UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: August 19, 1977.
EAST HARTFORD EDUCATION ASSOCIATION, THE CONNECTICUT EDUCATION ASSOCIATION, INC., AND RICHARD P. BRIMLEY, APPELLANTS,
BOARD OF EDUCATION OF THE TOWN OF EAST HARTFORD, AND BARBARA ATWOOD, ROBERT BANNON, KENNETH CARRIE, M. GLENN FRANK, ELEANOR KEPLER, WALTER H. MILLS, JR., TIMOTHY J. MOYNIHAN, JOYCE RUGGLES AND JOHN J. SMITH, JR., INDIVIDUALLY AND IN THEIR CAPACITIES AS MEMBERS OF THE BOARD OF EDUCATION OF THE TOWN OF EAST HARTFORD, APPELLEES
Action for declaratory judgment and injunction under 42 U.S.C. § 1983. The named plaintiff is a public school teacher who was reprimanded for failing to wear a tie while teaching. After exhausting his administrative remedies, plaintiff began this action in the United States District Court for the District of Connecticut. Clarie, C.J., granted defendant's motion for summary judgment on the ground that plaintiff asserted no cognizable constitutional interest. Affirmed. 562 F.2d 838.
Kaufman, Chief Judge, and Smith, Feinberg, Mansfield, Mulligan, Oakes, Timbers, Gurfein, Van Graafeiland and Meskill, Circuit Judges. Oakes, Circuit Judge (with whom Judge Smith Concurs) (dissenting).
MESKILL, Circuit Judge:
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. 405 F. Supp. 94 (D. Conn. 1975). A divided panel of this Court reversed and remanded for trial. 562 F.2d 838, 838-856 (1977). At the request of a member of the Court, a poll of the judges in regular active service was taken to determine if the case should be reheard en banc. A majority voted for rehearing. We now vacate the judgment of the panel majority and affirm the judgment of the district court.
The facts are not in dispute. In February, 1972, the East Hartford Board of Education adopted "Regulations For Teacher Dress."*fn1 At that time, Mr. Brimley, a teacher of high school English and filmmaking, customarily wore a jacket and sportshirt, without a tie. His failure to wear a tie constituted a violation of the regulations, and he was reprimanded for his delict. Mr. Brimley appealed to the school principal and was told that he was to wear a tie while teaching English, but that his informal attire was proper during filmmaking classes. He then appealed to the superintendent and the board without success, after which he began formal arbitration proceedings, which ended in a decision that the dispute was not arbitrable. This lawsuit followed. Although Mr. Brimley initially complied with the code while pursuing his remedies,*fn2 he has apparently returned to his former mode of dress.*fn3 The record does not disclose any disciplinary action against him other than the original reprimand.
In the vast majority of communities, the control of public schools is vested in locally-elected bodies.*fn4 This commitment to local political bodies requires significant public control over what is said and done in school. See Eisner v. Stamford Board of Education, 440 F.2d 803, 807-08 (2d Cir. 1971); Developments in the Law -- Academic Freedom, 81 Harv. L. Rev. 1045, 1052-54 (1968). It is not the federal courts, but local democratic processes, that are primarily responsible for the many routine decisions that are made in public school systems. Accordingly, it is settled that "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." Epperson v. Arkansas, 393 U.S. 97, 104, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968) (footnote omitted).
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, 420 U.S. 308, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975), in which a high school's summary disciplinary proceedings were challenged on due process grounds:
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 (citations omitted).
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.
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.*fn5
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, 367 F.2d 72, 80 (2d Cir. 1966), cert. denied, 386 U.S. 911, 17 L. Ed. 2d 787, 87 S. Ct. 855 (1967). Compare Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Review 75, 77-81 with Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 912-14 (1963). When this test is applied, the school board's position must prevail.
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, 367 F.2d at 78-79; see Note, Desecration of National Symbols as Protected Political Expression, 66 Mich. L. Rev. 1040, 1046 (1968); cf. People v. Cowgill, 274 Cal.App.2d Supp. 923, 78 Cal.Rptr. 853, appeal dismissed, 396 U.S. 371, 90 St. Ct. 613, 24 L. Ed. 2d 590 (1970) (Harlan, J., dissenting from dismissal). Even though intended as expression, symbolic speech remains conduct, subject to regulation by the state. As the Supreme Court has stated in discussing the difference between conduct and "speech in its pristine form":
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, 379 U.S. 536, 555-56, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965). The rule of Cox, which involved a mixture of activity and speech, applies with even greater force in a case such as this one, where only conduct is involved. See United States v. O'Brien, 391 U.S. 367, 376, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968) (burning of draft card as political protest not protected).
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, 393 U.S. 503, 505, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969). Thus, the First Amendment has been held to protect wearing a black armband to protest the Vietnam War, Tinker v. Des Moines School District, supra,*fn6 burning an American Flag to highlight a speech denouncing the government's failure to protect a civil rights leader, Street v. New York, 394 U.S. 576, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969), or quietly refusing to recite the Pledge of Allegiance, Russo v. Central School District, 469 F.2d 623 (2d Cir. 1972), cert. denied, 411 U.S. 932, 36 L. Ed. 2d 391, 93 S. Ct. 1899 (1973).
