Lead Opinion
Appellants unsuccessfully sought below a declaratory judgment of the unconstitutionality of, and injunction against the enforcement of, the East Hartford public school teachers’ dress code. Suit was brought under 42 U.S.C. §§ 1983 and 1988, and jurisdiction was invoked under 28 U.S.C. §§ 1331, 1343, 2201, and 2202. The appellant teacher, Richard P. Brimley (hereinafter “appellant”), was joined as a plaintiff below, and is joined as an appellant here, by his local and state teachers’ unions. Appellant exhausted his administrative remedies by seeking to use his union’s grievance procedures, his grievance going to arbitration before Professor Archibald Cox; the grievance was dismissed as not arbitrable because its subject was not covered by the collective bargaining agreement. East Hartford Education Association v. East Hartford Board of Education, Amer. Arb. Ass’n No. 12-39-0184-72 (Jan. 25, 1973). Chief Judge Clarie granted summary judgment to the appellees and dismissed the complaint below,
I. FACTS
Appellant Brimley teaches English and film-making in an East Hartford public high school. He objects to so much of the Board’s dress code, set out in the margin,
As Professor Cox, the arbitrator, found, and as we must assume, appellant feels “very deeply and very strongly that his personal integrity is invaded and his effectiveness as a teacher diminished by the dress regulation.” Appellant in his brief alleges, and we must accept at this summary judgment stage, that he wishes to present himself to his students as a person “not tied to ‘establishment conformity’ ” but rather as one associated with the ideas and social outlook of the student generation. He feels that his dress “enables him to achieve a closer rapport with his students and thus enhances his ability to teach.” The Board’s own interpretation of its dress code, as set forth in its answers to interrogatories, is that the code presumes that a jacket, shirt and tie is the appropriate attire for male teachers in “ordinary classroom situations” (which do not in the Board’s view include physical education, industrial arts, science laboratories and field trips); the presumption may be rebutted in individual cases if a teacher can establish that “more informal attire would be more appropriate to the subject matter and/or method of instruction involved (e. g. small group instruction involving drug education or sex education where the method of instruction is a ‘rap session’).” Appellant apparently made a sufficient showing that informal attire was appropriate for his film-making classes, but failed to win approval to wear such attire in his English classes.
II. THE INDIVIDUAL INTERESTS AT STAKE
A. The Liberty Interest In One’s Personal Appearance
Kelley v. Johnson,
The right to control one’s own body, recognized by Supreme Court decree as constitutionally derived, Roe v. Wade,
Substantial creative efforts of mankind have been devoted to matters of dress, from the robes of the ancient Egyptians to King Henry VIII’s armor, and dress has often conveyed a message, whether it be one of martyrdom in the sackcloth and ashes of the early Christians, respect for God in the skullcaps worn by many Jews, or achievement and calling in the regalia worn in academic processions. The mark of authority for priest and judge alike has been a robe, for monks baldness has been a sign of asceticism, • and for English judges and our own founding fathers powdered wigs were a symbol of wisdom, authority, and sometimes affluence.
Conversely, recognizing the role clothing plays in giving individuals a sense of freedom and identity, the military, prisons, and other authoritarian institutions have long used strict uniformity of dress and hair style to effectuate conformity. Their purpose has been to deprive a person of his individuality in the interests of better discipline and related aims. T. E. Lawrence described the effectiveness of such measures:
[I]t came upon me freshly how the secret of uniform was to make a crowd solid, dignified, impersonal: to give it the singleness and tautness of an upstanding man. This death’s livery which walled its bearers from ordinary life, was a sign that they had sold their wills and bodies to the State: and contracted themselves*842 into a service not the less abject for that its beginning was voluntary.
Revolt in the Desert 317 (1927).
History is replete with instances of oppression accomplished by body-tegument conformity. Following the Manchus’ invasion of China in 1644, for example, the conquerors sought to consolidate their power by requiring the population to wear a prescribed hair style and prescribed clothing; thousands chose to die rather than accept these marks of servitude. See Crews v. Clones,
is forced against his will to hold himself out symbolically as a person holding ideas contrary, perhaps, to ideas he holds most dear. Forced dress . . . humiliates the unwilling complier, forces him to submerge his individuality in the “undistracting” mass, and in general, smacks of the exaltation of organization over member, unit over component, and state over individual. I always thought this country does not condone such repression.
Karr v. Schmidt,
In view of these historical and contemporary factors, it would be difficult not to conclude that “a liberty interest within the Fourteenth Amendment,” Kelley v. Johnson, supra,
B. Teaching and the First Amendment
In addition to the general liberty interest in one’s appearance, in the teaching context there is a strong additional interest that must be weighed in the scales in determining the constitutionality of regulatory intrusions like the one at issue here. The claim appellant makes is not simply a symbolic speech claim. Rather, it is a claim that the inseparable complex of speech, conduct and character known as teaching is a First Amendment interest that in and of itself should be protected from needless regulation by the State.
The academic context has long been given special constitutional protection in our country, because the educational needs of a free people are of utmost importance. See, e. g., Epperson v. Arkansas,
Freedom to teach in the manner of one’s choice is a form of academic freedom that is universally recognized, if not invariably protected, at the college level, see, e. g., Sweezy v. New Hampshire,
This irreducible core of academic freedom extends, in our view, to the particular style of clothing that appellant wishes to wear here.
III. THE STATE’S COUNTERVAILING INTERESTS
The reasons advanced by appellees for their tie code are that it establishes “a professional image for teachers,” that it promotes “good grooming among students,” and that it aids maintenance of “respect” and “decorum” in the classroom.
