Opinion
File No. CV990152489S.
Memorandum filed November 19, 2001.
Memorandum of decision in action for an injunction and for other relief. Judgment for the defendants.
Philip Tegeler and Toya Graham, for the plaintiffs.
Kainen, Escalera McHale, for the defendants.
I INTRODUCTION
The issue in the above captioned action is the constitutionality of a school dress code imposed by the Waterbury board of education on students attending the Waterbury public schools. The plaintiffs are: Teshana Byars, a minor who brings her claims through her parents, Dennis Byars and Arline Stephenson; Levaughn Johnson, a minor who brings his claims through his next friend and guardian, Theresa Williams; Bryan Layton, a minor who brings his claim through his next friend and guardian, Cynthia Slaney; and Aimee Scarduzio, a minor who brings her claim through her next friends and guardians Joseph Scarduzio and Sherry Scarduzio. The defendants are the city of Waterbury, its board of education, former superintendent of schools Roger Damerow, former interim superintendent of schools Matthew Borrelli, and present superintendent of schools David L. Snead.
The full text of the Waterbury public schools' dress code at issue appears in the appendix attached to this opinion.
The minor plaintiffs allege in their amended complaint dated December 4, 2000, that they have been suspended and expelled from school for violating the dress code, and they allege that the enforcement of the dress code violates their rights to liberty and privacy under the fourth, ninth and fourteenth amendments to the United States constitution. They also allege that such enforcement deprives them of the right to a free public education in violation of article eighth, § 1, of the Connecticut constitution and to their rights to privacy and liberty in violation of article first, §§ 7, 8, 9 and 10, of the Connecticut constitution.
The parents of the minor plaintiffs allege that the enforcement of the dress code violates their right to exercise parental autonomy in violation of the first and fourteenth amendments to the United States constitution and their right to personal liberties and privacy in violation of article first, §§ 7, 8, 9 and 10, of the Connecticut constitution.
While it may be expected that a constitutional challenge to a public school dress code would be grounded in students' desire to express a personal or political message or to engage in social commentary, the plaintiffs in the present case have steadfastly denied that they have any such expressive aim or interest.
The plaintiffs have made no claim that the enforcement of the dress code in the public schools has deprived them of their right of freedom of expression protected by the first amendment to the United States constitution. This court noted in its ruling on the defendants' motion for summary judgment that the plaintiffs had not asserted any claim based on the right of freedom of expression. The plaintiffs did not seek to amend their complaint after that observation by the court, a course that the court finds confirms its construction of the amended complaint as not raising such a claim. In their posttrial briefs, the plaintiffs confirm that they do not invoke any provision of the first amendment.
The plaintiffs bring their claims based on the United States constitution pursuant to 42 U.S.C. § 1983, which makes persons acting under color of state law liable for violations of rights secured by federal law. They bring their state constitutional claims as direct claims arising under the cited provisions of the Connecticut constitution.
The defendants have pleaded as special defenses that General Statutes §§ 10-221f and 10-220a authorize local boards of education to adopt dress codes and school uniform policies. They have also pleaded as special defenses that the school attire policy at issue is rationally related to educational interests and that the plaintiffs have failed to mitigate their damages.
II PROCEDURAL HISTORY
At the time the plaintiffs filed their original complaint in April, 1999, the school dress code policy included a provision that allowed students whose parents filed a form by a stated deadline to opt out of some of the provisions of the policy, notably, those precluding the wearing of blue jeans. The plaintiffs sought preliminary injunctive relief against the enforcement of the nonmandatory policy. Their application was denied after a hearing by the court, Caruso, J., in a ruling filed June 4, 1999. In May, 2000, the plaintiffs amended their complaint to allege that the defendant board of education had amended its school attire policy to eliminate the opt out provision, thereby making it mandatory for all the plaintiffs to comply with all of the limitations on apparel stated in the policy, or face punishments, including suspension and expulsion from school.
The defendants filed a motion for summary judgment as to all of the plaintiffs' claims. In a memorandum of decision filed on July 21, 2000, this court granted that motion, only to the extent that it sought a judgment that enforcement of a policy against students wearing baggy pants that impede their safety by causing slipping and tripping hazards, does not constitute a violation of any of the rights asserted by the plaintiffs. The court otherwise denied the motion, finding that the submissions failed to demonstrate undisputed facts that entitled the movants to judgment as a matter of law.
Though the defendants claimed the case for a trial by jury, the parties stipulated that the merits of the claims and the plaintiffs' requests for injunctive relief would be tried to the court without a jury, and that in the event of a finding of liability, the damages issues would be tried to a jury.
III MOOTNESS
As of the commencement of the 2001-2002 school year, all four of the minor plaintiffs are in the ninth or a higher grade. None of them are, therefore, subject at this time to any part of the school attire policy that relates to elementary school students or to middle school students, since none of them are assigned to an elementary or middle school. The portions of the school attire policy that affect the minor plaintiffs as students in the public school system are those applicable to high school students. The plaintiffs agreed in closing argument that they do not seek injunctive relief as to the provisions of the school attire policy that regulate the clothing choices of students in elementary or middle school, and that they seek injunctive relief only with regard to the policies that apply to high school students. They seek money damages for alleged violation of their rights while they were subject to the school attire provisions applicable to middle school students, that is, in school years 1999-2000 and 2000-2001, as well as expungement of their dress code suspensions from their school records for their middle school years.
