East Hartford Education Association v. East Hartford Board of Education Court Opinion

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UNITED STATES COURT OF APPEALS 
F or  t h e  S e c o n d  C ir c u it

No. 118—September Term, 1976.

(Submitted May 6, 1977 Decided August 19, 1977.)
Docket No. 76-7005 

E n  B anc

E a s t  H a r t f o r d  E d u c a t io n  A s s o c ia t io n , T h e  

C o n n e c t ic u t  E d u c a t io n  A s s o c ia t io n , I n c ., 
and R ic h a r d  P. B r i m l e y ,

Appellants,
v.

B oard  o f  E d u c a t io n  o f  t h e  T o w n  o f  E a s t  H a r t f o r d , and 
B a r b a r a  A t w o o d , R o b e r t  B a n n o n , K e n n e t h  C a r r ie r , 

M . G l e n n  F r a n k , E l e a n o r  K e p l e r , W a l t e r  H. M i l l s , 

J r ., T i m o t h y  J .  M o y n i h a n , J o y c e  R u g g l e s  and J o h n  
J. S m i t h , J r ., individually and in their capacities as 
members of the Board of Education of the Town of 
East Hartford,

Appellees.

B e f o r e :

K a u f m a n , C h i e f  Judge, and S m i t h , F e in b e r g , M a n s f ie l d , 
M u l l i g a n , O a k e s , T im b e r s , G u r f e i n , V a n  G r a a f e il a n d  

and M e s k i l l , Circuit Judges.

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

5331



while teaching. After exhausting his administrative reme­
dies, plaintiff began this action in the United States Dis­
trict 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.

M a r t in  A. G o u l d  (Gould, Killian & Krechevsky, 
of counsel), Hartford, Connecticut, for Ap­
pellants.

B r ia n  C l e m o w  (Coleman H. Casey, Shipman & 
Goodwin, of counsel), Hartford, Connecti­
cut, for Appellees.

M e s k i l l , 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 Edu­
cation, claiming that the reprimand for violating the dress 
code deprived him of his rights of free speech and pri­
vacy. 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. ------
F.2d —— , ------  (1976). 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 judg­
ment of the panel majority and affirm the judgment of the 
district court.

\ 5332



The facts are not in dispute. In February, 1972, the East 
Hartford Board of Education adopted “Regulations For 
Teacher Dress.” 1 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,2 he 
has apparently returned to his former mode of dress.3

1 The entire dress code reads as follows:
The attire of professional employees during the hours when school 
is in session must he judged in light of the following:

1. Dress should reflect the professional position of the employee.
2. Attire should he that which is commonly accepted in the com­

munity.
3. It should be exemplary of the students with whom the pro­

fessional employee works.
4. Clothing should he appropriate to the assignment of the em­

ployee, such as slacks, and jersey for gym teachers.
In most circumstances the application of the above criteria to class­
room teachers would call for jacket, shirt and tie for men and 
dress, skirts, blouse and pantsuits for women.
I f  an individual teacher feels that informal clothing such as sports­
wear, would be appropriate to his or her teaching assignment, or 
would enable him or her to carry out assigned duties more effec­
tively, such requests may be brought to the attention of the Prin­
cipal or Superintendent. An attempt should be made on all levels 
to insure that the above principles are applied equitably and con­
sistently throughout the school system.

2 See Arbitrator’s Opinion at 7.

3 Interview with Bichard Brimley, Hartford Courant, Feb. 28, 1977.

5333



The record does not disclose any disciplinary action against 
him other than the original reprimand.

I.

