie Anton, Plaintiffs vs. WILLIAM C.

KAHL, individually and as State Superin-

tendent of Public Instruction of the State

of Wisconsin, et al., Defendants; Civil

PREF RY MN MOL WEARS PMN GTI INL MATA LATE LAER NE TRIP IR ll

’ _APPENDIX A }

17a ;

Action Number 68 C 201; an opinion, order

and judgment was entered on the twentieth

day of February, 1969.

as by the inspection of the transcript of

the record of the said District Court,

which was brought into the United States

Court of Appeals for the Seventh Circuit

by virtue of an appeal by* agreeably to

the act of Congress, in such case made and

provided, in fully and at large appears.

*David Hawley, individually and as

Principal of Williams Bay High School;

Arno D. Wehle, individually and as

Superintendent of Williams Bay Schools;

Robert R. Brown, individually and as a

member of the Williams Bay Board of

Education; Elmer M. Hansen, individually

and as a member of the Williams Bay Board

of Education; Marilyn Prugh, individually

—— APPENDIX A

18a

and as a member of the Williams Bay Board

of Education; Harold McCarthy, individually

and as a member of the Williams Bay Board

of Education; Alice Morava, individually ‘

and as a member of the Williams Bay Board f

of Education.

AND WHEREAS, in the term of September, in

the year of our Lord one thousand nine

hundred and sixty-nine, the said cause

MNO LEO, eens

LOE EEA PREIS SENS TREN tet ms anabeercae

? NEARER NET

came on to be heard before the said United

States Court of Appeals for the Seventh

Circuit, on the said transcript of record,

and was argued by counsel

ON CONSIDERATION WHEREOF, it is

ordered and adjudged by this court that

the judgment of the said District Court in

this cause appealed from be, and the same

is hereby, AFFIRMED, with costs, in

accordance with the opinion of this Court

APPENDIX A

19a

WEDNESDAY, DECEMBER 3, 1969

You, therefore are hereby commanded

that such further proceedings be had in

said cause, as according to right and

justice, and the laws of the United States,

aught to be had, the said appeal notwith-

standing. WITNESS, the Honorable Warren

E. Burger, Chief Juétice, of the United

States, the fourteenth day of January,

in the year of our Lord one thousand nine

hundred and seventy.

/s/ Kenneth J. Carrick

Clerk of the United

States Court of Appeals

for the Seventh Circuit

aE oRT ce were ry =

PPG PS LOR SE Ber Ls *.

FEAL, PEI LLES EET AORN EA LOIIE 8 NH

~*~. ——— we ees eae 8 oD la an) oo oe ot oe t=

APPENDIX B

20a

IN THE UNITED STATED DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

THOMAS BREEN, a minor, by his

mother and next of friend,

Jane Breen; and JAMES A. ANTON,

a minor by his parents and

next of friend, William and

Marie Anton,

Plaintiffs

WILLIAM C. KAHL, individually

and as State Superintendent

of Public Instruction of the

State of Wisconsin;

DAVID HAWLEY, individually and

as Principal of Williams Bay

High School;

ARNO D. WEHLE, individually

and as Superintendent of

Williams Bay Schools;

ROBERT R. BROWN, individually

and as a member of the

Williams Bay Board of

Education ;

ELMER M. HANSEN, individually

and as a member of the

Williams Bay Board of

Education ;

1 OPINION,

s;ORDER AND

, JUDGMENT

,68-C-201

2»

Pao -

OSLER LETTS POET Neg on

a a oe gee

ve PL OE EEL EET A ILE SIE LANE ot Sy Ate ee a |

APPENDIX B

2la

MARILYN PRUGH, individually

and as a member of the

Williams Bay Board of

Education;

HAROLD McCARTHY, individually

and as a member of the

Williams Bay Board of

Education;

ALICE MORAVA, individually

and as a member of the

Williams Bay Board of

Education,

all

Plaintiffs have brought this action

to challenge a regulation promulgated by

the Williams Bay Board of Education.