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, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968); see Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970).
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, 538 F.2d 471, 481-82 (2d Cir. 1976).
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.*fn7 As to the legitimacy of the goals themselves, there can be no doubt. In James v. Board of Education, Chief Judge Kaufman stated:
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.
461 F.2d 566, 573 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L. Ed. 2d 491 (1972). See also Miller v. School District, 495 F.2d 658, 664 (7th Cir. 1974) (Stevens, J.).*fn8
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.*fn9 As Judge Mulligan wrote for a unanimous panel in Presidents Council v. Community School Board, 457 F.2d 289 (2d Cir.), cert. denied, 409 U.S. 998, 34 L. Ed. 2d 260, 93 S. Ct. 308 (1972):
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.*fn10 We are unwilling to exapnd First Amendment protection to include a teacher's sartorial choice.
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, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965). This claim will not withstand analysis.
The Supreme Court dealt with a similar claim in Kelley v. Johnson, 425 U.S. 238, 47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976). That case involved a challenge to the hair-grooming regulations of a police department. The Court was careful to distinguish privacy claims made by government employees from those made by members of the public:
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 [,20 L. Ed. 2d 811, 88 S. Ct. 1731] (1968), after noting that state employment may not be conditioned on the relinquishment of First Amendment rights, the Court stated that "at 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, [37 L. Ed. 2d 796, 93 S. Ct. 2880](1973); Broadrick v. Oklahoma, 413 U.S. 601, [37 L. Ed. 2d 830, 93 S. Ct. 2908] (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 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.*fn11 Of course, as he points out, the functions of policemen and teachers differ widely. Regulations well within constitutional bounds for one occupation might prove invalid for another. Nonetheless, we can see no reason why the same constitutional test should not apply, no matter how different the results of their constitutional challenges. See Garrity v. New Jersey, 385 U.S. 493, 499-500, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967).*fn12
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, [99 L. Ed. 563, 75 S. Ct. 461] (1955).
425 U.S. at 247-48. If Mr. Brimley has any protected interest in his neckwear, it does not weigh very heavily on the constitutional scales. As with most legislative choices, the board's dress code is presumptively constitutional. *fn13 It is justified by the same concerns for respect, discipline and traditional values described in our discussion of the First Amendment claim. Accordingly, appellant has failed to carry the burden set out in Kelley of demonstrating that the dress code is "so irrational that it may be branded 'arbitrary,'" and the regulation must stand.
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 International, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675, 445 U.S.L.W. 4601, 4602-03 (1977). Nor has the Supreme Court been quick to expand these rights to new fields. See Doe v. Commonwealth's Attorney for the City of Richmond, 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d. 751 (1976), aff'g mem., 403 F. Supp. 1199 (E.D. Va. 1975) (three judge court) (sodomy statute is constitutional as applied to private, consensual homosexual behavior). As with any other constitutional provision, we are not given a "roving commission" to right wrongs and impose our notions of sound policy upon society. There is substantial danger in expanding the reach of due process to cover cases such as this. By bringing trivial activities under the constitutional umbrella, we trivialize the constitutional provision itself. If we are to maintain the vitality of this new doctrine, we must be careful not to "cry wolf" at every minor restraint on a citizen's liberty. See Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64, 45 U.S.L.W. 4166, 4168 (1977).
The two other Courts of Appeals which have considered this issue have reached similar conclusions. In Miller v. School District, 495 F.2d 658 (7th Cir. 1974), the Seventh Circuit upheld a grooming regulation for teachers. Mr. Justice Stevens, then a member of the Court of Appeals, wrote:
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.
495 F.2d at 664 (footnotes omitted). The First Circuit reached the same result in Tardif v. Quinn, 545 F.2d 761 (1st Cir. 1976), where a school teacher was dismissed for wearing short skirts. In upholding the action of the school district, the Court stated:
We 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.
545 F.2d at 763 (citations omitted).
Both Miller and Tardif are stronger cases for the plaintiff's position than the instant case.*fn14 Both involved dismissals rather than, as here, a reprimand. Moreover, Miller involved a regulation of hair and beards, as well as dress. Thus, Miller was forced to appear as his employers wished both on and off the job. In contrast, Mr. Brimley can remove his tie as soon as the school day ends. If the plaintiffs in Miller and Tardif could not prevail, neither can Mr. Brimley.
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 v. Board of Education, 461 F.2d 566, 573 (2d Cir.), cert. denied, 409 U.S. 1042, 34 L. Ed. 2d 491, 93 S. Ct. 529 (1972). We join the sound views of the First and Seventh Circuits, and follow Kelley by holding that a school board may, if it wishes, impose reasonable regulations governing the appearance of the teachers it employs. There being no material factual issue to be decided, the grant of summary judgment is affirmed.
