Breese v. Smith

• Decision Date: 11 September 1972
• Docket Number: No. 1614,1614
• Citation: 501 P.2d 159
• Parties: Russell BREESE, Father and next friend of Michael Breese, a minor, Appellant, v. Elmer C. SMITH, Principal, Main Junior High School, George E. Taylor, Superintendent, Fairbanks North Star Borough School District, et al., Appellees.
• Court: Alaska Supreme Court

Page 159

501 P.2d 159

Russell BREESE, Father and next friend of Michael Breese, a minor, Appellant, v. Elmer C. SMITH, Principal, Main Junior High School, George

E. Taylor, Superintendent, Fairbanks North Star

Borough School District, et al., Appellees.

No. 1614.

Supreme Court of Alaska.

Sept. 11, 1972.

Stephen C. Cowper, Frirbanks, for appellant.

Charles E. Cole, Fairbanks, for appellees.

Before BONEY, C. J., RABINOWITZ, CONNOR and ERWIN, JJ., and VICTOR D. CARLSON, Superior Court Judge.

OPINION

RABINOWITZ, Justice.

This appeal requires that we resolve a hair length controversy arising from the enforcement of a junior high school grooming regulation. It the regulation in the case at bar is upheld, the student will be denied a public education unless he conforms his hair style to the regulation's standards.

Michael Breese enrolled in the seventh grade class at Main Junior High School in Fairbanks on September 13, 1971, shortly after the fall term had begun. Some three years prior thereto, Elmer C. Smith, principal of Main, had promulgated an unwritten hair regulation which required that male students' 'hair must not be down over the ears, over the eyes, . . . (or) over the collar.'

From the date of his enrollment, the length of Breese's hair violated the school regulation. School officials immediately informed Breese that his hair length was out of conformity with the rule and that his hair would have to be cut. With the knowledge and support of his father, Breese refused to cut his hair to the school standards. Smith suspended Breese from Main on September 21, 1971. Thereafter, Smith recommended to the School Board, Fairbanks North Star Borough School District, that Breese be expelled for wilful disobedience of the hair regulation. ¹

On September 22, 1971, an action in Breese's behalf was commenced in superior court seeking injunctive relief. Five days later, the superior court issued an ex parte temporary restraining order enjoining Smith and the Superintendent of Schools of the Fairbanks North Star Borough School District from denying Breese permission to attend classes until a hearing could be held on Breese's application for a preliminary injunction.

On the evening of October 7, 1971, the School Board convened and held a hearing to consider Smith's recommendation that Breese be expelled. After hearing Smith's testimony and other witnesses called by Smith, no testimony having been adduced in Breese's behalf, the Board accepted the recommendation, and expelled Breese on the following day. Thereafter a hearing on the merits of Breese's application for preliminary injunction was held in the superior court on October 15, 1971. ² The parties produced conflicting evidence concerning the effects of Breese's hair, the effects of long hair generally, and the causal relationships between long hair, disruptive behavior, and academic performance. The superior court subsequently entered a memorandum opinion and order in which it found the school's hair regulation reasonable, entered judgment against Breese, and dissolved the outstanding temporary restraining order. Breese now appeals the decision of the superior court. ³

Initially, we are confronted with the threshold question of whether this court possesses appellate jurisdiction to consider the superior court's decision. Breese contends that the lower court's memorandum opinion and order constitute a 'final judgment' within the intendment of Rule 6 of the Alaska Supreme Court Rules ⁴ and AS 22.05.010, ⁵ and that therefore the jurisdiction of this court is properly invoked. Smith and the School Board, on the other hand, urge that the superior court's decision is not a 'final judgment' within the meaning of Rule 6, but rather, is an interlocutory order dissolving an injunction and reviewable only under Rule 23(a). ⁶ Rule 27 ⁷ provides that a petition for review must be filed within ten days, or if 'good cause' for an extension of time is shown, then within an additional ten day period. Smith and the School Board argue that since review of an interlocutory order may be obtained only by way of petition for review, and that in the instant case, no such petition was timely filed by Breese, this court lacks appellate jurisdiction and the appeal must be dismissed.

