Opposition Brief — San Jacinto Junior College v. Hander

SUBJECT INDEX

ARE REYESI s yO n r

EE eT Skeid ebcdiesiicsé.ss..c. ook

QUESTIONS PRESENTED ...........................

SOAtEMENT OF THE CASE ........................

ARGUMENT ..... RE CEP EEL Re STO

AE EE ae ne a

CERTIFICATE OF SERVICE ........................

LIST OF AUTHORITIES

CASES

Calbillo v. San Jacinto Jr. College, 305 F.Supp. 857 (S.D.

SEE Si nasSh bebe ssd ccvhdeterdarcsessscc....

Monrosa v. Carbon Black Inc., 359 U.S. 180 (1959)......

Moreno v. Henckel, 431 F.2d 1299 (CA, S, 1970)........

2d 895 (Tex. Civ. App. 1963) ..............0........

v. Koota, 389 U.S. 241 (1969) ........... 17

Supreme Court af the United States

OcTOBER TERM, 1972

NO. 72-1046

SAN JACINTO JUNIOR COLLEGE, ET AL,

Petitioners,

Vv.

LECIL HANDER, Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

OPINION

The opinion of the Court of Appeals, 468 F.2d 619,

and the opinion of the United States District Court for

the Southern District of Texas, 325 F.Supp. 1019 (1971 \ i

is appended to the Petition for a Writ of Certiorari.

JURISDICTION

Respondent does not question the jurisdiction as set

forth in the Petition.

QUESTIONS PRESENTED

1. Whether Federal Courts should abstain in cases in-

volving state college regulations pertaining to the groom-

ing of its employees.

2

2. Whether the Constitution of the United States or

any Federal statute prohibits the adoption of arbitrary

and capricious grooming regulations for employees by

state colleges and universities.

STATEMENT OF THE CASE

In September, 1969, Lecil Hander, plaintiff-appellant,

was hired by defendant-appellee, San Jacinto Junior Col-

lege, a public junior college of the State of Texas, as a

full-time instructor in biology. At that time the College

had a written policy prohibiting long hair and beards on

male students. This policy was not applicable to the

faculty members; however, Mr. Hander as an instructor

at the College was “expected to go along” with the student

policy.

Then, on November 17, 1969, United States District

Judge John Singleton, Jr., enjoined the College from en-

forcing its student beard policy in the case of Carlos

Calbillo v. San Jacinto Junior College, 305 F.Supp. 857

(S.D. Tex. 1969). Thereafter, both students and faculty

were allowed to grow-beards. Mr. Hander grew his beard

in the summer of 1970, and taught without incident

during the fall semester 1970.

On December 22, 1970, the Board of Regents of the

College re-adopted its student beard rule and at the same

time adopted its written policy regarding faculty members,

which policy read as follows:

“Faculty members and all other male employees of

San Jacnto College are required to be clean shaven,

wear reasonable hair styles, and to have no exces-

sively long sideburns.”

ee

3

After Mr. Hander was informed of the new policy, a hear-

ing was held before the Board of Regents on January 14,

1971, on the issue of his beard, the new policy, and his

male faculty members and employees of the College,

seeking reinstatement for Mr. Hander and an injunction

against the College’s enforcement of the faculty beard

After the hearing on plaintiff's requested injunctive re-

lief, but before a decision had been reached, Judge Single-

ton in the Calbillo case referred to above, issued the

following Order:

CARLOS CALBILLO

v.

SAN JACINTO JUNIOR COLLEGE,

to-wit: DR. O. W. MARCOM, et al

CIVIL ACTION NO. 69-H-1012

ORDER CORRECTING CLERICAL ERROR

It appearing to the Satisfaction of this court that the

signing and entry on December 31, 1970, of an order

entitled “Order Dissolving Preliminary Injunction and

Dismissing Cause of Action” was a clerical mistake in

that said order through inadvertence failed to set amended

4

regulation of San Jacinto Junior College pertaining to

dress and decorum on the part of male students, which

amended regulation should have contained no reference

to beards or clean-shaven faces for male students.