The first of the Board’s stated interests, establishing a Professional image for teachers, is outside the scope of the authority delegated to school boards by the State and hence cannot be used to uphold the disputed regulation. See San Antonio Independent School District v. Rodriguez, supra,
Moreover, even if the Board had authority to require teachers to maintain a “professional image,” that phrase is almost meaningless as applied to neckties for men. Informality is making inroads even in the staid legal profession, see In re DeCarlo,
As to the promotion of Good grooming among students, as an independent interest this also seems to be ultra vires the Board’s statutory powers. The student hair regulations of this very school board, moreover, have been held unconstitutional by a state court. Yoo v. Moynihan,
We turn, then, to the final asserted interest, the need for respect, discipline, and decorum in the classroom. This is certainly a valid concern of the school board, as Conn. Gen.Stat. § 10-221 makes clear. It is far from clear, however, that a tie code like that in issue here has any connection with respect or discipline. Indeed, appellant puts forward the seemingly more reasonable proposition, which we must accept at this stage, that being tieless helps him to maintain his students’ respect.
In view of our finding in the preceding section that the Board’s articulated interests carry very little weight, we conclude that the decision below must be reversed. The requirement that teachers wear ties appears, at this stage of the proceedings, to be one of those “purposeless restraints” to which Mr. Justice Harlan referred, Poe v. Ullman, supra,
The regulation at issue here implicates both a Fourteenth Amendment liberty interest and a First Amendment interest.
We accordingly vacate the summary judgment and remand for a hearing on the merits.
Notes
. The attire of professional employees during the hours when school is in session must be judged in light of the following:
1. Dress should reflect the professional position of the employee.
*840 2. Attire should be that which is commonly accepted in the community.
3. It should be exemplary of the students with whom the professional employee works.
4. Clothing should be appropriate to the assignment of the employee, such as slacks, and jersey for gym teachers.
In most circumstances the application of the above criteria to classroom teachers would call for jacket, shirt and tie for men and dress, skirts, blouse and pantsuits for women.
If an individual teacher feels that informal clothing such as sportswear, would be appropriate to his or her teaching assignment, or would enable him or her to carry out assigned duties more effectively, such requests may be brought to the attention of the Principal or Superintendent. An attempt should be made on all levels to insure that the above principles are applied equitably and consistently throughout the school system.
. In Quinn v. Muscare,
. I think by far the most important bill in our whole code is that for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom, and happiness. . . Preach, my dear Sir, a crusade against ignorance;
Letter from Thomas Jefferson to George Wythe, Aug. 13, 1786, quoted in The Portable Thomas Jefferson 399-400 (M. Peterson ed. 1975).
. We recognize that this view contrasts with the views of 1883, when Josiah Royce wrote that a teacher “may find of a sudden that his nonattendance at church, or the fact that he drinks beer with his lunch, or rides a bicycle, is considered of more moment than his power to instruct.” Quoted in Note. Academic Freedom in the Public Schools: The Right to Teach, 48 N.Y.U.L.Rev. 1176, 1179 (1973).
. In this respect his views of communication are not unlike those of the President of the United States, who recently delivered his first “Fireside Chat” while pointedly wearing a cardigan sweater.
. The Board also claims that its regulation builds respect for teachers among members of the public and that it creates an effective and efficient school system, but these abstract propositions appear to have no meaning apart from the three purposes listed above.
. Appellant is peculiarly well situated to assert this claim, since he teaches both English, where a tie is required, and film-making, where it is not.
. The fact that the School Board allows teachers to be tieless for “rap sessions” is in effect a concession of this point. If for purposes of “rapping,” why not for purposes of teaching? Socrates and his students certainly equated the two.
. There is one additional interest that, while not explicitly asserted, may underlie the extremely weak interests advanced by the school board here: an interest in standardization or uniformity. Such a state interest cannot be recognized in the courts. All may not be forced by a school board to share the beliefs of the majority, whether it be a theory of the world’s creation, Epperson v. Arkansas,
. This distinguishes the instant situation from two cases in which courts of appeals have upheld dismissals of public school teachers. The dismissals were alleged to be for reasons related to personal appearance, although school officials in both cases asserted other, more substantial reasons for the dismissals. Tardif v. Quinn,
Once even a small, as distinguished from a fundamental, constitutional right is shown to be involved, an employee might succeed by showing the invasion so irrational as to demonstrate lack of good faith.
Dissenting Opinion
(dissenting):
The majority opinion casts so dense a smokescreen about this case that one might easily lose sight of the narrow legal question involved. The East Hartford Board of Education (“board”) has not attempted to emulate the Manchu conquerors of China or Peter The Great. The citizenry of East Hartford is not now marching about in “death’s livery,” pigtailed and clean-shaven as a result of the board’s perfidy. Rather, those charged by law with the operation
I. Teaching as a First Amendment Activity; The Role of the Federal Courts.
In the vast majority of communities, the control of public schools is vested in locally-elected bodies.
If this sound doctrine of local control is to have any meaning, it is necessary that the federal courts refrain, in most instances, from interfering with the decisions of school authorities. Decisions of local boards may be foolish or unwise, and still pass constitutional muster. We do the court a grave disservice when we enforce, in the name of the Constitution, the pet educational theories of the federal bench, whatever they may be. In the guise of enforcing federal law, we transform ourselves into a federal school board, deciding on the appropriateness of textbooks, or, as here, settling the scope of a dress code. Such decisions have no place in the federal courts so long as school authorities stay within the broad area committed to their discretion.
Only last term, the Supreme Court made precisely this point in Wood v. Strickland,
It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion.
The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and § 1983 was not intended to be a vehicle for federal-court corrections of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees.
Id. at 326,
The notion that teaching is itself a “First Amendment activity” stands this policy on its head. Under such a rule, it is clear that any action taken by a school board will “sharply and directly implicate constitutional values,” and the rule set out in Epperson and Wood will be reduced to an empty formula. Under the majority’s holding, every public school teacher who feels that his employers have made an incorrect decision will be able to invoke the aid of the federal courts. The result will be either endless and expensive litigation over the trivia of education or a complete abdication of responsibility by local school boards.
In short, the majority’s opinion is nothing more than a vehicle by which federal judges may enforce their concepts of sound educational policy against the wishes of locally-elected bodies, specifically charged by law
The ensuing shouts of book burning, witch hunting and violation of academic freedom hardly elevate this intramural strife to first amendment constitutional proportions. If it did, there would be a constant intrusion of the judiciary into the internal affairs of the school. Academic freedom is scarcely fostered by the intrusion of three or even nine federal jurists making curriculum or library choices for the community of scholars. When the court has intervened, the circumstances have been rare and extreme and the issues presented totally distinct from those we have here.