In the vast majority of communities, the control of pub­
lic schools is vested in locally-elected bodies.4 This com­
mitment 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 Free­
dom, 81 Harv. L. Rev. 1045, 1052-54 (1968). It is not the 
federal courts, but local democratic processes that are pri­
marily responsible for the many routine decisions that are 
made in public school systems. Accordingly, it is settled 
that “ [cjourts do not and cannot intervene in the resolu­
tion of conflicts which arise in the daily operation of school 
systems and which do not directly and sharply impli­
cate constitutional values.” Epperson v. Arkansas, 393 
U.S. 97, 104 (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 empha­
sized this point in Wood v. Strickland, 420 U.S. 308 (1975), 
in which a high school’s summary disciplinary proceed­
ings 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

4 See R. Campbell, L. Cunningham and R. McPhee, The Organization 
and Control of American Schools, 164-70 (1965).

5334



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 constitutional 
values,” we refuse to upset the policies established by the 
school board.

II.

Mr. Brim ley 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 stu­
dents 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.5 6

5 This final claim does not implicate the First Amendment. It is merely 
an assertion that one teaching technique is to be preferred over another. 
It has no more to do with a constitutional interest than would a claim
that closer "rapport” could be achieved by arranging students’ desks 
in a circle rather than in rows.

5333



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 (1967). Com­
pare Karst, Legislative Facts in Constitutional Litigation, 
1960 Supreme Court Review 75, 77-81 with Emerson’ 
Towards a General Theory of the First Amendment, 72 
Tale 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. Cow gill, 274 Cal.App. 
2d Supp. 923, 78 Cal. Rptr. 853, appeal dismissed, 396 U.S. 
371 (1970) (Harlan, J., dissenting from dismissal). Even 
though intended as expression, symbolic speech remains 
conduct, subject to regulation by the state. As the Su­
preme Court has stated in discussing the difference be­
tween conduct and “speech in its pristine form” :

We emphatically reject the notion urged by appel­
lant that the First and Fourteenth Amendments afford 
the same kind of freedom to those who would communi­
cate ideas by conduct such as patrolling, marching, 
and picketing on streets and highways, as these amend­
ments 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.

5336



490, 502 (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 (1965). The rule of 
Cox, which involved a mixture of activity and speech, ap­
plies with even greater force in a ease such as this one, 
where only conduct is involved. See United States v. 
O’Brien, 391 U.S. 367, 376 (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 regula­
tion is progressively lessened. See Alfange, Jr., Free 
Speech and Symbolic Conduct: The Draft Card Burning 
Case, 1968 Supreme Court Review 1, 22-27; Note, Sym­
bolic 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 expres­
sive conduct has been struck down, the communicative in­
tent of the actor was clear and “closely akin to ‘pure 
speech,’ ” Tinker v. Des Moines School District, 393 U.S. 
503, 505 (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, su­
pra/  burning an American Flag to highlight a speech de­
nouncing the government’s failure to protect a civil rights 
leader, Street v. New York, 394 U.S. 576 (1969), or quietly

6 The Tirilcer court was careful to distinguish a prohibition on the 
wearing of an armband from a dress code:

The problem posed by the present case does not relate to regula­
tion of the length of skirts or the type of clothing, to hair style, 
or deportment. . . . Our problem involves direct, primary First 
Amendment rights akin to "pure speech.”

393 U.S. at 507-08.

5337



refusing to recite the Pledge of Allegiance, Iiusso v. Cen­
tral School District, 469 F.2d 623 (2d Cir. 1972), cert, de­
nied, 411 U.S. 932 (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 compre­
hensive 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 (1968); see 
Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970).

III.

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. ,T. 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

5338



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 au­
thority 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.7 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 secur­
ing an orderly classroom. Although the pros and cons 
of progressive education are debated heatedly, a prin­
cipal function of all elementary and secondary edu­
cation 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 
(1972). See also Miller v. School District, 495 F.2d 658, 
664 (7th Cir.) (Stevens, J .)8

7 The school board made an effort to limit the reach of the dress code 
to classes in which the values it promoted were believed to be sig­
nificant. Thus, Mr. Brimley was required to wear a tie while teaching 
a conventional English class, but not while giving an "alternative” class 
in filmmaking. Whatever the merits of this distinction, it demonstrates 
that the board's action was taken in good faith, and was not merely 
an attempt to make teachers conform.

