RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
CLARIE, Chief Judge.
This civil rights action was commenced pursuant to 42 U.S.C. §§ 1983 and 1988, joining as party plaintiffs, Richard P. Brimley, the East Hartford Education Association ("EHEA"), and the Connecticut Education Association, Incorporated ("CEA"). The Board of Education of the Town of East Hartford ("Board") hired Brimley as an English and film-making classroom teacher in the public school system. The members of the Board are named as defendants, both individually and in their official capacity as Board members. The complaint asks the Court to declare the dress code policy adopted by the Board on March 6, 1972, to be unconstitutional on its face and as applied to these plaintiffs. They ask the Court to declare the suit to be a class action under Rule 23, Fed.R.Civ.P., thereby including as plaintiffs all teachers who are employed by the Board of Education in the Town of East Hartford. They request that the Court grant a permanent injunction restraining the local Board from maintaining and enforcing the challenged dress code and grant them their
The present posture of the case before the Court is on the defendants' motion for judgment on the pleadings, pursuant to Rule 12(c), Fed.R.Civ.P. The defendants
Plaintiff Brimley represents that he chooses to conduct his classes, while wearing a sport shirt without a tie or a sport jacket or sweater. He asserts the following reasons as the basis for his position: (1) that he wishes to present himself to his students as a person not tied to "establishment conformity"; (2) he wants to symbolically indicate to his students, his association with what he believes to be the ideas of the generation to which the students belong, including the rejection of many of the customs and values and social outlook of the older generation; and (3) he believes that dress of this type enables him to achieve a closer rapport with his students and thus enhance his ability to teach.
Historically, teachers and school administrators in East Hartford schools observed generally understood, but unwritten rules, prescribing a degree of formality in a teacher's classroom attire, which included the wearing of coats and neckties by men. Plaintiff Brimley, as far back as March 7, 1970, raised the issue by wearing a sport shirt and sweater to school without a coat or necktie. When reprimanded, he filed a grievance under the local teachers' collective bargaining agreement. The grievance was rejected by the school principal, who cited the administration's interpretation of the then existing rule as follows:
When the case finally reached the arbitration stage, the Board claimed that the issue was not arbitrable under the teachers' bargaining contract and while the matter was pending the existing contract expired and a new agreement was negotiated. The latter agreement provided for the filing of grievances with ultimate arbitration if not settled. Much of this background information is taken from the January 25, 1973 findings of the distinguished arbiter, Archibald Cox, who declined to pass upon the issue. His decision, while expressing his personal opinion that the type of grievance was more appropriately a subject of arbitration rather than judicial determination, held that final and binding arbitration on the grievance issues presently before the Court were not jurisdictionally subject to arbitration procedures under the teachers' labor agreement.
The challenged dress code adopted by the Board on March 6, 1972, and thereafter promulgated provided:
Does the local Board of Education have the constitutional right to establish by rule an enforceable minimal dress code guideline for teachers in the local school system; or is the individual teacher's interest in appearing as he pleases, a protected interest in "personal liberty" within the meaning and scope of the first and fourteenth amendments.
The plaintiffs claim that any teacher has the constitutional right to dress and conduct himself as his own conscience commands, so long as the manner of dress and conduct do not interfere with any legitimate state interest. They assert that the municipality or the state has no more lawful interest in an unoffensive manner of attire, than it does in the bridal chamber. It is their contention that there has been no showing that the exercise of the forbidden right would materially or substantially interfere with the requirements of appropriate discipline for the proper administration of the school.
The legal claim asserted here involves the plaintiff's personal liberty to dress as he chooses during his working hours as a public school teacher, which right he claims to be protected under the Civil Rights Act, 42 U.S.C. § 1983. Available remedies under the local teachers' collective bargaining contract have been exhausted through arbitration and no other such administrative remedies are presently available to gain effective relief. See Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969).
