(NOTE: This is an uncorrected and unofficial copy of this document)CASE NO.
JEFFERSON CIRCUIT COURT
DIVISION
PLAINTIFFS
SHERRY H. LONG, individually, and
WILLIAM D. LONG, individually, and
as parents and next friends of
SAMUEL D. LONG, a minor, and ANNA R. LONG, a minor,
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xxxxxxxxxxxxxv. COMPLAINT AND REQUEST FOR INJUNCTIVE RELIEF
DEFENDANTS
JEFFERSON COUNTY PUBLIC SCHOOL DISTRICT;
STEPHEN DAESCHNER, in his official capacity as
superintendent of the Jefferson County Public School District,
Van Hoose Education Center
P.O. Box 34020
3332 Newburg Road
Louisville, KY 40232-4020;ATHERTON HIGH SCHOOL;
ATHERTON HIGH SCHOOL 1998-1999 SCHOOL-BASED DECISION MAKING COUNCIL;
AND
FRED HARBISON, in his official capacities as principal of Atherton High School and chair of Atherton High School 1998-1999 School-Based Decision Making Council,
3000 Dundee Road
Louisville, KY 40205.******************************
Come, now, the Plaintiffs, pro se, all, and make the following complaint and request for injunctive and declaratory relief, and state as follows:
1. This is an action for damages, injunctive relief, and declaratory relief to protect the Plaintiffs' constitutional rights pursuant to the United States and Kentucky constitutions, and to prevent the continuation of the deprivation of the Plaintiffs' rights under color of statute, ordinance, regulation, rule, custom, or usage pursuant to the United States and Kentucky constitutions, as the result of the Defendants' official approval, adoption, and implementation of a mandatory school uniform dress code ("Dress Code") for Atherton High School students that is unconstitutional on both its face and in application.
PARTIES
2. Plaintiffs Sherry H. Long and William D. Long are adult residents of Louisville, Jefferson County, Kentucky, and are the parents of children currently attending Atherton High School, one of the schools in the Jefferson County Public School district, and taxpayers, whose taxes are spent by the state of Kentucky and the Jefferson County Public School district. They bring this complaint as individuals, taxpayers, and parents.
3. Plaintiffs Sherry H. Long and William D. Long also bring this complaint as parents and next friends of Samuel D. Long, a minor child of the age of 16, being an eleventh-grade student at Atherton High School; and Anna R. Long, a minor of the age of 14, being a ninth-grade student at Atherton High School.
4. Defendant Jefferson County Public School District ("District") is a local school district comprised of the county of Jefferson and existing under laws of the state of Kentucky. Elected officials in the District are responsible for providing public education to the children within Jefferson County and administering the laws and policies set forth by the Kentucky state legislature. The District is sued in its official capacity for damages, injunctive relief, and declaratory relief from its own actions as well as the actions of its agents, Atherton High School and its School-Based Decision Making Council.
5. Defendant Stephen Daeschner is the superintendent for the Jefferson County Public School District ("Superintendent"), an elective office, and is responsible for the operation and administration of schools within its district. The Superintendent is sued in his official capacity for damages, injunctive relief, and declaratory relief.
6. Defendant Atherton High School ("School") is a school within the Jefferson County school district, whose employees are agents of the District and of the Atherton High School 1998-1999 School-Based Decision Making Council. The School is sued in its official capacity for damages, injunctive relief, and declaratory relief.
7. Defendant Atherton High School 1998-1999 School-Based Decision Making Council ("Council") is the governing body of the School and agents of the District, existing under the laws of the state of Kentucky. The Council is sued in its official capacity for damages, injunctive relief, and declaratory relief.
8. Defendant Fred Harbison is the principal and chief officer of the School, whose employees are agents of the District and the Council. Mr. Harbison also serves as an administrative member and chair of the School's Council. He is sued in his official capacities for damages, injunctive relief, and declaratory relief.
