Opposition Brief — Cole v. Tennessee

OCTOSER TERM, 1975 ‘[f SEP 16 ists”

No. 74-134

+ MICHAEL RODAK, JR. cue

LOWELL F. HOLSAPPLE, a Minor, by His Father

and Next Friend,

Frank Holsapple,

Respondent ,

vs.

RAYMOND D. WOODS, Individually and as Superin-

tendent of the Odin Community Unit School Dis-

trict No. 700; KERMIT K. CUNNINGHAM, Individually

and as Principal of Odin High School; THE BOARD

OF EDUCATION, Odin Community Unit School District

No. 700, County of Marion, State of Illinois, a

Body Politic Corporate; PLES WILSON, Individually

and as President of the Board of Education;

ROEBERT UCHITJIL, Individually and as Member of

the Board of Education, Odin Unit No. 700;

BILL JACKSON, Individually, and as Member of

the Board of Education, Odin Unit No. 700;

VIRGIL STEELE, Individually, and as Member of

the Board of Education, Odin Unit No. 700; JACK

ERANCH, Individually and as Member of the Board

of Education, Odin Unit No. 700; EARL VAUGHN,

Individually and as Member of the Board of

Education, Odin Unit No. 700; LAWRENCE HAYDEN,

Individually, and as Member of the Board of

Education, Odin Unit No. 700,

Petitioners.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Seventh Circuit

JOHN C. O'BRIEN

LAND OF LINCOLN LEGAL

ASSISTANCE FOUNDATION, INC.

234 COLLINSVILLE AVENUE

EAST ST. LOUIS, ILLINOIS 62201

Counsel for Respondent

Page

Statement 1

Reasons for Denying the Writ 3

I. Mootness 3

II. Petitioners' "Conflicts" are

Distinguishable

III. Trend Toward Allowing

Personal Choice 6

IV. Consistent with Tinker 8

V. The Right of Personal Privacy 9

VI. Petitioners Fail to Satisfy

the Burden of Proof Test they

Propose 12

Conclusion 13

Certificate of Service 14

LIST OF CASES CITED

Bishop v. Colaw, 450 F. 2d 1069, 1075 (8th Cir.

1971) p.9

Breen v. Kahl, 419 F. 2d 1034, 1036 (7th

Cir. 1969) cert. denied, 398 U.S. 937

(1970 p.9, 10, li

Crews v. Clones, 432 F. 2d 1259, 1266 (7th

Cir. 1970) p. 10

LeFunis v. Odegaard, U.S. . >» 42

U.S.L.W. 4578, 4578-79 (apr. 23, 1974)

p. 3

EIGER A A SE

Dwen v. Barry, 483 F. 2d 1126 (2d Cir. 1973) p.7,8

Fagan v. National Cash Pezister Co., 481 F.

ed 1115 (D.C. Cir. 1973) p.8

Ferrell v. Dallas Indep. School Dist., 392

F. 2d 697 (5th Cir.), cert. denied, 393 U.S.

856 (1968 p. 4,1

Freeman v. Flake, 448 F. 2d 258, 262 (10th

Cir. 1971), cert. denied, 405 U.S. 1032 (1972) 6

p. 6,11

Friedman v. Froehlke, 470 F. 24 1351 (1st Cir.

1972) p.8

Gere v. Stanley, 453 F. 2d 205, 209 n. 8 (3rd

Cir. 1971) — p.4

Gfell v. Rickelman, 441 F. 2d 444 (6th Cir. 1971)

p.5

Jackson v. Dorrier, 424 FP. 2d 213 (6th Cir.),

cert. denied, 400 U.S. 850 (1970) p-ll

Karr v. Schmidt, 460 F. 2d 609 (5th Cir.) (en

banc), cert. rt. denied, 409 U.S. 989 (1972) p.7,11

King v. Saddleback Jr. College Dist., 445 F. 2d 932

(9th Cir.), cert. denied, 400° U.S. 979 (1971)

p.5,l1

Lansdale v. Tyler Jr. College, 470 F. 2d 659

(5th Cir. 1972), cert. denied, 411 U.S. 986

New Rider v. Boor of Educ. of Indep. School

Dist. No. 1, 480 F. 2d 693 (10th Cir.), cert.

denied, 414 U.S. 1097 (1973) p.ll

Richards v. Thurston, 424 F. 2d 1281, 1284-85 (1st

Cir. 1970) - p.10

Rinehart v. Brewer, 491 F. 2d 705 (8th Cir. 1974)

(prisoners ) p.7

Roe v. Wade, 410 U.S. 113, 152-52 (1973) p.10

Sherling v. Townley, 464 F. 2d 537, 588-89 (5th

Cir. 1972) p.9

Stevenson v. Board of Educ. of ineeler County, 426

F. od 1154 (5th Cir.), cert. cenied, 400 U.S.

957 (1970) p.1l

Stull v. School Bd. of the Western Beaver Jr. -

Sr. High: School, 459 F. 2d 333, 347 (3d Cir.