Id. at 292. In that case, we upheld the action of a school board in limiting library access and forbidding further purchase of a book it found objectionable. First Amendment rights were implicated far more clearly there than in the instant case. We should follow the holding of Presidents Council and keep the courts out of the business of education.
II. The Symbolic Speech Claim.
The mere fact that the plaintiff has invoked the magical phrase “First Amendment” casts no burden on the state. In eases involving expressive conduct, the threshold requirement is that the plaintiff demonstrate that his activities are arguably within the scope of the amendment. Appellant has failed to do so.
Appellant claims that by refusing to wear a tie, he communicates an entire set of values to his students. Specifically, in his brief he claims the following benefits from his mode of dress:
(a) He wishes to present himself to his students as a person who is not tied to “establishment conformity.”
(b) He wishes to symbolically indicate to his students his association with the ideas of the generation to which those students belong, including the rejection of many of the customs and values, and of the social outlook, of the older generation.
(c) He feels that dress of this type enables him to achieve closer rapport with his students, and thus enhances his ability to teach.2
Appellant’s claim, therefore, is that his refusal to wear a tie is “symbolic speech,” and, as such, is protected against governmental interference by the First Amendment.
Obviously, a great range of conduct has this symbolic, “speech-like” aspect; the claim has been advanced for any number of activities.
We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same*849 kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech. . . .We reaffirm the statement of the Court in Giboney v. Empire Storage & Ice Co., [336 U.S. 490 ,69 S.Ct. 684 ,93 L.Ed. 834 (1949)] that “it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”
Cox v. Louisiana,
Thus, we are required to balance the alleged interest in free expression against the goals of the school board in requiring its teachers to dress somewhat more formally than they might like. United States v. Miller, supra,
As conduct becomes less and less like the “pure speech” explicitly protected by the First Amendment, the showing of governmental interest required is progressively lessened. See Alfange, Jr., Free Speech and Symbolic Expression: The Draft Card Burning Case, 1968 Supreme Court Review 1, 22-27; Note, Symbolic Speech, 43 Ford-ham L.Rev. 590, 592-93 (1975); Note, Symbolic Conduct, 68 Colum.L.Rev. 1091, 1121-25 (1968). In those cases where governmental regulation of expressive conduct has been struck down, the communicative intent of the actor was clear and “closely akin to ‘pure speech.’ ” Tinker v. Des Moines School District,
In contrast, the claims of symbolic speech made here are extremely diffuse.
At the outset, Mr. Brimley had other, more effective means of communicating his social views to his students. He could, for example, simply have told them his views on contemporary America; if he had done this in a temperate way, without interfering with his teaching duties, the school board would be without power to punish him. Presidents Council, supra,
Against appellant’s claim of free expression is the school board’s interest in promoting respect for authority and traditional values, as well as discipline in the classroom, by requiring teachers to dress in a professional manner.
The interest of the state in promoting the efficient operation of its schools extends beyond merely securing an orderly classroom. Although the pros and cons of progressive education are debated heatedly, a principal function of all elementary and secondary education is indoctrinative — whether it be to teach the ABC’s or multiplication tables or to transmit the basic values of the community.
Id. at 573.
The majority is inconsistent when it credits Mr. Brimley’s notion that tielessness carries a message to his students, but belittles the board’s conclusion that wearing a tie is equally expressive. Professor Cox was far more sympathetic to the board’s point of view. As the majority observes, he noted Mr. Brimley’s sincerity, but further stated:
The School Board feels no less deeply and strongly that the atmosphere of the classroom and attitude of the students are sufficiently affected by teacher’s clothing for it to require a necktie and jacket.
The majority goes to great lengths to argue on policy grounds against the board’s
III. Academic Freedom in the Public Schools.
In the public high school, as elsewhere, the concept of academic freedom is a meaningful limitation on the power of those in command to stifle dissent and control thought. Eisner v. Stamford Board of Education,
While teachers do not abandon their First Amendment rights when they accept public employment, exercise of free expression in the schoolroom is necessarily limited to a degree impermissible in public.
The majority furthermore blurs the crucial distinction between secondary and higher education. In the secondary school, the students are a captive audience and the teacher, whom they have not chosen, is far more able to enforce his views upon his class than is a college professor. See Tilton v. Richardson,
The appellant does not appear as a member of the public at large, but as a governmental employee. As Mr. Justice Marshall stated in Pickering v. Board of Education, supra,
[I]t cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
For a proper purpose, the First Amendment rights of public employees may be curtailed to a significant degree. In Civil Service Commission v. Letter Carriers,
Respondent has sought the protection of the Fourteenth Amendment, not as a member of the citizenry at large, but on the contrary as an employee of the police force of Suffolk County, a subdivision of the State of New York. While the Court of Appeals made passing reference to this distinction, it was thereafter apparently ignored. We think, however, it is highly significant.
V. Kelley v. Johnson and the Burden of Proof.
Governments are given wide latitude in the “dispatch of [their] own internal affairs.” Cafeteria Workers v. McElroy,
This Court departed from these principles in Dwen v. Barry,
The Supreme Court reversed sub nom. Kelley v. Johnson, and applied the “rational relation” test to the claim:
Thus the question is not, as the Court of Appeals conceived it to be, whether the State can “establish” a “genuine public need” for the specific regulation. It is whether respondent can demonstrate that there is no rational connection between the regulation, based as it is on the county’s method of organizing its police force, and the promotion of safety of persons and property. United Public Workers v. Mitchell,330 U.S. 75 , 100-101 [67 S.Ct. 556 , 569-570,91 L.Ed. 754 , 773-774] (1947); Jacobson v. Massachusetts,197 U.S. 11 , 30-31, 35-37 [25 S.Ct. 358 , 363, 365-366,49 L.Ed. 643 , 651-652, 653-654] (1905).