They seek a declaration that the regu-

lation violates the Constitution of the

United States, and an injunction against

its continued enforcement.

Defendants

;

Jurisdiction is asserted under é

42 U.S.C. § 1983, and 28 U.S.C. §§ 1343 :

(3) and (4), among other provisions. ;

Jurisdiction is present. The defen- ;

dants have acted, and they threaten to ;

act, under color of law to deprive each

of the plaintiffs of certain freedom of

action. The central issue is whether the i

freedom involved is among the rights,

privileges, or immunities secured to

plaintiffs by the Constitution of the

United States.

APPENDIX B

22a

Trial has been had to the court,

without a jury. Testimony, both by

deposition and otherwise, and documentary

evidence were received. Briefs have

been filed and oral argument heard.

My findings of fact and conclusions

of law appear in this opinion. Rule

52(a), Federal Rules of Civil Procedure.

As of September, 1968, the

plaintiff Breen was enrolled as an

eleventh grade student, and the plain-

tiff Anton was enrolled as a twelfth

grade student, in the Williams Bay High

School. Five of the defendants are

members of the Williams Bay Board of

Education (hereinafter, the Board) which,

during the preceding academic year, had

adopted this regulation affecting male

students in the high school:

"Hair should be washed, combed

and worn so it does not hang

below the collar line in the

back, over the ears on the

side and must be above the

eyebrows. Boys should be

clean shaven; long sideburns

are out."

The regulation has continued in force

until the present.

oe oar ee ae

i aa lea a ll de ="

i ae Mepeprcey

Peer go

Pinte ee

APPENDIX B

23a

Each plaintiff was expelled by the

Board in early autumn, 1968, for the

stated reason that the length of his

hair exceeded the Board's standard.

Plaintiff Anton had his hair cut to

comply and he was readmitted. At the

time of trial, he desired to allow it

to grow to a length which would be in

violation. The defendant Board mem-

bers threatened that he would be

expelled again if he did so. Plain-

tiff Breen has refused to comply and

he has been denied readmission until

and unless he does comply.

Each plaintiff petitioned the

defendant State Superintendent of

Public Instruction (hereinafter,

the state superintendent) for review

of the expulsion order, as permitted

by Wisconsin statutes. Following a

hearing in the case of plaintiff Anton,

the state superintendent terminated

the appeal proceeding as moot.

Following a hearing in the case of

plaintiff Breen, the state super-

intendent found that Breen had

persistently refused to comply with the

haircut regulation, and that this

a “

LEE IO LEAS ELLA IS LLG TEE ESS IE LAB EET TONE ARB NS re

APPENDIX B

24a

"refusal . . . to obey said rule consti-

tuted a disruptive influence or factor

within the school. . . ."l Citing

Ferrell v. Dallas Independent School

District, 261 F. Supp. 545 (N.D. Texas,

1966), affirmed 392 F.2d 697 (5th Cir., :

1968), cert. den., 37 U.S.L.W. 3135

(Oct. 15, 1968), the state superintendent

concluded that the expulsion was

warranted, and he affirmed it. This

action against him, the members of the

Board, the principal of the Williams Bay

High School (hereinafter, the principal),

and the Superintendent of Schools in

Williams Bay (hereinafter, the local

superintendent) ensued.

ete Ne Bink San ht bien

Bib iC see

The length of plaintiff Breen's hair

at the time of his expulsion exceeded

the Board standard, as the Board

asserted, and it has continued to exceed

that standard. The length of plaintiff

Anton's hair at the time of his expulsion

exceeded the Board standard, as the Board ‘

asserted, and at the time of the trial é

It should be noted that the state §

superintendent did not find that the

length of the hair of either plaintiff

was a disruptive influence or factor,

but only that Breen's refusal to obey

the rule was disruptive. This distinc-

tion is discussed hereinafter.