OAKES, Circuit Judge (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 Brimely 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, 425 U.S. 238, 47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976), it presumably assumes, as did the Court in Kelley, id. at 244, that appellant does have a Fourteenth Amendment liberty interest in his personal appearance, even if not a "fundamental" one. If the school board cannot put a proper purpose that is rationally related to its regulation on the other side of the scales, this liberty interest alone, however "trivial," will carry the day for appellant. See Tardif v. Quinn, 545 F.2d 761, 764 (1st Cir. 1976), quoted in panel majority op., ante, 562 F.2d at 846 n.9; Perry, Substantive Due Process Revisited: Reflections On (And Beyond) Recent Cases, 71 Nw. U.L. Rev. 417, 427-30 (1976).
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, 562 F.2d 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, 385 U.S. 589, 603, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967); Barenblatt v. United States, 360 U.S. 109, 129, 3 L. Ed. 2d 1115, 79 S. Ct. 1081 (1959); Sweezy v. New Hampshire, 354 U.S. 234, 250, 1 L. Ed. 2d 1311, 77 S. Ct. 1203 (1957) (plurality opinion). Teaching methods in public high schools are in many instances protectible under the First Amendment, as the authorities cited by the panel majority demonstrate, ante, F.2d at , slip op. at 1864, and as more recent authorities continue to affirm, see Minarcini v. Strongsville City School District, 541 F.2d 577, 582 (6th Cir. 1976); Cary v. Board of Education, 427 F. Supp. 945 (D. Colo. 1977). While serious questions arise in measuring the parameters of the right in the context of public high school teaching, as the panel majority fully recognized, ante, F.2d at , slip op. at 1865, answers to those questions are not aided by the ostrich-like presumption that they do not exist.
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,*fn1 presumably agreeing with the panel majority that they are outside the scope of the board's statutory powers, panel majority op., ante, F.2d at , slip op. at 1867-68; concurs with the panel in identifying a third interest; and makes up a fourth of its own. I agree fully with the en banc majority that the third and last interest asserted by the board -- involving discipline, respect, and decorum in the classroom -- is a proper one. The point made by the panel majority was that this interest did not seem furthered in any rational way by the teacher dress code at issue here. The en banc majority opinion makes no attempt whatever to address this critical analytical point.*fn2 Instead, its logic appears to be: "The interest is furthered by the dress code because the school board says that it is." Whatever argument might be made that the school board's ends are furthered by its means, the en banc majority does not make it, and certainly the essential connection between means and ends is not here self-evident.*fn3 The majority's less than rigorous inquiry is well short of the least demanding formulation of the inquiry necessary to determine the rationality of a state regulation. See, e.g., Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484, 45 U.S.L.W. 4787, 4791 (1977).
The en banc majority also makes up an interest, respect for traditional values,*fn4 that is not put forward by the school board. I understand it to be settled constitutional doctrine that only objectives articulated by the State are to be used in considering whether a regulation is rational. See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314-15 & n.6, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976) (per curiam) ("the purpose identified by the State"); Johnson v. Robison, 415 U.S. 361, 376, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974) ("whether there is . . . . a fair and substantial relation to at least one of the stated purposes"); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973); McGinnis v. Royster, 410 U.S. 263, 276-77, 35 L. Ed. 2d 282, 93 S. Ct. 1055 (1973). See also Schlesinger v. Ballard, 419 U.S. 498, 520-21 & n.11, 42 L. Ed. 2d 610, 95 S. Ct. 572 (1975) (Brennan, J., dissenting); Gunther, The Supreme Court, 1971 Term -- Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972). I had imagined that the day when courts supplied imaginary purposes for state regulations had passed.
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, 562 F.2d 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, 495 F.2d 658 (7th Cir. 1974) (Stevens, J.).*fn5 When, instead, a First Amendment interest is asserted, there must in addition be some inquiry by the court into whether the state had available "'less drastic means for achieving the same basic purpose.'" Wooley v. Maynard, 430 U.S. 705, 716-717, 97 S. Ct. 1428, 1436, 51 L. Ed. 2d 752, 45 U.S.L.W. 4379, 4382 (1977), quoting Shelton v. Tucker, 364 U.S. 479, 488, 5 L. Ed. 2d 231, 81 S. Ct. 247 (1960); see James v. Board of Education, 461 F.2d 566, 574, 575 n.22 (2d Cir.), cert. denied, 409 U.S. 1042, 34 L. Ed. 2d 491, 93 S. Ct. 529 (1972), quoted in panel majority op., ante, F.2d at , slip op. at 1871. The necessary implication of James is that a less drastic means test must be applied even when it is a public employee who is asserting the First Amendment claim. See 461 F.2d at 571-72 & n.13.
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.*fn6 In Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 98-99, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972), for example, the Supreme Court "carefully scrutinized" justifications for selective prohibitions against picketing near schools under the equal protection clause because expressive conduct within the protection of the First Amendment was involved; the governmental interest served by the regulation was therefore required to be "substantial." Only in this way, with the interests on each side aggregated rather than viewed separately, can any meaningful balancing take place. If, instead, the en banc majority's pro forma, sequential "balancing" is all that is required, a new and dimmer day is dawning, at least for public employees, and perhaps more broadly for all forms of constitutional adjudication involving individual rights.
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, 562 F.2d 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.