We think the answer here is so clear that the District Court was quite right in the first instance to have dismissed respondent’s complaint. Neither this Court, the Court of Appeals, nor the District Court is in a position to weigh the policy arguments in favor of and against a rule regulating hairstyles as a part of regulations governing a uniformed civilian service. The constitutional issue to be decided by these courts is whether petitioner’s determination that such regulations should be enacted is so irrational that it may be branded “arbitrary,” and therefore a deprivation of respondent’s “liberty” interest in freedom to choose his own hairstyle. Williamson v. Lee Optical Co.,348 U.S. 483 , 487-88 [75 S.Ct. 461 , 464-465,99 L.Ed.2d 563 , 571-572] (1955).
Kelley v. Johnson,
The majority opinion, ignoring controlling precedent, returns to the discredited reasoning of Dwen v. Barry, and explicitly places the burden of justifying the dress code upon the board. In distinguishing Kelley, the majority relies on the truism that policemen are different from teachers.
Kelley determines that the right of public employees to dress as they please is not “fundamental” in the constitutional sense. Accordingly, the state carries no burden of justification in this case. Rather, the plaintiff must demonstrate that the dress code is so arbitrary that it serves no legitimate interest of the board.
It goes without saying that the result which we might reach for a police department will often differ from that for a school district.
VI. The “Liberty” Claim.
The majority also agrees with the appellant that the substantive “liberty” protected by the due process clause is a bar to the imposition of this dress code. I cannot agree with this trivialization of an important and evolving constitutional doctrine.
As the majority concedes, Kelley establishes that if this interest applies at all in the context of a public employee’s personal appearance, it is less weighty than rights associated with “procreation, marriage and family life” which are the values at the core of this “right to be let alone.” Kelley makes it clear that the public employee has no absolute right to appear as he pleases, but must yield to a legitimate governmental interest. Cf. Henkin, Privacy and Autonomy, 74 Colum.L.Rev. 1410, 1429-33 (1974). As with the First Amendment claim, the board’s concern with classroom atmosphere and decorum provides a rational basis for the dress code. Appellant has failed to meet his burden of demonstrating that the rule is arbitrary; accordingly, it should be upheld.
The demands of neither the board nor the appellant are eccentric or extreme. If Mr. Brimley were a nudist insisting on his right to teach without any clothes at all,
Even if we assume for purposes of decision that an individual’s interest in selecting his own style of dress or appearance is an interest in liberty, it is nevertheless perfectly clear that every restriction on that interest is not an unconstitutional deprivation.
From the earliest days of organized society, no absolute right to an unfettered choice of appearance has ever been recognized; matters of appearance and dress have always been subjected to control and regulation, sometimes by custom and social pressure, sometimes by legal rules. A variety of reasons justify limitations on this interest. They include a concern for public health or safety, a desire to avoid specific forms of antisocial conduct, and an interest in protecting the beholder from unsightly displays. Nothing more than a desire to encourage respect for tradition, or for those who are moved by traditional ceremonies, may be sufficient in some situations. Indeed, even an interest in teaching respect for*855 (though not necessarily agreement with) traditional manners, may lend support to some public grooming requirements. Therefore, just as the individual has an interest in a choice among different styles of appearance and behavior, and a democratic society has an interest in fostering diverse choices, so also does society have a legitimate interest in placing limits on the exercise of that choice.
Contrary to the majority’s casual dismissal of the case, Miller is highly apposite here. First, it involved a dismissal rather than, as here, a reprimand. More importantly, it involved both a dress code and a grooming requirement. One who is forced, like the Kelley and Miller plaintiffs, to shave his beard or cut his hair is forced to appear that way off as well as on the job, unless he accepts the inconvenience and additional expense of wearing an artificial beard, moustache or hairpiece. In contrast, Mr. Brimley can remove his tie as soon as the school day is over. Thus, the dress code relates solely to the working day; he may dress as he pleases after hours. See Tardif v. Quinn,
The only other Court of Appeals which has considered this issue has reached a similar conclusion. In the case of a public school teacher dismissed for wearing short skirts, the First Circuit stated:
. [W]e are not dealing with personal appearance in what might be termed an individual sense, but in a bilateral sense — a contractual relationship. Whatever constitutional aspect there may be to one’s choice of apparel generally, it is hardly a matter which falls totally beyond the scope of the demands which an employer, public or private, can legitimately make upon its employees. We are unwilling to think that every dispute on such issues raises questions of constitutional proportions which must stand or fall, depending upon a court’s view of who was right.
Tardif v. Quinn, supra,
Each claim of substantive liberty must be judged in the light of that case’s special circumstances. In view of the uniquely influential role of the public school teacher in the classroom, the board is justified in imposing this regulation. As public servants in a special position of trust, teachers may properly be subjected to many restrictions in their professional lives which would be invalid if generally applied. See James, supra,
Before KAUFMAN, Chief Judge, and SMITH, FEINBERG, MANSFIELD, MULLIGAN, OAKES, TIMBERS, GURFEIN, VAN GRAAFEILAND and MESKILL, Circuit Judges.
. See R. Campbell, L. Cunningham & R.McPhee, The Organization and Control of American Schools 164-70 (1965).
. This final claim does not arise out of the First Amendment, but is merely an assertion that one teaching technique is to be preferred over another. It no more implicates a constitutional interest than would a claim that closer “rapport” could be achieved by arranging students’ desks in a circle rather than in rows.
. Thus, as Professor Kalven noted, “[p]olitical assassination is a gesture of protest, too, but no one is disposed to work up any First Amendment enthusiasm for it.” H. Kalven, The Negro and the First Amendment 133 (1965). And see United States v. O'Brien,
. It is significant that the Tinker Court itself was careful to distinguish a prohibition on the wearing of an armband from a dress code:
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 Amendment rights akin to “pure speech.”
. At least one commentator has suggested that conduct which involves no departure from the actor’s normal routine, but is merely a preference of personal appearance, is never symbolic conduct entitled to First Amendment protection. Note, Symbolic Conduct, 68 Colum.L.Rev. 1091, 1117 (1968).