8 Appellant’s position on this point is somewhat inconsistent. He claims 
that his tielessness carries a message of importance to his students, but 
belittles the board’s belief that ties have any impact on classroom 
atmosphere. Professor Archibald Cox, the arbitrator in the earlier pro­
ceedings, was far more sympathetic to the board’s position. In his 
opinion, he stated:

The School Board feels no less deeply and strongly that the atmo­
sphere of the classroom and attitude of the students are sufficiently

5339



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. How­
ever, 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. I f 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 authori­
ties 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 pref­
erence for the views of individual teachers over those of 
their employers.* 9 As Judge Mulligan wrote for a unani-

affected by teacher’s clothing for it to require a necktie and 
jacket.

Arbitrator’s Opinion at 7.

9 Specifically, there is no reason to prefer Mr. Brimley’s notion of 
what constitutes a "professional image” over that of the school board, 
even if the style he has chosen is acceptable in most schools. In Tardif 
v. Quinn, 545 I\2d 761 (1st Cir. 1976), a school teacher was fired for 
wearing short skirts. The court stated:

The [district] court, having taken a view, found that plaintiff’s 
dresses, which came "half-way down [her] thigh,” were "comparable 
in style to dresses worn by young, respectable professional women 
during the years when the plaintiff was teaching.” It further found 
that her dresses in fact "had no startling or adverse effect on her 
students or on her effectiveness as a teacher.”

We will assume that by this finding the court meant that plain­
tiff's dress length was within reasonable limits, and we further 
assume that this finding was warranted. On the other hand, the 
court’s independent judgment as to the impact and propriety of 
plaintiff’s dress does not amount to a finding that defendants’ 
objections to the length were irrational in the context of school 
administration concerns.

Id. at 763.

5340



mous panel in Presidents Council v. Community School 
Board, 457 F.2d 289 (2d Cir.), cert, denied, 409 U.S. 998 
(1972):

Academic freedom is scarcely fostered by the intrusion 
of three or even nine federal jurists making curricu­
lum 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 pur­
chase of a book it found objectionable. First Amend­
ment rights were implicated far more clearly there than in 
the instant ease. President’s Council clearly indicates the 
wide scope of school board discretion. When First Amend­
ment 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 Janies and Russo, 
the First Amendment claim made here is so insubstantial 
as to border on the frivolous.10 We are unwilling to expand 
First Amendment protection to include a teacher’s sar­
torial choice.

IV.
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.

10 At least three Circuits have rejected the claim that long hair is ex­
pressive conduct entitled to First Amendment protection. Richards v. 
Thurston, supra; Freeman v. Flake, 448 F.2d 258 (10th Cir. 1971), 
cert, denied, 405 TJ.S. 1032 (1972); Karr v. Schmidt, 460 F.2d 609 
(5th Cir.) (en banc), cert, denied, 409 TJ.S. 989 (1972).

5341



Connecticut, 381 U.S. 479 (1965). This claim will not with­
stand analysis.

The Supreme Court dealt with a similar claim in Kelley 
v. Johnson, 425 U.S. 238 (1976). That case involved a chal­
lenge to the hair-grooming regulations of a police depart­
ment. The Court was careful to distinguish privacy claims 
made by government employees from those made by mem­
bers of the public:

Respondent has sought the protection of the Four­
teenth 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 (1968), after noting that state employ­
ment may not be conditioned on the relinquishment of 
First Amendment rights, the Court stated that “ [a]t 
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 pos­
sesses in connection with regulation of the speech of 
the citizenry in general.” More recently, we have sus­
tained 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 (1973); Broadrick 
v. Oklahoma, 413 U.S. 601 (1973). If such state regu­
lations may survive challenges based on the explicit 
language of the First Amendment, there is surely even 
more room for restrictive regulations of state em­
ployees where the claim implicates only the more gen-

5342



eral contours of the substantive liberty interest 
protected by the Fourteenth Amendment.

