# Petition for Writ of Certiorari — Freeman v. Flake > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0513%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 1032 ## Text 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 ~. \ af 0 . ' ALMoN Fake, et al., oleate beater : -- - * e x ~ * . . * ve Ps . - el . rf . .* - i = : 7 . »f-, A “ * - ~ , . * - . »® be oy ° , bad F . * #e : - e °. . . . e** : = . . - = . P . © = , ae e = . G a @ [ex ; a on So . . « | ’ "5. al . - | “ j na ge @ ° . : *e - . o 9 . rs “- : ‘ * * «4 . . "« - . J - . , *. . .-.; La . S . * la 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) — Za | 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, v. 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 3a 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 5a 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. *& 7 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 ? 6a 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 Ta 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: 8a ; “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, | 9a 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. 2 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 so = Tis § ‘ oe ; P fae ‘Opiates’ of the United States “Didirict Court for the . District of Utah in Freeman” etal. v. Flake, et. al. oa ‘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 a _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. s * 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: ov 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). ° FF *. 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 Ss 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 i 2 “ ~ ate ‘ a — . i 2a o- te: . a 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. a 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 . —___— - 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. te * Plaintiffs, © 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 * the commencement of the trial on May 22, 1970, defen- © ed " \ 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. : 1g 3. 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. — a The El Reno School Sy hina has.for a hai of at denne ce | .. eight. years maintained a consistent and: uniform policy © 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 n 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 4 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. | | } a 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- Oa 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. . 3. 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. 4. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0513%3A1. Public record. Not legal advice.