Accordingly, it is ORDERED that said order of Decem-

ber 31, 1970, be, and the same is hereby, changed so as

to include the following:

“It is further ORDERED, ADJUDGED, and DE-

CREED that the regulations of San Jacinto Junior

College pertaining to dress and decorum on the part

of male students shall read as follows:

‘Male students at San Jacinto Junior College are re-

quired to wear reasonable hair styles and to have no

excessively long sideburns.’ ”

Except as amended herein, said order of December 31,

1970, shall remain in effect as entered.

The clerk of this court is directed to immediately file

this Order and to send copies thereof to all counsel of

record.

DONE at Housion, Texas, this 25th day of January,

1971.

/s/ JOHN V. SINGLETON, JR.

United States District Judge

This Order was filed on February 9, 1971. Thereafter, on

April 9, 1971, United States District Judge, Carl O. Bue,

Jr., issued a memorandum opinion in the instant case,

in which opinion the Court abstained from deciding the

issues presented and dismissing the action.

issue is posed less abstractly.” The Monrosa v. Carbon

Black, Inc., 359 U.S. 180, 184 (1959),

In Monrosa, where a Writ of Certiorari was dismissed

as evidently granted, this Court recognized that the ques-

tion which led to the Grant of Certiorari was more or less

6

“While this Court decides questions of public impor-

tance, it decides them in the context of meaningful

litigation. Its function in resolving conflicts among

the Courts of Appeals is judicial, not singly adminis-

trative or managerial. Resolution here of the .. .

[issues in conflict] can await the day when the issue

is posed less abstractly.” 359 U.S. at 184.

This case can be sustained on the ground that the

Fifth Circuit correctly reversed and remanded the dis-

trict court’s decision to abstain from deciding Federal

constitutional questions. Certiorari should not be granted

to review the constitutionality of grooming regulations ap-

plicable to public school students when that issue is only

abstractly present in the instant case.

In the instant case, the District Court applied the ab-

stention doctrine and refrained from exercising its juris-

diction to decide the Constitutional issue presented on the

ground that a state court decision interpreting the general

Statutory grant of power to junior college boards or

regents and interpreting the validity of the College beard

policy would foreclose the necessity for a federal court

decision on the federal Constitutional question presented.

That holding misapplies the abstention doctrine as it has

developed in the federal courts since Railroad Commis-

sion v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941).

The basis of the doctrine is a sound one. Judicial

economy, comity between the federal and state judicial

systems, and avoidance of unnecessary federal Constitu-

tional decisions are the more important worthwhile ob-

jectives of the doctrine. However, the abstention doctrine

was never intended to apply in such a way as to deprive a

plaintiff of his federal remedy.

—

7

From the Railroad Commission case, supra, to the

present, the abstention doctrine has been applied “only in

narrowly limited ‘special circumstances,’ ” Zwickler y.

Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395 (1969).

Most often, those special circumstances arise where the

plaintiff raises two issues of law, one involving the con-

struction of a state statute or a State Constitutional pro-

vision, and the other involving a federal Constitutional

problem. In the Railroad Commission case, supra, the

plaintiffs asserted that both Texas law and the United

States Constitution forbade an order of the Railroad Com-

mission regulating the presence of conductors on pas-

senger train sleeping cars. This Court held that the Con-

stitutional questions raised by the plaintiffs should not

be passed on by the federal courts until the validity of

the order was reviewed in the Texas state courts under

the applicable Texas statute. “If there was no warrant in

state law for the Commission’s assumption of authority

there is an end of the litigation; the Constitutional issue

does not arise.” 312 US. at 501. Again, in Reetz y.

Bozanich, 397 U.S. 82, 90 S.Ct. 788 (1970), the plain-

tiffs raised issues of state law as well as federal Con-

stitutional questions relating to newly adopted Alaska

fishing rights statutes. This Court held that the absten-

tion doctrine should only be applied “Where the issue of

state law is uncertain. . . . A state court decision here,

however, could conceivably avoid any decision under the

Fourteenth Amendment and would avoid any possible

irritant in the federal-state relationship.” 397 U.S. at 86-

87.

The common thread running through these Opinions

is that (a) where a plaintiff raises both a state claim and

a federal Constitutional claim in federal court, (b) where

8

the issue of state law is uncertain, (c) where a state

court construction favorable to the plaintiff could avoid

the federal Constitutional question, and (d) where the

federal court would otherwise be in a position of constru-

ing a state issue in advance of an authoritative ruling by

a state court, then the federal court should abstain from

deciding either of the issues since (e) the federal court

decision on the state issue could irritate the federal-state

relationship, and (f) the federal court decision on the

Constitutional issue could be an unnecessary one.

