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).
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 ...