Certiorari Denied October 21, 1974. See 95 S.Ct. 185.
This matter comes before the Court on the filing of the record and briefs of the parties and on the submission by the appellee of a motion for affirmance without oral argument pursuant to Circuit Rule 22. On consideration whereof, we grant the motion and affirm the judgment of the court below.
Plaintiff Lowell F. Holsapple is a male student at Odin High School, Odin, Illinois. On August 28, 1973, he enrolled for the fall semester at the school, at which time he was provided with a copy of the School Board Policy on grooming. The grooming provision read: "Excessively long hair to the eyebrows, ears, and to the collar will be cause for dismissal." On September 17, 1973, plaintiff was suspended for violation of the grooming provision. He then filed a civil rights complaint and a motion for temporary restraining order in the district court against defendant Superintendent of the Public School and members of the Board of Education, requesting judgment declaring the grooming policy unconstitutional and other relief. Plaintiff remained suspended from school until September 25, 1973, at which time the district court approved a stipulation between the parties that the plaintiff could return to school without altering his hair, pending final hearing on the merits of the case. A consolidated hearing on motions for preliminary and permanent injunctions was held on October 9, 1973, at which four witnesses for the defendants testified.
Defendants first contend that the district court erred in holding that no evidence was presented at trial that showed a direct correlation between students' hair length and the creation and maintenance of a proper learning atmosphere. They point to certain excepts from testimony of the four expert witnesses to show that evidence was in fact presented to show a correlation between dress and grooming on the one hand and behavior on the other; and that length of hair is part of this good grooming-good behavior nexus. They argue that the existence of such testimony refutes, as erroneous, the following two findings of fact and conclusions of law of the trial court:
We find this contention to be without merit.
As the court in Franks v. National Dairy Products Corp., 414 F.2d 682, 685 (5th Cir. 1969), stated:
Furthermore, findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. F.R.Civ.P. 52(a); See Lichter v. Goss, 232 F.2d 715, 719 (7th Cir. 1956).
In the instant case, the district judge in the main body of his opinion and order, stated as follows:
Mindful of the district judge's opportunity to judge the demeanor and credibility of witnesses, and after reviewing the transcript of proceedings and the two findings complained of in light of the district judge's opinion—part of which is set out supra, we conclude that the district judge's findings are not clearly erroneous so as to require setting them aside.
Defendants next contend that the hair regulation does not infringe the constitutional rights of the plaintiff. We disagree.
The law of this Circuit is well settled that in a school context, the right to wear one's hair at any length or in any desired manner is an ingredient of personal freedom protected by the United
An examination of the record and transcripts in this case reveals, simply, that the defendants failed to meet this substantial burden of justification. Defendants have fallen far short of showing that poor discipline and lower grades are caused by hair length in violation of the school standard and are "so aggravated, so frequent, so general, and so persistent that this invasion of student's individual freedom by the state is warranted." Breen, supra at 1036, 1037.
Accordingly, the judgment of the district court is
PELL, Circuit Judge (concurring):
I join in this opinion solely because it restates well-established authority in this Circuit. Despite the fact that opposing views have been held in the federal courts on the high school-hair issue, the Supreme Court has apparently not deemed the issue to be of sufficient constitutional significance to grant certiorari. I entertain the opinion that the federal courts of this Circuit, including this Court, might have been well advised to have reached the same result, but they have not.
* * * [Students] are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Compare our recent decision in Miller v. School District Number 167, Cook County, Illinois, et al., 495 F.2d 658, (7th Cir. 1974). In Miller we held that "even if the individual interest in one's [there a teacher's] appearance may be characterized as an interest in liberty, the denial of public employment because the employer considers the applicant's appearance inappropriate for the position in question, does not in and of itself represent a deprivation that is forbidden by the Due Process Clause." Id. at p. 668, emphasis supplied. Our decision in Miller did not dislodge our former holdings in Breen, Crews, and Arnold, supra, in text. "The unavailability of a teaching position in one School District is less serious . . . than the deprivation of an opportunity to obtain an education." Miller, supra at p. 665.