Joe Richard LANSDALE et al., Plaintiffs-Appellees, v. TYLER JUNIOR COLLEGE and Harry E. Jenkins, et al., Defendants-Appellants
No. 71-1775
United States Court of Appeals, Fifth Circuit
Oct. 4, 1972
Rehearing Denied Nov. 7, 1972
470 F.2d 659
Since the arrest was made with probable cause, the attending search of the apartment was lawful as incident to the arrest. The arrest and search in this case occurred prior to the decision of the Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Thus the standards announced in that case do not have application here. Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). Judged by standards enunciated in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) the search conducted here was reasonable and lawful. The fact that the search was commenced shortly before the arrest was made does not vitiate the search as incident to the arrest since there was probable cause to arrest without regard to the fruits of the search. United States v. Squella-Avendano, 447 F.2d 575 (5th Cir. 1971); United States v. Brookins, 434 F.2d 41 (5th Cir. 1970).
Appellant‘s remaining contentions are likewise without merit. His subsequent indictment on a charge different from the one on which he was originally arraigned does not amount to a violation of constitutional rights which would invalidate his conviction. United States v. Coley, 441 F.2d 1299 (5th Cir. 1971); Jackson v. Smith, 435 F.2d 1284 (5th Cir. 1971). As the district court found, the trial transcript shows that the in-court identification was based upon origins independent of the lineup, and appellant was not prejudiced thereby. Therefore, we need not inquire into the propriety of the lineups. Lucas v. State of Texas, 451 F.2d 390 (5th Cir. 1971); Ward v. Wainwright, 450 F.2d 409 (5th Cir. 1971). Finally, the court below found that the prosecuting attorney‘s reference to the defendants as “niggers” was not prejudicial. The defense objected when the remark was made, and the court sustained the objection, instructing the jury to disregard the reference.
Perceiving no clear error in the district court‘s findings of fact and no error in its application of the law, the judgment below is affirmed.
William S. Reeves, Tyler, Tex., for defendants-appellants.
William H. Kugle, Jr., Athens, Tex., for plaintiffs-appellees.
Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.
CLARK, Circuit Judge, with whom MORGAN, Circuit Judge, joins:
Joe Richard Lansdale and two other young men attempted to register for the Fall 1970 Semester at Tyler Junior College, a public institution of the State of Texas. However, because their hair styles did not conform to a particular section of the “Dress Code,” a comprehensive set of regulations governing student appearance adopted by the Board of Trustees shortly before the school term, they were not permitted to register. Subsequently, they brought suit in the court below, under
In the ultimate analysis, this sameness of the campus life in the respective grade and high school and collegiate environments means that judicial scrutiny of haircut regulations in these institutions almost never calls for what is truly an adjudication of facts. Except in a relative handful of cases where unique situations exist, it is a delusion and a pretense to imagine that the decision in hair length regulation cases can be based upon an objective determination gleaned from testimony by administrators, students or experts. Pragmatically and realistically, the result of the process embodies a particular judge‘s subjective selection among what he views as competing values. On the one hand, he attaches his own weight of merit and importance to the personal liberty of the student to wear his hair as he wills; then, on the other hand, he assesses his notion of the importance or “relevance” of the authoritarian prerogatives which school administrators have asserted they must exercise to achieve the aims of the particular educational institution. The most important tenet in my reasoning is that the decision either that hair must be cut if the student
So long as these ad hoc appraisals continue, the only hope that both students and school officials who are identically situated will receive meaningful and consistent adjudications of their constitutional positions lies in whatever compulsion for general conformity that may fortuitously exist among independent life-tenured federal judges. This is too faint an anticipation to be acceptable. The
Such line drawing may be attacked as arbitrary. Ofttimes three months, and sometimes only one week, separates the high school senior from the college freshman. It is likewise true that many high school students may find hair regulations so offensive as to prohibit their continued education, while an equal number of college students couldn‘t care less. But these are not controlling principles. The redeeming virtue of a per se rule, which far outweighs its shortcomings, is that it is more realistic and more equitable in its overall operation than random judicial “fact” fiats that treat one student one way and another virtually identically circumstanced student another. By differentiating between grade and high schools on the one hand and colleges on the other, we bring to academic regulation of hair style as much order as the inherent vagaries of a system of judge-made law will permit.