(1972) p.4

Tinker v. Des Moines Indep. Corrunity School

Dist., 393 U.S. 503 (1969) p.8

Van Hoose v. Eidson, 450 F. 2d 746 (6th Cir. =

Pp.

Willingham v. Macon Telegraph Puslishing Co.,

462 F. 2d 535 (5th Cir. 1973) p.7,8

STATEMENT

Respondent accepts petitioners’ State-

ment subject to the following qualifications

and additions:

Respondent was a senior at Odin High

School when this suit was filed. Pursuant

to a stipulation approved by the District Court

on September 25, 1973, respondent was re-admitted

to Odin High School and has since graduated.

Petitioner Woods admitted on cross-

examination that students could conform to the

grooming rule by either cutting their hair or

wearing it in a fashion that canplied with the

rule, i.e., not over eyebrows or ears or to the

collar. (Tr. 30-31).

The study made by Ruth Westerhold was,

according to her own testimony, an "informal

survey." (Tr. 71). This survey consisted

of going through the yearbooks of seven area

high schools and picking the four male students

with the longest hair on the days the pictures

ate

were taken. One of these twenty-eight men was

third in his class of 110 and the rest ranked

in the lower three-quarters of their class.

(Tr. 71-73). |

No evidence was presented by petitioners’

witnesses as to how long hair itself caused

discipline problems and/or adversely affected

the educational process at Odin High School.

District Court's findings of fact 17, 18, 20-

23. (Petitioners' Brief at A-5)

/

REASONS FOR DENYING THE WRIT

I. MOOTINESS

The first reason for denying the writ

is that this litigation is now moot. As

this Court recently re-stated in DeFunis v.

Odegaard, «U.S. —«g_—s«y:—« H.-S LW. 4578,

4578-79 (Apr. 23, 1974):

The starting point for analysis

is the familiar proposition "that the

federal courts are without power to de-

cide questions that cannot affect the rights

of the litigants before them." ... The in-

ability of the federel judiciary "to re-

view moot cases derives from the require-

ment of Art. III of tre Constitution under

which the exercise of judicial power de-

pends on the existence of a case or con-

troversy." ... [T]he fact remains that

under Art. III "[e]ven in cases arising

in the state courts, the question of

mootness is a federal one which a federal

court must resolve before it assumes

jurisdiction."

As in DeFunis, the plaintiff below did

not cast his suit as a class action. He

sought only individual relief, which was

granted, and has since graduated fram high -

school. Therefore, any Gecision by this Court

will be irrelevant in this dispute between

he

petitioners (hereinafter referred to as the

School Authorities), and respondent. See also

Van Hoose vy. Eidson, 450 F. 2d 746 (6th Cir.

1971).

II. PETITIONERS’ "CONFLICTS" ARE DISTINGUISH-

ABLE

The School Authorities also state that

there is a conflict between the circuits and

cite several cases in which hair-length regula-

tions have been upheld. These cases are distin-

guishable. Less than four months after the

Third Circuit found that it was not "faced

squarely with the underlying constitutional

issue," Gere v. Stanley, 453 F. 2d 205, 209

n. 8 (3rd Cir. 1971), that court held:

that the governance of the length and

style of one's hair is implicit in the

liberty assurance of the Due Process

Clause of the Fourteenth Amendment.

Stull v. School Bd. of the Western Beaver Jr.-

Sr. High School, 459 F. 2d 339, 347 (3d Cir. 1972).

The Fifth Circuit, in Ferrell v. Dallas Indep.

= oe CIS A vO RI ACI

School Dist., 392 F. 2d 697 (5th Cir.), cert.

denied, 393 U.S. 856 (1968), assumed "that a

hair style is a constitutionally protected mode

of expression," Ferrell at 702, but found

that there was a compelling state interest

"in maintaining an effective and efficient

school system," Ferrell at 703. In Gfell v.

Rickelman, 441 F. 2d 444 (6th Cir. 1971) the

district court had found a reasonable basis

for the regulation which the court of appeals

found supported by the evidence. Gfell at

446-47. In the instant case, however, both

the district court and the court of appeals

below fourd no state interest in the length

of hair. Petitioners' Brief at A-2, A-5, A-9.

