Akin v. Board of Ed. of Riverside Unified School Dist.

• Decision Date: 13 May 1968
• Citation: 262 Cal.App.2d 161,68 Cal.Rptr. 557
• Court: California Court of Appeals Court of Appeals
• Parties: Kevin AKIN, a minor, by Virginia Akin, his Guardian ad Litem, Virginia Akin, Petitioners and Appellants, v. BOARD OF EDUCATION OF RIVERSIDE UNIFIED SCHOOL DISTRICT, Respondent. Civ. 8685.

Page 557

68 Cal.Rptr. 557

262 Cal.App.2d 161

Kevin AKIN, a minor, by Virginia Akin, his Guardian ad Litem, Virginia Akin, Petitioners and Appellants, v. BOARD OF EDUCATION OF RIVERSIDE UNIFIED SCHOOL DISTRICT, Respondent.

Civ. 8685.

Court of Appeal, Fourth District, Division 2, California.

May 13, 1968.

Rehearing Denied May 29, 1968.

Hearing Denied July 10, 1968.

[262 Cal.App.2d 163] A. L. Wirin, Fred Okrand, Laurence Sperber, Los Angeles, and Tony Geram, Fontana, for petitioners and appellants.

Ray T. Sullivan, County Counsel, James H. Angell, Asst. County Counsel, and W. W. Miller, Deputy County Counsel, for respondent.

OPINION

KERRIGAN, Acting Presiding Justice.

Petitioners are mother and son. During the summer months of 1965, the 15-year old minor, hereafter designated as 'petitioner,' grew a beard which was neat in appearance and trimmed regularly. On September 8 he enrolled at Polytechnic High School in Riverside, one of the secondary schools within the respondent-Board's jurisdiction. He was suspended shortly thereafter solely for the reason that he refused to shave his beard as required by the Board's 'Good Grooming Policy' adopted on September 20, 1965. He then attended a private school for the balance of the 1965-1966 school year where he was permitted to wear his beard. An appeal initiated in March 1966 to the Board of Education proved unsuccessful.

On September 12, 1966, the minor, who had then attained the age of 16 years, again endeavored to enroll at Polytechnic High School but was denied admission by order of the high school principal and the district superintendent because he refused to remove his beard.

On September 16, 1966, the minor, acting through his mother as guardian ad litem, filed a petition for writ of mandate in the Riverside Superior Court, wherein he sought a decree directing the respondent-Board to allow him to enroll at Polytechnic High without having to shave off his beard in conformity with the 'Good Grooming Policy' of the Board.

During the hearing on the petition, both sides presented oral and documentary evidence. The minor testified to the following effect: When he entered the private school after being expelled from the public institution for the school year 1965--1966, he continued to wear his beard; his academic work was satisfactory; his beard presented no problem with other students except for a brief period of adjustment; he intermingled socially with the other students and participated in sports while wearing his beard; his reason for having a beard involved a personal liking for such adornment, influenced in part by his father's experience in wearing a beard.

A teacher at the private school attended by petitioner testified that: He taught the bearded petitioner-minor in four classes during the 1965--1966 school year; the boy was a good student and well-behaved; his relationship with the other students was satisfactory; the beard caused no distraction to other students after the initial reaction had diminished; in his opinion the wearing of a beard or moustache in the secondary level of education creates no problems in discipline or education; none of the other male students at the private school wore beards; the private school had an enrollment of 35--40 students ranging in age from 3--17 years; he did not have a teaching credential inasmuch as one was not required to teach at the private school.

Petitioner's next witness was a 17-year old public school student who testified that: He attended summer session at North High in Riverside the previous summer and wore a beard; the principal, officials, and faculty members observed his appearance but did not order him to remove his beard; the presence of his beard did not cause him any problems with his fellow-students.

The petitioner-mother narrated that: Her husband had worn a beard for some two years before the minor decided to grow one; after the boy was expelled from Polytechnic High, she enrolled him at the private school at a considerable financial hardship to the family; he had done well academically at the private institution, but she and the father could not afford to send Kevin to a private school in the future and wanted him enrolled at Polytechnic High.