Id. at 244-45.

The same distinction applies here. The regulation in­
volved in this case affects Mr. Brimley in his capacity as a 
public school teacher.11 Of course, as he points out, the 
functions of policemen and teachers differ widely. Regula­
tions 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 con­
stitutional challenges. See Garrity v. New Jersey, 385 U.S. 
493, 499-500 (1967).1S

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 dis­
missed respondent’s complaint. Neither this Court, the 
Court of Appeals, nor the District Court is in a posi­
tion to weigh the policy arguments in favor of and 
against a rule regulating hairstyles as a part of regu­
lations. governing a uniformed civilian service. The 
constitutional issue to be decided by these courts is 
whether petitioner’s determination that such regula-

11 It is not only appellant’s status as a public employee, but the special 
needs of the school environment that serve to justify the board’s action. 
See Grayned v. City of Boclcford, 408 U.S. 104 (1972).

12 In Quinn v. Muscare, 425 U.S. 560 (1976), the Supreme Court, in 
considering the validity of the Chicago Fire Department’s "personal 
appearance regulation” stated: "Kelley v. Johnson renders immaterial 
the District Court’s factual determination regarding the safety justifi­
cation for the Department’s hair regulation about which the Court of 
Appeals expressed doubt.” Id. at 562-63. Although firemen are, like 
policemen, a uniformed service, Quinn points towards a general appli­
cation of Kelley to all public employees.

5343



tions should he enacted is so irrational that it may he 
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 (1955).

425 U.S. at 247-48. If Mr. Brimley has any protected inter­
est in his neckwear, it does not weigh very heavily on the 
constitutional scales. As with most legislative choices, the 
hoard’s dress code is presumptively constitutional.13 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 ex­
tended their protection only to the most basic personal 
decisions. See Carey v. Population Services Int’l., 45 
U.S.L.W. 4601, 4602-03 (U.S. June 9, 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 (1976), aff’g mem., 403 F.Supp.

13 The exceptions to this ordinary test in constitutional litigation remain 
those of Justice Stone’s celebrated Garolene Products footnote; the state 
must carry the burden of proof when it discriminates against an insular 
minority or burdens the exercise of a "fundamental” right. United 
States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938); Massachu­
setts Board of Retirement v. Murgia, 427 U.S. 307, 312-14 (1976); 
Shapiro v. Thompson, 394 U.S. 618, 634 (1969) ; compare id. at. 658- 
663 (Harlan, J. dissenting); see Gunther, The Supreme Court, 197] 
Term— Foreword: In Search of Evolving Doctrine on a Changing Court: 
A Model For a Newer Equal Protection, 86 Harv. L. Eev. 1 (1972). 
As Kelley makes clear, appellant’s right to dress as he pleases, if it 
exists at all, is far from "fundamental” in the constitutional sense.

5344



1199 (E.D. Ya. 1975) (three judge court) (sodomy statute 
is constitutional as applied to private, consensual homo­
sexual behavior). As with any other constitutional pro­
vision, 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 bring­
ing 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 Whelan v. Roe, 45 U.S.L.W. 4166, 
4168 (U.S. Feb. 22, 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 reg­
ulation, 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 pro­
tecting the beholder from unsightly displays. Nothing

5345



more than a desire to encourage respect for tradition, 
or for those who are moved hy traditional ceremonies, 
may be sufficient in some situations. Indeed, even an 
interest in teaching respect for (though not neces­
sarily agreement with) traditional manners, may lend 
support to some public grooming requirements. There­
fore, 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 684 (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:

[W ]e are not dealing with personal appearance in 
what might he termed an individual sense, hut 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 con­
stitutional proportions which must stand or fall, de­
pending 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 plain- 
tiff’s position than the instant case.14 Both involved dis-

14 The claim that such regulations violate the Constitution has fared 
equally badly in the state courts. See, e.g., Morrison v. Hamilton County

5346



missals 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 em­
ployers 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 restric­
tions 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 (1972). 
We join the sound views of the First and Seventh Cir­
cuits, and follow Kelley by holding that a school board 
may, if it wishes, impose reasonable regulations govern­
ing the appearance of the teachers it employs. There being 
no material factual issue to be decided, the grant of sum­
mary judgment is affirmed.