9. The Defendants were, and have been, acting under color of statutes, ordinances, regulations, customs, and usages of the state of Kentucky, the Board, and the Council.
JURISDICTION
10. This Court has jurisdiction over this action pursuant to section 112 of the Kentucky Constitution.
STATEMENT OF THE CASE
11. On or about January 21, 1999, in a secret ballot vote, of 10 to 2, the Council adopted a mandatory school uniform dress code ("Dress Code") to become effective for the 1999-2000 school year. A copy of the Dress Code for Atherton High School is attached hereto and incorporated by reference herein as Exhibit A.
12. On or about January 28, 1999, a group of parents appealed the Council's decision.
13. On or about February 11, 1999, the Council re-voted, due to the illegality of the secret ballot vote on January 21, 1999, in violation of open meetings laws. The Dress Code was approved in a vote of 10 to 1, with the principal, Fred Harbison, not casting a vote.
14. On or about May 3, 1999, a group of parents appealed the Council's decision to the Jefferson County Public School District's School-Based Decision Making Appeals Board ("Appeals Board"), through counsel, on both procedural and substantive grounds.
15. On or about June 1, 1999, the Appeals Board, approved the Council's actions in adopting the Dress Code as the result of the appeal brought by parents. A copy of the letter of decision is attached hereto and incorporated by reference herein as Exhibit B.
16. The Dress Code as approved and adopted by the District and the Council, is being enforced, and has been enforced, by the Board and/or its agents, the Council and/or its agents, and the School and/or its agents, since August 17, 1999, such date being the start of the 1999-2000 school year.
17. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional on its face and in its application in that it prevents the Plaintiffs from exercising their freedoms of speech and expression in violation of the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and Sections 1 and 8 of the Kentucky Constitution.
18. The Dress Code, on its face, is not content-neutral in that it provides for shirts with the school name and/or logo as acceptable items of clothing, while other logos are not allowed.
19. The Dress Code, on its face, is not content-neutral in that it does not allow students to wear political, religious, educational, commercial, and other forms of speech.
20. School personnel have engaged in behavior and actions which chill students' rights of free speech by harassing and embarrassing students who exercise those rights by the wearing of accoutrements protesting the Dress Code. Students have been subjected to, for example, staff members questioning students' intelligence for wearing armbands and buttons in opposition to the Dress Code. At least one student has been encouraged by a staff member to consider transferring to another school based on the student's expression of opposition to the Dress Code.
21. The Dress Code is unconstitutionally overbroad in its restrictions on dress in that it specifically excludes common items of clothing for no apparent reason, including open-toe and open-heel shoes, shorts, fleece, and dyed hair. The Dress Code explicitly excludes all items not specifically listed as acceptable clothing, including such items as socks, undershirts other than white tee shirts and turtlenecks, other undergarments, etc.
22. The Dress Code is unconstitutionally vague in its restrictions in that it does not define what certain terms connote, including "khaki," "polo," "oxford," and "natural"(hair colors), resulting in an enormous amount of confusion as to what is, and is not, acceptable. Some students who thought they were in compliance with the Dress Code have been disciplined due to the vagueness in connotation of terms contained therein.
23. The Dress Code incorporates the use of unbridled discretion on the part of the administration, resulting in random and selective enforcement, by allowing them subjective and final decision-making in whether or not a student is in compliance. The result has been that what is deemed acceptable to one administration member may be punishable at the discretion of another.
24. The Dress Code restrains freedom of speech and expression regardless of the lack of imminent danger of violence, which was given by the Council as a major reason for adopting the Dress Code. There is no evidence that a pattern of violence existed at the School prior to the adoption and implementation of the Dress Code.
25. The Dress Code restrains freedom of speech and expression regardless of the lack of imminent danger of substantial disruption to the educational process, which was given by the Council as a major reason for adopting the Dress Code. There is no evidence that a pattern of substantial disruption to the educational process existed at the School prior to the adoption and implementation of the Dress Code.
26. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional on its face and in its application in that it prevents the Plaintiffs from exercising their freedom of religion in violation of the First and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983, and Section 5 of the Kentucky constitution.
27. The Defendants failed to provide for an exemption in the Dress Code for clothing which is required by a religion. Items such as dresses, saris, yamulkes, head dresses, jewelry, etc. which are required items in some religions, are not allowed under the Dress Code.
28. The Defendants failed to provide for an exemption in the Dress Code for clothing which violates a student's sincerely-held religious belief. For example, because dresses are not acceptable items of clothing under the Dress Code, female students of certain religions which require females to wear dresses are required to wear items of clothing in violation of their religious beliefs.
29. The Defendants failed to provide an exemption in the Dress Code for items other than clothing, such as jewelry, that is representative of a student's sincerely-held religious belief. There is at least one instance in which a student was made to remove a religious pendant.
30. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional on its face and in its application in that it violates the Plaintiffs' rights to equal protection of the law as guaranteed by the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983.
31. The Dress Code is discriminatory based on sex because female students are treated differently from male students in that female students are forced to wear clothing tailored for the opposite sex in order to attend a public school.
32. The Dress Code is discriminatory based on sex because suitable clothing (i.e., clothing that is tailored to meet the specific needs of a female physique) is simply unavailable for female students. Clothing suitable for female students is unavailable in Jefferson County for families without the transportation, time, and financial ability to obtain such items. Finding and affording a suitable pair of khaki pants, for example, is relatively easy for male students, and can be obtained for sale prices for under $20.00. A few fortunate female students, whose parents have the transportation, time, and financial resources to obtain suitable clothing for their daughters, have paid between $40.00 and $60.00 for khaki skirts and pants. The lack of availability, time required, transportation difficulties, and substantially higher cost are so unduely burdensome to parents and students as to make suitable clothing for female students simply unavailable, resulting in female students being forced to wear clothing designed for the opposite sex.
33. The Dress Code is discriminatory based on sex, which has resulted in the demeaning of young women in such a manner as to force them to wear clothing that is uncomfortable and unflattering to their body shapes, and to be forced to feel that they must sacrifice their right to feel like, and to be perceived as, the young women that they are.
34. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional on its face and in its application in that it violates the Plaintiffs' rights to due process of the law as guaranteed by the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983.
35. The Council failed to provide notice of the Dress Code to parents and students in a timely manner. With open enrollment in the District, students had to make a choice by January 15, 1999, as to which high schools they wished to attend or transfer. The Council voted to adopt the Dress Code, after that deadline, on February 11, 1999 . Thus, students who based their decision to attend or remain at the School based on its history of an atmosphere conducive to individuality and diversity, shown, in large part, by the lack of a mandatory uniform dress code policy, were not timely notified of the change in character of the school. Although the Council was considering a mandatory uniform dress code as early as September, 1999, and had a first reading of the new Dress Code in December, 1999, no information of such a consideration was provided to parents and students during the November open house programs or in subsequent direct mailings to students. Once the Council voted to adopt a Dress Code---a direct contradiction to its Mission Statement advertised by the School to students and parents---students who wished to go to other high schools based on that change found it virtually impossible to do so based on enrollment at other schools already being full. Thus, those who would have chosen to attend, or transfer to, another high school, had they timely received notice of the new Dress Code, were denied the right to make an informed choice.
36. The Dress Code is arbitrary and capricious in its content because the findings upon which the Council based its decision were erroneous, flawed, incorrect, and unsupported by fact or research.
37. The Dress Code is arbitrary and capricious, and fails to provide adequate notice or guidelines as to what clothing is acceptable for compliance under the Dress Code. Numerous examples are available, including whether oxford shirts refer to fabric or style. Additional confusion has been caused by whether khaki is a style, fabric, or color. In fact, the Dress Code has already been amended since school began due to such lack of notice, based on widespread confusion as to whether or not oxford shirts compliant with the Dress Code required that the collars be of the "button-down" style. See, Exhibit A.
