Petition for Writ of Certiorari — Freeman v. Flake

Supreme Court brief1972

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ce peed

IN THE

Supreme Court of _ Huited

‘ ; _ OCTOBER TERM, 1971

, ie cee

BILLIE K. FREEMAN, Guardian of TERRY FREEMAN; VERNON RANDALL OSTLER,

a minor by STEPHEN OSTLER, his father and natural guardian; MARCK CHARLES

_ SIMMONS, by and- through: his guardian ROBERT C. SIMMONS,

' Petitioners,

ie ee Sod : ,

1. ; ALMON FLAKE, et al., ;

; ; aan Respondents,

‘s AL WHITE, a minor by his’ father, V. T. WHITE, .

; 7 Petitioner, __

. —— _ — ; rie

~~ BOARD OF EDUCATION OF HOBBS MUNICIPAL

; SCHOOL DISTRICT NO. 16, et al. —

Respondents.

GREGORY A. CRANSON and RANDALL J. CRANSON, minors, by and through,

' their*natural guardian, WALTER N. GRAN SON, ,

Petitioners,

—_—— re

EAST OTERO SCHOOL DISTRICT R-1, et a,

Respondents.

GARY CHRISTMAS, a minor by his father and next er a t

: WILLIAM R. CHRISTMAS, j

li ; i Petitioners, x

—v— : .

THE EL RENO” BOARD OF EDUCATION, et al., ae : :

Respondents. —" _

PETITION FOR A WRIT OF CERTIORARI TO THE

~ UNITED STATES COURT OF APPEALS —

| FOR THE TENTH CIRCUIT

Pavut A. PHILLIPS MELVIN L. WuLF : _

520 Simms Building JOEL M. Gora eG ;

Albuquerque; New Mexico 87101. : American Civil Liberties ;

‘Dan McKinnon, IIT ae Union Foundation . te

608 First National Bank Building 156 Fifth Avenue

Albuquerque, New Mexico 87101 — New York, New York 10010

STEPHEN: F. WILLIAMS eas _ Attorneys for Petitioners ,

Fleming Law 205

University of Colorado

Boulder, Colorado .80302

Puitip F. HoRNING . . = or see

903 First National Bank Building ’ Pie

_ Oklahoma Cify, Oklahoma 73102 ioe i ’ —* : P

JAMES N. BARBER ‘ : iia ps ‘=

716 Newhouse Building Mi :

‘Salt Lake City, Utah 84111 .

Of Counsel ~. <a s

iNpEt 2

. My a omc

ee es, oo ye es irs ee "PAGE

Citations té Opinions: Below eccrine 2

RUPTURE sees eatin Rriabea sngasegirintiess 2 is

‘Question Presented oo... ncseeeeeceeeeeeee Selaemcien one neuen i- : 8

Constitutional and Statutory Provisions Involved _...... 3

Statement of the RO esta otinpsticunmidiametcanaemmnnanen 4 te

Freeman’v. Flake -.........2......2 PET OIE IONE COIN

* White v. Board of E dueation of Hobbs Municipal

School Distridt No. FP Soceciosnsespicsntnae NERD ane ela Ca 8

Granson v. Kast Otero School District: R- | SECC one a.

~ Christmas v. The ‘al Reno Board of Edueation .. me: "

meee ' &

; ; A oe ae Vid

Reasons for Granting beds SE RTO aE a

P Concuusion eueea idl ac Saaiiee ARATE aN Ra 13. -

—

» APPENDIX

Opinions of the United States Court of Appeals

for the Tenth Cirenit Beek Mr aeons la -°

* Opinion of the United States District pes for:

the District of Utah in Freeman et. al. v. Flake,

OP We ice RIA ee RnR MA Pie Re RIS IE Ne Te 5h, lla -

zo Opinion of the United ‘States District Court for

the District of New Mexico in White v. Board of

Education of Hobbs Municipal School District .. 28a

- Otero School District B-1, et db. ectceeeceo beeen 36a)

Opinion of the United States District Court for ‘

the Western District of Oklahoma in Christmas

v. The El Reno Board of Education ........... 41a

AUTHORITIES CrrEep 4

Cases: | ; wee cr ea a

! Alberda v. Noell, 322 F. Supp. 1379 (E.D. Mich. 1971) ° 9

Bishop v. Colaw, 450 F.2d 1069. (Sth Cir. 1971) ......9,12

Breen v, Kahl, 419 F.2d 1034. (7th: Cir. 1969), cert.

denied, B98 U.S. GBT (1970) ns annnnnnnennennnneny panne 9

Coates v. City of Cincinnati, 402 U. S. 611, 29 L. Ed.2d

Fh cag Me a ee |

Crews v. Clones, 432 F.2d 1259 (7th Cir. 1970) . ‘sein ae

os Ferrell v. Dallas iiaiinn School District, 392

‘F.2d 697 (5th-Cir.), cert. denied, 393 U.S. 856 (1969) 9 .

— vV: Flake, 448 F.2d 258 i Cir. _— aaa 9°

‘Gere v. Stanley, F.2d —— (3rd Cir- 1971, No. .

71-1025) *_.... rena : 9

_ Jackson v. Dorrier, 494 - F.2d 213 (6th Cir.), cert.

denied, 400, US. 850 (1970) ..

King v. Saddleback Junior College District, 445 F.2d

932 (9th Cir.), cert: denied, 40 U.S.L.W. 3249 (1971) 9

5 fi _ PAGE

Lansdale v.: Tyler Junior College, 3 318 F Supp. ooo.

(E.D.. Tex. 1970) .............. = ROR E cen0 re 9

lawn v. . Kugler, 446 F. vd 1343 (3rd Cir. 1971): .....-...... 11.

| Secu: v. Nebraska, 262 US. BO: GIBIRY sta 12.

Richards v. Thuryton, 424 F.2d 1281 (1st Cir. 1970) .. 9

— Roberts v. Genetal Food Co., ——- F. Supp. —, 40

Doewy

_ US.L.W. ‘2188 ae Ohio 1971) ....:......... 11

Sisstietionil Provisions :

United States Constitution

First Amendment .......: can * eee } due Satie oe

Fourth Amendment .-................... = : 3

Ninth Amendment: 22.0220... enaemads

Fourteenth Amendment .........1......... “aise 8

; : Statutes: sar | | | . ;

28 U.S.C. * 61954(1) ssa pcbimspisnirne aac cmenietekauiies mien 2

28 U.S.C, $1343 -....... Saad nea auanae Cae

42 USC. $1983 celatcten edee Ne cen tesa .. 3,4

Other Authorities: + 2c |

1 Cottiitiiane Oe nn, a aca - 107

Leviticus, WT con: fies tae aap a aee neal ee 10

‘Severn,. The Long and Short of It (David MeKay msi

- 1971) . rinepeetnenneaineineeeemneestoee pgeenieteetntsnsennneves 10, 11

& ns

? eae

oh De rae *

‘Supreme Court of the Huited States:

—_— TERM, 197 1:

Were Serena.

VERNON

/ r : t

BULLE ‘K.. FREEMAN, . ’ Guardian : of TERRY. FREEMAN ;

RANDALL OSTLER, a minor by STEPHEN OSTLER, his. fatheiy

-Mapck CHARLES SIMMONS 8, by and

‘and natural eudrdian ;

_. through his guardian Rosert C. Simmons,

Pe cae Fs ace oe - Petitioners,

i —V.— , :

es > \ af 0

. ' ALMoN Fake, et al., oleate

beater < hat a ee Se Respongents. |

. a AL W HITE, a minor by: his father, V.,T. Wuirte,

a. : : ‘ os Petitioner,

+ nee . ees:

a seat, as 2 oe ‘

j | ~~ Boarp Or Epucation or ‘Hopss Municirau

; a ee ScHoou Districr No.:16, et al., 7 ge

‘ ae hs * Respondents.

aa nae ne, & . : os |

GreEGoRY. A. CRANSON and RANDALL J. papa minors, by and °

through their natural guardian, Ww ALTER N . CRANSON, '

: : Petitioners,

—vV ome

East OTERO ScHoou District R-1, et al

q ‘ . . . H

- . i . aca 4 . “4

ie CHRISTMAS, a mirfor by his father and

-¢ ‘ .

next friend, Wituiam R. (HRISTMAS 6:

Pelee Petitioners,

. ‘

‘

. aoe IE. ‘ e ?

| ;

@ Vv. H o . -

, | 1

‘Tue EL RENO Boar OF Enucatton, ¢ 5 al.,

ta Respon dents,

. i . ‘ j ‘

Responglents.

ee ee

. PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH Cnet

Petitioners pray that a writ of ce sthecas! issue to review

the “judginents of the United States Court of Appeals for

the Tenth Circuit entered in these cases on September 28,

1971. i

Citations to Opinions Below

The opinions of the respective United States District

Courts for the Districts of Utah, New Mexico, Colorado and

the Western District of Oklahoma are set forth in the Ap-

pendix, infra, at pp. lla-27a (Freeman et aly. Flake, et al.),

pp. 28a-35a (White v. Board of Education of Hobbs Munici-

pal School. District No. 16), pp. 36a-40a (Cranson v. East

Otero School District R-1, et al.) and pp. 41a-52a (Christ-

mas Vv. The El Reno Board of Education, et al.). The Free-

man,and Christmas opinions are reported at 320 F. Supp.

531 and 313 F. Supp. 618, respectively. |

The. consolidated opinion of the United States Court -

of Appeals for the Tenth Circuit is reported at 448 F.2d

258 and is set forth in the Appendix, infra at pp. 1a-10a.

- Jurisdiction

The judgments ‘of the United States Court of Appeals

were’ entered on September 28, 1971. On December 14,

1971, Mr. Justice White signed an order extending the time

within which to file this petition to and including January

26, 1972. This Court's jurisdiction is invoked pursuant to

28 .S.C. Section 1254 (1).

‘Question Presented

. Whether the state may constitutionally expell or punish»

male public school students whose hair length exceeds the

limits _presecribed by school officials?

Constitutional and Statutory Provisions Involved

_ United States Constitution, —

First Amendment: |

“Congress shall make no law... abridging the freedpm

of speech” , |

Fourth Agpendment:

“The, right of the people to be secure in their persons

. against unreasonable searches and seizures, shall

act be violated ... ” |

_ Ninth Amendment:

“The enumeration in the Constitution of certain rights

shall not be construed to deny or disparage-others re-

tained by the people.”

Fourteenth Amendment:

“ ...nor shall any State deprive any person of life,

liberty, or property without due process of law; nor

deny to any person within its jurisdiction the equal

’ protection of the laws.”

42 U.S.C. Seetion 1983:

Evety person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the’deprivation of any

7 rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured

in an action at law, suit i im ry or other proper pro-

ceeding for redress,

Statement of the Case

These various cases were brought separately in United

States District Courts in Utah, New Mexico, Colorado and

Oklahoma as civil rights actions, pursuant to 42 U.S.C.

Section 1983 and 28 U.S.C, Section 1343, to seek redress

for - the asserted violation*of federally protected rights. .

The petitioners were all public school students who had

been expelled, suspended or in other ways disciplined for

* allegedly violating school regulations requiring certain hair

styles for male students. The respondents were. school

boards and officials in the respective districts.

“Hearings were held on the petitioners’ requests for des

claratory and injunctive relief. In the New Mexico case

(White), District Judge Bratton explored the various -jus-

tifications for the school rule, concluded they were inade-

quate and held that the board had violated the petitioner’s

constitutionally. protected rights (App., infra, pp. 28a-35a).

- In the other three cases, the district courts sustained the

regulations (App., fra, pp. lla-27a, 36a-52a). The back-

ground of each of the cases is as follows. |

F reeman v. Flake’

“This proceeding involved three cases consolidated for

trial. Each case was brought by a male public school stu-

‘dent suspended for violation of the school’s hair length

regulations.’ The regulations ty pieally ‘prov ided that “

male students shall comb and wear their hair so that it

does not hang over the ears on the side and .their hair

inust be ahove the eyebrows in the front” (App., infra,

p. 19a): District Judge Christensen held hearings last-

ing three days. Rejecting many. of the rationales offered

_ by the school authorities (App.,.infra, p. 17a), and not-

ing that others viewing the evidence might reach a con-

trary result, he concluded, nevertheless, that the -regula-

tions were a reasonable attempt “to minimize disruption |

and distraction in the school, promote order and safety,

redirect the attention of students from an obsession with

a reaction against, mere hair length . . .” (App., infra, p.