O a k e s , 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 con-

Board of Education, 494 S.W.2d 770 (Tenn.), cert, denied, 414 U.S. 
1044 (1973) ; Blanchet v. Vermilion Parish School Board, 220 So.2d 
534 (La.App.), writ denied, 254 La. 17, 220 So.2d 68 (1969); hut 
see Finot v. Pasadena City Board of Education, 250 Cal.App.2d 189, 
58 Cal. Bptr. 520 (1967).

5347



tention 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 in­
terests of an individual employee who after exhausting 
mediation remedies seeks redress, in the time-tested con­
stitutional framework, from the institution that has histori­
cally been charged with the task of guarding the individ­
ual’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 dis­
sent, 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 Brimley 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 ra­
tionally furthered by this teacher dress code; (4) balanc­
ing 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 Kel­
ley v. Johnson, 425 U.S. 238 (1976), it presumably assumes, 
as did the Court in Kelley, id. at 244, that appellant does 
have a Fourteenth Amendment liberty interest in his per­
sonal appearance, even if not a “fundamental” one. If the 
school board cannot put a proper purpose that is ration-

5348



ally 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, ------
F.2d at ------  n.9; Perry, Substantive Due Process Revis­
ited: Re-flections On (And Beyond) Recent Cases, 71 Nw. 
IT. 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. A n te,------F.2d a t ------- 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 (1967); Barenblatt 
v. United States, 360 TT.S. 109, 129 (1959); Sweezy v. Neiv 
Hampshire, 354 IT.S. 234, 250 (1957) (plurality opinion). 
Teaching methods in public high schools are in many in­
stances protectible under the First Amendment, as the 
authorities cited by the panel majority demonstrate, ante, 
------F.2d a t ------- , slip op. at 1864, and as more recent au­
thorities 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 a t ------ , 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. sym­
bolic speech claim, it is close to the conduct end of the

5349



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 inter­
ests asserted by the school board,1 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.2 Instead, its logic appears to 
be: “The interest is furthered by the dress code because

These were establishing "a professional image for teachers” and pro­
moting "good grooming among students.” Ante, ------- F.2d at ____ ,
slip op. at 1866.

The panel majority opinion dealt with this interest as follows:
It is far from clear . . . that a tie code like that in issue here 
has any connection with respect or discipline. Indeed, appellant 
puts forward the seemingly more reasonable proposition, which we 
must accept at this stage, that being tieless helps him to maintain 
his students’ respect. Teenagers, who are so often rebellious against 
authority, may find a tieless teacher to be a less remote, more 
contemporary individual with whom they can more easily interact 
and hence to whom they are better prepared to listen with care 
and attention. It is highly questionable, and certainly not estab­
lished on this motion for summary judgment, that the Board's 
valid end of promoting discipline is substantially, or even incre­
mentally, furthered by its tie regulation.

Ante, F.2d at , slip op. at 1868-69 (footnotes omitted). I
see no reason to alter this view at this stage, which is still one of 
summary judgment.

5350



the school board says that it is.” Whatever argument 
might he 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.8 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, 45 U.S.L.W. 4787, 
4791 (U.S. June 20, 1977).

The en banc majority also makes up an interest, respect 
for traditional values,3 4 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 (1976) (per curiam) (“ the pur­
pose identified by the State” ) ; Johnson v. Robison, 415 
U.S. 361, 376 (1974) (“whether there is . . .  a fair and sub­
stantial relation to at least one of the stated purposes” ) ; 
San Antonio Independent School District v. Rodriguez, 411 
U.S. 1,17 (1973); McGinnis v. Royster, 410 U.S. 263, 276-77

3 By contrast, in Kelley v. Johnson, 425 U.S. 238 (1976), the connec­
tion was explicitly made between the hair regulation at issue and the 
state interests of discipline, esprit de corps, and uniformity in the 
police force.