Three witnesses testified in behalf of the respondent-Board. The witnesses were the Superintendent of the Beverly Hills Unified School District, the Principal of Polytechnic High, and the Superintendent of the Riverside Unified School District. The testimony of these witnesses may be stated in the following succinct fashion: All have been connected with secondary education for many years; the Good Grooming Policy embodied in the District's Discipline Code was formulated as a result of the study and efforts of many persons concerned with the educational processes of young students over a considerable period of years; the Policy governing students' appearance and dress was developed for the purpose of creating a good climate for the educational process; permitting a student to wear a beard was likely to result in the disruption of the educational system.

Supplementally, the Polytechnic principal recounted past experiences with secondary students with moustaches. In one instance, a moustached foreign exchange student attended Polytechnic High and 'problems' resulted when some students wished to emulate him while others teased and harassed him. On another occasion, a basketball player was ordered to shave off his moustache because of the disruption created when other students indicated they would like to follow suit.

Upon the conclusion of the hearing and the rendition of a memorandum decision, the trial court entered its findings and judgment whereby it denied the petition and discharged the alternative writ.

Petitioner initially maintains that the rule adopted by the respondent requiring male students to be clean-shaven is violative of his rights of freedom of speech and expression guaranteed by the First Amendment of the United States Constitution and section 9, article I of the California Constitution, and further deprives him of his right of 'liberty' under the Fourteenth Amendment of the United States Constitution and section 13, article I of the California Constitution. (See Finot v. Pasadena City Bd. of Education, 250 Cal.App.2d 189, 58 Cal.Rptr. 520.)

In Finot, supra, it was held that the transfer of a highschool teacher from classroom teaching to home teaching solely because the teacher insisted upon wearing a beard in violation of school policy, which was established because school authorities feared that allowing a teacher to wear a beard would make it difficult to enforce a school rule against students wearing beards, constituted an unconstitutional denial of the teacher's right, in the absence of any experience of the high school involved as to what the actual adverse effect of the wearing of a beard by a teacher would have upon the conduct of the educational process. A teacher's right to wear a beard was viewed as a protected personal liberty granted him under the 'due process' provisions of the federal constitution, and further as a form of expression entitled to the 'peripheral protection' of the First Amendment. The only benefit gained by the public from the restraint on the appearance of classroom teachers was deemed outweighed by the right of the teacher to wear a beard, since other alternatives were open to the school board by way of deterrents, sanctions and penalties against male students themselves, and these alternatives were regarded as less subversive of the teacher's rights.

While a male adult teacher may enjoy a constitutional right to wear a beard where good cause for a school's administrative policy banning the wearing of beards by teachers has not been shown to exist, and assuming that such a constitutional right vests by implication in a minor-student (see West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; Robinson v. Sacramento City etc. Sch. Dist., 245 Cal.App.2d 278, 291, 53 Cal.Rptr. 781), it is manifestly clear that not every public restriction or limitation placed upon the exercise of secondary students' constitutional rights is Ipso facto prohibited. (See Robinson v. Sacramento City etc. Sch. Dist., supra.) Where there is an invasion of protected freedoms '* * * the power of the state to control the conduct of children reaches beyond the scope of its authority over adults * * *.' (Ginsberg v. State of New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195.) The imposition of reasonable restraints on the exercise of the constitutional rights may be proper. (Bagley v. Washington Township Hospital Dist., 65 Cal.2d 499, 501--502, 55 Cal.Rptr. 401, 421 P.2d 409; Fort v. Civil Service Commission, 61 Cal.2d 331, 337--338, 38 Cal.Rptr. 625, 392 P.2d 385; Robinson v. Sacramento City etc. Sch. Dist., supra, 245 Cal.App.2d pp. 288--289, 53 Cal.Rptr. 781.)

In an unreported decision, which is not binding upon us, Pelletreau v. Board of Education of the Borough of New Milford, the New York State Board of Education recently ruled that a local school board could not expel a student because of the length of his hair. However, in two authoritative cases, Leonard v. School Committee of Attleboro, 349 Mass. 704, 212 N.E.2d 468, 14 A.L.R.3d 1192, and Ferrell v. Dallas Independent School District, D.C., 261 F.Supp. 545, the Supreme Court of Massachusetts and the ...