The court finds that the dispute is moot as to the future application of the dress code policy applicable to elementary and middle school students, as the plaintiffs are no longer in middle school and are no longer subject to the requirements applicable to that age group.
A dispute is moot if, during the pendency of the case, events occur that preclude the court from granting any practical relief to the plaintiff. Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 230, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 388 (1997); Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995); In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994). "The requisite personal interest that must exist at the commencement of the litigation [standing] must continue through its existence [mootness]'. . . ." Loisel v. Rowe, supra, 378-79, quoting H. Monaghan, "Constitutional Adjudication: The Who and When," 82 Yale L.J. 1363, 1384 (1973). To the extent that the plaintiffs seek to enjoin the application of the school attire policy in the elementary and middle schools in Waterbury, they now lack standing, as they are no longer subject to the requirements of these portions of the policy, having progressed to the high school grades.
The plaintiffs have made no claim that the issue of injunctive relief in aid of alleged constitutional violations resulting from enforcement of the portions of the dress code that apply to elementary and middle school students is capable of repetition yet will evade review. See Loisel v. Rowe, supra, 233 Conn. 370. Students remain in elementary school for at least four years and in middle school for three years, and it has not been demonstrated that a plaintiff who was subject to that policy could not obtain an adjudication of a challenge to the school attire policy within such a time period, nor has it been demonstrated that the same issue is likely to be raised in the future by other middle school students. Board of Education v. State Board of Education, 243 Conn. 772, 778, 709 A.2d 510 (1998).
IV SCOPE OF THE CLAIMS
The plaintiffs make no claim that the dress code imposes extra expense on the plaintiffs, and they base none of their claims on the cost involved in obtaining clothing that complies with the dress code. They make no claim based on freedom of expression in general or political expression in particular. They make no claim based on religious practice or physical disabilities. The policy at issue includes specific provisions for accommodations in these latter respects.
The minor plaintiff Teshana Byars' claim is that she is deprived of the liberty to wear blue jeans while attending school and that she is deprived of assignment to the regular educational program if she fails to adhere to the school dress code that prohibits the wearing of blue jeans. The other minor plaintiffs have not presented evidence to establish what their actual claims are. The parents claim that the defendants' enactment and enforcement of the dress code infringe their right to exercise autonomy as parents.
V FINDINGS OF FACT
In the spring of 1997, the Waterbury board of education approved a pilot program to try out a school attire policy that limited students to wearing clothing of prescribed styles and colors. This pilot program was implemented in twelve elementary schools and one middle school, North End Middle School. The board enacted a school attire policy for the 1998-1999 school year that contained three sets of provisions: (1) restrictions on the styles and colors of clothing allowed in elementary and middle school; (2) a less extensive range of restrictions for the high school; and (3) a list of items and styles prohibited throughout the school system, including gang colors, revealing styles, torn or tattered styles, hazardous footwear and jewelry and electronic devices such as beepers and laser pointers.
In 1998-1999, the school attire policy provided that parents could file forms at the beginning of the school year exempting their children from the requirements concerning styles and colors, but not from the list of prohibited items. For the 1999-2000 school year and to the present, the Waterbury board of education made the requirements of the school attire policy mandatory, with no option for a parent to exempt his or her child from any of its requirements. The policy provides that students who fail to comply are subject to a one day suspension from school for the third and subsequent offenses. It further provides that a student who has been suspended more than ten times in a school year for violating the policy may be recommended for expulsion from school.
The parties have stipulated that Teshana Byars was expelled from school on July 20, 1999, after a hearing. They have further stipulated that the reasons given for the expulsion were that she had violated the school attire policy forty-nine times between March 9, 1999, and the end of the 1998-1999 school year, that she was "deliberately disrespectful to school officials on March 17, 1999 and June 10, 1999," that she deliberately violated school policy by attending school on March 12, 17, 23 and April 15, 1999, when she was suspended and that she "deliberately disobeyed the instructions and directions of school personnel on March 17, 19, 22, 23, 24, 26 and April 5 and 9, 1999. The letter announcing the expulsion stated that the expulsion "would be held in abeyance if [Teshana] Byars agreed to comply with the discipline policy and school attire policy and to obey the instructions of school personnel."
Teshana Byars was assigned to an alternative school operated by the Waterbury board of education known as the Enlightenment School at the Academy for the period of her expulsion. The Enlightenment School provides an alternative educational program to students in the Waterbury school district who are over age or who have had chronic discipline problems. The dress code is not in effect at the Enlightenment School, and Teshana Byars was free to wear blue jeans at that school. She and her parents objected to her assignment to this school and her parents instead chose to home school her during the 1999-2000 school year, the year of her expulsion, to the present.