. There is no reason to prefer Mr. Brimley’s notion of what constitutes a “professional image.” In Tardif v. Quinn,
The court, having taken a view, found that plaintiffs dresses, which came “half-way down [her] thigh,” were “comparable in style to dresses worn by young, respectable professional women during the years when the plaintiff was teaching.” It further found that her dresses in fact “had no startling or adverse effect on her students or on her effectiveness as a teacher.”
We will assume that by this finding the court meant that plaintiffs dress length was within reasonable limits, and we further assume that this finding was warranted. On the other hand, the court’s independent judgment as to the impact and propriety of plaintiff’s dress does not amount to a finding that defendants’ objections to the length were irrational in the context of school administration concerns.
Id. at 763.
. The inculcation of community values has been a goal of American public education since its very beginning. See The Massachusetts School Laws of 1642 and 1647; Northwest Ordinance, Art. 3 (1787).
. Apparently realizing that the board must have something to control, the majority is willing to allow it to determine matters of “content of curriculum.” They then go on to observe that the function of the secondary school teacher as a role model is in many ways the most significant part of teaching. The paradoxical result of this is that the board is left with control of the less important aspects of education. It seems logical to assume that the importance of the teacher as a role model provides substantial justification for public control of non-curricular matters. See Goldstein, supra, at 1328 n.118.
. One can easily call to mind special situations other than the public schools in which First Amendment rights such as those asserted here may be curtailed. Thus, the New York Court of Appeals has upheld a ban on a lawyer who was also a Catholic Priest from appearing before a jury in clerical garb. LaRocca v. Lane,
. The special needs of the school environment limit the First Amendment rights not only of teachers, but of the general public as well. Thus, ordinarily protected activities, such as picketing and chanting, may constitutionally be prohibited near a school. Grayned v. Rockford,
. The exceptions to this ordinary test in constitutional litigation remain those of Justice Stone’s celebrated Carolene Products footnote; the state must carry the burden of proof when it discriminates against an insular minority or burdens the exercise of a “fundamental” right. United States v. Carolene Products,
. It is significant that the Kelley Court, unlike the majority here, did not remand for a trial. Rather, the fact that the state was able to advance a non-frivolous ground for its rule was sufficient to defeat the claim.
. In Quinn v. Muscare,
. It is interesting that in Dwen v. Barry, policemen were carefully distinguished from the military, and classed with civilian employees for the purposes of the case. Here, we are told that the dividing line has moved, and that the “paramilitary” nature of the police distinguishes away Kelley.
. This constitutional error is compounded by the majority’s holding that the plaintiff is entitled to a higher standard of review because he has invoked more than one constitutional provision. See California Bankers Ass’n v. Schultz,
Moreover, if we are to have workable rules of constitutional law, the result cannot turn upon the subjective intent of the one engaging in conduct such as this. Karr v. Schmidt,
. The example is not so far-fetched as it may appear. See “Teacher Will Appeal Ouster Over Nudity,” New York Times, Friday, Oct. 8, 1976.
. The school board made a good faith effort to limit the reach of the dress code to classes in which the values it promoted were believed to be significant. Thus, Mr. Brimley was required to wear a tie while teaching a conventional English class, but not while giving an “alternative” class in filmmaking. Whatever the merits of this distinction, it demonstrates that the board’s action was not merely an attempt to make teachers conform.
. The First Circuit has also rejected the First Amendment claim made here. That Court has held that a student’s long hair is not sufficiently expressive to justify First Amendment protection, although it is a vague attempt to identify with certain values. Richards v. Thurston, supra.
Miller and Tardif are the only cases of which I am aware in which a Court of Appeals has passed on the question of teacher dress codes. However, the claim that such regulations violate the Constitution has fared equally badly in the state courts. See, e. g., Morrison v. Hamilton County Board of Education,
Lead Opinion
On Petition for Rehearing En Banc
Although this case may at first appear too trivial to command the attention of a busy court, it raises important issues concerning the proper scope of judicial oversight of local affairs. The appellant here, Richard Brimley, is a public school teacher reprimanded for failing to wear a necktie while teaching his English class. Joined by the teachers union, he sued the East Hartford Board of Education, claiming that the reprimand for violating the dress code deprived him of his rights of free speech and privacy. Chief Judge Clarie granted summary judgment for the defendants.
The facts are not in dispute. In February, 1972, the East Hartford Board of Education adopted “Regulations For Teacher Dress.”
I.
In the vast majority of communities, the control of public schools is vested in locally-elected bodies.
Federal courts must refrain, in most instances, from interfering with the decisions of school authorities. Even though decisions may appear foolish or unwise, a federal court may not overturn them unless the standard set forth in Epperson is met. The Supreme Court recently emphasized this point in Wood v. Strickland,
It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion. . . . The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and § 1983 was not intended to be a vehicle for federal-court corrections of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees.
Id. at 326,
Because the appellant’s clash with his employer has failed to “directly and sharply implicate basic constitutional values,” we refuse to upset the policies established by the school board.
II.
Mr. Brimley claims that by refusing to wear a necktie he makes a statement on current affairs which assists him in his teaching. In his brief, he argues that the following benefits flow from his tielessness:
(a) He wishes to present himself to his students as a person who is not tied to “establishment conformity.”
(b) He wishes to symbolically indicate to his students his association with the ideas of the generation to which those students belong, including the rejection of many of the customs and values, and of the social outlook, of the older generation.
(c) He feels that dress of this type enables him to achieve closer rapport with his students, and thus enhances his ability to teach.5
Appellant’s claim, therefore, is that his refusal to wear a tie is “symbolic speech,” and, as such, is protected against governmental interference by the First Amendment.