In King v. Saddleback Jr. College Dist., 445

F. 2d 932 (9th Cir.), cert. denied, 404 U.S.

979 (1971), the school authorities submitted

affidavits in which the school official-

affiants expressed their opinions that hair

length interferes with the educational pro-

cess. King at 939. The trial court below

aaidaaiie _)

?

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heard testimony of like effect, but found it

unconvincing. District Court's findings of

fact 17, 18, 20-23; Petitioners' Brief at A-5.

The final case cited by the School Authorities

never reached the validity of the regulations

because it held that the complaints failed to

state a cause of action. Freeman v. Flake,

448 F. 2d 258, 262 (10th Cir. 1971), cert.

denied, 405 U.S. 1032 (1972).

III. ‘TREND TOWARDS ALLOWING PERSONAL CHOICE

In all, nine courts of appeals have considered

whether school authorities may constitutionally

regulate the length of hair. Five circuits,

the First, Third, Fourth, Seventh and Eighth,

have found that high school students have a

constitutional right to choose their own hair

styles while four circuits, the Fifth, Sixth,

Ninth and Tenth, have held they do not. Of

the remaining two circuits, one has followed the

majority's reasoning in finding that police

officers also have a right to choose their own

hair styles. Dwen v. Barry, 483 F. 2d 1126

(2d Cir. 1973). It is not clear whether the

circuits in the minority will continue to abide

by their previous positions. This és especially

true in the Fifth Circuit which, in two en banc

decisions has held that sits alee have

a constitutionally protected right to wear

long hair while high school students do not.

Compare Lansdale v. Tyler Jr. College, 470 F.

2d 659 (5th Cir. 1972), cert. denied, 411

U.S. 986 (1973) with Karr v. Schmidt, 460 F.

2d 609 (5th Cir.), cert. denied, 409 U.S. 989

(1972). In addition, one panel in that circuit

has found that private employers may not dis-

criminate against long haired men. Willingham

v. Macon Telegraph Publishing Co., 482 F. 2d

535 (5th Cir. 1973).

The legal battle against hair length

regulation no longer focuses on the school

house. The more recent cases focus on govern-

mental regulation of adult hair styles, see,

e.g., Rinehart v. Brewer, 491 F. 2d 705 (8th

Cir. 1974) (prisoners); Dwen v. Barry, 483

F. 2d 1126 (2d Cir. 1973) (policemen);

Friedman v. Froehlke, 470 F. 2d 1351 (lst Cir.

1972) (national guardsmen), and private employ-

ment practices, compare Willingham v. Macon

Telegraph Publishing Co., 482 F. 2d 535 (5th

Cir. 1973) with Fagan v. National Cash Register

Co., 481 F. 2d 1115 (D.C. Cir. 1973).

IV. CONSISTENT WITH TINKER

The School Authorities also suggest that

both lower courts misconstrued this Court's de-

cision in Tinker v. Des Moines Indep. Commmnity

School Dist., 393 U.S. 503 (1969). But as

the passage they quote states, Petitioners’

Brief at 7-8, that case concerned the suppres-

sion of a political protest by school authorities.

Furthermore, they have ignored a pertinent

portion of that opinion:

In our system, state-operated -

schools may not be enclaves of totali-

tarianism. School officials do not

possess absolute authority over.their

students. Students in school as well

as out of school are "persons" under

our Constitution. They are possessed

of fundamental rights which State must

respect, just as they themselves must

respect their oblizations to the State.

Tinker at 511. See also Breen v. Yahl, 419

398 U.S. 937 (1970).

V. THE RIGHT OF PERSONAL PRIVACY

Unlike a regulation governing the dress

of students, a hair length regulation operates

twenty-four hours a day, seven days a week, for

most of the year. Because it is not possible

to accamodate the desires of both the school

and the student, one must give way. On pain

of forfeiting his free public education, the

student is forced to carply with a school regu-

lation when school is not in session. This

interference with personal liberty has been

held to violate the protections of the Ninth

Amendment, Bishop v. Colaw, 450 F. 2d 1069,

1075 (8th Cir. 1971), the Equal Protection

Clause of the Fourteenth Amendment, Sherling v.

Townley, 464 F. 2d 587, 588-89 (5th Cir. 1972)

(Senior Judge Tuttle specially concurring)

(classification based on length of haix): Crews

v. Clones, 432 F. 2d 1259, 1266 (7th Cir. 1970)

(classification based on sex), the Due Process

Clause of the Fourteenth Amendment, Richards v.