Teshana Byars did not testify. Her mother, Arline Stephenson, testified that before the effective date of the mandatory dress code, Teshana Byars had been in the habit of wearing blue jeans to school, but that the blue jeans she wore were not of the oversize variety that presented an impediment to walking and climbing stairs. No direct testimony was presented concerning what article of clothing Teshana Byars was wearing that led to any of her forty-nine suspensions for violating the school attire policy; however, this court infers that the violations were the continued wearing of blue jeans, which are not permitted under the dress code policy for any grade level.
Section 5.3 of the school attire policy at issue, prohibits all students at all grade levels from wearing a variety of items, including blue jeans. The prohibition against blue jeans is not restricted to those of the oversize variety. The list of prohibitions also includes clothing indicating gang affiliations, beepers, cellular telephones, laser pens, footwear that is "a noisy distraction or which is unsafe or a health hazard," hooded shirts and clothing that bares the midriff.
The school policy applicable to middle schools requires students to wear only conventionally styled clothing in a narrow range of colors. The policy requires that girls wear skirts, pants, shorts, skorts, dresses or jumpers of "dress" or "docker" style, worn and belted at the waist, restricted to solid navy blue, black, gray or khaki, and blouses or shirts with sleeves and a collar either "oxford, polo or turtleneck" that cover the waist-line when arms are raised. The only permitted colors are light blue or white and a third additional solid color chosen by the individual school. The policy requires boys attending middle school to wear pants or shorts of "dress or docker style" worn and belted at the waist, in the same colors as prescribed for girls, and shirts of the same description and limited color choices as those prescribed for girls. All of the plaintiffs were subject to the requirements of this policy from September, 1999, to June, 2001, and their choice of apparel was subject to the limits of this policy during the days they attended school, other than after expulsion.
The policy limits footwear to conventional styles and allows only plain white or black sneakers.
The policy applicable to high school students retains the limitation to "dress or docker style" pants for both genders and requires sleeves and collars. The policy requires boys to tuck in their shirts and girls to wear shirts that do not rise above the waistline when arms are raised. Jeans that are black or wheat-colored are permitted; blue jeans are not. The range of colors for other apparel is not limited for high school students as it is for elementary and middle school students; however, the list of prohibited items and styles applies.
This court has not set forth all details of the restrictions, which appear in the appendix attached to this opinion.
At trial, the defendants presented several school board members, several school administrators, and several teachers to explain the reason for enactment of the policy at issue. To some extent, these witnesses simply expressed their own preferences for conventional styles of dress and their own preferences for certain kinds of clothing that they believe make students look "good," "professional," or "appropriate." The court attaches no weight to these expressions of personal taste. The board also presented, however, some witnesses who described frequent disruptive, distracting conduct directly tied to the types of clothing that students were wearing to school in the years immediately preceding the imposition of the school attire policy at issue.
These witnesses reported that in the years immediately preceding the imposition of the dress code, students' choice of clothing and the extent of their interest in clothing styles and fashions, including fashions originating in prisons, were causing distractions in the classroom, on buses on the way to school, and during lunch and recess periods. Teachers and administrators testified without contradiction that before the policy was enacted, middle school students frequently engaged in disputes and taunting concerning each other's ownership or lack of ownership of designer blue jeans, apparel with prominent Tommy Hilfiger or other favored logos, and expensive sneakers. Teachers with many years of experience testified that much instructional time was lost to adjudicating disputes concerning such items, reporting or investigating thefts of coveted items, and trying to stop those who possessed fashionable items from scoffing at those who did not and who were either dismayed or moved to truculence by invidious comparisons. In schools in which students change their clothes for physical education, designer jeans and expensive sneakers and other prestige items were frequently stolen. Teachers on occasion had to delay as many as sixty students from moving to their next class while they investigated thefts in areas with insufficient lockers or locks for them. Students' interest in and opinions about such events carried over into the classroom and were not easily set aside when lessons began.
Disputes over clothing or taunts about clothing that began on bus trips carried over into the instructional periods, distracting both the participants and others in the class from the educational tasks at hand. Janice Stephens, a sixth grade language arts and reading teacher, testified convincingly that, upon occasion, when she called the homes of students she knew came from poor families to find out why they were not in school, she was told that they refused to attend because they had been subjected to teasing about their clothing and their inability to afford the kind of items admired by their classmates.
Barbara Giancarlo, a physical education teacher and administrator in the Waterbury public schools for twenty-three years, testified that in a school in which 90 percent of the students qualified for free or reduced price meals under federal poverty subsidies, students of meager means were jeered, pushed and bullied for having only "skiffs" (cheap sneakers).
Brian Farrell, a school psychologist, described incidents in which designer jeans were stolen during gym period and stuffed into toilets or damaged by students resentful of their owners. He testified that before the imposition of the dress code, he had frequently counseled children whose problems included despair at having been made the butt of taunts or teasing by multiple classmates concerning their apparel. Deborah Schatzle-Baker, a member of the Waterbury board of education whose work in a nonprofit school career transfer program makes her a frequent visitor to some of Waterbury's public schools, testified that the board of education tried at first to regulate only the precise item of clothing that was causing the most disruptions, for example, outlawing bandannas that signified gang memberships or other allegiances. She stated convincingly that these item by item regulations failed to reduce distractions, in that the students would find new, coded ways to demonstrate affiliations. She observed many incidents in which instructional time was lost to fights that began with comments about stylish versus "corny" clothing.