25a). Accordingly, he denied injunctive relief and dis-

missed the action.

White v. Board of Education of Hobbs |

_ Municipal School District No. 16

Al White was an average student in good standing at

Hobbs High School, New Mexico: Shortly before gradua-

tion, he was suspended because of his hair length.? There

was no contention that Al had been inv olved-in any trouble

because of his hair. Although the school written rule com-

manded male students to “wear neat and trim eqnventional

style hair éuts only ” , the school officials contended that this

was understood to prohibit hair from falling lower than

one inch above the eyebrows, over the ears and ov er the

collar.

1 Two of the students. received educational instruction at home;

the third cut his hair under protest and was readmitted to school.

* On consent, he was reinstated and allowed to graduate.

~ District Judge Bratton held a trial which lasted: four

days. He heard evidence concerning the situation at Hobbs

as well as the experience with hair regulations (or their

absence) at schools throughout New Mexico. Holding that

“the right. to wear one’s hair at any length is an aspect

of personal liberty” protected by the Constitution, he pro-

ceeded to. exarhine the various arguments offered-by school _

authorities to justify , “regulation i impairing a fundamental |

freetlom” (App., infra, p. 30a). To test the respondents

“expressed apprehensions; and concerns as to what might

result from the climination of.a regulation foverning the

* length of male hair,” he heard evidence from officials at

New Mexico schools which had abandoned or liberalized

their rules (App., infra, pp. 32a-34a). He found that, far

from having an adverse effect on educational objective, the

elimination of such rules “actually reduces tension and. .

enhances the learning process” (App., infra, p. 32a). The

' eourt concluded that- there wére no justjfications for “the

constitutional invasion Avhich the rule. requires”. Accord-

ingly, he held the rul unconstitutional and directed the

respondents to expunge any reference to the suspension in

petitioner’s record (Ap) " infra, p. 35a).

Cranson v. East Otero School District R-1

Gregory and Randall Cranson were good students at La

Junta High School, Colprado. The school hair regulation

prov ided : “Boys will be sent for a haircut if the hair falls

over the eyes, over their eyes, or over the collar. We will

still accept most styles just be reasonable” (App., infra,

p. 38a). For failing to: conform to this rule, both boys

‘were’ expelled for the 1970-71 academic year unless they

got haircuts.

District Judge Doyle held a fairly brief hearing on the

petitioners request for injunctive relief. He specifically

found that “the length of the hair did not create disturb- _

dnees or disruptions,” and that the petitioners were good

students “whose individual behayior and attitudes were not

affected by hair—tength” (App. infra, p: 37a). Indeed,

their readmission was requested in a petition signed by

one-third of the student body. However, the: court also

found that while there was no “disruption raucous in

nature”, there was ev idence of “interference. with the edu-

cational process” i.e., “a break-down of discipline and

student attitudes of defiance” and. a hampering Jof the

physical education programs” (App., infra,-p. 39a). Based |

on this evidence, the court concluded-that there was a

rational basis for the adoption of the regulation. The in-

junetion was denied. and the complaint dismissed. The

heer brothers never returned to school,

dette v. The El Reno Board of Education

Gary Christmas was a senior at El Reno High School,

Oklahoma during the 1969-70, school year. The school’s ©

policy was that boys whose hair fell over the their eyes,

ears or collar would be barred from participation in extra-

eurricular activities, including commencement exercises.

At various times during the year, the petitioner Was in-

formed by school officials that he w ould not be allowed

to participate in the commencement ceremonies or receive

‘a diploma .unless his hair style eonformed to the rules

(App., infra, pp. 44a-45a). As commencement approached, .

the petitioner unsuccessfully appealed within the school sys-

tem. : he te’ | 5

He then filed this action seeking to be allowed to partici-

pate ‘in the graduation ceremony and receive a diploma.

A br ief heaving was “held by Distr ict Judge Bohanon, two

days: before graduation. He found that the petitioner had

received an official “certificate of graduation” y and that

the diploma and commeneement exercises were unofficial.

The judge noted that petitioner had been involved i in some

fights and that other students had once forcibly attempted: .

to cut petitioner’s haix.. Based on these factors, the court |

concluded that school authorities had met their burden of

justifying their regulation and denied the injunction. Peti-

. tioner has never received his high school diploma. -

The student petitioners in Freeman, Cranson and Christ-

mas and the school board in.White all appealed to the.

Court of Appeats for the Tenth Ciredit. Three of these

eases (Freeman; Cranson and White) were argued simul-.

taneously before the same panel; Christmas was

shortly thereafter. The court of appeals entered its opin-

ions and. judgments, affirming those decisions favorable

to the school officials and rev ersing the judgment i in favor

of petitioner Al White and directing the dismissal of his

complaint (App., infra; pp. la-10a). In reaching: these re-

sults, the court of appeals held that “complaints which are

based on nothing more than school regulations of the length

.of a male student's hair do not ‘directly and sharply im-

plicate basie constitutional ‘values’ and i cognizable

in federal courts...” (App. .. infra, p. 8a).°

It is to. review ices gc that certiorari is sought.

e Re&sons for Granting the Writ

1. As this Court must be aware, to say that there is a |

conflict among the Circuits on the issue of student hair.

regulations is a substantial understatement.* There are :

literally dozens of reported federal court decisions deal- /. -

ing with this issue. Judicial decisions have ¢ranged from / f

holdings that there is fundamental constitutional pote Ye

_ tion- for a person’s choice of hair style to rulings that - he/

issue is too: frivolous even to merit a federal court’s at-

tention.‘ The issué will continue to be raised so long as

school boards persist-in regulating the hair length of their

male students and those xtidents insist that the Constitu-

. tion affords them the right to make such decisions for them-_

selves. The Court should resolve these competing claims.

2. This disarray among the precedents reflects the fact

that the underlying issues posed by hair regulations are

* To date, at-least three Circuits have held that the Constitution

affords male public school students a right to wear long hair.

Richards v. Thurston, 424 F.2d 128] (Ist Cir. 1970) ; Breen v. Kahl,

419 F.2d 1034 (7th Cir. 1969), cert. denicd, 398 U.S. 937 (1970): |

Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971). .Two Cirguits have —

taken a contraty position, deferring to the decision of local school

officials. King v. Saddleback Junior. College District, 445 F.2d

932 (9th Cir.) cert. denicd, 40 U.S.L.W. 3249 (1971) ; Freeman vy.

Flake, 448 F.2d 258 (10th Cir. 1971). Two Circuits have looked to

the reasonableness of the particular regulation, requiring only a @

minimal showing by school authorities to validate the rule. -Gere v.

Stanley, ¥.2d —— (8rd Cir.,:12/27/71, No. 71-1025): Jack.

son V. Dorrier, 424 F.2d 213 (6th Cir.) ; cert. denicd, 400.U.S. 850

(1970). And the Fifth Circuit, the first circuit court to speak to

the issue, see Ferrell v. Dallas I ndependent School District, 392 F.2d

697 (5th Cir.),. cert. denied, 393 U.S. 856, (1969). is currently con-

sidering the issues en bane.

4 Compare, e.g., Lansdale v. Tyler Junior College, 318 F. Supp.

929 (E.D. Tex: 1970) with, eg., Alberda v. Noell, 322° F. Supp.

1379 (E.D., Mich. 1971). eo

profound, for they toueh upon the very: relationship be-

_ tween the individual ‘and the state. Such regulations are

‘analytically no different than rules which might be made

applicable. to the general public. If the state may. con-

dition the right to a public education upon the length of

a boy’s hair, it miay similarly condition the receipt of any

publie benefit, or perhaps even make the, refusal to comply

a criminally punishable offense.

Historically, gov ernments, political or theoeratic, have

been concerned with and attempted to regulate personal

appearance, particularly length and‘ style of hair. See

Severn, The Long and Short of It (David McKay Co., 1971).

In 1500 B.C., among the laws which Moses received was,

in effect, a hair regulation, although with a different con-

tent than today’s: “Ye shall not. round the corners of

your cheads neither shalt thou mar the- corners of thy

beard.” Leviticus, 19:27. By the time of St. Paul, the

nature of the rule had changed: “Doth. not even nature

itself teach you, that, if a man ‘have long hair, it is a shame

unto him?” I Corinthians 11:14. Centuries later Peter the

- Great, in an effort to westernize medieval Russia, imposed —

a tax.on beards and mustaches. At approximately the same

time, the rulers of China promaigntes detailed pone regu-

lations.

Very often governments have been pre- ccoupied with

hair styles because they came to represent or identify

particular political attitudes. Thus, for example, the Eng-

lish Civil War was fought between the long-haired forces _

of the Crown and the “Roundheads”, a term used to de-

scribe the Puritans because of their hair style. During the

time of the: French Revolution, short-hair was viewed as

a symbol of. political radicalism both here and abroad. In

e .

~~) .

‘Bavaria, in the mid-nineteenth century, beards were out-

lawed as a sign of radicalism, Severn, The Long and Short

of It, supra at 96, In the 1920’s, American women, adopted ’

shorter hair styles to symbolize the néw feminisiii“of that

era. In sum, “[h]Jistory contains many examples of re-

gimes which have attacked and silenced their “opponents

by requiring conformity of hairstyle or dress.” Crews v.

Clones, 432 F.2d 1259, 1264 (7th Cir: 1970).

Many of these historical phenomena are manifest in

the current controversy over long hair. In the last several |

‘years, the wearing of long hair has become the symbol of

the youth culture, a “counter” culture which. has challenged

the politics, mores and life-styles of the established order:

And because of. this identification, long-haired males have

been subjected to a variety of discriminations and harass-

ment, public and private, official and unofficial.’ The fact

that long hair has taken on this meaning is perfectly ‘re-

flected by the reaction of school.boards and school officials.

Time and again, in these and other casés challenging short-’

* hair requirements, long-hair is characterized as a symbol

‘’ of dissent, a'badge of defiance of authority. And it is sought’.

Occesin Nell t

° While most, judicial attention’ has‘ focused on school hair re-

- quirements, courts have taken cognizan7e of-such discrimination in‘

other contexts as well. See, Lewis v. Kugler, 446 F.2d 1343 (3rd

Cir. 1971) (directing a trial on the elem by long-haired travelers

_ on New Jersey’s Ifeh vays that they were singled out for police .

harassment and subjected to illegal searches) ; Roberts v.. General

Food Co., ' F. Supp. —~, 40 U.S.L.W. 2188 (N.D. Ohio

9/21/71) (holding that the firing of a long-haired ntale employee

constitutes prohibited sex discrimination since twomen employees _

were allowed to wear long hair) .cf. Coates v. City of Cincinnati, 402 °

NU.S. 611, 29 L.Ed.2d 214 (1971) (invalidating an ordinance because

its vagueness contained “an obvious invitation to discriminatoty en-.

forcement against those whose association . together is ‘annoying’

‘because their ideas; their lifestyle-or their physical appearance is

‘ resented by a majority of their fellow citizens.” 29 L.Ed.2d at 218).

“12

to be prohibited not because there is anything intrinsically He

disruptive or distracting about it, but, rather, because. of

what it-is perceived to represent.»

Yet state-imposed uniformity of appearance, so often & *

hallmark of totalitarian regimes, is inimical to our con-

stitutional traditions, as many of the decisions upholding

the students’ claims have exp icitly recognized. aan

courts have looked to our heritage and concluded that “

among those rights retained ‘by the people under our con-

stitutional form of gov ernment, js the freedom to govern

one’s personal appearance.” Bisliop v. Colaw, supra at 1075.

Our concepts “touching the relation between individual °

and state”, see Meyer v. Nebraska, 262 U.S..390,,402 (1923),

do not allow for the kind of uniformity which these hair

regulations. impose. Particularly in today’s crowded and .-

-impersonal society, the indiv idual, must be afforded a little

“breathing space” in which to develop and nurture his per- 7

| sonality. e

‘CONCLUSION

For the reasons set forth above, the petition for cer-

tiorari should be ee het -

Respectfully. submitted,

* Menyis L. Weis’

JorL M. Gora ;

American Civil Liberties |

Union Foundation

156 Fifth Avenue

New York, New York 10010

Attorneys -for' Petitioners

Pau A. Paiuuies-

520 Simms Building

Albuquerque, New Mexico 87101,

Day ‘McKiynon, III

608 First National Bank Building

Albuquerque, New Mexico, 87101

STEPHEN F, WinuiAMS ©

Fleming Law 205. - :

. University, of Colorado

- Boulder, Coloradé 80302

sia F. Hornina

903 First National Bank Building

* Oklahoma City, Oklahoma 73102 —

| Janes N. BARBER .