PELE A BRN eta maaan cape aie

APPENDIX B

25a

he did intend to permit it again to reach

a prohibited length. No basis for the

expulsion of Breen, or for the expulsion

or for the threatened expulsion of Anton,

is asserted, and in the record in this

action none appears, other than a

violation or threatened violation of

the haircut regulation. The record

contains no suggestion that the length

of the hair constituted a health problem

or a physical obstruction or danger to

any person; I find that it did not. At

no time while either plaintiff was in

attendance in the high school with hair

longer than the Board standard was any

disruption or disturbance caused by the

length of his hair. It is not suggested

that the appearance of either plaintiff

at any time, by reason of the length of

his hair, was obscene. I find that the

appearance of neither has been obscene,

and that the appearance of plaintiff

Anton, solely because the length of his

hair may exceed the Board standard,

would not be obscene.

_———— 7

I find that the dress and hair styles

of the males in Williams Bay, generally,

are conservative by current standards,

and that few, if any, males in Williams

Bay wear their hair at lengths which

exceed the Board standard.

I find that to deny a 16 year old

eleventh-grade male and a 17 year old

— a ny DAP MOEA ERS PEM Ea OT DN POD es eT ee ERG met er |

APPENDIX B

26a

twelfth-grade male access to a public high

school in Wisconsin is to inflict upon

each of them irreparable injury for which

no remedy at law is adequate. I make

this finding by taking judicial notice

of the social, economic, and psycholog-

ical value and importance today of

receiving a public education through

twelfth grade.

Plaintiffs make no contention that

the Board regulation is too vague.

The complaint includes a contention

that the Board's "dress code" is

"overbroad on its face."' I conclude

that the provision of the code relating

to hair styles, quoted above, is a

discrete and independent section of the

dress code. It may or may not be valid,

but it is not "over" broad. Plaintiffs

raise no contention here that procedural

due process has been denied.

The issue is squarely raised: Does

the Board regulation as applied to these

plaintiffs violate the Constitution of

the United States?

To achieve perspective, it may be

useful to consider the validity of a

similar regulation which might be

applicable to adults: for example,

a state statute or city ordinance making

it punishable by fine or imprisonment

for a male inhabitant to wear a beard;

YF miissunaienienenal

—a—— at NS PRES MTT aoa

PILAR NE OLED Magra Oe A. sae

APPENDIX B

27a &

or, for example, a statute or ordinance :

denying enrollment in a public adult .

education class in bookkeeping to males

whose hair exceeds a certain length;

or,for example, a statute or ordinance

forbidding access to public buildings

or parks to adult females whose hair

exceeds a certain length.

It defies credulity that a legis-

lature or council would promulgate such

a regulation. But if it should, it

seems clear that the regulation would

fall.

If, for adults, wearing one's hair

at a certain length or wearing a beard

is viewed in part as a form of expression,

that is, as a "course of conduct" in

which "speech' and "nonspeech' elements

are combined", only a "sufficiently

important governmental interest in

regulating the nonspeech element can

justify incidental limitations on First

Amendment freedoms."' United States v.

O'Brien, 391 U.S. 367, 376 (1968).

", . . [A] government regulation is

sufficiently justified if it is within

the constitutional power of the govern-

ment; if it furthers an important or

substantial governmental interest; if the

governmental interest is unrelated to

the suppression of free expression; and

if the incidental restriction on alleged

. ™

—_——— RSI IRE TE REY OR et SET YOR Raita a |

BLEED THROUGH POOR COPY

APPENDIX B

28a

First Amendment freedoms is no greater

than is essential to the furtherance of

that interest." 391 U.S., at 377.

Presumably, justification of the kinds

of regulations of the hair styles or

beards of adults, which I have hypoth-

esized above, would be asserted in terms

of the power of the state to regulate

matters of health or safety, or perhaps,

with respect to the adult education class,

education. It cannot seriously be

supposed that, with respect to adults,

the regulations would be considered "no

greater than is essential to the

furtherance" of “an important or sub-

stantial governmental interest".

