New Rider v. Board of Ed. of Ind. Sch. Dist. No. 1, Okl.

• Decision Date: 20 June 1973
• Docket Number: No. 72-1608.,72-1608.
• Parties: 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.
• Court: U.S. Court of Appeals — Tenth Circuit

480 F.2d 693 (1973)

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.

No. 72-1608.

United States Court of Appeals, Tenth Circuit.

May 25, 1973.

Rehearing Denied June 20, 1973.

COPYRIGHT MATERIAL OMITTED

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 . . . 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" she did not refer to the Pawnee long braided hair in the sense of any religious significance. She did acknowledge that none of the Pawnee warriors wore long, braided hair, but rather roaches or a hair ridge standing up along the middle. On cross-examination she opined that other authors had not carefully noted Pawnee heritage and tradition in relation to hair styles and their significance.

The appellants, New Rider, Smith and Cummings, testified that they wished to wear their hair in long braids because of their pride in being Pawnee Indians. One Terry Williams, age 21, testified that the hair must be at least 6 or 7 inches long before one can start to braid it. On cross-examination, he testified that until eight or ten years ago the Indian dancers did not wear their hair long. On re-direct he stated that more of the young Indians are wearing long braided hair because of a renewed pride in their heritage. Sidney Moore, Sr., age 69, organized an Indian Dance Troupe which has travelled extensively. He learned the entertainment business from his participation with Buffalo Bill's Troupe. When he was a boy he wore long braided hair, but had to cut it off when he went to the Government boarding school. He referred to such hair style as the "old traditional ways." He sees a resurgence among the young Indian people to "regain their tradition, to learn their culture." He acknowledged that long braided hair is important to the dancing troupe insofar as making a living because "we have to wear our hair long in order to be recognized as Indians in a public place where we perform."

(2) For appellees: Leroy Holloway, Superintendent of Schools at Pawnee, stated that Rules and Regulations for students are necessary "to create an environment of learning" and that with only 47 teachers for 940 students, there must be "some kind of discipline code" including the dress code which incorporates the hair regulation. He opined that the dress-hair regulation here challenged provides school spirit, pride, and maturity for the student in the classrooms; he said that the regulation was initiated by the students in order to instill pride in their school and to create school spirit, without any intent to stifle speech. He testified that disagreement is encouraged. He stated that when the code was first adopted the Board allowed one exception at the specific request of Mrs. Cummings on behalf of her son which was thereafter revoked; and that the Board granted Mrs. Cummings a hearing following revocation, at which time she was accompanied by one John Trudell who remarked that the school and the town would be on its knees before "he left town." He also testified that the Cummings family was the only family which had requested the exception and that when the Board granted it to the Cummings boy it did so with the understanding that his hair would not be permitted to grow longer during the school term.

Jim Childers, Junior High School principal, testified for the appellees that the challenged dress-hair code was in effect during the entire school term 1971-1972. Copies of all school regulations were supplied each student who in turn was asked to discuss them fully with their teachers. On each Monday the teachers were to submit to Childers the names of students who violated school regulations. None of the three Pawnee students here involved violated the hair code until about six weeks prior to termination of the third semester. Childers then spoke personally to each of them and afforded each three weeks to comply before he suspended them. He testified that he often enforced the hair code in relation to white students, without any problems. After the Court entered the temporary restraining order and the three plaintiffs were reinstated, Mrs. Cummings again informed Childers that her son was being abused. However, she did not give Childers any reasons.

Dr. Muriel Wright, Editor of the Chronicle of Oklahoma, Assistant Editor of the Oklahoma Historical Society since 1943, and Editor since 1965, and author of the book entitled "A Guide to the Indian Tribes of Oklahoma" relating to some 67 tribes, including the Pawnee Indians, testified for the appellees. She stated that there was no tradition or custom among the Pawnee Tribes...