716 Newhouse Building

Salt Lake City, Utah 84111 .

Of Counsel

_ January 26,:1972

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Opinions of the United States Court of Appeal

for the Tenth Circuit

UNITED STATES COURT OF APPEALS °

| Tents Circuit

Sepremser Term, 1971

_—

No. 71-1007 .

Bure K. Voseuay, Guardian of Terry FREEMAN, et al.,

Plaintiff s-Appellants,

— |

Atmon Frage, et al, — - 7 eg

. * , Defendants-Appellees:

. aaiesiidiiin

No. 71-1051 '

Au Wuirte. a Minor, by his Father, V. T. Wurre,

— ora he * Plaintiff-Appellee,

‘ v. / .

Boarp oF Epvcation or Hopss Musictrat ScHoo.

District Nos 16, et al.,

Defendants-A ppellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW MEXICO (D. C. NO. 8485)

—

| No. 71-1072 - ss

a "en —

Grecory A. Cranson and Rawbatt J. CRranson, Minors,

by and through their Natural Guardian, Water N.

CRANSON, :

Plaintiff s-Appellants,

East OTERO Scuoon District R-1, et-al.,

| Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT -COURT FOR THE

DISTRICT OF COLORADO (D.C. NO. C-2550)

James N. Barser (Richard M, Day on the brief), -

* for Plaintiffs-Appellants in No. 71-1007.

Frersuaw Kine (William H. King on the brief),

for Defendants-Appellees in No. 71-1007.

Jort M. Gora and Dan McKryyon, IST (Melvin

L. Wulf and Paul A. Phillips on the brief),

for Plaintiff-Appellee in No. 71-1051.

Mack Eastey of Easley & Rey nolds, for Defen-

dants-Appellants in. No. 71-1051.

‘SrerHen F. W ILRIAMS, for Plaintiffs-Appellants

in No. 71- 1072.

" Bensamix L. Cause (Peter M. Eggleston and

Ralph N. Wadleigh on the hrief), for De- .

fendants-Appellees in-No. 71-1072.

ee *

Before:

Panqaee, BREITENSTEIN and H111,

“ties it Judges

BREITENSTEIN, Circuit Judge.

Regulation of hair styles of male students in state pub-

‘lic schools is becoming a matter of major concern to fed-

eral courts if one is to judge by the ever-increasing litiga-

tion on the subject or-by the days of court time expended,

and the lengthy briefs presented, in the cases now ‘before

“us. We are convinced that the United States Constitu-

tion and statutes do not impose on the federal courts the

_ duty and responsibility of supervising the length of a stu-

dent’s hair. The problem, if it exists, is one for the states

and should be handled through state procedures.

We have three cases, one each from Utah, New Mexico,

and. Colorado. In each, one or more students were sus- |

pended for violation of the school regulation on the length |

of hair of male student®. Jurisdiction is asserted under

28_ U.S.C. .§ 1343 and the claims are based on $1 of the

Civil Rights Act of 1871, now 42 U.S.C. § 1983. Although .

- the regulations differ in language, they essentially require

that the hair should not hang below the collar line in the

back, the ears on the side, or the eyebrows in front. The

evidence need not be detailed. It is remarkably similar in.

each case. The students desired to express their individ-

ualities and the schoo] boards offered justification for the

regulations. No claim is made of: any racial or religious © |

discrimination. We find nothing in the record to indicate

that the hair regulations were motivated by other than

- legitimate school concerns. ‘The federal district courts in

Utah and Colorado upheld the regulations and in New

Mexico the regulation was ene as infringing on con-

stitutional . rights.

4a z..

The federal circuits are sharply divided ‘on the constitu-

tionality of regulations pertaining to the length of the hair

of male students in state public schools. The students-have

prevailed in the First and Seventh Cireuits. See Richards

v. Thurston, 1 Cir,, 424 F.2d 1281; Breen vy. Kahl, 7 Cir.,

419 F.2d 1034, cert. denied 398 U. S. 937; and Crews v.

Clones, 7 Cir., 432 F.2d 1259. 'Phe school regulations were

upheld in the Fifth, Sixth, and Ninth Cireuits. See Steven-

son v. Board of Education of Wheeler County, Georgia, 5

Cir., 426 F.2d 1154, cert. denied 400 U.S. 957; Ferrell v.

Dallas Independent School District, 5 Cir., 392 F.2d 697,

cert. denied 393 U.S. 856; Jackson v. Dorrier, 6 Cir., 424

F.2d 213, cert. denied 400 U.S. 850; Gfell v. Rickelman, 6

Cir., 441 F.2d 444; and King v. Saddleback Junior College,

9 Cir., —~ F.2d ——. In Griffin v. Tatum, 5 Cir., 425 F.2d

201, the court held invalid that portion of a regulation

which required. that the back hair be tapered rather than

blocked.

No apparent consensus ait among the lawyers for the

students as to what ‘¢onstitutional provision affords the

protection sought. Reliance is variously had on the First,

Fourth; Eighth, Ninth, Tenth, and Fourteenth Aniendments

\ . to the Constitution of the United States and on the penum-

bra of rights assured thereby. The uncertainty of position -

complicates, rather than clarifies, the issue. The briefs and

arguments for the students cay alierly dismiss, or entirely

fail to discuss, the problem of federal interv ention in the,

contral of state schools in the absence of a direct and posi-

tive command stemming from the federal constitution. The

hodgepodge reference to.many provisions of the Bill of

Rights and the Fourteenth Amendment shows uncertainty

as to the existence of any federally protected right.

All of the briefs for the students rely on Tinker v. Des _.

Moines Independent Community School District, 393 U.S.

- 503, and Griswold v. Connecticut, 381 U.S. 479. Tinker was

concerned with the suspension of three students for wear- |

-ing to school black armbands to- publicize their objection

- to Vietnam hostilities. The Court held that the conduct

was within the protection of the Free Speech Clause of

_ the First Amendment and the Due Process Clause of the

Fourteenth Amendment. The Court said that the wearing

of armbands was ¢losely akin to pure speech and that, 393

U.S. 507-508:

_ “The problem. poSed by the present case does not

relate to regulation of the length of skirts or the type

of clothing, to hair sty le, or soepesnaceael m.

We believe that the effect of this a oe is to plimi-

nate hair style from any impact of the decision. 'Bhé wear-

ing of long hair is not akin to pure speech. At the most

it is Symbolic speech indicative of expressions of individ-

uality rather than a contribution to the storehouse of ideas.

With reference to symbolic speech, the Supreme Court

said in the draft card burning eases, United States v.

O’Brien, 391 U.S. 367, 376: :

“We cannot accept the view that an apparently limit- . -

less -variety of conduct can be labeled ‘speech’ when-

_ ever the person engaging in the conduct intends thereby ;

ta express an idea.” 3

Rectanitien of the principle that neither students nor -

teachers “shed their constitutional rights to freedom of

speech or expression at. the schoolhouse gate,” 393 US:

at 506, does not mean that the First. Amendment contains

an express command that the hair style of a male student

in the public schools lies within the protected area.

Griswold held that a Connecticut statute forbidding the

use of contraceptives violated the right of marital privacy

_which is within the penumbra. of specific guarantees of the °

Bill of Rights. 381 U.S. at 481-486. We agree with the

_ Ninth Circuit that the conduct controlled by the hair style

regulations “is not conduct found in the privacy of the. -

home but in publie educational institutions where individe

ual liberties cannot be left. completely. ;neontrolled to clash.

with similarly asserted liberties of several thousand

others.” King v. Saddleback Junior College, 9 Cir., —

F.2d ——, slip opinion p..8 and authorities cited in note

11. A school. regulation on the-length of a student? s hair —

_ is not comparable to.a state statute regulating behavior .

in the privacy of a bédroom. oes, |

Perhaps the strongest constitutional argument Ww hide can

be made on behalf of the students is based on the “liberty”.

assurance of the Due Process Clause of the Fourteenth

Amendment. It was: on this —_ that.the First Cireuit |

held for the student in Richards \ *. Thurston, see 424 F.2d

at 1284-1286, a case in which no justification: was offered

for the regulation. Reliance on justification carries with

it the concept that a regulation affecting the due _Process

guarantee of liberty depends for its validity on the rea-.

sonableness of the limitation placed on the regulated con-

duct. The evanescent nature of this standard is illustrated

~ by the three cases. before us. On unsurprisingly . similar

. justifications two federal district courts upheld the regu-

lations and one ‘held ‘to the contrary.

Bais

“ne

We doubt the applicability of the test of réasonableness

in the determination of the nebulous constitutional -rights —

here asserted. The issue should not turn on views of a-

federal judge relating to the wisdom or necessity of a .~

school regulation controlling the length of hair worn by

a male. student in.a state. public school. In Ferguson v. ;

Skrupa, 372 U.S: 726, 730, the Court said that the courts

will not “substitute their social and economic beliefs for -.

the judgment of legislative bodies.” The same principle is

' » pertinent to dress codes of school boards. We do not read

Griswold v. Connecticut as overruling Ferguson Vv.

Skrupa: -The Griswold decision turned on-the\specific is-

sues there presented. See 381 U.S. at 482.

The remedy provided wby § 1983 is iain to any

pertinent state remedy. See Monroe v- Pape, 365 U.S.

167, 183. The proliferation .of litigation resulting from

the expanded yse of § 1983 is apparent to anyone familiar

with the reported decisions of the courts of the United

States. The existence of the §1983 remedy does not re- 7 °

quire that federal courts entertain all suits’in which un-

constitutional deprivations are asserted. A federal consti-

tutional question must exist “not in mere form but in

substance, and not in mere assertion, but in assence and

effect.” Cuyahoga River Power Co. v. Northern Ohio Trac-

tion & Light Co., 252 U. S. 388, 397.

The states have a compelling interest in the education”

_of their children. The states, acting through their school

authorities and their courts, should determine what, if: any,

hair regulation is necessary to the management of their

schools. In speaking of judicial interposition inthe opera-

tion of the publie school sv stems, the Supreme Court said .

‘in Epperson v. Arkansas, 393 U.S. 97, 104:

; “By and large, public education in our Nation is

‘committed to the control of state and local authorities.

Courts do not and cannot intervene in the resolution -

of conflicts which arise in the daily operation of school

_systems and which do not directly and sharply impli- |

eate basic constitutional values.”

| Whether the allegations of a complaint state a claim for °

relief is a question of law. Bell v. Hood, 327 U.S. 678, 682.

Complaints which are based gn nothing more than school

‘ regulations of the length of a male student’s hair do not

“directly and sharply implicate basic constitutional values” :

_ and are not cognizable in federal courts under thé prin-

ciples stated in Epperson v. Arkansas. It follows that each

of. the complaints with which we are concerned should

have been dismissed for failure to state a claim on which -

relief can be granted:

The judgments of dismissal in No. 71- 1007, the Utah

ease, and in No. ¥1-1072,. the Colorado case, are severally

affirmed. In No. 71- 1051, the New Mexico case, the judg- ~

ment is rev ersed and the case remanded with directions |

to dismiss, |

UNITED STATES COURT OF APPEALS

oe ‘Trento Circuit

cp SEPTEMBER Term, 1971

ra aed No: 709-70

. : men anes y

GAry' CuristMas, a Minor, by his Father and Next Friend,

William R. Christmas, ° |

. Plaintiff-Appellant,

v. |

THE Eu Reno Boarp oF Bien, Independent School

District No. 34; Leslie F: Roblyer, as Superintendent

of ‘El: Reno Public Schools; and Jerry ining i as

Principal of El Reno High School, a

| Defondants-Appelces. oe,

APPEAL FROM THE: UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA (D.C. NO. 70-263)

—_e > —_

: Puiu F. Horne (Bulla & Horning, Vance

; Raye and Melvin L. Wulf, and Merton. M.

