Don H. ARNOLD, individually and as Superintendent of Lakeland Community School Corporation, et al., Defendants-Appellants, v. Greg CARPENTER, a minor, b/n/f Chester Carpenter, et al., Plaintiffs-Appellees.
No. 18945.
United States Court of Appeals, Seventh Circuit.
April 25, 1972.
Rehearing Denied Dec. 5, 1972.
459 F.2d 939
That the Tax Court concluded also that it did not have to reach the question of motivation in view of its finding that no requisite relationship existed between the loans and appellant‘s accounting business10 does not negate the effect of its dеterminative finding on the issue of motivation. Its conclusion that there was no sufficient nexus shown between the loans and appellant‘s accounting business to render critical further inquiry concerning motivation is not necessarily impeached by the fact that in Generes the question of proximate relationship was presented and discussed solely in the context of motivation.11 There may be instances where loans are so inherently and peculiarly related to the protection of an investment as simрly not to qualify for a business deduction as a matter of law, irrespective of the question of subjective motivation. It is unnecessary for us to decide whether this is such a case since the ultimate conclusion of the Tax Court is clearly supported by the evidence and finding to the effect that there was no dominant business, as distinguished from investment, motivation for the guaranties of the loans in question.
Affirmed.
Thomas H. Singer, South Bend, Ind., for plaintiffs-appellees.
Before CASTLE, Senior Circuit Judge, and KILEY and STEVENS, Circuit Judges.
KILEY, Circuit Judge.
Defendant Community School Corporation (Board) appeals from a judgment for plaintiff Carpenter declaring Wawasee High School‘s1 1970-71 dress code provisions regulating the length and style of hair for male students void as violative of due process. The district court enjoined enforcement of that part of the code. We affirm.
The dress code was developed by a committee of students, teachers and administrators. The student committee members were elected by the student body. The code was adopted by a majority of the students. In general the code2 sought “to insure the best possible overall appearance” of the student body and was expressly intended as a guide to students, “where common sense fails to be a sufficient code of appearance.”
A consent provision3 authorized noncompliance with the code requirements
Parents were given written notice, before the 1970 school year, of the adoption of the code and its provisions, including the consent provision. When school opened in the fall of 1970, parents of four students, including Carpenter, refused to consent.4 The code penalty was imposed on Greg. Carpеnter‘s suit, the hearing and judgment before us followed.
The district court effectually concluded on the above facts that Greg Carpenter had the right to wear his hair “at any length or in any style;” that the Board had the “substantial burden“---5 which it did not sustain---to justify the code limitation of that right; and that the consent provision of the code was “an attempt to discourage” Greg‘s exercise of that right and that it accordingly violated the due process clause of the
I.
The board argues that because the code was formed by a committee of “students, teachers and administrators” and adopted by a majority of the students, it was not an unreasonable and arbitrary interference with Greg Carpenter‘s
In Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969), and Crews v. Cloncs, 432 F.2d 1259, 1263 (7th Cir. 1970), this Circuit
The Board here does not claim that Greg‘s long hair disturbed classroom decorum, distracted other students, interfered with the efficient operation of the school, or that the hair provision of the code was reasonably related to safety or health. It does not dispute the right to wear one‘s hair in any manner or style. It argues that decisions upholding that right (Breen and Crews) do not control here because of the “unique” democratic formulation of the dress code by Wawasee High School. The Board‘s case stands or falls therefore upon the sole claim that the adoption of the code by the democratic teacher-student-parent process, with the consent provision, justifies enforcing the code.
The Board relies on Wood v. Alamo Heights Independent School District, 308 F.Supp. 551 (W.D.Tex.1970). The decision in Wood, however, did not rest precisely upon the ground urged by the defendants before us. In that case, aside from the student participation in adopting the code, there was expert testimony that “extremes” in hair style had in the past created classroom distractions and disturbances. The cоurt thought that the student participation “seem[ed]” to demonstrate a “reasonable and considerate approach” by the school authorities. Wood, at 553. The court also thought there was a not unreasonable basis for expert opinions “that lack of reasonable limits for student grooming would substantially affect discipline and decorum.” Wood, at 553.
In Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971), the court held that the school board regulation against long hair was invalid and unenforceable since it infringed the student‘s
Nor does the acceptance of the dress code by the majority of the St. Charles community and students justify the infringement of Stephen‘s liberty to govern his personal appearance. Toleration of individual differences is basic to our democracy, whether those differences be in religion, politics, or life-style. 450 F.2d at 1077. (Emphasis added.)