Whether wearing one's hair at a

certain length or wearing a beard is a

form of constitutionally protected

expression is not a simple question.

¢ Plaintiffs’ complaint here denies that

they are expressing disrespect for author-

ity or for the "Establishment" (although

one of them testifies that his conduct

may have grown into that because the

regulation itself appears to him to be

arbitrary and capricious). But they do

assert that wearing their hair in a

certain manner is a form of self-

expression protected by the First

Amendment.

ee ew

SOV OETA ee ROS a A ie 2

CA SR oe

;

cat or Ree; Berwin corecerGB

BLEED THROUGH POOR COPY

APPENDIX B

29a

Unquestionably, it is an expression of

individuality, and it may be, although

the record in this case is silent on the

subject, that the manner in which many ;

younger people now wear their hair is i

an expression of a cultural revolt.3 f

In the view I take of this matter,

however, it is unnecessary to reach a

conclusion whether wearing one's hair

at a certain length or wearing a beard

falls within that category of "expression"

protected by the First Amendment.

3 The record here includes a deposition —

(taken at the instance of the defendants)

by a principal of a public high school

in a city about five miles from Williams

Bay. In apparent seriousness he

testifies: that "extreme hair styling"

on boys especially "symbolizes some-

thing that I feel is not in the best

interests of good citizenship"; that

"whenever I see a long-hair youngster

he is usually leading a riot, he has

gotten through committing a crime, he

is a dope addict or some such thing";

that "anyone who wears abnormally long

hair, to the decent citizenry, immed-

iately reflects a symbol that we feel is

. trying to disrupt everything we are

trying to build up and by we I mean

God-fearing Americans"; that the students

at his high school share his opinion

"that long hair symbolizes revolution,

crime, and dope addiction"; that in

BLEED THROUGH POOR COPY

APPENDIX B

30a

3fcont'd] his opinion "wearing long

hair is un-American" in this day and

age; and that its symbolism renders long

hair a distraction. The "distraction"

matter will be discussed hereinafter

(although I mention here that it is

difficult to see why hair styles which

symbolize bad things are more distract-

ing than those which symbolize good

things). To the extent, however, that

defendants may be contending that the

state may suppress conduct precisely

because it does express disapproved

attitudes, the contention must fail.

| The First Amendment surely protects

general expressions of opinion in

favor of "revolution, crime, and dope

addiction".

ELE OEE IE ERNE ANOS a NE RG tg

i ft oe a lu Rrra Pra revw

APPENDIX B :

31a t

In my view, with respect to adults,

freedom to wear one's hair at a certain

length or to wear a beard is constitu-

tionally protected, even though it

expresses nothing but individual taste.

Difficulty might arise, as it did in

Griswold v. Connecticut, 381 U.S. 479

(1965) in determining which provision of

the Constitution of the United States

would be offended by such a regulation

with respect to adults. Despite the

difficulty, the Court there reached an

inevitable judgment: that the freedom

of a husband and wife to use contra-

ceptives is a highly protected freedom.

The opinion of the Court and the con-

curring opinions imply, or state, that a

Statute which rudely invades such a

highly protected freedom does not enjoy

the usual presumption of constitutionality; |

on the contrary, the state's subordinating

interest in the regulation must be com-

pelling, concurring opinion of Mr. Justice

Goldberg, at 497, and the statute bears

"a substantial burden of justification",

concurring opinion of Mr. Justice White,

at 503. See McLaughlin v. Florida,

379 U.S. 184, 196 (1964) (involving

the right not to be discriminated against

because of race).

