APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (Civil Action No. 71-2411)
Before: SEITZ, Chief Judge, and ALDISERT, Circuit Judge.
Resubmitted October 29, 1973, Under Third Circuit Rule 12(6)
Before: SEITZ, Chief Judge, and ALDISERT and WEIS, Circuit Judges.
Resubmitted January 8, 1975, Under Third Circuit Rule 12(6)
Before: SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
The question is whether a schoolboy's complaint for money damages, filed after his exclusion from a soccer team for noncompliance with an athletic code regulating hair, states a claim for which relief can be granted under the Civil Rights Act, 42 U.S.C. § 1983.
Defendants are the Donegal School District, its president and chief executive officer, its superintendent of schools, the principal of Donegal High School, the school's athletic director and the coach of the soccer team. Plaintiffs contend that the code, which defendants promulgated, trenches upon rights guaranteed to Brent Zeller by the Constitution. Accordingly, plaintiffs seek damages on behalf of their son.*fn1
Appellants have summarized the proceedings in the district court: "[A] hearing was held... on plaintiff's [sic] request for preliminary injunctive relief. At the commencement of this hearing defendants moved to dismiss the complaint for failure to state a claim, and decision was reserved on this motion. The Court then heard extensive testimony offered by both sides as well as receiving a stipulation of agreed upon facts that had been entered into by the parties for purpose of the hearing. Thereafter... the Court entered an order granting defendants' motion to dismiss without making any finding of facts on the basis of 'the lack of a substantial federal question in Donegal School District's refusal to allow plaintiff to participate in soccer'." Appellants' Brief at 5. We affirm.
The protracted history of this appeal discloses that the members of this court have agonized over the troublesome issues presented. A panel first pondered the matter in July, 1973, and affirmed the judgment. No. 72-1009 (3d Cir., July 25, 1973). Upon presentation of a petition, that judgment was vacated and panel reconsideration ordered for October, 1973. However, deliberation was suspended when another case,posing a kindred issue and promising to give guidance, was set for in banc determination. Unfortunately, that case became moot. Communale v. Meir, 505 F.2d 729 (3d Cir. 1974). Subsequently and on recommendation of the panel, a majority of the full court ordered in banc consideration of this case.
What divides this court today is not so much a disagreement as to abstract nuances of constitutional law as it is a difference in policy - how broadly the Constitution should be interpreted to provide actionable relief when asserted individual student rights collide with regulations of a school system.
We recognize that a strong case - indeed, one philosophically and academically sound - may be made for the point of view that, if a complaint is couched in the proper language asserting a constitutional deprivation, federal courts should provide the judicial forum in school hair cases. In addition to this court's previous decisions in Gere v. Stanley, 453 F.2d 205 (3d Cir. 1971), and Stull v. School Board, 459 F.2d 339 (3d Cir. 1972), the First,*fn2 Second,*fn3 Fourth,*fn4 Seventh,*fn5 and Eighth*fn6 Circuits have been hospitable to such claims. The District of Columbia,*fn7 Fifth,*fn8 Sixth,*fn9 Ninth,*fn10 and Tenth*fn11 Circuits, on the other hand, have not been receptive to claims that tonsorial tastes are subsumed in substantial rights protected by the federal Constitution and, therefore, warrant federal court consideration.*fn12 On nine occasions now, the Supreme Court has denied certiorari to hair cases,*fn13 and on three of these, strong dissents have been filed.*fn14
The starting point for our approach is that federal courts have jurisdiction to entertain complaints brought under 42 U.S.C. § 1983*fn15 because of its jurisdictional counterpart, 28 U.S.C. § 1343(3).*fn16 Gere v. Stanley, supra, 453 F.2d at 208. We recognize that the current § 1983 was part of the Civil Rights Act of 1871, passed by the Reconstruction Congress to effectuate the Fourteenth Amendment which, in turn, was adopted to guarantee recently emancipated blacks constitutional protections. See Hague v. C.I.O., 307 U.S. 496, 510, 83 L. Ed. 1423, 59 S. Ct. 954 (1939). In the three-quarters of a century after its enactment, only a smattering of decisions invoked § 1983. Cf. Monroe v. Pape, 365 U.S. 167, 214 n.21, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961) (Frankfurter, J., dissenting) (collecting cases). In 1960, 280 civil rights cases were filed.*fn17 Then came the landmark case of Monroe v. Pape, supra, which judicially expanded available federal relief under the Act of 1871. From that day in February 1961 forward, the federal judiciary at all levels - district court, court of appeals and Supreme Court - has added new strength and increased vigor to the Act in the form of thousands of judicial decisions.*fn18
The Director of the Administrative Office of the United States Courts has reported that 12,530 of 75,945 private civil actions filed in the United States District Courts during 1974 were civil rights actions; in the district courts of this circuit, 886 of 7,359 filings involved civil rights.*fn19 It therefore becomes apparent that a sizeable percentage of the constitutional questions presented to our federal courts are grounded in allegations of constitutional deprivation under color of state law, all of which tends to prove the incisive observation of Karl N. Llewellyn: "[The] focus of study, the point of reference for all things legal has been shifting, and should now be consciously shifted to the area of contact, of interaction, between official regulatory behavior and the behavior of those affecting or affected by official regulatory behavior...."*fn20
The sheer number of § 1983 suits, of its own momentum, has spawned a host of new interpretations of rights assured by the Fourteenth Amendment. That these dimensions to constitutional protections were unrecognized and undefined a few short years ago is among the meekest of understatements. Claims for relief which heretofore had taken the form of traditional tort, property and contract substantive law in the state courts are now being couched in terms of constitutional deprivation and presented to federal forums.*fn21 One of the realities of this innovativeness is that the federal decisions are being made, not on the basis of visible, time-tested rules or principles of substantive law, but on the basis of jural impressionism - subjective judgments of individual judges as to what constitutes protectable "liberty" or a denial of due process or equal protection.