38. The Dress Code is outrageously arbitrary and capricious in its implementation because agents of the school, including teachers, office staff, and administrators discipline some students for a particular item of clothing not allowed in the Dress Code, while allowing others wearing the same item of clothing to remain in class undisciplined. In addition, based on their subjective opinions as to what provisions of the Dress Code are most important and which are not, agents of the school enforce some of the uniform items while not enforcing others.
39. The Dress Code is arbitrary and capricious in its implementation because there is widespread inconsistency in enforcement, as some teachers enforce it, while others do not. Staff members are allowed to discipline students based on their subjective decisions as to which provisions of the Dress Code they will enforce, if any at all, and which ones they will ignore. Only through trial and error may students determine in which classes they must be compliant in order not to be disciplined. In addition, some teachers enforce the Dress Code one day and not the next, leaving students no notice whatsoever as to whether or not disciplinary actions may be taken at any given time.
40. The Dress Code is arbitrary and capricious in its implementation due to erroneous enforcement resulting in students being disciplined and/or missing classroom time even though they were in compliance with the Dress Code.
41. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional on its face and in its application in that it violates the Plaintiffs' rights of privacy, both as individuals and in the parent-child relationship, as guaranteed by the Fourteenth Amendment of the United States Constitution, 42 U.S.C. § 1983, and section 1 of the Kentucky Constitution.
42. The Dress Code provides that students wear a basic uniform, which limits the styles and colors of clothing that may be worn, and prevents students and parents from exercising their right to choose clothing which expresses individuality, identity, gender, and ethnic and religious heritage and beliefs.
43. The Dress Code prevents students and parents from exercising their personal right to choose clothing in which they feel comfortable. No exception is provided to accommodate style preferences gender differences, and size differences, especially for larger students.
44. The Dress Code forces students to wear clothing which is unflattering, difficult to obtain, and harmful to the self-esteem of the students. Parents are placed in a position of having no choice but to subject their children to psychological harm that they would otherwise be able to prevent. Female students, in particular, are harmed because of the discriminatory effect of the Dress Code's acceptable items being male in style, as described more fully, above, in Paragraphs 34 through 36.
45. The Dress Code denies parents the right to influence their children's choices as to how to express themselves in public places in a manner consistent with their philosophical beliefs. Such decisions are private ones between a parent and child, and are interfered with by the Dress Code.
46. The Dress Code prevents students, with the help of their parents, from learning to make choices regarding appropriate clothing, prevents them from learning to accept differences in other people (including mode of dress chosen), and prevents them from learning to be leaders.
47. The Dress Code interferes with the parent-child relationship by requiring the parent to dress the child in a certain way without regard to the parents' decisions and choices regarding what their child wears.
48. The Dress Code requires parents to purchase special and limited types of clothing for their children, usurping the parents' abilities to allocate financial resources according to their individual needs. Parents are precluded from purchasing clothing which is multi-functional, such as clothing that may be worn at both school and church.
49. The Dress Code does not provide for assistance to students and parents based on financial inability to purchase acceptable items. Although some assistance has been provided through the School's Youth Services Center, the Dress Code contains no procedure by which parents may obtain such assistance. Those parents and students who have obtained knowledge of this available assistance and been provided with clothing through the Youth Services Center find that such assistance is inadequate in the quantity of items offered, causing an additional burden to parents in additional laundering time and costs.
50. The Dress Code does not provide for students who are of a size which precludes them from obtaining uniform components. These students are forced to wear clothes other than Dress Code-compliant clothing, resulting in an emphasis on their size differences and segregation from students who are of a "normal" size. These students are recognizably out of uniform, which may be a source of embarrassment, humiliation, mental anguish, etc.
51. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional in that it fails to provide for exceptions to the wearing of clothing which is injurious to students' health, safety, and welfare in violation of U.S.C. § 1983, the Americans with Disabilities Act, and Section 1 of the Kentucky Constitution.
52. The Dress Code, by failing to include a health, safety and welfare exception, does not specifically address the special needs and requirements of students with disabilities, physical handicaps, or other health problems.
53. The Dress Code's disciplinary measures include in-school suspensions which may not provide adequate supervision, with such a climate being injurious to students' health and well-being. Notably, on the first day of school, more than 200 students were disciplined for non-compliance by being locked in the school's auditorium without instructional materials. Most of those students were not allowed to go to the restroom when necessary. Those who were still there at lunchtime were provided late and unbalanced meals, as prohibited by law.
54. The Dress Code, by failing to include a health, safety, and welfare exception, does not provide for flexibility in the wearing of garments based on the temperature in the school. Students who find themselves too hot in the school building have only the choice of wearing skirts. Several male students have made this choice, in part, because shorts are not allowed in the Dress Code, even for hot summer weather. Likewise, in colder weather and in present conditions at the School in which the air conditioning is not evenly regulated in the building, no outer garments, including sweaters or jackets, are allowed in the Dress Code to counterbalance such temperature variances.
55. The Dress Code is injurious to students' health in that incidents of student-on-student violence may go unpunished due solely to the fact that identification of the assailant would be either impossible or greatly hindered due to the victim's and witness' inability to identify the assailant by anything other than his clothing. This common means of identifying persons who commit criminal or injurious acts, because of the Dress Code, has been taken away from those who may become victims of violent or other injurious acts. Already, there have been significantly more violent acts at the School compared to last year, which may be the case, in part, due to the fact that the Dress Code encourages students to act with the knowledge that being caught is less likely.
56. The Dress Code compromises the safety and welfare of students by hindering the identification of outsiders dressed in clothing similar to the uniform in the Dress Code who commit violent acts against students, including the use of weapons. Similarly, the identification based on dress is important in other emergency situations in which speedy identification of a student relies in part on the type and color of clothing worn.
57. The Dress Code is injurious to students' mental health due to the humiliation, embarrassment, etc. from having their clothing and bodies "inspected," and in some instances, touched, by school personnel. Students have reported stress associated with the enforcement of the Dress Code, and at least one family has requested that the School provide psychological counseling for their child.
58. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents is unconstitutional on its face and in its application in that a violates the Plaintiffs property interest in, and right to, a free public education as guaranteed by the Fourteenth Amendment of the United States Constitution, 42 U.S.C. § 1983, and Section 1 of the Kentucky Constitution.
59. The Dress Code, and its implementation, interferes with instructional time for all students, both those who are sent from the classroom to be disciplined and those who are in the classroom who have to wait while the teacher deals with inspections, paperwork, and sending the student out of the class.
60. The Dress Code prevents students from receiving a public education in that if they choose not to comply with the Dress Code, they are disciplined with in-school suspension for first offenses and out-of-school suspensions for further violations. As with out-of-school suspensions, in-school suspension for Dress Code violations does not provide students with educational materials relevant to the classes from which they are being kept. In effect, they are kept in the school building (for which the school receives funding for their schooling), but with no educational purpose being met. More than 200 students were so denied on the first day of school, with some students even being denied the opportunity to officially enroll at the School because of such disciplinary actions.
61. The Dress Code prevents students from receiving a public education in that should they choose not to comply, along with choosing not to incur disciplinary measures, they must either transfer to another school or seek alternative means of education. While the number of students who have resorted to these measures is in question, there are at least three such students who have done so since the Dress Code was adopted and/or implemented.
62. The Dress Code prevents students from receiving a free public education in that students' parents are forced to buy and maintain uniforms required in order to attend the School. These expenditures are for the sole purpose of ensuring that their children are eligible to attend a public school. Average expenditures for one child for a minimal number of uniform components is $200.00, and does not include the costs for frequent laundering and for additional clothing items that will be necessary as seasons change and students grow. Many parents have more than one child in attendance at the School, which substantially increases this financial burden.