Equally inevitable, I believe, would

be a judgment that the freedom of an

adult male or female to present himself

‘f of , Mere ee ae Prete ~o SOT Ee

_—_— RLS COILS E LOLA LY CIO LEE IIE AE LOIRE IRE HNP SMG LI os |

= .« ae a=ean aee € oem 26 € See & fee r,.lUlUC RM! Or PO

APPENDIX B

32a

or herself physically to the world in the

manner of his or her choice is a highly

protected freedom. An effort to use the

power of the state to impair this freedom

must also bear "a substantial burden

of justification", whether the attempted

justification be in terms of health,

physical danger to others, obscenity,

or "distraction" of others from their

various pursuits. For the state to

impair this freedom, in the absence of

a compelling subordinating interest in

doing sot, would offend a widely shared

concept of human dignity, would assault

personality and individuality, would

undermine identity, and would invade

human "being". It would violate a

basic value "implicit in the concept

of ordered liberty", Palko v. Connecticut,

302 U.S. 319, 325 (1937). It would

deprive a man or a woman of liberty with-

out due process of law in violation of

the Fourteenth Amendment. See Griswold,

381 U.S., at 499-500 (Harlan, J., con-

curring). ’

y¥

;

SMasceeiasceen -

CELE OR LATENT OLY ETSI

Ere Korea ne Re pe pecan pO Ry

The question here is whether this

indignity, intolerable if imposed upon

adults in the general society, may be

visited upon these plaintiffs.

4A comment upon the military and upon —

penal institutions is made hereinafter. §

fet

ee ;

APPENDIX B

33a

Defendants contend that it may:

first, because plaintiffs are students

in a public school; and, second, because

plaintiffs are no more than 16 and 17

years of age. Neither reason, standing

alone, is sufficient. As I have stated,

similar regulations applicable to men

and women attending a public adult

education evening class in bookkeeping

would undoubtedly fall. So would a

similar regulation applicable to pre-

school children or to a sixteen yeas

old who (in some parts of Wisconsin?)

is no longer obliged to attend school

and who nag be employed on a farm or in

a factory.

We come then to the basis upon which

this application of state power to these

plaintiffs must ultimately be asserted:

the combination of circumstance that

they are enrolled in a public school

and also that they are no more than 16

and 17 years of age.

Wisconsin statutes vest in the local

Board the management of the affairs of

the school district. Sec. 120.12(1),

2Sec. 118.15, Wis. Stat.

Ort should be noted that school

regulations concerning hair styles

necessarily affect the student while he

is outside the school as well as within

it.

REA SE RS ae 87 FT EIT

EEA PR es: eh Pi le

LEO EDY LI LOTTI OLA

BLEED THROUGH POOR COPY

APPENDIX B

34a

Wis. Stat. The Board is empowered to

make rules for the government of the

schools in the district. Sec. 120.13(1).

The Board may expel a pupil who has

persistently refused or neglected to

obey a Board rule if the interest of

the school demands his expulsion.

Sec. 120.13(3)./

One general contention advanced by

the defendants and by their witnesses is

that this authority is vested in the

Board, that the Board has chosen to

exercise its authority with respect to

this regulation affecting the length

of students’ hair, that the very failure

by a student to respect any Board

regulation is a cause of disruption in

the school, that learning to respect

authority is a part of the education

of the students, and that judicial

interference with the Board's authority

will itself result in further dis- ;

ruption in this school and other schools. f

‘Similar powers are granted,

expressly or by implication, with

respect to adult education, to a state

board of vocational, technical and

adult education, Wis. Stat., sees. 15.94,

15.941, and 41.13, and to local boards of

vocational and adult education, sec. 41.15. |

BLEED THROUGH POOR COPY

De) OMT SERA OU nt POEM FAL OP LE PERE GC eee

ae A GOR LS LY RU RS AAT IRN a |

APPENDIX B ;

35a

That the courts should not casually ;

interfere with the functions of other

public agencies is a proposition so

clear as to require neither repetition

nor emphasis. Very recently, we were

reminded:

"Judicial interposition in

the operation of the public school

system of the Nation raises

problems requiring care and

restraint. ... By and large,

public education in our Nation

is committed to the control of

state and local authorities.

Courts do not and cannot inter-

vene in the resolution of

conflicts which arise in the

daily operation of school

systems and which do not

directly and sharply implicate

basic constitutional values."