Thurston, 424 F. 2d 1281, 1284-85 (1st Cir. 1970),

and somewhere within the penumbra of the First

or Ninth Amendments, Breen v. Kahl, 419 F. 2d

1034, 1036 (7th Cir. 1969), cert. denied, 398

U.S. 937 (1970). These decisions are consistent

with this Court's recognition that the right of

personal privacy has many bases. Roe v. Wade,

410 U.S. 113, 152-53 (1973).

While this Court has admonished the Bar

on mumerous occasions that a denial of a petition

for writ of certiorari is not to be taken as an

expression on the merits, this Court has had nine

opportunities in the last six years to consider

the constitutional questions presented by the

School Authorities. This Court has found each

petition to be not worthy of the grant of certiorari

4 -

,

;

aii-

without regard to which side filed the petition.

New Rider v. Board of Educ. of Indep. School Dist.

No. 1, 480 F. 2d 693 (10th Cir.), cert. denied,

414 U.S. 1097 (1973); Lansdale v. Tyler Jr.

College, 470 F. 2d 653 (5th Cir. 1972) (en banc),

cert. denied, 411 U.S. 986 (1973); Karr v.

Schmidt, 460 F. 2d 605 (5th Cir.) (en banc),

cert. denied, 409 U.S. 989 (1972); Freeman v.

Flake, 448 F. 2d 258 (10th Cir. 1971), cert.

denied, 405 U.S. 1032 (1972); King v. Saddleback

Jr. College Dist., 445 F. 2d 932 (9th Cir. 1970),

cert. denied, 404 U.S. 979 (1971); Stevenson

v. Board of Educ. of ‘wheeler County, 426 F. 2d

1154 (5th Cir.), cert. denied, 400 U.S. 957 (1970);

Jackson v. Dorrier, 424 F. 2d 213 (6th Cir.),

cert. denied, 400 U.S. 850 (1970); Breen v. Kahl,

419 F. 2d 1034 (7th Cir. 1969), cert. denied,

398 U.S. 937 (1970); Ferrell v. Dallas Indep. School

Dist., 392 F. 2d 697 (5th Cir.), cert. denied, 393

U.S. 856 (1968).

<1 coseteacations

VI. PETITIONERS FAIL TO SATISFY THE BURDEN

OF PROOF TEST THEY PROPOSE

Even if the School Authorities were to

prevail on the constitutional question they

present, both the trial court and the court of

appeals below have found no evidence to support

the vemitetion. Petitioners' Brief at A-2,

A-9 to A-10. Thus they could not meet the

rational relationship test they propose.

Petitioners’ Brief at 9-10. This is demonstrated

by Petitioner Woods testimony that long haired

men could comply with the siecikian by styling

their hair so that it did not cover the eyebrows,

ears or collar. It strains credibility to con-

tend that an undisciplined long haired student

can be transformed into a model student by

combing his hair out of his eyes. As the trial

court below stated:

More funtementally , Defendants failed

to show how long hair could cause aca-

demic or discipline problems. The

basic premise observed by several of

the witnesses was that most students

with academic or discipline problems

wore long hair. It does not logically

follow that most students with long

a LO

~13-

hair are academic or discipline pro-

blems, nor that long hair causes these

problems. ... None of the witnesses

suggested that forcing a student to

cut his hair short will cause his

grades to improve or his attitude to

change. °

Petitioners' Brief at A-2. This was reiterated

by the court in its findings fact 17, 18, 20-23.

Petitioners’ Brief at A-5. The court of appeals

below found the School Authorities’ challenge to

these firdings "to be without merit." Petitioners’

Brief at A-9.

CONCLUSION

For the reasons set forth above, it is

respectfully submitted that this Petition for

a Writ of Certiorari should be denied.

Respectfully submitted

JOHN C. O'BRIEN

LAND OF LINCOLN LEGAL ASSIS-

TANCE FOUNDATION, INC.

234 COLLINSVILLE AVENUE

EAST ST. LOUIS, ILLDWOIS 62201

(618) 271-9140

COUNSEL FOR RESPONDENT

-14-

CERTIFICATE OF SERVICE

I hereby certify that three (3) copies

of the foregoing Brief in Opposition to Petition

for Writ of Certiorari were served on each

adverse party this 16th day of September, 1974

by depositing the same in a United States post

office or mail box, with first class postage

prepaid, addressed to counsel of record as follows:

Glenn E. Moore, 1007 Broadway, Mt. Vernon,

Illinois 62864, Counsel for Petitioners.

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