The United States Supreme Court has not yet ruled upon the issue raised here. However, the Second Circuit has recently considered the case of Dwen v. Barry, 483 F.2d 1126, 1130 (2d Cir. 1973), involving a municipal police department grooming code and found that a substantial constitutional issue had been raised by the regulation affecting the plaintiff's hair length. In that case the Court said,
The United States Supreme Court granted certiorari in the aforesaid case and it is presently pending before this term of the Court.
In a similar matter, Justice Black had before him an emergency motion to vacate a stay of injunction in an appellate case related to due process and equal protection, which involved a local
It should be noted, however, that the Supreme Court has recently, in a new reach of federal jurisdiction, extended federal due process rules into the local school's disciplinary system. In Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), it required a preliminary notice and hearing before a suspension of ten days could be lawfully imposed on a student, except under emergency conditions. This was the first time that a federal court decided that it, rather than local educational officials or the state legislature, had the authority to determine the local rules applicable to routine classroom discipline of children and teenagers in the public schools. The Court justified this intrusion by identifying a new constitutional procedural right; the right of a student not to be suspended from school without a due process hearing either before or promptly following the suspension.
It was after reviewing Justice Black's opinion that the Fifth Circuit in an 8-7 opinion felt compelled to reverse Karr v. Schmidt, supra, in 460 F.2d 609 (en banc 1972) and announced a per se rule directing all district courts in the Fifth Circuit thereafter to dismiss forthwith, for failure to state a valid claim, any complaint which "merely alleges the constitutional invalidity of a high school hair and grooming regulation."
A panel of the Seventh Circuit Court recently expressed its unanimous opinion concerning the application of the due process clause as it related to school dress code regulations, when it said in Miller v. School District Number 167, Cook County, Ill., 495 F.2d 658 (7th Cir. 1974):
The plaintiffs approach the issue from its negative aspect, claiming that unless it can be demonstrated that Brimley's style of dress materially interferes with the discipline or proper administration of his classroom, the Board has no right to regulate it. However, it is a generally accepted fact that the school board in each community of Connecticut has the right by law
It almost goes without saying that parents, as well as a majority of the teaching profession, expect teachers to possess and maintain certain qualities: to have knowledge of their subject and the ability to convey it, to be morally above reproach and to be physically clean, neat and wellgroomed. Teachers set an example in dress and grooming for their students to follow. A teacher who understands this precept and adheres to it enlarges the importance of the task of teaching, presents an image of dignity and encourages respect for authority, which acts as a positive factor in maintaining classroom discipline. Most teachers recognize this aspect of their responsibilities, and maintain a standard of good grooming without requiring school boards to adopt rules. Without such regulations, however, some school systems have been faced with male teachers' arriving in the classroom wearing "Bermuda shorts" or similarly inappropriate forms of flamboyant dress.
Common sense teaches that whether or not a male classroom teacher wears a tie and coat will not determine the ultimate measure of his success or failure. The rule simply provides a minimal standard to encourage a degree of formality in the teaching relationship. It is doubtful that anyone would expect to prevail against a school board rule which required a teacher to stand up at all times while actually teaching a class; yet this latter requirement is not a unique rule. There are school boards and superintendents who consider it necessary for effective teaching. Whether teachers or the general public accept this precept as one of major pedagogical importance does not detract from the school board's right to make and enforce such a regulation.
Teachers work within the academic setting only six or seven hours of the total day. Outside this work environment, they are free to dress as they wish, so long as they do not offend the criminal code. A dress code does not impose that same degree of restraint on the liberty of an individual, as does
If plaintiff Brimley does not wish to observe the Board's rule, he is free to go elsewhere and find a school system where conformance to a dress code is not required. His freedom of choice in this respect is unlimited. The Court finds that the local Board rule does not violate due process of law under the fourteenth amendment, and it is not the type of symbolic act that is contemplated to be within the free speech clause of the first amendment. The Court finds that a legitimate governmental interest exists here and the regulation is not unconstitutional because it is overly vague and unenforceable. See Tinker v. Des Moines School Dist., 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
The defendants' motion for judgment is granted pursuant to Rule 12(c), Fed. R.Civ.P., on the grounds that the plaintiffs' complaint fails to state a claim upon which relief can be granted. So ordered.