Bulla, Of Counsel, on the brief), for Plain- ,

. tiff-Appéllant. - | ,

Ricuarp-M. Foca and Hanver L. Harmon (Fore |

ee ‘& Fogg and Franklin, Harmon & Satterfield, "

ae a and Rupert M. Fogg, Of Counsel, on the

brief), for si dade dgaeae

—* Before:

\ . "Bresrexster, Hint and’ BARRETT,

\ ~

; Circuit Tudges.

10a

PER CurIAM.

By his coniplaint plaintiff-appellant ‘Christmas attacked

the constitutionality of a school regulation pertaining to

the length of a student's s.hair. The district court denied

declaratory and injunctive relief. The facts differ from

Freeman vy. Flake and other hair cases decided this day

in that the student was not suspended but was. refused the |

right to: attend commencement exercises and to receive a

diploma, ‘Instead he was given a certificate of graduation

and accompanying transcript. which are the only officially .

recognizéd doeunients.or records ev idencing: graduation.

The oie iemsea is affirmed. See Freeman v. Flake, 10

Cir., —— F.2d

Tis §

‘ oe ; P fae

‘Opiates’ of the United States “Didirict Court for the .

District of Utah in Freeman” etal. v. Flake, et. al.

‘UNITED, STATES DISTRICT COURT

D. _Utax, N. D. erty

Ocr. 2, 1970 | |

Nos. NC 36-70, 37-70 and 249-70

z <> i

‘Binur K. FREEMAN, Guardian of Terry Freeman,

Sake ; RT . Plarntiff,

oe sae gee

_ALMOoN Fake, Principal of Viewmont High School, the.

-Boarp or Epucation or ‘Davis Country Scuoor District, . /

and Irnyen R. CLEVERLY, Morris Hansen, Hryry E.

Peterson, Lynn W. "Burro; and Haroitbd J. Garey,

members of the Board of Edueation: of Davis County |

School District, and BEerNELL ‘WaImcLey, Superintendent =. —

_ of Davis County Schools, 7 Seas eser cs

a ee Fe) Pees Defendants.

_Vutor RANDALL a ey a minor, by Stephen B. Ostler,

"his father and natural guardian,

Plaintif,

V. | y

BERNARD. Yocom, Lawrence L. Coox, Lynn Wudor, and

the Boarp or Epvucation oF Davis Country Scoot Dis-.

RIOT, |

- @

Defendants.

f 109 ial ce

Mark Cranzes Sitaoys, by and through his guardian

~~ Robert C. Simmons, — Ap

Sat cee ey ee Plaintiff,

Vv.

—_

Curtos Pyxe, Principal of Orem High School, and. the’

Boarp on Evucation or Avrixe Senoot Distaet, and

Da. Born J. Lansgx, Fraxk ©. Guuxxwoon, Eur C. »/

* Ceavsox, Da. R. Pun. Suysway, Hanvey E, Sarvs]

"members of the Board of ‘Education of Alpine School

District, ° . ‘i

Defendants.

—_—~»—

, |

James N. Barner and Ric HAgp M. Day, Salt

Lake City, Utah, for Terry Freeman and

. Mark Charles Simmons.

Fraxk’ S. Waren, Ogden, Utah, «for oer

Randal Ostler.

FreisHaw Krxo, ° “Cearfield, Utah, +r Almon

es Flake and others and Bersetfrd Yocom-and. .

. others.

"Hanvagp R. Horrors, Lehi, Utah, toe Clifton

Pyne and others. $

Curistexsén, District aides ;

The above-entitled cases, consolidated fo ial because

they involve common questions, of fact and law, present : ‘

questions concerning the power of school. boards in the

State of. Utah, and school officials acting under them, to

promulgate and enforce regulations dealing with the length —

of hair of students and related matters of apfearance and °

‘.grooming. *'- - |

Ce.

18a

In No. NC 36-70, Freeman v. Flake, plaintiff, represented

by his mother,as guardian, is a student, in Viewmont High

School, one of the schools ‘maintained and administered.

_ by Davis County School District, State of Uta. It-is al-

leged that on or aboyt September 17,-1970, the defengant

Principal suspended or expelled this student preventing

him from attending further classes, all without. justifiea- —

tion, legal exeuse or opportunity for hearing, but beeause

‘of the refusal of Terry Freeman to comply with the de.

~ fendants’ orders or regulations relating to the length or

style of students’ hair, | :

In NC 37-70, Ostler v. Yoeom, thé plaintiff was enrolled ©

as a student in Sunset Junior High School, one of the

junior high schools maintained and administered by the

Board of Education of Davis County School District. It

is‘alleged that on or about September 16; 1970. the defen. .

dant ¥ocom requested the vie¢-prineipal and the principal

of this school te suspend or.expel the plaintiff: and that

the defendants have subsequently. prevented plaintiff from-

- entering of attending any classes at-the Sunset Junior

High School because 6f the filaintiff's refusal to’ comply

with,the defendants’ orders or regulations relating to the

length or style of hair. ; is

In No. C 249-70, Simmons v.- Pyne. similar allégations *

are made on behalf of Simmons. :

The evidence shows that the students were suspended

beeause of their refusdl to comply with the regultitions as

' to length of hair, that while Freeman was performing

marginally otherwise, the suspension ‘could not be justi-

- fied on other grounds. Simmons and only to a lessef extent

Ostler were considered good stndents aside f rom the prob-

lem ihvolved here. The hair of all three was persistently *

_ maintained in a manner to clearly violate the requirements

* P e o@ *

ae . Ida ‘ -*

‘in question and abundant opportunity was afforded each

to bring himself into compliance before the suspensions.

‘Freeman and Qstler have the opportunity of keeping up

‘their school werk through home teachers provided by the

defendants during their periods of suspension. ‘Simmons

ha¥ now had his hair cut sufficiently to bring him into com-

plianee with the regulation and is in school‘ without -aban-

doning his contention that his future conduct will be -un-

constitutionally restricted unless the regulation is declared

invalid. T do not think that the case*is mgot for this reason.

Ostler is the only one who gave any reason other than

general ones for his resistance to the rules, claiming that

long hair was necessary to cover a scar on his head: Per-

sonal inspection is convincing that the sear is covered -

equally well by letigth within the regulation. There is .

nothing in the evidence to suggest that this was his real

reason for non-compliance or that if it was the school au-.

‘thorities. would not permit ahy reasonable departure in -

view thereof. : °

‘s- Jurisdiction in each case here is claimed .on the basis of

28 U.S.C. 4 1348, 42 U.S.C. §§ 1983 and 1985, wpon amend- .

ments I, IV, IX’ arid XTV of the Constitation of the United

States, antl upon 38 U.S.C. €$ 2201, 2202. This courf does

have. jurisdi¢tion over the subject matter of the actions.

. and'the persons of, the parties.. »

In the first two cases venue is appropriately laid in the

Northern Divi ision of the District of Utah; and upon con-

solidation the third case was transferred, with the consent

of the parties and pursuant te the rule of court, for dis-

position in the Northern Division in connection with the. °

prior cases,

_ The eases initially came before the eourt on applications

for restraining orders and preliminary apnea pen.

aes

15a

dente lite; tod by reason: of the urgency of an-early de-

sevdinhneitiael: and in order to avoid duplication by separate

hearings .with reference to preliminary injunctive relief -

and upon the final merits, the parties have stipulated and

the court has approved the hearing of the cases upon

their final merits at this time, there having been a waiver

_ of time for pleading and pre-trial discovery. and ‘a stipula-

tion that except as indicated otherwise in-the evidence

the complaints in the cases may be deemed by the ,feapee.

tive defendants. * 7

Evidence has been taken over a period of three days;

in addition pre-trial briefs and oral arguments of counsel

have been considered. The court new considers itself fully

advised and believes it essential in the publie interest, for |

the welfare of the students directly involved and the stu-

alent, bodies of tlie schools generally to announce its deci-

sion without further delay.

Contending that each answ er must be j in the affirmative.

the plaintiffs present the followi ing questions aed determina-

tion:

oD Whether requiring .a student to conform to a.

regulation governing length or style of hair as-a pre-

requisite to attending a publie school violates his ‘and

_his parents’ fundamental rights of privacy guaranteed

by the First Amendment’ and the- “penumbra” of the

* First, Fourth, Ninth- and Fourteenth «Amendments -to

the Constitution of the United States.

- Whether suspension or expulsion of a student

from public school for wearing long hafr denies -him

the freedom of expression guaranteed and protected by

the First Amendment,

16a

3. Whether suspension or expulsion of a student

from public school for failure to comply with a regula-

tion published or unpublished, governing the length

or style of hair, violates the Due Process Clause of

the Fourteenth Amendment. | e :

, & Whether a regulation which prev ents students

from attending publie schools solely beeause of the —

length of their hair is a violation of the Equal Protee-

tion Clause of the Foyrteenth Amendment as an un-

reasonable classification. — ae oi

5.. Whether the regulation under which plaintiffs

were suspended or expelled is unconstitutionally vague.

I have indulged a wide range of evidence in these cases

~ to have assurance that no significant points are overlooked.

- The students involved and their witnesses, as well as the

experts, have been permitted rather freely to express their

opinions concerning the regulations in question, as well as |

general problems of student relationships and school ad-

ministration. aes

With much of what has been said on behalf of each side,.

T can agree—the importance of individual liberty in schoels

as well-as out, the requirement to observe constitutional

- limitations in school as well as ‘out, the necessity of reason’

able regulations .to advance and to. protect the learning

process, the desirability of collaboratien and mutual dis-

cussion in the formulation of school policies, the necessity

- or ultimate responsibility upon school administrators to.

administer and upon teachers to teach, the desirability that .

every student, without interference, receive in-school train-

ing with the maximum self-determination and liberty con-

sistent with the functioning of a school, the learning process

_ 17a :

and the rights of others, and the necessity that those defy-

ing reasonable regulations not be permitted to break down

school administration in perversion of their own attitudes

and the destruction of a system indispensable to the dis-

charge of the mission of the schools. .

There is much in the testimony with which I do not —

agree. I cannot accept the contention that all people wear-

ing long hair are mentally ill on the one hand, or on the

other that they ‘are asa general rule more creative or.

scholarly than those who do not. I do not agree that the —

function of-a school is necessarily to ach the philosophy |

of the majority of the patrons of School, much less the

_ philosophy of a minority of the patrons or of those who

have no fonnection with its problems. It is questionable

that fod on any inherent or necessary correlation between

long hair and’ improper conduet. There is evidence indi.

eating that long hair create’. negatiré attitudes -if not

opposition from the majority of students, that those with |

long hair tend to isolate themselves from the main stream

of student activity and that long hair in the climate of the

time is disryptive within the schools in question of proper

school discipline and the learning process to an extent.

The experts and the evidence in general are in substantial

agreément that beyond whatever excessively long hair

indicates -about the personal’ attitude and mind of indi-

viduals it has become within the fabric of our society a

symbol of dissatisfaction and protest to which a substantial

number of people, for feasons sifficient. to themselves... .

respond and with which young mirids in the process of

resistance to authority are likely tq identify. without any .

real ideological view except the testing of parental- ct.

. _ Sehool authority. There seems to be a correlation between

long hair an 'T gropming aside from hair. |

18a

There was a sharp difference of. opinion as to the

necessity or benefits of the regulations in question-in these

‘or other schools among the Witnesses, but those directly

connected with the schools and school districts in question

were in substantial. agreement that they were beneficial if

not essential, and there is indication that they have the

‘ broad support not only of the patrons:and administrators

but of the students therein. ;

' It should be noted that in what has been said herein-

before and in the discussion which follows the term “long

hair” generally is used to refer to hair of a junior or senior

high school male student permitted to grow substantially.

beyond the limits referred to in the re culation in question, —

That is not to say that hair within the limits may: not .be

considered “long”, depending upgn the viewpoint. And be

am impressed with the .statement o£ one of the witnesses

that between close-shaven hair and the limits of the regula-

tion there is a considerable leeway for individual taste

(including what may be regarded by many‘as long hair for

male students). And I must. emphasize that anything

which has been or will be said about “long hair” in no way

is intended as a moral or ideological judgment. We are not

concerned with any point except the right of junior or high

school students to wear long hair beyond and in defiance

of school regulations, and we are not concerned riecessar ily

with this question in the abstract but with reference to the

specific regulations involved here and under the cireum-

stances shown by the evidence.