Basic also to today‘s decision is the premise that the state has no total right to regulate hair styles, either in general or within the entire framework of public education. There comes a time when its interest in teaching hygiene, instilling discipline, asserting authority and compelling uniformity all become so tenuous as to no longer be reasonably related to, nor effectively fostered by, a haircut regulation.
There are a number of factors which support the proposition that the point between high school and college is the place where the line should be drawn — the place where “the Law stops and just people starts“.2 That place is the point in the student‘s process of maturity where he usually comes within the ambit of the
Today‘s decision should not be read as modifying the rationale of the majority opinion in Karr. Karr unqualifiedly includes the right of citizens to choose their mode of personal hair grooming within the great host of liberties protected by the
Thus, while we reaffirm that Karr is premised on an adjudication that the right of students to go into the world as they please is a constitutionally protected one, Karr is misinterpreted if it be read as providing that such a right is statically absolute throughout every educational experience. Of course it is not. Rather, like the measurement of time and space and like the even more explicit guarantees of the
If we reviewed the fact findings made by the district judge in the case at bar, we would find them to be free from clear error. But such a procedure would suffer from the same deficit I perceive in all other such “fact” adjudications as to this type regulation. If the “facts” on both sides have been adequately developed, a decision either way would doubtless have to be affirmed under this standard of review.
In the absence of a showing that unusual conditions exist, the regulation of the length or style of a college student‘s hair is irrelevant to any legitimate college administrative interests and any such regulation creates an arbitrary classification of college students. Because no such unusual circumstances existed here, the regulation adopted in the instant case violates both the due process and equal protection provisions of the
JOHN R. BROWN, Chief Judge (concurring):
I concur in the result and in much of Judge Clark‘s able opinion. I would join also in Judge Wisdom‘s concurrence and all of that of Judge Simpson‘s save where he embraces completely Judge Tuttle‘s concurrence in Sherling v. Townley, 5 Cir., 1972, 464 F.2d 587 which, to me, in a reverse way is subject to the same deficiency as Karr with its per se rule — one for, one against hair restrictions.
I think Judge Clark for the Court has bravely revealed the shortcomings of our vaunted case-and-controversy system with its insatiable demand for record facts. As he wisely points out, when all is said and done, these decisions do not — and it would be a dangerous thing if they did — turn on the presence or absence of word testimony from administrators, school boards, freedom militants or variations in between as to the consequences in order, discipline, learning environment and the like flowing from the cosmetic factor of hair. For this testimony — pro and con — is freely available with none of the restraints of perjury, and in the last analysis the Judge picks and chooses, not because one is more, or less, creditable than the other, but simply because the one rather than the other comes closest to the Judge‘s notion of what the law demands or tolerates.
Indeed, except for one limited dissent in Karr, the position of the majority was not on the factual record. It was on the idea that the state could regulate, with no indicated justification, the length of hair.
This is no apologia for the system. It is a recognition of fact. And for a calling already full of its own myths and the expectation that our Commission somehow invests us with a prescience given to no other men, it is good for us to acknowledge our limitations and the occasional inadequacy of our system to honestly articulate the distinctions in judgment.
My slight difference is that while recognizing these influences leading Judges to decision, it seems a contradiction to cast it in terms of per se. For by sheer numbers, that is to aggregate the individualized judicial hunches into something that, genie-like, is a principle of law. See Hutcheson, The Judgment Intuitive: The Function of the “Hunch” in Judicial Decisions, 1929, 14 Corn.L.Q. 274. Except for this I concur in the opinion and certainly the result.
WISDOM, Circuit Judge, with whom Chief Judge JOHN R. BROWN and GOLDBERG and THORNBERRY, Circuit Judges, join specially concurring:
I concur in the result of this case because of the reasons I expressed in my dissenting opinion in Karr v. Schmidt, 5 Cir. 1972 (en banc) 460 F.2d 609.