Neither the policy considerations underlying the absten-

tion doctrine nor the case law applying it justified the ap-

plication of the doctrine to the instant case. Plaintiff-ap-

pellant, Lecil Hander, in his complaint and in the District

Court proceedings has never contended that the College

beard policy was in violation of state law or the state

Constitution. It is the defendants-appellees who have

raised the question, placing themselves in the unusual

position of alleging a possible violation of state law by the

College: “Thus it is conceivable that the state courts them-

selves would strike the college’s rule.” Plaintiff-appellant

has not asked the District Court to pass on any issue of

state law, and therefore there could be no possible ir-

ritant in the federal-state relationship. Reetz v. Bozanich,

supra.

Second, there is nothing on the face of the College’s

beard policy, the state laws relating to public junior col-

leges, or provisions of the state Constitution which indicate

that a state court interpretation would avoid or modify

the federal Constitutional question. The provision of the

Texas Constitution relied on by the District Court as the

basis for the College beard policy states simply that:

9

“A general diffusion of knowledge being essential to

© preservation of the liberties and rights of the

people, it shall be the duty of the Legislature of the

State to establish and make suitable provision for the

support and maintenance of an efficient system of

public free schools.”

Texas Constitution, Art. VII, sec. 1. The Texas Education

Code provides only that:

“A union junior college, a county junior college, or a

joint-county junior college shall be governed, admin-

istered, and controlled by and under the direction

of a board of trustees of seven members.”

Tex. Ed. Code, sec. 51.040. Both are general grants of

power to regulate public schools. The District Court then

declared it to be an unsettled question of state law whether

the College could pass the beard policy it did pursuant to

this general grant of power for the control and opera-

tion of a junior college.

Such reasoning does not follow the tests necessary be-

fore a federal court should abstain from deciding the

merits of a plaintiff's Constitutional claim. In Zwickler v.,

Koota, supra, this Court quoted with approval the fol-

lowing language from United States v. Livingston, 179

F.Supp. 9, 12-13 (D.C.), afd Livingston vy. United States,

364 U.S. 281, 80 S.Ct. 1611 (1960):

“Though never interpreted by a state court, if a state

Statute is not fairly subject to an interpretation

which will avoid or modify the federal Constitutional

question, it is the duty of a federal court to decide

the federal question when presented to it. Any other

course would impose expense and long delay upon

the litigants without hope of its bearing fruit.”

10

389 U.S. at 251, 88 S.Ct. at 397. Respondent respect-

fully contends that the Texas statutory and Constitutional

provisions are of such a general nature that they are not

“fairly subject to an interpretation which will avoid or

modify the federal Constitutional question.” This would

necessarily mean an interpretation favorable to the plain-

tiff; otherwise, the federal Constitutional issue would re-

main were the state issue resolved against the plaintiff,

and attendant expense and delay would have occurred in

the meantime. As an example of the difficulties a plaintiff

may find himself in where the federal court and not the

plaintiff has raised the state issue, and then abstains, see

England v. Louisiana State Bd. of Medical Examiners, 375

U.S. 411, 84 S.Ct. 461 (1964).

Besides, the extent to which public school district regu-

lations such as the one in question here are sustainable is

not an unsettled question of Texas Law. Quite to the con-

trary, it is well settled in Texas that a school regulation is

sustainable if there is any reasonable relationship be-

tween the regulation:in question and the proper operation

of the school. See Passel v. Fort Worth Independent

School District, 453 S.W.2d 888 (Tex. Civ. App. 1970),

ref. n.r.e.; McLean Independent School District v.

Andrews, 333 S.W.2d 886 (Tex. Civ. App. 1960); Kis-

sick v. Garland Independent School District, 330 S.W.2d

708 (Tex. Civ. App. 1960), ref. n.r.e.; Romeike v. Hous-

ton Independent School District, 368 S.W.2d 895 (Tex.

Civ. App. 1963). See also Ferrell v. Dallas Ind. Sch.

Dist., 392 F.2d 697, 701-702 (C.A. 5, 1968).

Additionally, the District Court in applying the ab-

stention doctrine to the instant case has overlooked the fact

that this is an action brought under the Civil Rights Act

of 1871, 42 U.S.C. 1983. In Monroe v. Pape, 365 US.