While the applications vary somewhat among the ¢ cases,

the regulation of the Davis County School Board on the

subject in question is characteristic and raises all of the

issues with which we are concerned 1 in these cases:

2 19a .

" “The Board of ‘Education of rer ‘Davis Comer

School District, in ‘support -of the aims of public

education, recognizes that:standards of proper dress

and grooming: seriously affect the behavior of students

attending school. Experience has demonstrated that

‘the atmosphere for a good learning” Situation, and a

wholesome academic environment is improved when.

proper dress, proper’ grooming and when proper

standards of decorum and discipline are adhered to by |

the. studentbody. The-Board of Iducation, therefore,

strongly urges that every effort be made to promote .

and niaintain such personal maturity and dey elopment.

“As a student seeks purposely to’ draw attention. to

himself through oddities of dress. and styles, he is

usually displaying a false sense of values. and will,

quite likely, ‘not fulfill himself academically in his

school and his studies.’ Furthermore, experiénce -in-

dicates that there are sanitation and safety factors

directly :related to’ proper dress and _ grooming.

Furthermore, experience indicates there issa real and

reasonable connection between proper dress and groom-

ing and the Suecessful operatien of the educational

system with the maintenance of sthool discipline.

Therefore, the Board of Edueation of ‘the . Davis

County School District sets the followi ing standards for

school dress and appearance:

“1. All students shall maintain their heir in a clean

and well-washed manner and ‘male students shal] comb

and wear their hair so that it does net hang below -

the collar line.in the back nor hang over the ears on:

the side.and their hair must be above the eyebrows in

the front.. Male studénts shall be clean shaven and

20a

their sian shall not be ‘eka than the iotten

of the ear and: mustaches properly trimmed.

“2. All- students Shall be required to wear clean

clothing and no ‘immodest form or manner of dress

shall be allowed. Shorts and other similar attire shall

not be worn nor shall ‘any clothing be worn which dis-

plays obscene or suggestive words or pictures nor

_ Shall any clothing be_worn which is so extreme or. odd

that it may disrupt or tend. to disrupt or interfere with

~ sehool functions. School officials may require students

to wear certain types of clothing for health ot safety

reasons in connection with certain specialized activities,

“If a student does not comply with these regulations

_ upon direction ‘of the prinéipal, he may be suspended

_ from school ustil such time as he does comply. Any

student so suspended shall in any event be required

to bring his parents or guardian to school for a con-

| fumes with the principal before reinstatement at

which time ‘the principal may decide to reinstate th

student or to continue the suspension. , Pa

“In the event the principal dechiien 4 to continue the

‘suspension’ after having .met with the: parents or

‘guardian, the student, through his parents or guardian,

‘Shall have a right to appeal the decision of the principal

to the Director of Pupil Personnel of the Davi is County

School District. within: Ten (10) days after the decisjon

of the principal. The Director shall thereafter set-a

time for condueting a conference at whieh time the

student,.parents or guardian shall he given a hearing.

At the fle of stich informal hearing the- Director

shalt either, affirm the decision ‘of the school ‘principal

or order the student reinstated.

Ota

Be “Tf the Director affirms the decision .of the school

principal, the student, through his parents or guardian; i

* may appeal in writing to the Superintendent of Schools

within Ten ()) days from the date. of such decision.

The Superintendent of Schools as: the Executive

Officer of the Board of Education shall ‘thereafter

review the decision of the Director of Pupil Personnel,

with or without holding a hearing, and ‘thereafter |

render a decision affirming the.decision of the Director es

or ordering the student reinstated. . 3

“At all - times during the aforementioned appéal

procedures, the, student shall remain on suspension

unless otherwise ordered by the Superintendent of |

Schools.” : an

The Alpine School District’ Regulation is substantially

the same with reference. to length of hair, although varying

in other respects. They were put in their present form:

shortly before the suspensions in question, but their con-

_ tent and.substance have been-in force amd well understood

over a substantial period of time theretofore. .

There is no question of the statutory and inherent rig ht :

of school boards within the State of Utah to promulgate

and appropriately enforce reasonable,regulations concern- - -

ing the conduct, deportment, and grooniing of students ©

attending public schools placed under their administrative ,

control, providing that such regulations do not offend

rights guaranteed by the Constitution of the United States.

Starkey y: Board of Education of Davis. County School

District, 14 Utah 2d 227, 381 P.2d 718 (1963) ; Beard v.

Board of Edueation, 81 Utah 51, 16 P.2d 900 (1932) ; Davis

v. Ogden City, 117 Utah 315, 215 P.2d 616 (1950) : 3 State v.

Tw itchell, 8 Ut ah 2d 314, 333 P.2d 1075 (1959).

*. ae

The point has been advanced; mor e by way of suggestion

in the pleadings or in ‘inferential argument rather than.

-solidly set out, that some problem of procedural due process

is involyed. The evidence and the final statement of plain.

tiffs’ counsel have set such point at rest, for it now seems

‘clear that the Students ‘iny olved. were well aware of the

regulations, ‘had been repeatedly admonished in view “of

‘them, Wad, with ‘the knowledge and acquiescence, if not

support, of their parents elected to def y them and had

rejected’ the known’ and’ established sy stem of review

through higher administrative authority. I do not believe

- that failure to exhaust administrative remedies would bar

relief here under the civil rights acts but I am also of the

opinion, - confirmed by the statements of counsel, that

procedural due process is not in issue..

Whatever uncertainty might exist concerning: the term,

‘proper groommr”.in other respects, this is not iny ‘olved

oe in the present cases; because the school authorities acted

upon the express requirements of lopeth of hair, the validity -

of ‘the regulations = iat cet pers is the only point ™

here.

J must reject dis arpument advancfd by counsel for one

“of the plaintiffs that the regulation’ is uncertain or: OV erly

broad. General reference to “prope r grooming” is not in

question now. Indeed, the regulation. as to hair is explicit,

and if there were ‘any way to draw lines, the lines have

been rather specifically drawn in language that no stwlent.

could misunderstand. And if a line is permissible some-

" place, it seems that the line drawn.of not below the éollar,

not over the eves, or not over the ears, is as-manageable

and reasonable as any other havi ing practical significance. '

Thus, I hold that the regulation i is not void on its face for

ge ee ook

‘uncertainty or ov erbreadth. and that we ments look further

~ into its nature and: effeet in order to determine its con-

stitutionality. : rfee

- Nor need we pause long at the contention. that length

of hair beyond the regulation i is in itself'a form of sy tbelie

speech which with especial sensitivity, beyond ordinary

respect for constitutional limitations sacints be protected’

under’ the First Amendment. It is argued that-such con-

duet,. like words, can be an expression or dramatization of

a °moral, sociological, political, religious, or ideological, *

viewpoint. However the. argument may hes sustained in -

another context, more is required: here than counsel's

suggestion’ that the plaintiffs perhaps were indicating a

profourid or hidden ideological view unknown. ey en to them,

selves and thus that the right of sy mbolic free speech. might . ?

be involved. The main reason assigned by the plaintiffs for .

. resistance to the regulation was.that they “wanted” to have

longer hair, they tiked” it and they thought it was their

“right”.

Tinker v. Des Moines. Independent Community Se ‘hool

-Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L.Ed. 2d 731 (1969), daes

not suggest that this is “sy mbolis, free spéech”. On the’*

contrary, this case states , among other. things:

- “The problem. snes by the present case does wits

\’ _ felate to regulation of the length of skirts or the type

of clothing, to hair stvle, or deportnient. Cf: Fe ‘rrell y.

Daljas Independent School District, 392 F.2d 697: (: =

; Cir,] 1968); Pugsly v. Sellmeyer, 158 Ark. 247, 250 |

i S.W. 538: (1923). . It does not cncern ageressive, dis.

ruptive action or even group. demonstrations. Our

problem involves diréct, primary First _Amendmént’

rights akin to.‘ pure ‘Speech.’ ce

a ; Ss eh ee : si

wo’

ihe i 24a.

= *

- . ¢ ——e!

‘And in United States v. 0’ ‘Brien, 391 US. 367, 376, 88

S.Ct. 1673, 1078, 20 L.Ed. 2d 672 (186s), the areca nei

saids os . ; ;

“We cannot acéept the view that’ q apparently limit-

léss” variety of conduct ean be labeled ‘speech’ when-

—ever the person engaging in the conduct intends thereby

to — an idea.”. .

: As noted by Judge Doy lei ai. i. Briek Ve Mas ot Education,

Sch. Dist. No. 1, Denver, Colo., 305. F. Supp wigs (D. .

. Colo. 1969) : eves .

“This doés not mean ‘thougit that concheet ot th kind

* here in question does not have any constitutio pro

. tection. It is protected to the extent;that the due

process clause of ttie Fourteenth Amendment prohibits

‘the arbitrary deprivation of liberty. ‘This right is,

however, both substantiy ély and procedurally” distinet

from the paramount right to freedom .of speech * * *

Legislative power. -in this area is iecumscribed to ‘a

much greater degree than-in the area of conduct, and

courts. require. that ¢lie. state come forward with the

evidence that such a- - regulation is necessitated by ‘a .

‘compelling state interest hefore ifs -constitutionality

_ will be stistained ** * On “the other hand, the role of a

‘federal court in rev jewing claims‘that state regulations

of liberty violate substantive due ptocess is —

aaitow.” F

-In Tinker v. ‘Des Moines Sch. Dist, supra, neither the

trial court nor the Supreme Court reached the question

whether even in. the sensitive free speech area a regulation

wails justifiable.in Areumstances similar to the present ones

before the court.

- ad

2 “ ~

ate

‘

a —

i 2a

o- te: .

If we are fo extrapolate a result from Tinker and the

cases dealing more preeisely with conduct as distinguished

from .speech, in the context of the evidence before this:

* court, it would be that school board action reasonably

designed to foster le -citimate editicational aims -and to

promote the learning process, order or satet> of students

will Jé ‘stistained if not arbitrary or capricious. Tie state

in the area of regulation of grooming and in comnectian

with its broader but related functions is advancing a vital.

state interest. Those activities whieh have a disruptive

effect on the learning atmosphere in pYblie schools are not

improper subjects for réculation.

The evidence*in my, opinion clearly Shows that not ‘only

were.the regulations wth resard to hair length adopted

after careful consideration artd in the intended best interest. -

of the educational proves, but they were based upon reason-

able findings supported by the evidence tending to indicate

to the | reasonable -mind that such regulations _would

minimize disruption and distraction i in the school, promote

order and safety, redirect the Attention of students from an

obsession with, or reaction against, miere hair Jength—as an.

achievement or a eounter-achievement—would direet at-

tention to more productive activities, and would minimize

the danger of distraction from educational pursuits. Others

considering such ey idence. might come to a differeyt conclu-

sion but this dees, not destroy the underpinnings of the

boards’ determinations, sipce those boards, ragier than.

others, are charged w ith the legal responsibility of adopting

regulations consistent Rith constitutional limitations and

*: the dictates of reason. I reject any broad notion that within

those P Jimitations federal — are ve as. over-

26a

seers to regulate the exercise of state diseretion as wéll’ as

to see that constitutional limitations are not breachéd.

Under cireumstances. having some relationship to the

present cases » many courts have sustained similar regula-

. tions. Leonard: y. School Committee, 349 Mass. 704, 212

N-E.2d 468, 14 A.L.R.3d 1192; “Davis v. Firment, 269

— F.Supp. 524, (D.C.La,), affd., 408 F.2d 1085 (5th Cir.

1967); Ferrell v. Dallas Independent Schodl District, 392

‘F.2d 697 (5tle. Cir. T968) ; Akin v. Board .of Edueation wf

"Riverside Unified Schaal District, 262 Cal. App.2d 161,

Cal.Rptr. 557 (1968) ;, Brick v.-Board of Edueation, I

Dist. ‘No. 1, Denver, Colorado, 305 F.Supp. 1316 (D.C.

Cole.1969) ;“Jackson v. Dorrier, 424 F. 2d 213 (6th Ciy.