Admittedly, the very nature of constitutional interpretation calls more for the making of value judgments than for the application of specific rules, principles, conceptions, doctrines or standards.*fn22 As Learned Hand said in describing the broad clauses of the Constitution, "these fundamental canons are not jural concepts at all, in the ordinary sense; and in application they turn out to be no more than admonitions of moderation, as appears from the varying and contradictory interpretations that the judges themselves find it necessary to put upon them."*fn23 But this does not mean that a constitutional interpretation need not be "entirely principled." As Professor Wechsler emphasized: "A principled decision... is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved. When no sufficient reasons of this kind can be assigned for overturning value choices of the other branches of the Government or of a state, those choices must, of course, survive. Otherwise, as Holmes said in his first opinion for the Court, 'a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all Englishspeaking communities, would become the partisan of a particular set of ethical or economical opinions....'"*fn24
We construe the Constitution as containing "fundamental rules of right" and we recognize that the concept of liberty may embrace certain personal and individual rights vaguely described as coming "within the protected penumbra of specific guarantees of the Bill of Rights". Griswold v. Connecticut, 381 U.S. 479, 487, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965) (Goldberg, J., concurring). But our interpretative analysis may not stop there. We agree with Dean Griswold that "[it] is not... a question of strict construction or of activism. It is both. Construction is strict only to those who agree with the interpretation; to those who do not, it is simply wrong. Activism that carries us beyond the proper exercise of the judicial function is not legitimately called activism. The limits either way cannot be demonstrated. But there are limits. That is inherent in the idea of the judicial process. The supreme function of the judge is to recognize that there must be limits, both ways, avoiding undue literalism on the one hand, and too wide freedom of action on the other."*fn25 Accordingly, we have reexamined the premises underlying the rule of Stull v. School Board, supra.*fn26
We are no longer convinced that reasons previously assigned in support of the school hair cases are persuasive; we are no longer satisfied that the reasons "in their generality and their neutrality transcend any immediate result" so as to justify overturning the value judgment of the school district.*fn27 We hold that plaintiffs' contention does not rise to the dignity of a protectable constitutional right. In the language of Epperson v. Arkansas, 393 U.S. 97, 104, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968), the contention is one "not directly and sharply [implicating] basic constitutional values." Moreover, it is not one asserting denial of procedural due process in the context of suspension or expulsion. See Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725, 43 U.S.L.W. 4181 (Jan. 22, 1975). Thus, the claim presented here is not one for which relief can be granted.
In making our carefully considered value judgment that recognizes limits to redressable allegations of constitutionally-protected personal liberty by public school students, we are persuaded that we cannot arrogate to the federal courts the interpretation of the "conflicting ideals"*fn28 of student liberty and school regulation in the context of students' hair. The very nature of the school system, public and private, requires that student liberties and freedom may not be absolute. The faculty must prescribe curriculum; the administration must assign faculty, promulgate rules for the conducting of courses and extracurricular activities, and set standards for grading, promoting and graduating. As the Supreme Court*fn29 said recently in reversing the Eighth Circuit's finding of a substantive due process violation in a related school rights context:
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. Public high school students do have substantive and procedural rights while at school. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943); Goss v. Lopez, supra. But § 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. 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 correction of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees. See Epperson v. Arkansas, 393 U.S. 97, 104, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968); Tinker, supra, at 507.
Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214, 43 U.S.L.W. 4293, 4299 (Feb. 25, 1975) (emphasis added).
Thus, notwithstanding our prior statements in this area, we determine today that the federal court system is ill-equipped to make value judgments on hair lengths in terms of the Constitution - whether an athletic code requiring that hair be "neatly trimmed" would not pass muster, whether one putting the limit on hair twelve inches below the collar would pass, or whether one drawing the line at four inches below the collar would be more difficult of solution. A very real concern is that the decisional process not become, in the phrase of Justice Hopkins, "amorphous and growing out of a shifting foundation laid on morals or community welfare" so as to invite ...