We are required here to balance the alleged interest in free expression against the goals of the school board in requiring its teachers to dress somewhat more formally than they might like. United States v. Miller,
Obviously, a great range of conduct has the symbolic, “speech-like” aspect claimed by Mr. Brimley. To state that activity is “symbolic” is only the beginning, and not the end, of constitutional inquiry. United States v. Miller, supra,
We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech. . . . We reaffirm the statement of the Court in Giboney v. Empire Storage & Ice Co. [336 U.S. 490 , 502,69 S.Ct. 684 ,93 L.Ed. 834 (1949)], that “it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”
Cox v. Louisiana,
As conduct becomes less and less like “pure speech” the showing of governmental interest required for its regulation is progressively lessened. See Alfange, Jr., Free Speech and Symbolic Conduct: The Draft Card Burning Case, 1968 Supreme Court Review 1, 22-27; Note, Symbolic Speech, 43 Fordham L.Rev. 590, 592-93 (1975); Note, Symbolic Conduct, 68 Colum.L.Rev. 1091, 1121-25 (1968). In those cases where governmental regulation of expressive conduct has been struck down, the communicative intent of the actor was clear and “closely akin to ‘pure speech.’ ” Tinker v. Des Moines School District,
In contrast, the claims of symbolic speech made here are vague and unfocused. Through the simple refusal to wear a tie, Mr. Brimley claims that he communicates a comprehensive view of life and society. It may well be, in an age increasingly conscious of fashion, that a significant portion of the population seeks to make a statement of some kind through its clothes. See Q. Bell, On Human Finery (2d ed. 1976). However, Mr. Brimley’s message is sufficiently vague to place it close to the “conduct” end of the “speech-conduct” continuum described above. Cf. Henkin, The Supreme Court 1967 Term — Foreword: On Drawing Lines, 82 Harv.L.Rev. 63, 76-81 (1968). While the regulation of the school board must still pass constitutional muster, the showing required to uphold it is significantly less than if Mr. Brimley had been punished, for example, for publicly speaking out on an issue concerning school administration. Pickering v. Board of Education,
At the outset, Mr. Brimley had other, more effective means of communicating his social views to his students. He could, for example, simply have told them his views on contemporary America; if he had done this in a temperate way, without interfering with his teaching duties, we would be confronted with a very different First Amendment case. See Van Alstyne, The Constitutional Rights of Teachers and Professors, 1970 Duke L.J. 841, 856. The existence of alternative, effective means of communication, while not conclusive, is a factor to be considered in assessing the validity of a regulation of expressive conduct. Connecticut State Fed’n of Teachers v. Board of Education,
Balanced against appellant’s claim of free expression is the school board’s interest in promoting respect for authority and traditional values, as well as discipline in the classroom, by requiring teachers to dress in a professional manner. A dress code is a rational means of promoting these goals.
The interest of the state in promoting the efficient operation of its schools extends beyond merely securing an orderly classroom. Although the pros and cons of progressive education are debated heatedly, a principal function of all elementary and secondary education is indoctrinative — whether it be to teach the ABC’s or multiplication tables or to transmit the basic values of the community.
This balancing test is primarily a matter for the school board. Were we local officials, and not appellate judges, we might find Mr. Brimley’s arguments persuasive. However, our role is not to choose the better educational policy. We may intervene in the decisions of school authorities only when it has been shown that they have strayed outside the area committed to their discretion. If Mr. Brimley’s argument were to prevail, this policy would be completely eroded. Because teaching is by definition an expressive activity, virtually every decision made by school authorities would raise First Amendment issues calling for federal court intervention.
The very notion of public education implies substantial public control. Educational decisions must be made by someone; there is no reason to create a constitutional preference for the views of individual teachers over those of their employers.
Academic freedom is scarcely fostered by the intrusion of three or even nine federal jurists making curriculum or library choices for the community of scholars. When the court has intervened, the circumstances have been rare and extreme and the issues presented totally distinct from those we have here.
Id. at 292. In that case, we upheld the action of a school board in limiting library access and forbidding further purchase of a book it found objectionable. First Amendment rights were implicated far more clearly there than in the instant case. Presidents Council clearly indicates the wide scope of school board discretion. When First Amendment rights are truly in jeopardy as a result of school board actions, this Court has not hesitated to grant relief. See James v. Board of Education, supra; Russo v. Central School District, supra. In contrast to James and Russo, the First Amendment claim made here is so insubstantial as to border on the frivolous.
IV.
Mr. Brimley also claims that the “liberty” interest grounded in the due process clause of the Fourteenth Amendment protects his choice of attire. Cf. Griswold v. Connecticut,
The Supreme Court dealt with a similar claim in Kelley v. Johnson,
Respondent has sought the protection of the Fourteenth Amendment, not as a member of the citizenry at large, but on the contrary as an employee of the police force of Suffolk County, a subdivision of the State of New York. While the Court of Appeals made passing reference to this distinction, it was thereafter apparently ignored. We think, however, it is highly significant. In Pickering v. Board of Education,391 U.S. 563 , 568 [,88 S.Ct. 1731 ,20 L.Ed.2d 811 ] (1968), after noting that state employment may not be conditioned on the relinquishment of First Amendment rights, the Court stated that “[a]t the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” More recently, we have sustained comprehensive and substantial restrictions upon activities of both federal and state employees lying at the core of the First Amendment. Civil Service Comm’n v. Letter Carriers,413 U.S. 548 [,93 S.Ct. 2880 ,37 L.Ed.2d 796 ] (1973); Broadrick v. Oklahoma,413 U.S. 601 [,93 S.Ct. 2908 ,37 L.Ed.2d 830 ] (1973). If such state regulations may survive challenges based on the explicit language of the First Amendment, there is surely even more room for restrictive regulations of state*861 employees where the claim implicates only the more general contours of the substantive liberty interest protected by the Fourteenth Amendment.
Id. at 244-45,
The same distinction applies here. The regulation involved in this case affects Mr. Brimley in his capacity as a public school teacher.
Kelley goes on to set forth the standard to be applied in such cases:
We think the answer here is so clear that the District Court was quite right in the first instance to have dismissed respondent’s complaint. Neither this Court, the Court of Appeals, nor the District Court is in a position to weigh the policy arguments in favor of and against a rule regulating hairstyles as a part of regulations governing a uniformed civilian service. The constitutional issue to be decided by these courts is whether petitioner’s determination that such regulations should be enacted is so irrational that it may be branded “arbitrary,” and therefore a deprivation of respondent’s “liberty” interest in freedom to choose his own hairstyle. Williamson v. Lee Optical Co.,348 U.S. 483 , 487-88, [75 S.Ct. 461 ,99 L.Ed. 563 ] (1955).
