480 F.2d 693 (10th Cir. 1973), 72-1608, New Rider v. Board of Ed. of Independent School Dist. No. 1, Pawnee County, Oklahoma

Docket Nº:72-1608.
Citation:480 F.2d 693
Party Name:Norman NEW RIDER, a minor, by his mother and next friend, Wilma Williams et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT NO. 1, PAWNEE COUNTY, OKLAHOMA et al., Defendants-Appellees.
Case Date:May 25, 1973
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 693

480 F.2d 693 (10th Cir. 1973)

Norman NEW RIDER, a minor, by his mother and next friend, Wilma Williams et al., Plaintiffs-Appellants,



No. 72-1608.

United States Court of Appeals, Tenth Circuit.

May 25, 1973

Rehearing Denied June 20, 1973.

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[Copyrighted Material Omitted]

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Jeffrey I. Sandman, Asst. Atty. Gen., for Colorado Civil Rights Comm., James F. Reynolds, Director, Denver, Colorado, amicus curiae.

John S. Boyken, John Paul Kennedy, Salt Lake City, Utah, for Ute Indian Tribe of the Uintah and Ouray Reservations; Richard H. Bishop, Salt Lake City, Utah, of counsel, amicus curiae.

Yvonne T. Knight, Native American Rights Fund, Boulder, Colo. (Charles F. Wilkinson, Native American Rights Fund, Boulder, Colo., on the brief), and Vincent L. Knight, Oklahoma City, Okl., for plaintiffs-appellants.

Robert J. Scott, Pawnee, Okl. (William J. Perry, Pawnee, Okl., on the brief), for defendants-appellees.

J. Stanley Pottinger, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Carlton R. Stoiber, R. Dennis Ickes, Daniel L. Bell, II, for Civil Rights Division, U. S. Dept. of Justice, Washington, D. C., amicus curiae.

William C. Wantland, Seminole, Okl., for Oklahoma Indian Rights Ass., Norman, Oklahoma, amicus curiae.

Before LEWIS and BARRETT, Circuit Judges, and SMITH [*], District Judge.

BARRETT, Circuit Judge.

Three minor Pawnee Indian students, by and through their next friends, appeal pursuant to 28 U.S.C.A. § 1291, from the Order of the trial court denying a permanent injunction and dismissing their complaints following a full evidentiary hearing. The appellants are members of the Pawnee Tribe. They were each enrolled as seventh grade students in the Pawnee Junior High School until they were indefinitely suspended on April 24, 1972.

The appellees are members of the Board of Education, the Principal and Superintendent of School District No. 1 of Pawnee County, Oklahoma. It is one school system, consisting of about 940 students, grades K through 12. There are three main ethnic groups among the students: some 61 percent white, some 33 percent Indian and some 6 percent black.

Jurisdiction is asserted under 28 U.S.C.A. § 1343(3) and (4) and 28 U.S.C.A. § 1331. The injunctive relief sought was predicated on allegations that the hair regulation at issue violated appellants' rights under the First and Fourteenth Amendments and 42 U.S.C.A. § 1983. The appellants contend that their guarantees of freedom of speech, free exercise of religion, equal protection of the law and due process of law were violated. We affirm the summary dismissal entered by the trial court on the ground that there exists no substantial constitutional question cognizable in the federal courts.

The subject hair regulation is part of a school dress code which provides in material part as follows:

Hair should have no odd coloring or style. It should be tapered or blocked in the back and cannot touch the shirt collar or ears, and should be one-fourth inch above the eyebrows; sideburns must be no lower than the earlobe and face clean shaven . . .

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There is no dispute that the hair style of the three appellants violated the regulation.

On May 1, 1972, following a hearing, the trial court issued a preliminary injunction. In ordering the reinstatement of the three appellants, the Court found that the wearing of long braided hair is an expression of a long-standing tradition and heritage of the Pawnee Indians, and that it was a symbol of religious identity. Following a hearing held on June 5, 1972, issuance of a permanent injunction, the Court reversed its prior findings. It held that no substantial constitutional questions cognizable in the federal courts existed. It dismissed the complaint. The Court stated that the plaintiffs should seek their remedy in the state courts.

On Motion for Reconsideration filed by plaintiffs-appellants, the lower court conducted a full evidentiary hearing on August 7, 1972. In a detailed Memorandum Opinion dated August 10, 1972, the trial court again found that the schoolboard dress-hair code did not: (a) violate any of the plaintiffs' rights regarding any religious creed or belief, nor is the enforcement of the code a restriction of any religious belief, but 'at most a restriction upon a religious act'; or (b) discriminate against plaintiffs on the basis of race, religion or culture. The trial court also found that wearing of long hair is not akin to pure speech, and that a federal constitutional issue must exist not only in mere form, but in substance, and not in mere assertion, but in essence and effect. We affirm.

Turning now to the record, we summarize, as follows:

(1) For appellants: Certain exhibits in evidence, together with the expert testimony of one Dr. Weltfish, an anthropologist, established that certain Pawnee Indian men and women wore their hair parted in the middle with two braids, one on each side. Dr. Weltfish testified that such long braided hair has racial and cultural significance to the Pawnees, particularly in relation to specific dances; further, she testified that from the viewpoint of Pawnee theology the long braided hair has religious significance in that the Pawnees believed that the universe was created in terms of the cosmos and that the cosmos dictated the nature of the whole social, human, animal, vegetable and material order. She testified that the core of this theological belief is that everything the Pawnee does each day has religious significance. She stated that there were certain dances which required long braided hair. She acknowledged that in her book entitled "The Lost Universe"...

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