The evidence, taken as a whole, suggests that piece-meal banning of particular items did not have a sufficient effect on reducing taunting, distractions and disruptions, and that the board of education, therefore, turned to a plan to eliminate the agenda of attention to fashionable acquisitions by limiting students' garb to choices that did not lend themselves to controversy.
Disputes that began with observations about clothing were not a matter of an occasional occurrence, and students' comments about clothing, though characterized by some witnesses as "teasing," were delivered in a manner that was hurtful and sometimes vicious. Classroom teachers frequently had to suspend teaching to break up disputes or conversations about clothing, the cost of clothing, whether a student could or could not actually afford the clothing at issue, and whether students were inferior because of their clothing.
Students used certain articles of clothing or style to express membership in cliques or groups, causing those excluded to be apprehensive about the presence and menacing nature of such groups, which threatened or beat up students who inadvertently or purposefully wore the identifying items if they had not been accepted into the group. One teacher reported that a student reported reluctance to attend school because he was fearful of unwittingly wearing some color or item that such a group had adopted as its signal.
School enrollment in Waterbury's three middle schools has risen sharply between the 1997-1998 school year and the present. Each of these schools has at least 100 more students now than then. Levels of staffing, however, have either stayed the same or decreased, leaving the schools less equipped to address fights, disputes, bad conduct and thefts arising from a preoccupation with clothing.
The court finds that at the time the Waterbury board of education enacted the school attire policy at issue, the fashionableness and cost of clothing worn to school had become a preoccupation and an issue that caused disruption of instructional time, fights, thefts and distractions from educational activities that were not cured by banning individual items. The need to address the problems led the board of education to the approach of reducing the stimuli by requiring attire that was serviceable but unremarkable, relieving students from the perceived need to compete with each other in the "coolness" of their clothing.
Though enforcement of the school attire policy was not shown to have resulted in measurable improvements in performance on standardized tests or on attendance in the middle schools, teachers reported that they spend less time on fights and taunting based on clothing and that thefts of clothing that comports with the dress code are rare, eliminating the distractions and disruptions caused by the need to investigate and adjudicate bad conduct related to or arising from clothing. Farrell, the school psychologist, reported that feelings of inferiority based on clothing are not being reported to him by the students he counsels since the school dress code went into effect. Though no witness claimed that the school attire policy removed all problems from the middle schools (one board of education member rather jokingly described the change as "from chaos to organized chaos"), it has cut down on the amount of school time lost to preoccupations with clothing and reduced the instances of contraband of various kinds being discovered on students' persons.
Questioned whether the students simply transfer their comparisons of clothing to the items that comply with the dress code, witnesses testified to the effect that the youth culture does not attach status importance to the kinds of items allowed by the dress code, and that possession of an expensive version of the approved items has not stirred the same bragging and taunting that possession of designer blue jeans or logo wear prompted. The high school dress code permits jeans that are black or wheat-colored because students attach no cachet to such items as they do to designer blue jeans, and jeans in these less fashionable colors have not led to thefts, disputes or disruptions.
VI LIABILITY UNDER 42 U.S.C. § 1983
The plaintiffs base their federal claims on 42 U.S.C. § 1983, which provides in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ."
This statute provides the basis for the plaintiffs' causes of action based on alleged violations of rights secured by the constitution of the United States. It does not create a right of action for the claimed violation of provisions of the state constitution. A municipality or other body politic is a "person" liable under 42 U.S.C. § 1983 for violations of federal rights through the enforcement of a policy or regulation. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 662, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
The individual defendants are liable pursuant to 42 U.S.C. § 1983 if they acted under color of state law in a manner that violated the plaintiffs' rights under federal law.
VII THE CLAIMS OF THE MINOR PLAINTIFFS JOHNSON, LAYTON AND AIMEE SCARDUZIO
In order to establish that any of the defendants is liable, each plaintiff had to present evidence to prove that each defendant subjected him or her to a policy or conduct that violated a right protected by federal law. Some of the plaintiffs failed to present any evidence to support their claims, as they did not offer either testimony or documentary evidence to establish what the conduct was that caused them to be suspended and/ or expelled from school. Their claim is that the conduct that exposed them to a deprivation of the right to attend school was constitutionally protected conduct. Without an evidentiary record to establish what the actual conduct was, this court has no adequate basis to adjudicate their claims.