BELL, Circuit Judge (specially concurring):
I concur in the result of this case and in the principle which it sets out that is applicable to hair style regulations at
GODBOLD, Circuit Judge, with whom THORNBERRY, Circuit Judge, joins, specially concurring:
I concur in the result of this case and in the principle which it sets out that is applicable to hair style regulations at the college level, a principle different from that applying below the college level. In Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972) (en banc), I expressed my view regarding the correct governing principle for hair and dress code regulations below the college level. I continue to adhere to that view.
SIMPSON, Circuit Judge, with whom WISDOM and GOLDBERG, Circuit Judges, join in whole and Chief Judge JOHN R. BROWN joins in part, concurring specially:
I concur in the result here reached by the Court for the cogent reasons expressed by Judge Wisdom in his dissent (which I joined) in Karr v. Schmidt, 5 Cir. 1972 en banc, 460 F.2d 609 and further for the reasons recently well-stated by Judge Tuttle in his special concurrence in Sherling, a minor, etc. et al., v. Townley, Individually and as Superintendent of the Irving Independent School District, et al., 5 Cir. 1972, 464 F.2d 587.
I have as much difficulty as does Judge Dyer (see separate dissent, p. 13) in reconciling this decision with Karr v. Schmidt. I agree with him that the majority opinion here makes “constitutional consequences dependent upon a line arbitrarily drawn between high schools and junior colleges.”
I think the constitutionally protected right of a 17 year old junior college freshman with respect to his choice of hair length may not be logically demonstrated to differ from that of a 17 or 18 year old high school junior or senior. To me this false dichotomy simply emphasizes the inherent fallacy of the majority position in Karr v. Schmidt. I would not, as would Judge Dyer, follow Karr v. Schmidt. I would repudiate it, and instead, as suggested by Judge Tuttle in Sherling v. Townley, supra, adopt “a per se rule that no such regulation” (of hair length) “can stand under the equal protection provisions of the Fourteenth Amendment on the ground that such regulations create a classification of citizens totally unrelated to the objectives of the operation of high schools.”1
This Court en banc strained mightily and conscientiously over these two cases. The net result of the effort is unfortunately not a glorious one. Our stance as a court emerges as unsatisfactory — because it is arbitrary and inconsistent — to members of the Court with directly opposing views. Surely these are grounds for re-examination of both decisions.
DYER, Circuit Judge, with whom GEWIN, COLEMAN, AINSWORTH and INGRAHAM, Circuit Judges, join, dissenting:
I dissent from the Court‘s conclusion that Lansdale has a
In Karr we said no less than five times that a substantial constitutional question was not presented in a haircut case.
Believing, as did Mr. Justice Black, that appellee Karr‘s asserted right to
Is there a constitutionally protected right to wear one‘s hair in a public high school in the length and style that suits the wearer? We hold that no such right is to be found within the plain meaning of the Constitution. Id. at 613.
It is our firm belief that this asserted freedom [to wear hair in school at the length that suits the student] does not rise to the level of fundamental significance which would warrant our recognition of such a substantive constitutional right. Id. at 615.
* * * [O]ur holding [is] that there is no substantial constitutional right to wear hair in the fashion that suits the wearer * * *. Id. at 616.
[Our decision] reflects recognition of the inescapable fact that neither the Constitution nor the federal judiciary it created were conceived to be keepers of the national conscience in every matter great and small. Id. at 618.
What we said in Karr is equally applicable here. “By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values” (emphasis supplied) Epperson v. Arkansas, 1968, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228.
The Court is attempting to make law by a coup de main that articulates constitutional consequences dependent upon a line arbitrarily drawn between high schools and junior colleges in the face of contrary precedent.
RONEY, Circuit Judge (dissenting):
I dissent, first, because I see no distinction between high schools and junior colleges under the Karr v. Schmidt holding, which is now the law of this Circuit; and second, because I agree with the Karr v. Schmidt rationale except where school attendance is compelled by the state, which is not the case at Tyler Junior College.
ON PETITION FOR REHEARING
PER CURIAM:
It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.
DYER, Circuit Judge (dissenting):
For the reasons stated in my dissenting opinion I dissent from the denial of the petition for rehearing.
GEWIN, COLEMAN, AINSWORTH and RONEY, Circuit Judges (dissenting):
For the reasons stated in the dissenting opinion of Judge Dyer, we respectfully dissent from the denial of the petition for rehearing.