The rights of privacy and liberty in which appellant seeks refuge are important and evolving constitutional doctrines. To date, however, the Supreme Court has extended their protection only to the most basic personal decisions. See Carey v. Population Services Int’l,
The two other Courts of Appeals which have considered this issue have reached similar conclusions. In Miller v. School District,
Even if we assume for purposes of decision that an individual’s interest in selecting his own style of dress or appearance is an interest in liberty, it is nevertheless perfectly clear that every restriction on that interest is not an unconstitutional deprivation.
From the earliest days of organized society, no absolute right to an unfettered choice of appearance has ever been recognized; matters of appearance and dress have always been subjected to control and regulation, sometimes by custom and social pressure, sometimes by legal rules. A variety of reasons justify limitations on this interest. They include a concern for public health or safety, a desire to avoid specific forms of antisocial conduct, and an interest in protecting the beholder from unsightly displays. Nothing more than a desire to encourage respect for tradition, or for those who are moved by traditional ceremonies, may be sufficient in some situations. Indeed, even an interest in teaching respect for (though not necessarily agreement with) traditional manners, may lend support to some public grooming requirements. Therefore, just as the individual has an interest in a choice among different styles of appearance and behavior, and a democratic society has an interest in fostering diverse choices, so also does society have a legitimate interest in placing limits on the exercise of that choice.
[W]e are not dealing with personal appearance in what might be termed an individual sense, but in a bilateral sense — a contractual relationship. Whatever constitutional aspect there may be to one’s choice of apparel generally, it is hardly a matter which falls totally beyond the scope of the demands which an employer, public or private, can legitimately make upon its employees. We are unwilling to think that every dispute on such issues raises questions of constitutional proportions which must stand or fall, depending upon a court’s view of who was right.
Both Miller and Tardif are stronger cases for the plaintiff’s position than the instant case.
. The entire dress code reads as follows:
The attire of professional employees during the hours when school is in session must be judged in light of the following:
1. Dress should reflect the professional position of the employee.
2. Attire should be that which is commonly accepted in the community.
3. It should be exemplary of the students with whom the professional employee works.
4. Clothing should be appropriate to the assignment of the employee, such as slacks, and jersey for gym teachers.
In most circumstances the application of the above criteria to classroom teachers would call for jacket, shirt and tie for men and dress, skirts, blouse and pantsuits for women.
If an individual teacher feels that informal clothing such as sportswear, would be appropriate to his or her teaching assignment, or would enable him or her to carry out assigned duties more effectively, such requests may be brought to the attention of the Principal or Superintendent. An attempt should be made on all levels to insure that the above principles are applied equitably and consistently throughout the school system.
. See Arbitrator’s Opinion at 7.
. Interview with Richard Brimley, Hartford Courant, Feb. 28, 1977.
. See R. Campbell, L. Cunningham & R. McPhee, The Organization and Control of American Schools 164-70 (1965).
. This final claim does not implicate the First Amendment. It is merely an assertion that one teaching technique is to be preferred over another. It has no more to do with a constitutional interest than would a claim that closer “rapport” could be achieved by arranging students’ desks in a circle rather than in rows.
. The Tinker Court was careful to distinguish a prohibition on the wearing of an armband from a dress code:
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 Amendment rights akin to “pure speech.”
. The school board made an effort to limit the reach of the dress code to classes in which the values it promoted were believed to be significant. Thus, Mr. Brimley was required to wear a tie while teaching a conventional English class, but not while giving an “alternative” class in filmmaking. Whatever the merits of this distinction, it demonstrates that the board’s action was taken in good faith, and was not merely an attempt to make teachers conform.
. Appellant’s position on this point is somewhat inconsistent. He claims that his tielessness carries a message of importance to his students, but belittles the board’s belief that ties have any impact on classroom atmosphere. Professor Archibald Cox, the arbitrator in the earlier proceedings, was far more sympathetic to the board’s position. In his opinion, he stated:
The School Board feels no less deeply and strongly that the atmosphere of the classroom and attitude of the students are sufficiently affected by teacher’s clothing for it to require a necktie and jacket.
Arbitrator’s Opinion at 7.
. Specifically, there is no reason to prefer Mr. Brimley’s notion of what constitutes a “professional image” over that of the school board, even if the style he has chosen is acceptable in most schools. In Tardif v. Quinn,
The [district] court, having taken a view, found that plaintiffs dresses, which came “half-way down [her] thigh,” were “comparable in style to dresses worn by young, respectable professional women during the years when the plaintiff was teaching.” It further found that her dresses in fact “had no*860 startling or adverse effect on her students or on her effectiveness as a teacher.”
We will assume that by this finding the court meant that plaintiff’s dress length was within reasonable limits, and we further assume that this finding was warranted. On the other hand, the court’s independent judgment as to the impact and propriety of plaintiff’s dress does not amount to a finding that defendants’ objections to the length were irrational in the context of school administration concerns.
Id. at 763.
. At least three Circuits have rejected the claim that long hair is expressive conduct entitled to First Amendment protection. Richards v. Thurston, supra; Freeman v. Flake,
. It is not only appellant’s status as a public employee, but the special needs of the school environment, that serve to justify the board’s action. See Grayned v. City of Rockford,
. In Quinn v. Muscare,
. The exceptions to this ordinary test in constitutional litigation remain those of Justice Stone’s celebrated Carolene Products footnote; the state must carry the burden of proof when it discriminates against an insular minority or burdens the exercise of a “fundamental” right. United States v. Carolene Products,
. The claim that such regulations violate the Constitution has fared equally badly in the state courts. See, e. g., Morrison v. Hamilton County Board of Education,
Dissenting Opinion
(with whom Judge SMITH concurs) (dissenting):
In an area as fraught with uncertainty as constitutional law, it is particularly incumbent upon judges to explain carefully each analytical step they are making toward a particular conclusion and to evaluate searchingly each contention put forward by the parties. Reasoned analysis is particularly critical in a case of this nature, in which a school board, carrying the legitimacy of popular election, is claimed to infringe upon the liberty and expression interests of an individual employee who after exhausting mediation remedies seeks redress, in the time-tested constitutional framework, from the institution that has historically been charged with the task of guarding the individual’s most precious freedoms against undue infringement by the majority. The en banc opinion, by downplaying the individual’s interests here as “trivial” and giving weight to a school board interest not advanced as such, adds, it seems to me, an unfortunate chapter to this history. I dissent, with regret, not so much at the difference in value judgments that evidently underlies the majority’s opinion but because the case apparently involves so little in the majority’s view.