Johnson, Layton and Aimee Scarduzio did not testify, nor did their parents or guardians. The parties stipulated that Johnson was suspended thirty-four times and expelled for the 1999-2000 school year, and that he was furnished with an alternative placement at the Enlightenment School for 1999-2000. The parties stipulated that Layton and Aimee Scarduzio were each suspended from middle school for violations of the school attire policy, but no evidence was presented that they were expelled. No evidence was presented concerning the nature of the offenses that led to the suspensions of Johnson, Layton or Aimee Scarduzio. The evidence does not give this court any way of determining whether the violations were for wearing a color or style that was not on the list of approved styles and colors for each student's school, whether it was for carrying laser pens or other electronic equipment, or for wearing oversized trousers that presented a tripping hazard.
In the course of oral argument at the conclusion of the trial, the court inquired whether any of the documents submitted included any description of the infractions for which Johnson, Layton and Aimee Scarduzio were disciplined. The plaintiffs' counsel stated that this information was set forth in the exhibits concerning disciplinary proceedings. It is not. During the course of the trial, the plaintiffs did not move to open the evidence to present additional information, nor did they request that the court take judicial notice of any finding from any other proceeding.
In their posttrial brief, however, the plaintiffs assert that this court should make findings on the basis of statements made in Judge Caruso's ruling denying preliminary injunctive relief. The court issued a notice setting a date for the defendants to assent or to object to the plaintiffs' posttrial assumption that the court may take judicial notice of facts not presented at the trial on the merits. The defendants filed an objection on October 22, 2001.
Connecticut Code of Evidence § 2-2 prohibits this court from relying on evidence that was not made the subject of a request for judicial notice during the presentation of evidence at trial. Section 2-2 requires a party requesting the court to take judicial notice of a fact to "give timely notice of the request to all other parties." The same provision states that the court must provide the party that did not make the request an opportunity to be heard concerning the request for taking of judicial notice. Section 2-2 makes no provision for taking judicial notice after the trial has been concluded, and the defendants have objected to opening the evidence to schedule a further hearing to receive additional evidence that the plaintiffs neglected to present during the trial. This court must, therefore, decide the present case based only on the evidence duly presented during the trial on the merits in open court before the parties rested.
The evidence presented at trial does not reveal what the violations of the dress code were that led to the suspension of any of the minor plaintiffs except Teshana Byars.
This court ruled in deciding upon the defendants' motion for summary judgment that a regulation that prohibited students from wearing trousers so large that their volume impeded walking, and so long that their hems got under the feet of the wearers, creating a slipping hazard, especially on stairs, is a valid exercise of the defendants' powers to regulate student conduct for purposes of health and safety, and that the enforcement of such a regulation does not violate any of the civil rights asserted by the plaintiffs. The court cannot determine that these plaintiffs were suspended or expelled for some violation other than the violation against hazardous oversized trousers because of the dearth of proof concerning any of the plaintiffs other than Teshana Byars.
The court cannot simply guess or assume that the conduct that led to suspension of these students was the wearing of some item that the court has not yet ruled to be a permissible regulation of student conduct. As the United States Supreme Court has stated, "in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated." Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). These plaintiffs have failed to sustain their burden of proving what their conduct was. Do they claim a constitutional right to wear gang colors in a public school? Do they claim a constitutional right to carry a laser pen or to wear high heeled sandals that cause them to slip on the stairs? Without evidence of the conduct at issue having been presented during the trial on the merits, this court lacks any means to analyze the claims made and has no basis for determining whether the policy that exposed that conduct to sanctions violated a constitutional protection of that conduct.
Johnson, Layton and Aimee Scarduzio have failed to present evidence necessary to allow adjudication of their claims.
VIII THE CLAIMS OF TESHANA BYARS
Teshana Byars claims that she has a right under the state and federal constitutions to wear blue jeans to public school. Given that she did not prove that she was suspended for any other violation of the school attire policy, the only feature of the dress code that is actually before this court is the sole provision that the evidence suggests she violated, that is, the prohibition against wearing blue jeans.
Blue jeans are a prohibited item of apparel for both middle school and high school students in the regular school programs in Waterbury. Teshana Byars has not claimed that she favors wearing blue jeans because of any expressive or political impetus, or that affordability, religion or health are the reason for her preference for blue jeans. Rather, her position, as stated in her complaint and as articulated by her mother, Arline Stephenson, is that she simply likes to wear blue jeans and wishes to dress as she pleases when she attends public school. Teshana Byars has been schooled at home since the 1999-2000 school year. She is now eligible for public education at the high school level, which in Waterbury encompasses grades nine through twelve, and she is subject to the prohibition against wearing blue jeans so long as she qualifies for education at the regular public high schools. As she was informed when she was expelled in July, 1999, she had the option for the year of her expulsion, 1999-2000, of attending the Enlightenment School, an alternative school within the Waterbury public schools which is not subject to the dress code and where blue jeans are not prohibited. Since the term of her expulsion is over, she is free to attend a regular public high school in the Waterbury school system. If she does so, however, she will be subject to the dress code prohibition against wearing blue jeans.
A Federal Constitutional Claims
Teshana Byars alleges that the maintenance and enforcement of the dress code prohibition against wearing blue jeans violates her rights of liberty and privacy protected by the due process clause of the fourteenth amendment to the United States constitution. The United States Supreme Court has ruled that "[i]n any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated." Sacramento v. Lewis, supra, 523 U.S. 841 n. 5, citing Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The court found in Sacramento that the right being asserted by the plaintiff in that case was a right not to be harmed during a police pursuit, not the general right not to be deprived of liberty. The court rejected the plaintiff's claim for compensation based on the specific liberty interest alleged.