In Massie v. Henry, 455 F.2d 779 (4th Cir., decided Feb. 2, 1972), the court held that the school‘s long hair regula
We conclude that the democratic process used in adopting the code does not per se justify the denial of Greg Carpenter‘s constitutional right to wear his hair in the mode he chooses.
The school code hair provision, to justify impinging Greg‘s constitutional right, must have a reasonable relation to some purpose within the school‘s competence, such as avoiding substantial disruption of school activities or discipline. See generally Tinker v. Des Moines Schoоl District, 393 U.S. 503, 507, 514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1942). And in the absence of justification, the long hair provision must fall. Breen, Crews, Bishop, Massie, supra.
We hold, on authority of this court‘s decisions in Breen and Crews, as expanded in Bishop and Massie, that mere student participation in adoption of the code alone did not justify the limitation imposed on Greg Carpenter‘s constitutional right to wear long hair.
II.
Defendants contend that nevertheless the consent provision saves the dress code hair provisions from fatal constitutional infirmity. The argument is that under Breen, 419 F.2d at 1037, the school and parent must share responsibility in the matter of hair grooming, and that the parent has the primary function for the child‘s care and nurture in preparation for life in our society. Accordingly, the defendants claim that the consent provision of the code places responsibility for noncompliance with the parent where it belongs. They also rely upon various provisions7 of Indiana law which place primary responsibility upon the parent for fundamental supervision of the child‘s welfare.
Wе recognize, of course, the primary responsibility of parents during out-of-school hours. We noted in Breen and Crews the conflict that arises between a school‘s short hair requirements during school hours and a parent‘s consent to long hair outside of school hours. True, had the father given written consent here, there would be no “conflict” between operation of the code during school hours and the student‘s or parent‘s wishes outside of school hours. However, we think that the mere failure of the parеnts to sign the consent form should not be used by the school as a basis for denying Greg the constitutional right to determine his own hair length. Moreover, since he appeared at school with long hair, it would seem prima facie that his parents were agreeable to it. We think the father could well with reason have decided, for instance, not to chill his son‘s dissent from conforming to the requirements of the code. And if
In our opinion the consent clause does not cure the fatal constitutional infirmity in the hair provision. See School District of Abington Tp. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), where the provision authorizing student absence from public classroom religious exercises—which violated the First Amendment free exercise and establishment clauses—did not save the Pennsylvania statute.
Having followed Breen and Crews in establishing Greg Carpenter‘s constitutional right, and finding no countervailing state interest justifying a limitation of that right, we see no basis upon which the Board can justify limitation by requiring a parent‘s written consent for a student‘s exercise of his right.
III.
We think the district court‘s findings are sufficiently comprehensive to show the basis for the court‘s conclusions. Atwood v. Fidelity & Dep. Co., 379 F.2d 498, 500 (7th Cir. 1967). The court expressly found that Greg Carpenter had a constitutional right to wear his hair at any length, that the defendants bore the burden of substantial justification of the hair provision, and that they failed to satisfy that burden. There were the legal elements necessary for the court‘s judgment that the hair length limitation provision of the code violated Greg Carpenter‘s constitutional right and is “null and void,” and that the consent provisions attempted to “discourage” or chill Greg‘s exercise of that right.
Affirmed.
STEVENS, Circuit Judge (dissenting).
If the sovereign elects to provide its citizens with protection against violence, disease and ignorance through public police, garbage collection and schools, such protection must be afforded to all on an equal basis. It is not necessary to decide that an individual has a constitutional right to appear as he pleases to recognize that a state may not deprive a child of a public education because he is ugly or ignorant, or because his hair style differs from that preferred by the majority at any given point in time.
On the other hand, the fact that absurd arguments have been advanced to support certain dress codes, or the fact that the older generation has overreacted in its response to the younger generation‘s desire to do its own thing, should not obscure the fact that society does have a legitimate interest in both the continuity and the mutability of its mores.
Personal appearance, which comprises forms of dress and cleanliness, as well as hair styles, is merely one aspect of social behavior which the British broadly describe as “manners.” For centuries the older generation has forcefully imposed its manners on the young. With equal regularity the young have demonstrated that particular manners have no rational basis or cannot be justified by any compelling social interest. So manners continually change at varying rates. Conformity and nonconformity both serve legitimate ends.