1970) ; Stevenson v. Wheeler County Board of” > dueation,

426 -F.2d 1154 (5th Cir. 1970); Neuhaus v. Torrey, 310

F.Supp. 192 (D.C.Cal.i970) ¢ Farrell v. Smith, 310 F.Supp.

732 (D.C.Maine 1970); Crews vy. Clones, 303 F Supp. 1370 —

().C.Ind.1969) Pritchard v. Spring Branch Independent

School District, 308 F.Supp. 570 (D.C. Tex.1970); Weod v-

Alamo Heights Indepe ndent School District, 308 F.Supp.

551 (D.C,Tex.1970) ; Christmas v. El Reno Board of Educa-

tion, 313 F.Stipp. 618 (D.C.Ok1.1970). Other courts havé

reached contrary conclusions on ‘facts. which bear- some

similarity*to the present cases. Breen v. Kahl, 419 F.2d

1034 (7th Cir. 1969), cert. denied, 398 0 Ss 937, 90 S.Ct.

1836, 26.L. Ed.2d 268 (1970); W estley v. Rossi, 305 F.Supp.

706 (D.C. Minn. 1969); Griffin v. Tatum, 300 F. Supp. 60 (D.C.

> Ala.1969),-affd, in part, 425 F.2d 201 (5th Cir. 1970) ; OLff v.

' East Side Union High School: Distri¢t,°305 F.Supp. 557 -

(D.C.Cal. 1969) ; Richards v. Thurston, 304 F.Supp. 449

(D.C.Mass. 1969), affd., 424 F.2d 1281 (1st Cir. 1970) ; Cal- -

billo v. San Jacinto Junior College, 305 F.Supp. 857 (D.C.

| Texas 1969) ; Lucia v. Duggan, 303 F.Supp. 112 (D.C:Mass.

ae + Ba Por

1969); Finot v. Pasadena City Board of Edueation, 250.

Cal. App.2d. 189, 58 Cal. Rptr. 520 (1967). Counsel have not

reported nor-have | ‘been able to find that either the United

States Court of Appeals for the Tenth Circuit or the

‘Supreme Court has yet ruled upon a case closely in point.

I am of the opinion.that the-line of authority first cited

represents ‘the best ¢f not the majority view on the question.

I shall not attempt here to re-c xamine bevond-what I

have said the detail of reason going into’the cited cases,

if conclude in view of my evaluation of those reasons, thes

“ev ‘idence before the court, and the controlling principles: of

law, ‘that the enforee ‘ment of the regulations bv. suspension

pending compliance in the context’ of these cases does not

viclate either the students’ or the parents’ fundamental .

rights of privacy, does not deny freedom of expression

guaranteed and protected by. the. First Amendment, does

not violate either procedural or substantive due process or

the equal pretection clafise of -the Foyrteenth Amendment, « .

that the regulations are not unconstitutionally vague; or

overly, broad, and that there is no basis for enjoining their

. application and enforcement in the schools involved here -

under existing cirumstances. d

W herefore, this opiniéin’ being tleemed stifficient as find-

ings of fact and conclusions of law, pursuant to the r require- .

“ments of Rule 52, F.R.Civ -P. . itis now ordered that injune--°

_ tive: relief should be, and it js hereby, denied, and ‘the

actions of the plaintiffs dismissed, without .costs.,

28a

Opinion of the United .States District Court for the

District of New Mexico in White v. Bourd of Education

of Hobbs Municipal School District — ,

: IN THE

UNITED STATES DISTRICT COURT.

: For THE Distrrcr OF New Mx1co:

oe No. 8485 Civil

Au- Wuire, a minor by his father, V. T. Wxurre,

| ; | Plaintiff,

vs.

_ Boarp or Eptcation or J fopss Municipa, Scuoor District

yh 16; Harry McApams, dliers Kine, Epwarp BURKE,

Date Cooper, ied D. A. CocHRAn, indiv idually and as

members of ‘the said Beard; R. N. Typines, individyally

and as Superinte ndent of.the said District No. 16;

Vinci bL. Wet CH, indiv idually and. as s Principal of Hobbs

- High School, . chat

zr . <8 . + Defendants.

Decision oF THE CouRT _

- I wonild like to express my appreciation to counsel for a

very excelent and_.able presentation on both sides of the

_ ease, for obviously coming well prepared and for having

: - considered. the. many cases that have been decided in this

field. “The issue is one of significance and: ‘of societal

a importance. It is perhaps a microcosm of the ever present

conflict between the status quo and change. _

There has been enough literature written on the eld

that I find no necessity to write Findings of Fact and

ee =

_ Conclusions pf Law or an Opinion. The remarks which I ©

now make will constitute “the Findings of Fact and Con-

- . elusions of Law of the Court. .

As I say, there have been many cases in this field and on

‘this subject, and the one pervading rule that eomes from

all of them is that each case is to be decided on its own

facts. So far as I am concerned, the issues-in tliis case are

limited solely: .

obey has borng its burden of justifying a, regulation

limiting the leng4at which male students: in Hobbs High’

School may wear their hair. ,

Toa torn of whether the’School Board of .._

‘J want it explicitly understood, we are not talking about

a code, in so far as it relates to dress or any other regula-

‘tion, other than one limiting the length at which male

students may wear their hair.

ce (2) The further issue is whether the rulé, as promulgated.

at Hobbs, is- too vague to sufficiently apprize ‘the plaintiff .

of what hair length was proscribed. e

’ I reeognize certain principles and am fully cognizant of .

. them. Numbers of them have been written in the cases

which have been decided. on the: suthject, and’ I take "the

. liberty of adopting and quoting ‘from some of those cases,

because they Say very well, the guiding principles, and JT

don’t need .to ‘restate them. * . :

Judicial interposition in ‘the operation of the public

school system of the nation raises problems whieh- require

great care and restraint. By and large, publie education

in our nation is committed to tie control of state and local

‘authorities. Court do nét and cannot intervene im. the

resolution of cont&ets which atisc in the daily operation of

- school systems, and which do not directly and sharply

- thorities are

2a So * 30a

implicate basic constitutional values.. Tinker v. Des Moines

Independent Community School District, 393 U.S... 503

(1968). ie. aes

However, in oir system, state- oper ated schools may, not

be enclaves . of totalitariahicn, “School officials do. not

possess absolute authority ever their students. Students in

school as. well as out of sthool are Ae ‘rsons”. under our

Constitution. They- are possessed. « fundamental rights ;

which the states must respect, just as they, themselves,

‘must —— their obligations to the state.. Tinker v. Des

Moines Indepe ide nh O ommunity School’ —— supra at.

oll.

ie)

tied to make | and enforee reasonable

regulations for maintaining an effective school system, and:

the . Courts should refrain from interfertnee with the

functions of. the school authorities, unless their action is:

arbitrary and unjustified so as to constitute a significant

encroachment upon a personal liberty. ; ad oe

This Court accepts and adopts the view that the right

to wear one’s-hair at any length is an aspect. of pergonat

liberty protected by the United States Constitution.

een ee v. Thurston, 424 F.2d 1281 (ist Cir. 1970) ; Breen’ |

, Kahl, 419 F.2d 1034 (7th Cir. 1969). pe ®%

In order for the State,: through its school officials ~

sustain 4° regulation: impairing a fundamental nate

such as tlmt here involved, the State’s enbordinating

interest in the regulation must: be compelline. Sueh a

regulation bears a “substantial, burden of justification,”

Griswold vy. Connecticut, 381 U.S. 479, at 505 (1965), and

‘each case and each regulation stands squarely on the facts

vail that-case.- :

and is fecognized, however, that school au-

dla .

it is therefore 1 necessary to dete ‘rinine ee the evidence

which has been presented in this C ourt Whether the défen-

dants have met their substantial burden of justifying this

regulation which invadés a constifutionally er right

of the plaintiff. a .

There is a second is Sue involved and’ that is the. question

of whether, if the rule is justified, it is suflicientl + unam-

biguous to apprize those to be.governéd by’ it of what they

must do to comply:

PU tell you my decision in a nuts shell. It is that the Court

a has concluded that. the defendant school board has not

borne its burden of justifying the challenged rule, and-the

rule i is therefore violative of the Constitiwion of ‘the: ‘United

States and is not a ‘justified exception thereto,

E rom the evidence in ‘thisecase, it has been argued that

there would be a breakdown in the learning~process, dis-

ruption: and distractions, -a breakdown in discipline and in

student attendance if there Were an absence of any rule '

governing the length of male hair.

It has also been argued that long hair pr esents problems,

Now, the reported cases which have. considered this

problem have a great deal of: such evidenee jn them, and

in‘ many of the cases rules’ limit! ng the length at which |

" male students may wear tlieir hair have been upheld on such

allegations amd such grounds.:

However, a review of these. cases. persuades. the Court

that no evidence was introduced. in any of them -which-is

similar to the ey idence which. has been introdiiced in this

case. * There - -WAS no “evidence in those eases to overcome

that adv anced by the school authorities in support of their

Position. This case ig entirely different. Fea ay

particularly of ‘Safety, i in the field’ of vocational courses, “SN

5 ie

18 A a 3 : —

Ewidence has been presentéd in behalf of the defendants

from school administrators and, teachers in schools which

have in force some kind-of hair regulation. They have

“ <«

. expressed apprelensieas and concerns as-to what might .

result frem ‘the elimination of a regulation gov erning the.

length of male hair.

The Court recognizes ‘that’ these administrators and:

teachers are conscientious and concerned educators; and it

certainly respects their views and opinions. However , the

defendants have presented no evidence from schools stack

have eliminated ‘such a requirement, to shov that the

‘absence of such a rule would result in increased disciphine -

problems or i What evidence they pve

presented, primarily from ‘the Hobbs Hjgh School, as well —

as their other: evidence, - shows that: there are disruptions,

- distractions and some. problems within their existing rules.

. There has been absolutely n no ev idence to show what w ould .

happen for the worse without ¢ any rule o or with the elimina-

tion of their rules. - Pease | :

On the. eqntrary, -the plaintiffs: have offered evidence

from administrators ‘and teachers in schools which do not .

have’ such a rule to show. that its absence has not created

. diseipline, absenteeism or other problems. . - |

_° Indeed, the plaintiff's evidence shows that experience, .

as opposed té what the Supreme Court has ealled, and to

_ which ‘Mr. Phillips referred, “vague, undifferentiatéd

fears” of what might. happeri witlfout such a rule, has

proven that the absence of such a rule has had no adverse

effect on the ediicatjonal process. On the contrary, the

plaigtiff’s evidence indicates ‘that its absence actually

_reducés tension-and enhances the learning process.

Tlie evidence in the case shows that in the Albuquerque

-Public Sehools\ the- maagertty have abandoned such a rule.

| Bear Py

‘ a ‘ : ~ : ,

. Ps 4 ° aad i °

| 38a.

I eee forgotten the; exact number, but, if my memory

_ Serves me right, we had ‘direct testimony from teachers

or administrators at three different Albuquerque High —

Schools which have no such rule, and the evidence from

each of those persons was that the absence of such a rule

created no probleras and I indeed-eperated to enhanee the

learning process.” ~

“Apparently numbers of other schvols throughout the ;

State have abandoned, for example, the school‘ in Carlsbad,

a rule on the length of male hair with no adverse effect to |

the educational system from. the evidence brought out here.

Further, as to the evidence on. vocational education and’

the adverse effects resulting from:the elimination of a hair _

length rule, the experience ‘of the lar gest vocational institu-°

_tion in the state, which has ro such rule, is that the absence .

of it does not create any problems in. that scheol which it

has not been able to manage. -The ey idence indicates that:

' there is no br eakdown i in discipline or other adverse effects,

‘either on the individual, the student body as a whole, the

nad administrators or the faculty.

Neither the cireumstances of location, distance, opposi-

tion of the population. or- any other. factor that has been

introduced here shows that Hobbs is sufficiently different

from Carlsbad or Albuquerque or anywhere else in’ the

State-to justify the necessity for such a rule.

It is difficult for the Court -to ‘comprehend how there can .

be a justification: and a necessity for such a rule in Hobbs

and not in Carlsbad, or in. Manzano cies not in, Sandia .

- High School,

_ There is a conflict in the ev ina of expert opinions as

to whether the absence of such 4 rule. would cause problems

and adv er sely affect the selcieccamie or the _ educational |

° .