Teshana Byars alleges a right not to be deprived of liberty, but the "exact contour" of the right she claims is a right not to be prohibited from wearing blue jeans to school. Her reliance on cases involving regulation of bodily integrity, such as Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, reh. denied, 410 U.S. 959, 93 S. Ct. 1409, 35 L. Ed. 2d 694 (1973), and Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), is inapposite. The regulation at issue does not deprive her of control of her reproductive functions or any other kind of bodily integrity.
Teshana Byars bases her claim on the fourteenth amendment's prohibition against actions which, in substance, rather than by procedure, constitute a denial of due process of law.
"Substantive due process" as this construction of the fourteenth amendment has come to be known, does not, however, bar all governmental regulations that may limit a plaintiff's liberty. Rather, such claims are examined with different standards of scrutiny depending on the right at issue.
When the right infringed is "fundamental" the governmental regulations must be "narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993). Rights are fundamental if they are "implicit in the concept of ordered liberty"; Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 (1937); or "deeply rooted in this Nation's history and tradition." Moore v. East Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977). Where the claimed right is not fundamental, the governmental regulation need only be rationally or reasonably related to a legitimate state objective. Reno v. Flores, supra, 303-306.
It is noteworthy that the United States Supreme Court in Tinker v. Des Moines School District, 393 U.S. 503, 506-507, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), approved the authority of school officials to regulate dress and conduct of students, so long as specific fundamental constitutional rights, such as the right to engage in political speech, were not subjected to unjustified regulation. Since Tinker, federal trial courts have decided other cases concerning the attire, appearance and activities of students in public schools. The federal courts have adhered to the approach set forth in Tinker, claims of violation of fundamental rights such as the right to freedom of expression must be strictly scrutinized; East Hartford Education Assn. v. Board of Education, 562 F.2d 838, 846 (2d Cir. 1977); however, general claims of loss of liberty in choice of activities or options are valid if rationally related to a governmental objective. Immediato v. Rye Neck School District, 73 F.3d 454, 462 (2d Cir.), cert. denied, 519 U.S. 813, 117 S. Ct. 60, 136 L. Ed. 2d 22 (1996).
The plaintiffs cite cases in which several courts ruling in the late 1960s and early 1970s invalidated school requirements that students cut their hair. These cases are not on point. Requirements to cut hair involve a student's bodily integrity and require a change to a body part that affects the student when he or she is not in school. As Chief Judge Motz of the Federal District Court of the district of Maryland cogently observed in Isaacs ex rel. Isaacs v. Board of Education, 40 F. Sup. 2d 335, 339 (D. Md. 1999), a case in which a public school student claimed that her liberty interest was infringed by a school rule prohibiting the wearing of hats or head coverings to school other than for religious reasons, there is a difference between regulations requiring alterations to the body, such as requirements to cut hair or shave off beards, and regulations concerning clothing, which do not alter the student's chosen appearance outside of school hours. The former kind of regulations affects a student's right to bodily integrity; the latter does not. The higher standard imposed by some courts on school regulations that impinge on bodily integrity does not apply to the prohibition against wearing blue jeans to school. As the aforementioned findings of fact demonstrate, the decision to prohibit blue jeans is rationally related to the goal of reducing disruption, taunting, theft and loss of attention to course work.
The plaintiffs presented testimony to the effect that the school dress codes had not produced a statistically significant improvement in scores on standardized tests or on the overall number of disciplinary cases. The plaintiffs apparently undertook this proof because in cases in which first amendment claims were raised, a court noted that a regulation did not "measurably [contribute] to the maintenance of order and decorum within the school system." Burnside v. Byars, 363 F.2d 744, 748 (5th Cir. 1966).
The Burnside court did not construe the requirement that a rule be "reasonable" as requiring that it satisfy statistical methodology for demonstrating statistically significant correlations between a policy and the desired outcome. Where the rational relation test applies, the inquiry is whether the challenged rule or policy bears a rational relation to the aim of the school district, not whether it can be demonstrated to have a statistically significant correlation to achievement of that aim. Immediato v. Rye Neck School District, supra, 73 F.3d 462.
The United States Supreme Court has rejected any requirement that legislation be supported to the level required by standards of scientific validity in order to be permissible. In Ginsberg v. New York, 390 U.S. 629, 642-43, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968), the court stated: "We do not demand of legislatures `scientifically certain criteria of legislation.' "
While regulations limiting expression or invading bodily integrity have been disapproved where the justification is merely some hypothetical disruption that may be caused; see East Hartford Education Assn. v. Board of Education, supra, 562 F.2d 845; Crossen v. Fatsi, 309 F. Sup. 114, 118 (D. Conn. 1970); the defendants in the present case showed actual disruptions caused by reactions to blue jeans, including theft and time-consuming distractions and disputes arising from taunts or envy. The prohibition is rationally related to eliminating disruption from this source.