Epperson v. Arkansas, 393 U.S. 97,

104 (1968).

But it must not be forgotten, however

small the community, however familiar to

one another the characters in the drama,

that when a school board undertakes to

expel a public school student, it is

undertaking to apply the terrible organized

force of the state, just as surely as it is

applied by the police, the courts, the

prison warden, or the militia. In

: Gi VICE ae Oh Rae bn LR in gs ee MR RL DES hel ential aie eo ian Ye eee |

eae? ae lh ea Pl rPmrrTr Prrrmwv

APPENDIX B

36a

the passage just quoted from Epperson, the

Court quoted with approval the pro-

position that the "vigilant protection

of constitutional freedoms is nowhere

more vital than in the community of

American schools." Shelton v. Tucker,

364 U.S. 479, 487 (1960). In Board of

Education v. Barnette, 319 U.S. 624

(1943), the Court met head-on the

question whether the courts may and

should intervene when liberty in public

elementary and secondary schools is

threatened by a regulation promulgated

by a state board of eduction. It

rejected the contention that it should

refrain from interference with the

school board's functions, observing that

school boards have "important, delicate,

and highly discretionary functions, but

none that they may not perform within

the limits of the Bill of Rights."

319 U.S., at 637. It rejected the

contention that it should refrain from

entering a field "where courts possess

no marked and certainly no controlling

competence", Minersville District v.

Gobitis, 310 U.S. 586, 597-598 (1940);

it commented that its duty to apply the

Bill of Rights to assertions of official

authority depends not upon the Court's

possession of marked competence in the

field where the invasion of rights

occurs, "but by force of our commissions":

TERMO RRR Bey MEER

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APPENDIX B

37a

"We cannot, because of modest

estimates of our competence in

such specialties as public

education, withhold the judgment

that history authenticates as

the function of this Court when

liberty is infringed." 319 U.S.,

at 638-640.

The judgment of the district court enjoin-

ing enforcement of the school board

regulation was affirmed.

To suggest that the public secondary

schools should be immune from this con-

stitutional scrutiny by the courts, with

respect to the regulation of the length

of students’ hair, is to suggest a

parallel between the public schools, on

the one hand, and the armed forces or a

penal institution, on the other. For-

tunately, I am not called upon to pass

upon the familiar practice of imposing

stringent standards of personal appear-

ance in the latter institutions. The

practice, presumably, is rooted in

considerations of discipline or esprit

de corps, with respect to the military,

and, with respect to penal institutions,

in considerations of discipline or

deliberate degradation of inmates. Of

these considerations, the defendants

have suggested discipline alone as a

consideration appropriate to the schools.

Even with respect to discipline, I do not

understand them to contend that short

Pa i ae Se eee

Ba ha te bos ta 2

PRP ee

ORRIN SNE 7S Be aa Ne

APP MBAE GS ogre

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APPENDIX B

38a

haircuts may be required of high school

students solely as an exercise of

authority for its own sake and submission

to authority for its own sake. The point

made about discipline seems to be that

the disciplinary powers of the school

authorities will be diminished if this

Board regulation is not upheld and these

expulsions and threatened expulsions

are not vindicated by the court.

Obviously the relationship of

students, faculty, administrators, and

school board will be affected in some

degree by a judicial declaration of

invalidity of a school board regulation.

But if the regulation is fairly found

to violate the Constitution, respon-

sibility for these consequences rests

with the agency which promulgated the

regulation. So far as education of young

people in obedience is concerned, it is

important for them to appreciate the

present vitality of our proud tradition

that although we respect government in

the exercise of its consitutional powers,

we jealously guard our freedoms from

its attempts to exercise unconstitutional

powers,

SThere is a significant distinction

between disruption which may be caused by

the wearing of long hair, on the one hand,

SIMMER pene > epARNY: Bete aero

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a ait ani hale hear

ERT UAC EY Qe eRe K ety

EIRENE. MIS PUP AEE?