In the process of requiring the young to conform to the manners of their elders, parents and teachers are necessarily partners. If they agree that a child should be compelled to observe a given form of tradition, no matter how irrational it may be, the child has no legitimate recourse but to obey. To the extent that parents and teachers stand together, a child has no enforceable constitutional right to do his own thing.
It is only when the parent supports a child‘s attempt to accelerate a change in
As in so many matters of school administration which appropriately recognize a parent‘s interest in nonconformity,2 this dress code excused the child from the compliance upon request of his parents. Since the child has no enforceable right to remain unshorn or unwashed without parental consent, I find nothing offensive in a dress code which merely requires confоrmity unless excused by a child‘s parents.3
I would not open the federal courts to a parent who, by simply giving the school administrators appropriate evidence of his consent, has available an adequate remedy to protect his child‘s interest in nonconformity or in a particular mode of appearance.4 The interest which plaintiff and his child seek to vindicate by this litigation does not, in my opinion, warrant invasion of an area in which other parents, in partnership with the teachers, and possibly also a substantial majority of the student body,5 have agreed that a measure of conformity to tradition is desirable. Just as the majority must learn to tolerate the nonconformist, so must he learn to tolerate the transient customs of his elders.6
I respectfully dissent.
Notes
See e. g., footnote 7 in Judge Kiley‘s opinion.Faces must be clean shaven. Sideburns are not to be longer than one inch from the bottom of the ear lobe and must nоt be more than two inches wide at the bottom.
Hair should be well groomed and clean at all times. Skin must be showing above the eyebrows, and hair must not be over the ears and shirt collar.
* * * * *
All first-semester deviations must be signed by September 15. Second-semester deviations are to be signed between January 1 and January 15. We encourage deviation requests only when absolutely necessary, as the adopted code is a flexible and liberal code and meets the needs of our school community.
The form by which such consent should be evidenced in order to ensure its reliability certainly raises no issue of constitutional dimensions. Quite obviously, placing the constitutional power, prestige, and financial support of government behind a particular religious belief, see Engel v. Vitale, 370 U.S. 421, 430-431, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); School District of Abington Tp. v. Schempp, 374 U.S. 203, 224-225, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), has no application to a public school‘s attempt to teach children acceptable manners.The First, Fourth, Seventh and Eighth Circuits have recognized the right, although they differ as to its source. In Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert. den. 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268, this court placed the right as either within the penumbras of the
The Fifth, Sixth, Ninth and Tenth Circuits do not recognize any constitutional right and have upheld regulations limiting the length and style of hair, although their approaches have also differed. The most prevalent view among these circuits is that the “long hair” problem is too insubstantial to warrant federal court consideration. Stevenson v. Board of Education, 426 F.2d 1154 (5th Cir. 1970), cert. den. 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265; King v. Saddleback, 445 F.2d 932, 940 (9th Cir. 1971); Freeman v. Flake, 448 F.2d 258 (10th Cir. 1971). In Jackson v. Dorrier, 424 F.2d 213 (6th Cir. 1970), cert. den. 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed.2d 88, the court held that there was no violation of First, Ninth or Fourteenth Amendment rights and that the “regulation ha[d] a real and reasonable connection with the successful operation of the educational system and with the maintenance of school discipline.” 424 F.2d at 218.
It is understandable why some judges find students’ “long hair” claims constitutionally insubstantial. Measured against today‘s grеat constitutional issues (capital punishment, abortion, school segregation) the question of whether a student may or may not have constitutional protection in selection of his hair dress appears de minimis. Perhaps even judges who sustain the right are nagged with impatience and doubt when faced with student claims. But we look down across a gap of a generation or two, from the Olympian heights of what we consider the great issues. For the high school student claimant, however, the right to wear “long hair” is an issue vital to him and we have seen what he is willing to sacrifice for his claim. It is settled that the students have constitutional rights of freedom and there appears to be no reason why the values of freedom are less precious in a younger generation than in an older. The principle of freedom as the source of our free choices of conduct does not change from generation to generation. Its application on particular facts in student cases is subjеct to limitation relative to the age, needs and situation of the student and to the reasonable requirements of the common good or state interests. For these reasons it would seem appropriate for the courts to acknowledge the student right as substantial and weigh its exercise in each case with due regard to the freedom and good of the student and to the reasonable needs of the school.
The fact that 75% of the student body may hаve voted in favor of the dress code set forth in the record is not necessarily persuasive because neither the alternatives presented to them, nor the actual voluntariness of the vote, can be determined on tiie basis of the pleadings.