The plaintiffs also rely on comments concerning the extent of proof necessary to justify a regulation that the court found to impinge upon a fundamental right in Nunez v. San Diego, 114 F.3d 935 (9th Cir. 1997). The court in the present case has found that there is no fundamental right to wear blue jeans to school, and that only the rational relationship test applies to the challenged regulation. The observations of the Nunez court in applying a strict scrutiny standard do not apply where, as here, the right at issue is not fundamental. In such a situation, the regulation is valid if rationally related to its goal.
B Claims under the State Constitution
The only claim based on the state constitution that the plaintiffs have briefed is Teshana Byars' contention that the enforcement of the school dress code has violated her right to a free public education. Article eighth, § 1, of the constitution of Connecticut provides in pertinent part that "[t]here shall always be free public elementary and secondary schools in the state. . . ." The defendants have not contested that such claims may be raised by a direct action under the state constitution.
In 1996, the General Assembly enacted § 10-221f, which provides that "[a] local or regional board of education may specify a school uniform for students in schools under its jurisdiction." More generally, General Statutes § 10-220 (a) provides in pertinent part that each board of education "shall provide an appropriate learning environment for its students. . . ." General Statutes § 10-233d (a) authorizes boards of education to suspend and expel "any pupil whose conduct on school grounds or at a school-sponsored activity is violative of a publicized policy of such board. . . ."
Teshana Byars violated the duly enacted school dress code on multiple occasions. She makes no claim that the board of education failed to provide her with a hearing as required by § 10-233d, nor that the board failed to offer her an alternative educational placement as § 10-233d (d) requires. Her claim is quite simply that she is deprived of a public education if she is required to obey a school rule with which she does not agree.
The Connecticut Supreme Court has issued no ruling that even remotely supports the proposition that enforcement of a school rule authorized by the legislature that infringes upon no fundamental right constitutes a violation of the right to a free public education, and this court doubts that it ever will.
The facts presented at trial establish that the defendants provided Teshana Byars with an educational placement at an alternative public school, that the dress code had not been enacted for use at that school, and that her parents decided to home school her instead. Her expulsion from the regular schools has expired by its own terms, and she is free to return to the public high school for the current school year.
Teshana Byars asks this court to equate the enforcement of a school regulation that has been shown to be rationally related to the purpose of reducing disruptions, arguments, thefts and loss of instructional time with a deprivation of a free public education. Such a conclusion cannot be made on the evidence presented.
All the plaintiffs have failed to prove that the defendants have violated article eighth, § 1, of the constitution of Connecticut.
C Other Claims
Teshana Byars has not briefed her claims of violation of other provisions of the state constitution. These claims are, therefore, treated as abandoned. State v. Smith, 255 Conn. 830, 835 n. 12, 769 A.2d 698 (2001); State v. Robinson, 227 Conn. 711, 721-22, 631 A.2d 288 (1993); Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 620 n. 6, 577 A.2d 1017 (1990); Rodriquez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982).
IX PARENTAL AUTHORITY
The parents and guardians of Johnson, Layton and Aimee Scarduzio have likewise failed to discharge their burden of proving the facts necessary to adjudicate their claim. They assert violation of their right of parental autonomy to determine what clothing their children may wear to school. The plaintiffs Dennis Byars and Stephenson, the parents of Teshana Byars, have presented evidence that they permit their daughter to wear blue jeans and believe that their permission should be sufficient to allow her to wear blue jeans to school.
Recognition of parental autonomy in important decisions concerning the rearing of their children has never been held to entitle parents to suspend all rules imposed by social institutions if those rules are at odds with the parents' preferences. The plaintiffs assert that the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), establishes an absolute right of parents to make all decisions concerning their children without any intrusion by governmental regulations. The court issued no such sweeping fiat. The court found in Troxel, rather, that parents had a fundamental right to bring up their own children and could not be required by the state to permit other persons to visit their children because of a determination by a state agency that such visits would benefit the children. Id., 68-69. Troxel involved no ruling concerning the right of parents to enact or abrogate rules imposed in public schools to reduce disruptions, to protect other students from taunting and loss of property and to diminish loss of instructional time.
The characterization of a right as "fundamental" does not mean, as the plaintiffs assert, that the right is absolute. Such "fundamental" rights as the right to freedom of association are, nevertheless, not absolute rights, but are subject to restrictions as to time, place and manner. Buckley v. Valeo, 424 U.S. 1, 25, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S. Ct. 766, 86 L. Ed. 1031 (1942).
The court has recognized that parents have a fundamental right to educate their children in schools with different curricula than the public schools. See Wisconsin v. Yoder, 406 U.S. 205, 220-21, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). The court did not in Troxel, and has not in any other case, recognized a parental right to send children to public schools and decide which, if any, of the school's regulations would apply to their children.