CAUSES OF ACTION
FIRST
63. Paragraphs 1 through 62 are incorporated herein by reference, with paragraphs 18 through 25 incorporated with particularity.
64. The Dress Code, as approved, adopted and implemented by the Defendants and their agents, is unconstitutional on its face and in its application in that it prevents the Plaintiffs from exercising their freedom of speech and expression in violation of the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and Sections 1 and 8 of the Kentucky Constitution.
SECOND
65. Paragraphs 1 through 62 are incorporated herein by reference, with paragraphs 27 through 29 incorporated with particularity.
66. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional on its face and in its application in that it prevents the Plaintiffs from exercising their freedom of religion in violation of the First and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983, and Section 5 of the Kentucky Constitution.
THIRD
67. Paragraphs 1 through 62 are incorporated herein by reference, with paragraphs 31 through 33 incorporated with particularity.
68. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional on its face and in its application in that it violates the Plaintiffs' rights to equal protection of the laws as guaranteed by the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983.
FOURTH
69. Paragraphs 1 through 62 are incorporated herein by reference, with paragraphs 35 through 40 incorporated with particularity.
70. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional on its face and in its application in that it violates the Plaintiffs' rights to due process of the law as guaranteed by the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983.
FIFTH
71. Paragraphs 1 through 65 are incorporated herein by reference, with paragraphs 42 through 50 incorporated with particularity.
72. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional on its face and in its application in that it violates the Plaintiffs' rights of privacy, both as individuals and in the parent-child relationship, as guaranteed by the Fourteenth Amendment of the United States Constitution, 42 U.S.C. § 1983, and Section 1 of the Kentucky Constitution.
SIXTH
73. Paragraphs 1 through 62 are incorporated herein by reference, with paragraphs 52 through 57 incorporated with particularity.
74. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional in that it fails to provide for exceptions to the wearing of clothing which is injurious to students' health, safety, and welfare in violation of 42 U.S.C. § 1983, the Americans with Disabilities Act, and Section 1 of the Kentucky Constitution.
SEVENTH
75. Paragraphs 1 through 62 are incorporated herein by reference, with paragraphs 59 through 62 incorporated with particularity.
76. The Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional on its face and in its application in that a violates the Plaintiffs property interest in, and right to, a free public education as guaranteed by the Fourteenth Amendment of the United States Constitution, 42 U.S.C. § 1983, and Section 1 of the Kentucky Constitution.
DAMAGES
77. As a result of the acts of the Defendants and their agents complained herein the Plaintiffs have been injured in their persons and the said Defendants are liable to plaintiffs for actual damages.
RELIEF SOUGHT
78. There exist real and actual controversies between the parties, with Plaintiffs having no adequate remedies at law other than this action for declaratory and injunctive relief. Plaintiffs are suffering irreparable injury as a result of the acts of the Defendants and their agents as evidenced in this complaint, with injuries that will continue unless the Defendants are enjoined from the enforcement of the Dress Code by this Court.
WHEREFORE, the Plaintiffs respectfully requests that this Court:
1. Issue a declaratory judgment that the Dress Code, as approved, adopted, and implemented by the Defendants and their agents, is unconstitutional on its face and in its application;
2. Issue a preliminary and permanent injunction prohibiting the Defendants and their agents from continued implementation of the Dress Code;
3. Grant Plaintiffs a jury trial on the issue of actual damages against the Defendants, jointly and severally;
4. Award the Plaintiffs costs and attorney's fees, should they be incurred; and
5. Such further relief as this Court deems just and proper.
Respectfully submitted by:
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Sherry H. Long, and
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William D. Long,
Plaintiffs
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xxxxxxxxxxxxxxxx(NOTE: This is an uncorrected and unofficial copy of this document)
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