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39a

8{cont'd} and disruption which may be

caused by the very fact that a student

has violated any Board rule, on the

other. That disruption of the latter

type may occur obviously affords no

support for constitutionality of the

regulation itself. For this reason

I consider that the finding of the state

superintendent, even if it were to be

wholly accepted here, affords no support

for the validity of the challenged

Board regulation. See n. 1 supra and

the related text.

}

APPENDIX B f

‘

;

ETE AT 3 ATR AEN ARIE LEER Sees |

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APPENDIX B

40a

I am aware that other courts have

rejected challenges to similar school

regulations by characterizing the issue

as political or social, or by declining

to involve the courts in a thicket best

left to the school boards. Ferrell v.

Dallas Independent School District, 261

F. Supp. 545 (N.D. Texas, 1966),

affirmed 392 F.2d 697 (5th Cir. 1968),

cert. den., 37 U.S.L.W. 3135 (Oct. 15,

1968); Davis v. Firment, 269 F. Supp.

524 (E.D. La., 1967); Leonard v. School

Committee of Attleboro, 349 Mass. 704,

212 N.E. 2d 468 (1965). But the students

who are subjected to these regulations

do not vote in school board elections;

political redress of their grievances

is not open to them; theirs is a

situation in which judicial vindication

of constitutional protections has been

considered particularly appropriate.

Edwards v. California, 314 U.S. 160, 174

(1941) ;sx South Carolina Highway Dept. Vv.

. Barnwell Bros., 303 U.S. 177, 185, n.2

(1938). See NLRB v. Allis-Chalmers Mfg.

Co., 388 U.S. 175, 191 (1967). Cautious

counsel to avoid judicial involvement in

serious constitutional issues merely

because they concern younger people, in

my view, is neither prudent, expedient,

or just. It is time to broaden the

constitutional community by including

within its protections younger people

whose claim to dignity matches that of

their elders. See In re Gault, 387

U.S. 1 (1967).

EE LOMA ONG TIONG EE ee

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APPENDIX B

4la

I consider myself obliged, therefore,

to determine whether the defendants have

met the "substantial burden of justi-

fication" of this regulation which

invades a freedom deserving a high degree

of protection. Although variously

stated by the witnesses and counsel,

the asserted justifications may be

summarized as follows: (1) that in

Williams Bay a male high school student

whose hair is longer than the Board

standard so departs from the norm that

his appearance distracts his fellow

students from their school work; and

(2) that students whose appearance

conforms to community standards perform

better in school, both in strictly

academic work and in extra-curricular

activities, than those whose appearance

does not conform.

If the truth of both justifications

were to be accepted, questions would

nevertheless abound: Is it a desirable

objective of our public schools to

eliminate diversity within the school

in order to eliminate distraction?

On the contrary, is it not more vital

to encourage experience with diversity

and adaptation to it, in a diverse

nation and world, than to encourage

homogeneity? From the proposition that

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APPENDIX B

42a

conforming students perform better than

nonconforming students, does it follow g

that the performance of nonconforming

students will improve if by threat of

expulsion they are forced to conform?

Vee Oe ISR Ieee

But these are questions which one

hopes would be raised by school board

members, administrators, teachers,

parents, and students. The question

here is whether the defendants have

carried the “substantial burden of

justification."

With respect to the "distraction"

factor, the showing in this record

consists of expressions of opinion by

several educational administrators .

that an abnormal appearance of one E

student distracts others. There is no :

direct testimony that such distraction

has occurred. There has been no offer

of the results of any empirical studies

on the subject by educators, psychologists,

psychiatrists, or other experts. Even

in the opinions which have been received

in evidence, there has been no ampli-

fication with respect to what portion of

the students are susceptible to such

distraction, how frequently susceptible

students are likely to be distracted

for this reason, how quickly or slowly

high school students accommodate to

individual differences in appearance, or

Lr ts, SOMES se a ee eet FOAM Sepp

Ricoen THMOMHLICWN RPHOR CORY

APPENDIX B

43a

how the distraction actually manifests

itself in terms of the behavior of the

distracted students in various learning

situations. From the testimony of the

educational administrators, it appears

that the absence of such amplification

is not accidental; it arises from the

absence of factual data which might

provide the amplification. ?