< . ; . : ‘ .

x <

. F : ses - , z “ ss | ‘

“e . . . 2

. = - .

: .

process. Insofar as there is a conflict in‘ the evidence, I--

resolye that. conflict in favor of the plaintiff. ~ ie

As Mr. Phillips, I belfeve, or Mr. MeKinnon pointed out,

you have witnesses w ho are. conscientious and competent

testifying both: for the plaintiffs and for the defendants.

The only. difference is’ that ‘plafntift’s s witnesses come with

experience in ext actly ‘the problem here, -and they advise -

the Court that they find that it. does not create problents

- to not have such a rule. i believe the and ‘| i elaass their

testitnony. . :

~ -Now, in making the decision which the | Court does here.

today, it certainly is not expressing approval of lengthy: o

male hair. From an aesthette point of view, the Court finds: |

very little, if not nothing, to justify it. However, con-

siderations of the aesthetic viewpoint of the Court aside,

there has been no showing. to sr the invasion by ‘this,

rule of the Constitutional right ofthis plaintiff.

Even if one might consider the question of the aesthetic,

viewpoint of the community or the. school, evidence has

not been sufficient on that to convince-the Court that such -

considerations ‘justily the constitutionAl invasion which

the rule requires.

Therefore, it is the conclusion of the Court that judg-

‘ment should be entered in favor of the plaintiff. =

I might say on the second point to which 1 said Iw ould.

address. my ‘self, that of w hether the rule is so vague as to.

be constitutionally infirm, oJ have grave doubts whether the

rule is sufficiently spe cifie to meet constitntional standards.

_ The rule as set: out-in the Handbook I think merely says

“neat” a and that apparently depends’ on how the adminis-

trator means that from year to year. His de termination as r

_ to length has satiate at times.

. aol ee ia

I don’t know that that meets constitutional requireme fits,

but I don’t need to get-to that point: . * —

‘As I say, the Court.will enter judgment in favor of the

plaintiff and award costs to the plaintiff and hold -that the

rule or regulation is violative of the Constitution of the

United States, is not justified, and that therefore, any

_ reference in the school records of plaintiff te havi ing Te en

suspended: for violation of the rule will be expunge cd.

a -

oe . ’

-”

Howarp x Bratrrox

° - United States: District’ Juda

36a

PY ¢

= ~

Opinion of the United States District ‘Court for the |

District of Colorado in Cranson vy, East Otero

School District R- I, et al,

In ren

UNITED STATES DISTRICT COURT

For rim Dierrier or Conorano

Civil Action No. C-2550

—<—>—___—

- Gnecory A. Cranson and Ranpvauu J. CRraNson, Minors by

and through their Natural: Guardian Wat rer N. Cranson,

' Plaintiffs,

v8.

Raat Oreno Senoor, Diernier Rel; Jac L. Riewp, Trdivid-

ally and as Diatriet Superintendent; Guy D, Caronan, |

Hlunny Hortma, CLangnen Yanonnr, Carvin Caanson, and

Joun Gnavea, Individually and as Members of the

School Board; Marvin Mansy; Individually and as Prin.

‘ eipal of La Junta High School, La Junta, Colorado,

~ Dejendants.

—>

Messrs, Tom Holland and Charles EK, Butler, Attorneys

‘ at Law, Colorado Rural. Legal Services, Inec,, 12 East 4th

Street, La Junta, Colorado 81050, and Mr, Guy T, Saper-

stein, Attornby at Law, 970 Aunora Avenue, Post Office

Box 1867, Boulder, Colorado 80802, for Plaintiffe; Mr,

Ralph N, Wadletwh, Attorney at Law, Colorado Bank &

37a i

. Trust Building, La Junta, Colorado 81050, and pe

Cockrell, Quinn & Creighton, by Messrs. Benjamin L. Craig

and Peter M, Eggleston, Attorneys at Law, 1415 Security

Life aullting Denver, Colorado 80202, p Eee Defendants,

imam Opinion AND OnpEn

Dovia, Judge oh

The plaintiffs have filed an action in which they ‘seek

an injunction, temporary and permanent, compelling the

Kast Otero School District td admit them to high school.

They seek a holding that the regulation of La J unta High

School. pertaining to hair length of students is unconsti-

tutional and void as applied to them. One of the plaintiffs

‘is a high school sophomore and the other is a junior.

The suit has been brought as a civil rights action, pur-

suant to 42 U.S.C, 4 1988 and 28 U.S.C. § 1843, Heretofore,

on October 13, 1970, we denied a motion for a temporary

restraining order pending the hearing ofthe case on ite

merits, The trial was had on October 21, 1970, and the

matter now stands submitted,

The evidence establishes that the length of the hair did

not create disturbances or disruptions, and, furthermore,

that the plaintiffs were and are good students whose in,

dividual behavior and attitudes are not affected by hair

length. ‘Furthermore, the evidence establishes that the

classmates of the plaintiffs are not opposed to their hair

length, Indeed, 200 student signatures of a total of 800

plus were obtained on a petition Which was’ presented to

school authorities requesting that the plaintiffs be read-

mitted te sehool,

On the other hand, cogent evidence has bees presented

by the school authorities which establishes food reason ‘for

Tt appears’ from the ev

adopted a regulation which died not restrict the length of

38a.

"the adoption of this regulation in La Junta, a rural com-

munity, : b . :

lence that in 1968 there was

hair, It declared;

Ilair whould not fall in front of the eves, Almont

any atyle or length is acceptable as long as it is neat:

and well groomed, Attitude might he the only factor —

when a style is rejeeted by the administration. —

The testimony was to the effect that following the adoption

of this it was discovered that the rule was ‘too liberal and

too vague ‘and did‘not lend itself to any regulation what-

ever, The evidénce alsd establishes that decorum and dis-

cipline suffered from the resultant haig lengths. One

teacher testified that individual students developed atti.

tides of defiance and rebellion within the elaseroem which

produced morale problema among members of the faculty,

‘After that, on December 12, 1969, a new regulation was

adopted which prohibited the weartng of halr over the

eves, ears, or over the collar, This regulation added “We

will still accept most styles just be reasonable,”

We had this same question before us previously in Brick

v. Board of Education, School District No. 1, Denver, Colo-

rado, 305 F. Supp. 13816 (1969). In upholding the South

High Schovl regulation in that case we concluded that the

regulation there involved was not contrary to the First

Amendment in that the hair length was not shown to be:

an expression of viewpoint, This holding was in line with

the decision of the Supreme Court in Tinker ¥, Des Moines

Tudependent Community School Dist. 398 U.S, 608, 89

S.Ct. 744, 21 Ld.2d TIL (1069), whieh ease had to do

with the wearing of black armbands by grade school atu.

39a

_ dents for the purpose of expressing their opposition to war. —

The Supreme Court in holding that this was a: constitu-

tionally protected right distinguished such things as regu.

lation of dross and hair style or deportment. The Court

cited with approval Ferrell vy, Dallas Independent School |

Dist, 82 Pd GNF (Sth Civ), eert: denied, 393 U.S. “856,

89 S.Ct. 98 (1968),

Plaintiffs maintain that quite bit Risiactlinan violation

‘of the First Amendment as ‘incorporated in the Fourteenth

Amendment, that their rights under the Fourteenth Amend-*

ment have been violated because of the irrational and arbi-

trary action ‘of the School Board in promulgating the

regulation in question.’ However, we conclude that the ac-

tion of the school authorities in this instance was neither

arbitrary nor unreasonable, Tt is true that the ev idence .

did not establish that there existed disruption raucous

in nature, On the other hand, as in Brick, it was shown

that there was interfexenee with the educational ’ process.

In this connection it ia to be noted that the classroom: is.

a sensitive atmosphere, In order for the teacher to effee-

tively teach it is necessary that he have attitudes and’ re-

~ : ‘ . . sky

sponses which are conducive to presentation in accordanee

with full utilization of the teacher’s talents and an at-

mosphere free of extraneous distractions. Evidence show-

ing a breakdown of discipline and student attitudes of

defianee are in our view disruption. Similarly, there was

eyidence that the length of hair hampers ‘the physical edu- |

cation athletic programs,

Tn our opinion the-evidence on behalf of the school au.”

thorities sufficiently established that there existed a rational

basis for the adoption of the regulation which is here in,

(ieation and, consequently, the interests of the school as

a Whole in the rewulation outweighs any. rights of ‘the °

student to enjoy complete freedom.

40a

- For the above stated reasons we conclude that the con-.

| stitutional rights of the plaintiffs are not violated and that

they are ndt entitled to the relief ‘sought. Accordingly,

the request for an injunction is.denied, and the complaint

and cause of action are dismissed. ,

3 Daten at Denv er, Colorado this 22d day of October, A.D.

1970.

. By the Court:

| Wu E. Dove, Judge

Y | ne United States District Court °

4la

pn ans

pam

Opinion of the United States. ‘District rm fee. the

Western District of Oklahoma in Christmas v.: ie

The El Reno Board ef Education

‘UNITED STATES DISTRICT COURT T

‘For THE WESTERN: —— OF OKLAHOMA

| No. CIV-70-263

| Cai ~ * 7 —

‘Gary Curisrmas, A Minor, by his Father and -

2 «| Next Friend, Witi1am R. CHRISTMAS,

es 3 .

THE: EL RENO Boarp or*EpUcATION,. ienbionae’ ScHOOL,

District No. 34; Leste F. Rosiyer, as Superintendent

‘of El Reno Public Schools; and Jerry Hvutcuison,: as

. Principal of El Reno High School, .

me een Defendants. ;

Dsee sic ay STATEMENT

The complaint in this case was filed on May a1, 1970 and .

the attorneys for the defendants aceepted service of the —

complaint and entered their appearance on the same day.

The parties, through their. counsel, appeared before —

the court on May 21, 1970, upon plaintiffs’ request for a

Temporary Restraining Ordér. Defendants“ orally mov ed

to dismiss the case for want of jurisdiction and further

urged the court to obstain from exercising jurisdiction on

: ee

the gcsande that there was no claim 6 or showing that speedy

and adequate relief. could not be afforded in the state

courts. ‘Both issues raised were overruled and the court |

_ set. the matter for trial on all issues at 10:00 a. m., May 22, .

1970, with the agreement of all parties.

: The complaint alleged ‘plaintiff was being unlawfully

- prohibited by. acts of the defendants, in their official

. eapacities, from participating in a high school commence-

ment ceremony -and the: receipt. of a “diploma” at said.

ceremony. The ceremony was scheduled for Sunday, May

" 24, 1970 at 2:00 pam. | ,

~The -complaint requested injunctive and ‘declaratory

relief on claims of violation of the first, fourth, fifth, eighth,

ninth, tenth, and fourteenth amendments. to the Constitu-

tion of The United States and jurisdiction was invoked

under 28 USC 1343, om, 2202, and 42 USC 1981, 1983, and

1975.

Plaintiff alleged his civil and cnaitibatiaseisl rights would

be violated to his irreparable injury if defendants were

permitted to continue to. erforce regulations concerning

the dress and grooming required for participation in the

scheduled - ceremony. More specifically, plaintiff - com-

plained the application to him of the regulation that the

hait of male students shall not cover their ears, eyes or

uss

-danats renewed their jurisdictional objéctions which the

‘court took: under advisement, and the trial proceeded on

its merits. The plaintiff introduced his ev idence and rested

and the defendants again renewed their jurisdictional |

objections and, alternatively moved to dismiss the action —

upon the grounds that the ev idence failed to present any

43a _

claim upon which relief could be granted. The aes took’

these motions under advisement.

Thereupon the defendants presented their evidence and. a

both parties memes... -- Sage,

poms oF Facr ‘

The plaintiff is an 18-year old white male student at El

Reno High School, El Reno, Oklahoma, and. has regularly

attended classes since Septemiber, 1969 when he enrolled as:

a senior. ? 7

- 2.

_ The evidence is undisputed, as defendants? Exhibit “1” |

shows, that plaintiff was regularly graduated as’ of May. .

22, 1970, ranking 173rd in a class of 190, and. was furnished

. a certificate of ‘raduation and ‘transcript in exactly . the

same form and: hearing the .same date as every. other

member of the graduating class. :

The certificate of graduation and - accompanying tran-.

script is the only officially recognized document ‘or record ,

evidencing that plaintiff or other students are graduates.