The majority’s statement, ante, ------- F.2d at ------- n.12, that Quinn
v. Muscare, 425 U.S. 560 (1976) (per curiam), "points toward a gen­
eral application of Kelley to all public employees” is simply not correct. 
Quinn involved a fire department appearance regulation, and the same 
state interests detailed in Kelley were involved, as the Court in Quinn 
recognized, id. at 562. Even the en bane majority does not assert that 
the state has any interest in the discipline, esprit de corps, or uni­
formity of its teachers. Different state interests are involved here, and 
they must be balanced against appellant’s asserted rights on their own 
merits. See Perry, Substantive Due Process Revisited: Reflections On 
(And Beyond) Recent Cases, 71 Nw. U. L. Rev. 417, 427-30 (1976).

4 Respect for "authority” is also mentioned, but I assume that this 
refers either to the maintenance of discipline or to the inculcation of 
a traditional value.

5351



(1973). See also Schlesinger v. Ballard, 419 U.S. 498, 520- 
21 & n .ll (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 stu­
dents. The en banc majority does not enlighten us as to 
which value it has in mind, hut 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 major­
ity simply confuses traditional values with mindless ortho­
doxy. The inculcation of the latter, of course, as the panel 
majority pointed out, is constitutionally forbidden. Ante, 
------ F.2d at ------n.8, slip op. at 1869 n.8.

Finally, the process by which the en banc majority bal­
ances 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 inter­
ests.” 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 pro­
motes 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 appel­
lant’s interests can be disposed of separately under a ra-

5352



tional 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) (Ste­
vens, J .).5 When, instead, a First Amendment interest is as­
serted, 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. May­
nard, 45 U.S.L.W. 4379, 4382 (U.S. Apr. 20, 1977), ([noting 
Shelton v. Tucker, 364 U.S. 479, 488 (1960); see James v. 
Board of Education, 461 F.2d 566, 574, 575 n.22 (2d Cir.), 
cert, denied, 409 U.S. 1042 (1972), quoted in panel major­
ity op., ante,------F.2d a t------- , slip op. at 1871. The neces­
sary 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.6 In 
Police Department of the City of Chicago v. Mosley, 408 
U.S. 92, 98-99 (1972), for example, the Supreme Court 
“carefully scrutinized” justifications for selective prohi­
bitions against picketing near schools under the equal

5 The en banc majority’s claim that Miller and Tardif were stronger 
cases than the instant one for appellant’s position, because "[b]oth
involved dismissals rather than, as here, a reprimand,” ante, ------  F.2d
at ------ , is groundless. The only reason that appellant was not dis­
missed is because, rather than defy the tie code, he chose to comply 
with it and make his challenge through the proper legal channels. See 
panel majority op., ante, ------  F.2d at -------, slip op. at 1858.

6 This is a common technique in the equal protection area, where "strict 
scrutiny” is mandated when a claim of unequal treatment is combined 
with a claim that a fundamental interest is implicated. This is not 
to say, however, that appellant’s interest here is "fundamental” in the 
equal-protection-analysis sense or that "strict scrutiny” is required.

5353



protection clause because expressive conduct within the 
protection of the First Amendment was involved; the gov­
ernmental 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 sep­
arately, can any meaningful balancing take place. If, in­
stead, the en banc majority’s pro forma, sequential “bal­
ancing” 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 involv­
ing 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, -------F.2d at
—— . 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 clar­
ity 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 con­
clusions 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 constitu­
tionally based or they are not; they are opposed by rational 
state interests or they are not; they prevail in the balanc­
ing process or they do not. Here, they should prevail.

I dissent.

5354
480— 8-22-77 . USCA— 4221

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