11

167, 81 S.Ct. 473 (1961), this Court reviewed the legis-

lative history and purpose of section 1983 and concluded

that:

“It is no answer that the State has a law which if en-

forced would give relief. The federal remedy is sup-

plementary to the state remedy, and the latter need

not be first sought and refused before the federal one

is involved.”

365 U.S. at 183, 81 S.Ct. at 482. This Court reaffirmed

their holding in Monroe supra, regarding the supplementary

nature of section 1983, in McNeese v. Board of Educa-

tion, 373 U.S. 668, 83 S.Ct. 1433 (1963), which held

that the plaintiffs did not have to look to state law first

regarding their complaint of racial discrimination:

“We would defeat those purposes [of section 1983]

if we held that assertion of a federal claim in a

federal court must await an attempt to vindicate the

same claim in a state court.”

373 U.S. at 672, 83 S.Ct. at 1436. This Court went on

in McNeese to distinguish the section 1983 Claim from

the abstention cases:

373 U.S. at 674, 83 S.Ct. at 1437. In the Zwickler Case,

supra, this Court said:

“In McNeese v. Board of Education, 373 US. 668,

83 S.Ct. 1433, 10 L.Ed.2d 622, we again empha-

12

sized that abstention cannot be ordered simply to give

state courts the first opportunity to vindicate the

federal claim.”

389 U.S. at 251, 88 S.Ct. at 397. In a footnote, the Court

added:

“We have frequently emphasized that abstention is not to

be ordered unless the state statute is of an uncertain

nature, and is obviously susceptible of a limiting con-

struction. [Numerous citations].” (emphasis added).

389 at 251, 88 S.Ct. at 397, fn. 14.

The abstention doctrine, section 1983, and the inter-

relationship between the two has also been before the

Fifth Circuit with great regularity. In Moreno v. Henckel,

431 F.2d 1299 (C.A. 5, 1970), the Fifth Circuit exhaus-

tively analyzed the Supreme Court cases cited in the fore-

going pages, and concluded that Monroe, supra, McNeese,

supra, and Zwickler, supra, controlled their decision in

Moreno. That case is virtually identical to the instant

case, since in Moreno the plaintiff was alleging an un-

lawful discharge from public employment based on his

exercise of protected rights under the First and Four-

teenth Amendments. The suit was brought under 42

U.S.C. 1983.

What respondent sought in the District Court was deter-

mination of the question of whether his dismissal from

employment by defendants herein violated the Fourteenth

Amendment. If the District Court’s decision to abstain is

left standing, the resulting effects will be that plaintiff will

never have his day in court on the merits of his Con-

stitutional claim; and the path will be cleared for other

District Courts to avoid section 1983 claims simply by

13

searching for general statutory authority on which an

interpretation of an existent “state action” might rest,

whereupon, an artificial factual or legal distinction between

the subject problem and similar state court decisions might be

found, “causing” the trial court to hold that the state statute

uncovered by the District Court’s diligence is unsettled,

and, therefore, forcing abstention. Surely the high pur-

poses of the abstention doctrine were never meant to ef-

fectively deny a federal decision on a federal Constitutional

question.

The Fifth Circuit’s reversal of the District Court’s deci-

sion to abstain is not in conflict with other circuits. The

issue of imposing grooming regulations on students is

only abstractly if at all present in this case, and the con-

flict in the circuit courts on that issue does not constitute

an adequate reason for the grant of certiorari in this case.

CONCLUSION

For the reasons stated above, respondent says that a

Petition for Writ of Certiorari should be denied.

Respectfully submitted,

JIM WATSON

609 Fannin

Houston, Texas 77002

223-4444

Counsel for Respondent

Of Counsel:

LARRY WATTS

300 Jackson Hill, Suite 200

Houston, Texas 77007

869-3315

14

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this ________ day of

March, 1973, three copies of the Brief in Opposition were

mailed, postage prepaid, certified, return receipt requested,

to Mr. B. Jeff Crane, Jr., Attorney at Law, First City

National Bank Building, Houston, Texas, 77002, Counsel

for the Petitioner.

Jim WATSON

609 Fannin

Houston, Texas 77002

223-4444

a te a chapels giana eee

Counsel for Respondent