The absolute right of parental autonomy that the plaintiff parents favor is totally unworkable in a multi-cultural community whose members hold a wide variety of beliefs concerning parenting and education. If, as the plaintiff parents assert, parents are constitutionally entitled to have no restrictions whatsoever placed on their children while they attend public schools, or to have their children be subject only to those school rules with which the parents concur, it would be impossible for school districts to prohibit guns in school, require students to attend for a particular number of hours or days, set a school calendar, or require students to study particular core subjects. Absolute exercise of parental autonomy within the public school program would very likely cause total chaos as conflicting parental visions collided. No court has given the concept of parental autonomy the sweep advocated by the plaintiffs.
The court has cautioned that in analyzing a claimed violation of a constitutional right, "the first step is to identify the exact contours of the underlying right said to have been violated." Sacramento v. Lewis, supra, 523 U.S. 841 n. 5. By "exact contours," the court cannot be understood to mean the general rubric, such as "due process" or "parental autonomy," but the precise conduct or entitlement at issue. In Yoder, the exact contour of the claimed right of parental autonomy was the right to religious observance and practice, a specific right protected by the first amendment. In Meyer, it was the right to have students learn foreign languages. In the present case, the exact contour of the parents' claim is a right to allow their daughter to wear blue jeans to school, a preference which has obviously not been shown to proceed from any specific constitutional entitlement.
In Tinker v. Des Moines School District, supra, 393 U.S. 507-508, the court differentiated between school rules governing "type of clothing . . . or deportment" and those regulating political expression in school. Recognizing its prior ruling in Meyer, the court noted in Tinker that it "has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Id., 507. Since Byars' parents do not claim any religious, expressive or political content to the wearing of blue jeans, the right asserted is limited to a claim of a right to engage in particular conduct that is prohibited under school rules.
The governmental intrusion at issue in Troxel was the surrendering of control of the family's privacy and control of its own time and activities by requiring the family to submit to the intrusions of others merely because those others desired a role. The court had no occasion to rule in that case on any regulation that applied in any public institution. The specific issue of parental authority found to be fundamental in Troxel provides no controlling precedent for the very different situation at issue in the present case.
The court has signaled no departure from its recognition in Tinker of the ability of school officials to enact rules of conduct that do not trammel such specific rights as the freedom to engage in political expression or the right to religious observance. The absolute, unfettered liberty from regulation of their children that the parent plaintiffs claim has not been recognized in the opinions on which they rely, and their claim pursuant to § 1983 must, therefore, fail.
Courts have repeatedly held that parental rights are not absolute in the public school context and can be subject to regulations rationally related to a legitimate purpose. See, e.g., Runyon v. McCrary, 427 U.S. 160, 177, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976) (recognizing no parental right to educate children in private segregated academies); see also Swanson v. Guthrie Independent School District No. 1-L, 135 F.3d 694, 699 (10th Cir. 1998) (recognizing that case law on subject establishes that "parents simply do not have a constitutional right to control each and every aspect of their children's education and oust the state's authority over that subject"). The ruling in Troxel included no retreat from these rulings. Like other rights found to be fundamental, the right of parental autonomy does not trump all other social interests in every context.
"Federal courts addressing the issue have held that parents have no right to exempt their children from certain reading programs the parents found objectionable, or from a school's community-service requirement, or from an assembly program that included sexually explicit topics. Immediate v. Rye Neck School [District, supra, 73 F.3d 458-59]; Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995), cert. denied, 516 U.S. 1159, 116 S. Ct. 1044, 134 L. Ed. 2d 191 (1996); Fleischfresser v. Directors of School [District] 200, 15 F.3d 680 (7th Cir. 1994); Mozert v. Hawkins County [Board] of [Education], 827 F.2d 1058 (6th Cir. 1987), cert. denied, 484 U.S. 1066, 108 S. Ct. 1029, 98 L. Ed. 2d 993 (1988)." Swanson v. Guthrie Independent School District No. 1-L, supra, 135 F.3d 699.
Recently, in Littlefield v. Forney Independent School District, 268 F.3d 275, 289 (5th Cir. 2001), the United States Court of Appeals for the Fifth Circuit ruled that the rational relationship test applies to a claim of violation of parental authority occasioned by a public school dress code. See also Herndon v. Board of Education, 89 F.3d 174, 177-79 (4th Cir. 1996), cert. denied sub nom. Reinhard v. Board of Education, 519 U.S. 1111, 117 S. Ct. 949, 136 L. Ed. 2d 837 (1997) (due process claims involving parental rights in public school context are to be judged on rational relationship standard).
X CONCLUSION
The plaintiffs have not claimed that the school dress code at issue violated any right to freedom of speech or expression, and the court makes no finding in this regard.
The claims of all plaintiffs for injunctive relief concerning the maintenance and enforcement of the school dress code in the middle schools of Waterbury are moot because the minor plaintiffs are now in the grades subject to the rules applicable to the high schools and are no longer subject to rules applicable to the middle schools.
The plaintiffs have failed to prove their other claims, as the school dress code policy was demonstrated to be rationally related to reducing actual disruptions and loss of instructional time caused by students' preoccupations with fashionable clothing, including blue jeans.
Judgment shall enter in favor of the defendants as to all of the plaintiffs' claims.