The panel majority opinion sought to follow a rather straightforward analysis: (1) appellant Brimley has a Fourteenth Amendment liberty interest in his personal appearance; (2) appellant also has a First Amendment interest, involving the right to teach; (3) the school board asserts three interests, two of which are invalid because ultra vires and the third of which (discipline) is not rationally furthered by this teacher dress code; (4) balancing these interests, appellant prevails. This dissent will discuss in the above order the treatment of each of these points in the en banc majority opinion.
First, since the en banc majority purports to follow Kelley v. Johnson,
Second, the en banc majority baldly states in a footnote, without citation of authority, that appellant’s asserted First Amendment right to teach is not a constitutionally cognizable interest. Ante, at 857 n.5. But this established constitutional right will not disappear because the en banc majority simply chooses to ignore it. It exists in full-blown form at the college level. See, e. g., Keyishian v. Board of Regents,
To be sure, the en banc majority does discuss at length symbolic speech, a concept quite separate from the right to teach. I do not disagree with the majority’s conclusion that, to the limited extent that appellant is making a symbolic speech claim, it is close to the conduct end of the speech-conduct continuum. But even this conclusion still leaves appellant with a First Amendment constitutional interest that can be overcome only by a state regulation rationally related to a valid purpose.
Third, the en banc majority abandons two of the interests asserted by the school board,
The reason that the school board never asserted this interest, of course, is clear: the tie requirement is not related in any rational way to the admitted responsibility of a school board to inculcate traditional values in its students. The en banc majority does not enlighten us as to which value it has in mind, but in any event a necktie is a mere conventional fashion, with no connection of which I am aware to any traditional value. I fear that the majority simply confuses traditional values with mindless orthodoxy. The inculcation of the latter, of course, as the panel majority pointed out, is constitutionally forbidden. Ante, at 845 n.8.
Finally, the process by which the en banc majority balances the interests involved is defective. As Professor Gunther has pointed out, “responsible” balancing requires careful identification and separate evaluation of “each analytically distinct ingredient of the contending interests.” Gunther, supra, 86 Harv.L.Rev. at 7. This the en banc majority fails to do. Rather, at the end of the majority’s discussion of each of appellant’s two interests, it simply states that a teacher dress code rationally promotes the two interests identified as those of the school board and hence overcomes the interests of appellant. Even if a rational connection between the tie regulation and board interests did exist, as to which see text at notes 2-3 supra, the majority’s assumption that both of appellant’s interests can be disposed of separately under a rational relationship test is in my view not well-founded. If only a Fourteenth Amendment liberty interest were at stake, such a test might be the proper one to apply. See Kelley v. Johnson, supra; Tardif v. Quinn, supra; Miller v. School District No. 167,
When an individual has more than one constitutional interest at stake, at least when one involves the First Amendment, a higher degree of scrutiny is required.
I think the en banc majority gives away the real basis for its simple bow in the direction of balancing when it suggests that to hold otherwise is to give federal judges “a ‘roving commission’ to right wrongs and impose our notions of sound policy upon society.” Ante, at 862. I had always thought that the federal courts were given by Article III of the Constitution and the doctrine of judicial review not a “roving commission” but a sworn duty to interpret and uphold that document equally for all who come before them. Constitutional doctrines have evolved that we may be aided in this awesome task, and, in my view, we must strive with as much intellectual clarity as possible to apply those doctrines to the case at hand. It is when we do not do this that we are truly imposing our own notions of sound policy on society, for our conclusions are then rooted in the shifting sands of our own prejudices and not in the rich, well-furrowed soil of the Document we are sworn to interpret. An individual’s rights in this sense can never be “trivial.” They are constitutionally based or they are not; they are opposed by rational state interests or they are not; they prevail in the balancing process or they do not. Here, they should prevail.
I dissent.
. These were establishing “a professional image for teachers” and promoting “good grooming among students.” Ante, at 844.
. The panel majority opinion dealt with this interest as follows:
It is far from clear that a tie code like that in issue here has any connection with respect or discipline. Indeed, appellant puts forward the seemingly more reasonable proposition, which we must accept at this stage, that being tieless helps him to maintain his students’ respect. Teenagers, who are so often rebellious against authority, may find a tieless teacher to be a less remote, more contemporary individual with whom they can more easily interact, and hence to whom they are better prepared to listen with care and attention. It is highly questionable, and certainly not established on this motion for summary judgment, that the Board’s valid end of promoting discipline is substantially, or even incrementally, furthered by its tie regulation.
Ante, at 845 (footnotes omitted). I see no reason to alter this view at this stage, which is still one of summary judgment.
. By contrast, in Kelley v. Johnson,
The majority’s statement, ante, at 861 n.12, that Quinn v. Muscare,
. Respect for “authority” is also mentioned, but I assume that this refers to the maintenance of discipline or to the inculcation of a traditional value.
. The en banc majority’s claim that Miller and Tardif were stronger cases than the instant one for appellant’s position, because “[b]oth involved dismissals rather than, as here, a reprimand,” ante, at 862, is groundless. The only reason that appellant was not dismissed is because, rather than defy the tie code, he chose to comply with it and make his challenge through the proper legal channels. See panel majority op., ante, at 840.
. This is a common technique in the equal protection area, where “strict scrutiny” is mandated when a claim of unequal treatment is combined with a claim that a fundamental interest is implicated. This is not to say, however, that appellant’s interest here is “fundamental” in the equal-protection-analysis sense or that “strict scrutiny” is required.