_ If serves as the only permanent school record and certified

copies are furnished to institutions of higher learning or to |

"others on request.

4°

‘In the El Reno school system a italiess is an wtpolficial

‘ document presented j in a post graduate ceremony afforded, -

‘on a sti prent. option basis, to those who have already

_ 4da ae

graduated. Na records are siti or ‘ho as to ebttins: those

‘students who attend the ceremony, or who receive diplomas.

at the ceremony. The ceremony is held on the Sunday ,

: following official graduation and i is similar in many respects _

to post graduate baccalaureate ceremonies held by various |

’ + churches in El.Reno. Participation in either ceremoriy is

purely by the voluntary choice of the graduates with those

_ in charge of the, ceremony establishing prerequisites for °

those desiring to participate. —

The El Reno School Sy hina has.for a hai of at denne ce

with regard to those students participating in commence-

ment and public ceremonies or in other extracurricular |

- activities. The administrative: directive; implemented on

March 2, 1970 was the codification of a long standing policy .

° of the ‘El Reno School System. The constituent hair -

regulation of the Dress Code relating: to public: display,

‘ disruption, public performances and ceremonies has been i in |

effect and uniformly enforced for eight } years or mare.

6. -

‘Plaintiff's ide, when he presented himself for enroll-

ment in the early part of September, 1969, was of such a

length that it violated the regulation that the hair of male.

‘students must not cover the. eyes, ears or collar if the |

student desired to.participaté in commencement and public

ceremonies or other ‘extracurricular activities. Plaintiff

was. advised of the regulation and specifically told at the

‘time of his enrollment as a senior that he would be unable

_to participate in the post graduate commencement: cere-

' Plaintiff's mother, who was present with her hr

"and son at the counsel table throughout’ the entire trial,

“was promptly told of the ‘school’s’ requirements of dress,

* attire and appearance for participation in the post gradu- °

ate commencement ceremony in early -S ptember, 1969;. :

_ late November, 1969; December, 1969 ; and again by a letter’ —

.dated May 7, 1970, which was introduced in evidence by

Plaintiff ‘never showed any’ inclination to or interest |

. 45a

-4

mony at which diplomas-are received or other éxtracurric- ~

ular activities and ceremonies ‘unless his hair was cut. to

| conférm with the regulation. Plaintiff was again so advised:

in October, 1969;. November, 1969; April, 1970; and in

May, 1970 at times when he made inquiry. or the subject

came up in commection with other matters. aa

plaintiff. She. was. folly aware for.almost eifht months

before this’ suit was filed that unless plaintiff's hair was:

“cut above his eyes, ears and collar he would not be eligible

to participate in the subject ceremony.

During the early part of December, 1969 plaintiff's

‘mother went to the high school principal’s office and re-

quegyted the aid of the high school administrative staff to

assi

of 1970°he might be eligible to. participate with the golf

team if his grades improved; ‘and in such a situation plain-

tiff would probably decide on his own to have his hair cut.

( i

participating in‘golf or any: supervised extracurricular ac-

1 ,

_ tivities and ceremonies.

}

her in vetting the plaintiff interested in extracurrib- ;

ular activitidg so that plaintiff would decide himself to get

his hair eut. It was suggested that if plaintiff would pre-

sent himself to the high school golf coach during the spring

46a

) a : |

‘About two-weeks after plaintiff's mother had sought the

lielp of the school administrative staff to arrange a_situa-

tion or activity whereby plaintiff would decide on his own

to have his hair. cut, she called defendant Jerry Hutchison,

the high schooi principal, and told him that-she would see

to it that plaintiff would have his hair cut prior to the-

commencement ceremony or “he would have to find some

place élse to live”. :

10.

On April 21, 1970 plaintiff who had not yet eut his air

came to defendant Hutchison’s office and again asked the

principal whether or not he would be able to participate

in the post graduate commencement ceremony. Mr. Hutehi-

son again, as he had often done over the preceding eight

months, advised plaintiff that he would not unless he got

his hair cut so that it would not cover his ears, eyes or

collar. The plainfiff then requested a hearing before de-

fondant Leslie Roblyer, superintendent of schools. The

hearing was held on May 5, 1970, and after the, hearing —

defendant, Roblyer informed plaintiff that the principal’s

ruling was in aceord with the policy and regulations of

the Fl Reno Board of Education. On May 19, 1970, pur-

suant to the request of his attorneys, plaintiff, his‘mother,

father and his attorneys appeared before the El Reno

Board* of Education appealing the decision of the prin-

cipal and superintendent. After the hearing, on May 20,

1970, plaintiff's attorneys were advised that the school

board had upheld the rulings of the superintendent and

principal. This suit followed. — ’ °

47a

‘11.

Plaintiff admitted in his own testimony that he had had -

several fights both on and off the school premises, and

_ acknowledged that his hair was a disruptive influence in

the school ‘system during the year. Other students had

forceably attempted to cut plaintiff’s hair. Plaintiff in his

direct testimony admitted that his presence and participa-

tion’in the scheduled ceremony would be a disruptive ele-

ment and might cause trouble or a disturbance.

12. ‘.

After his enrollment in September of 1969, the plaintiff,

in October of 196® presented to the student council a reso-

- lution calling for student participation in a moratorium

protesting the involvement of The “United States in the

Vietnam war. The student council rejected his proposal.

Lafer in the same month, the plaintiff and a few other stu-

dents appeared in the office of the high school principal . °

protesting the school dress code, and presented a proposal

for an “underground” student newspaper. He was advised

by the high school principal that the dress code would

continue unchanged and that if. the plaintiff had an opinion

for publication, he skould present it to be published in

the school newspaper, which is published weekly as a

regular part of the El Reno Daily Tribune during the

. school year. The plaintiff and two other students wrote-

an article which was subsequently published in the school

newspaper concerning The United States’ involvement. in

Vietnam. Plaintiff admitted that he had never presented

any article or publication for public presentment in the

school paper which was turned down. The plaintiff and

other students were also advised at the meeting in October

48a

of 1969 that there would be a patriotic -Veterans’ Day —

assembly on November 11, 1969, and that if he or any

other students objected to the assembly they should advise

. the school administration so atrangements could be. made

to have a superv ised classroom for such students during

the assembi,. The’ plaintiff attended the assembly.: On the

day of the assembly and a few days prior thereto, the

plaintiff wore a black arm band. The plaintiff admitted

that he had never been refused the right at that time or

thereafter to wear a black arm band. The evidence was

undisputed that some students during the assembly turned |

their backs during the salute to the American flag and it

was shortly after the assembly that the plaintiff was in-

volved in several fights.

13.

It was uncontradicted that the principal and school ad-

ministrators feared for plaintiff's s safety, and the principal

or viee principal at each cliange of classroom by plaintiff

made themselves conspicuous by being near plaintiff in

the school’s hallways to prevent fights or: ‘disturbances in-

volving plaintiff. Despite these precautions, in-at least one

_- instance, a fight in a hallway resulted in the presence of

the sctaioad which he was quickly able to stop. Plaintiff

consistently refused to listen to suggestions by school coun-

-selors that his difficulties with other students might lessen

‘f he cut his hair. Plaintiff testified he thought he had a—

‘personal right” to wear his hair as long as he wanted.

® —_

The defendants have ‘been more than reasonable and

fair with plaintiff in all respects. He has not been, al- .

» 49a

though the circumstances might warrant it, disciplined,

punished or deprived of any right or educational oppor-

* tunity. He has been permitted to attend and participate

in all classes, to regularly graduate, and he has been

awarded his certificate of graduation. As is shown by

defendants’ Exhibit “1”, neither the certificate, nor the

accompanying transcript, contain any notation or r language

indicating his conduct or grooming.

7 15. oe

The evidence in this case shows beyond any question

that the defendants have more than justified the validity

and reasonableness of regulations and their uniform en-

_ forcement, and accordingly defendants have met their sub- |

‘stantial burden of justification. The plaintiff has not been

deprived of any educational opportunities or his rights to

express his opinions symbolically, orally or in writing.

16.

The hearings, appearances and consideration given

plaintiff afforded all of the regular standard procedural

and substantive due process -rights to which he is entitled,

and he has not been denied any basic or fundamental right.

17.

The School Board and its administrative staff have ap-

plied the regulations wlmitted into evidence with con-

sistency and uniformity as the evidence clearly shows,

and has not in any way or degree acted unreasonably, arbi-

trarily, eapriciously or discriminatorily. The regulations

thennatby es are reasonable and rational, and represent the

expressed judgment of the duly constituted school board

whose authority and duty to make such reasonable regula-

tions dearly appear. The School Board by, a ee

tive staff jas clearly demonstrated the need and necessity

- for rules and‘ regulations of this type, and this court finds —

that in this case the regulation bears-a substantial relation

to the legitimate concerns of a publie educational institu-

tion. ‘ 7 eae

a. = -~ ; : é

18.

‘The evidence clearly dows that ‘the only obstacle be-

‘tween plaintiff and participation in the post craduate

ceremony and receipt of a “diploma” is, the length of his

hair, and the defendants’ testimony was that plaintiff

could, if he chose “to do so, participate in the scheduled

ceremony, provided his hair was not over his eyes, ears

or. collar and he appeared at the ceremony dressed and .

roomed according to the .other requirements of the cere-

mony.

19. -

It should be notad that the ease’ before the court does

not involve any refusal to admit or enroll a student in a>

public school hecauke of a school dress code. Nor does this

case involve the suspension of a student from class at-

tendance because of any school regulation. No educational

_ rights are, or have been denied, and plaintiff having been

regularly and formally craduated has been afforded all of

the rights and privileges to which he is entitled.

;

e ConcLusions or Law

W hile there is persuasive authority to the ituaiea: the

court concludes it has jurisdiction over ‘the parties and

subject of this-eause. Ferrell v. Dallas Independent School

Bla

District (5 Cir., 1968) 392 F.2d 697, cert. den. 393 U.S.

856, 89 S. Ct. 98. But see; Schwartz v. Galveston Indepen-

dent School District (S.D. Tex. 1970) 309. F.Supp. 1034

and the exhaustive list of authorities cited therein.

ee enn 2.

While the evidence of this case clearly shows that the

defendants could have refused to enroll plaintiff, or have

suspended him from attendance, this case involves only

the clear and unquestioned -right and responsibility of a

School Board to promulgate and enforce rules and regula-

tions consistent with the legitimate concerns of 4 public

school system, subject only to constitutional review. J’er-

rell y. Dallas Independent School District, supra. .

Involving’ as it does, only the limited and narrow ques-

tion of whether plaintiff has constitutional or other rights

to attend an elective post graduate ceremony without com-

plying with the reasonable dress and. grooming require-

ments established for that and other extracurricular ac-

tivities and ceremonies, this case is more néarly akin to

eases where a student claims a right to play football or

participate in ‘a parade of a school band in violation of

rules or without the proper band uniform and required

grooming. Estray v. LaF ourche Parish (La., 1969) 230

So.2d 443.

The regulations under the evidence in this case, even if

subject to the rule requiring a substantial burden of ‘jus-

tification to sustain them, are reasonable, uniformly en-

forced, do not unlawfully or invidiously discriminate, and

ess is 4 - oa Py

the evidence shows valid and compelling reasons for’ their

enactment and enforcement. Neither plaintiff’s constitu-

tional nor civil rights have been violated. Ferrell v. Dallas.

Independent School District, supra; Crew v. Clones (8.D.

Ind. 1969)’ 303 F.Supp. 1370; Snowden v. Hughes (1944).

- 321 U.S. 1, 64 S. Ct. 397; Byrd v. Sexton (8 ‘Cir., 1960)

277 F.2d 418; and Leonard v. School Committee \aeane.

1965) 212 NE2d 468, 14 ALR3d 1192.

- 5.

While waiver, laches or estoppel, or a combination of

them appear to be a.clear bar to any relief under the evi-

dence in this case, the court having reakhed its ‘decision’

on other grounds does not here pass ‘Upo their ‘applica-

bility afthis time. .

6. - y

Plaintiff, having shown no violation of any of his rights,

is not entitled to declaratory or injunctive relief and judg-

ment, together with costs, will bé oanerer accordingly..

Dove and patep this ............ day of June, 1970.

-Lurier OHANON,

Chief District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.