With respect to the "comparative

performance" factor, this record is

equally barren. The expert opinions

are fewer than those on the distraction

factor. No empirical findings are

offered. No hard facts are adduced

even from a limited sample to demon-

strate that the academic performance

of male students with long hair is

inferior to that of male students with

short hair, or that the former are less

active or less effective in extra-

curricular activities.

UThe testimony of plaintiffs' expert

was to the effect that the literature in

educational psychology, at present, does

not support the conclusion that students

are seriously distracted for any

significant interval by the unusual

appearance of a fellow student. However,

I make no finding on the factual

question. I conclude only that de-

fendants have failed to meet the

"substantial burden of justification".

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see ll

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APPENDIX B

44a &

In many situations, no doubt, whether

"a substantial burden of justification"

of a regulation has been met is a delicate

and uncertain matter. This is not such

a situation. Defendants here have fallen

far short of showing that the distraction

caused by male high school students whose

hair length exceeds the Board standard

is so aggravated, so frequent, so general,

and so persistent that this invasion of

their individual freedom by the state is

warranted. The same is true of

defendants' showing with respect to the

differential in school performance

between male students with long hair

and those with short hair.

Upon the entire record herein, and

for the reasons given in this opinion:

It is hereby adjudged that the

regulation of the WilJiams Bay Board

of Education limiting the length of male

students' hair, requiring male students

to be clean shaven, and prohibiting long

sideburns, violates the due process

clause of the Fourteenth Amendment to

the Constitution of the United States,

and is null and void.

It is further ordered that the

defendants are enjoined from continuing

to enforce the said regulation of the

Board, or from initiating the suspension

en |

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APPENDIX B

45a

or expulsion of either of the plaintiffs

from the Williams Bay High School solely

by reason of violation of the said

regulation.

It is further ordered that each of

the plaintiffs is to be reinstated as

of February 24, 1969, or continued, as

the case may be, as a student in the

Williams Bay High School, with the same °

rights, privileges, and immunities as

those which attached to his status as a

student in said school prior to his

suspension or expulsion.

It is further ordered that there shall

be expunged from the Williams Bay High

School records any notation revealing

disciplinary action heretofore taken

against each of the plaintiffs by reason

of the said Board regulation.

PE IEE EIU IE ET

It is further ordered that the

plaintiffs are awarded their statutory

costs and disbursements herein.

a a ate AN oh

Entered this 20th day of February, 1969.

By the Court:

/s/James E. Doyle

District Judge

=_"

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SUPREME COURT OF THE UNITED STATES

IN THE

October Term, 1969

| WILLIAM C. KAHL, Petitioner,

THOMAS BREEN, a minor, by his

mother and next of friend, Jane i

Breen; and JAMES A. ANTON, a é

minor by nis parents and next of é

friend, William and Marie Anton,

Respondenc.

CERTIFICATE OF SERVICE

I hereby certify that on this 2nd

day of March, 1970, three copies of the

Petition for Writ of Certiorari were

mailed, postage prepaid to: Sander N.

Karp and Melvin F. Greenberg, 303 State

Street, Madison, Wisconsin 53703, and

Pe MI Ce yeuapenry:

RETR Let ee MOMENI eo eRe Meet

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Percy L. Julian, Jr., 330 East Wilson

Street, Madison, Wisconsin 53703,

counsel for respondents. I further

certify that all parties required to be

served have been served.

ROBERT D. MARTINSON

Department of Justice

State Capitol &

Madison, Wisconsin 53702

Counsel for Petitioner

ALS PRED Se REE ae: Pee teeeeyT

mtwonR

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