We are persuaded that Breese's interpretation of the superior court's decision is correct. The superior court's memorandum opinion and order constitute a 'final judgment' within the meaning of Rule 6. We have in the past interpreted a memorandum opinion as a 'final judgment' for purposes of appeal where such opinion 'clearly evidences the judge's intent to presently and finally dispose' of the matter pending before him. ⁸ Here, there is no question that the superior court intended to completely and finally dispose of Breese's complaint for injunctive relief. In its opinion, the superior court did more than merely dissolve the outstanding temporary restraining order; it also considered the parties' claims and evidence, balanced the competing interests in favor of the 'orderly management of our schools,' held that the administrative hair regulation is a 'reasonable regulation,' and rendered judgment in favor of Smith and the School Board. The superior court, in short, manifested its intention to finally dispose of Breese's claim for relief. We therefore conclude that this court possesses appellate jurisdiction in the case at bar. ⁹

We next turn to the merits of this litigation. In regard to this the superior court in its memorandum opinion and order, stated in part that:

The Board's decision should stand unless it flies in the face of a constitutionally prohibited interference to a citizens (sic) rights. This Court is not persuaded that it has.

In reviewing the superior court's decision, this court is called upon to determine whether the trial court erred in holding that none of Breese's constitutional rights had been violated by the School Board's decision to expel him for wilful disobedience of the hair length regulation in question. Resolution of this issue in turn involves consideration of the question of whether a male junior high school student's decision to fashion his own appearance by adopting a long hair style ¹⁰ is constitutionally protected. The trial court found no express constitutional quarantee of the right to wear long hair in school and further concluded that such right could not be found within the parameters of any emerging constitutional notion of 'right to privacy.' ¹¹

The United States Supreme Court has not yet passed on the question of whether a student's personal appearance is constitutionally protected. In the landmark case of Tinker v. Des Moines Independent Community School District, ¹² wherein the Supreme Court of the United States held that junior high school students had a right under the first amendment to wear black armbands in school in order to dramatize their opposition to the Vietnam war, the question of hair styles was expressly distinguished. In that case, the Court stated:

The problem posed by the present case does not relate to regulation of the length of skirts for the type of clothing, to hair style, or deportment. ¹³

Since Tinker, the Supreme Court has consistently declined to consider the matter of school hair regulations and dress code. For example, the Court recently denied a petition for certiorari in Swanquist v. Livingston, ¹⁴ thereby leaving a Seventh Circuit decision standing which invalidated a hair regulation. In the same term the Supreme Court's denial of certiorari in Olff v. East Side Union High School District ¹⁵ left undisturbed a Ninth Circuit ruling that a public school district's long hair regulation did not violate the first amendment, right to privacy, fundamental liberties or due process rights. ¹⁶

The question of personal appearances in public classrooms is one of the liveliest of current constitutional issues, and the aftermath of Tinker has witnessed a great proliferation of student-initiated suits in this area. In the absence of a definitive interpretation by the United States Supreme Court on the question of whether students have any constitutionally protected freedom to govern their individual appearances, the various circuits and district courts of the federal judiciary which have considered the matter are in disagreement. ¹⁷ Similarly, the decisions of state courts which have considered the issue are also reflective of divergent views. ¹⁸

State and federal courts which have invalidated school hair regulations lack uniformity as to the precise nature and source of the students' rights. As a result, a variety of federal constitutional theories have been advanced. ¹⁹ Some courts have embraced a first amendment rationale, made applicable to the states under the fourteenth amendment, and have held that long hair is a constitutionally protected form of expression. ²⁰ Others ²¹ have grounded their opinions on a ninth amendment justification. ²² Under this theory, 'retained rights' under the ninth amendment are binding on the states by virtue of the fourteenth amendment. Still other courts have resorted to the equal protection clause of the fourteenth amendment to invalidate hair regulations for male high school students. ²³ Several authorities have struck down hair length regulations as being unconstitutional deprivations of liberty ²⁴ under the due process clause of the fourteenth amendment. The emerging notion of the 'right to privacy,' as found within the penumbra of the Bill of Rights mentioned by Justice Douglas in Griswold v. Connecticut, ²⁵ has also been advanced as the constitutional source of a student's right to wear long hair. ²⁶

In view of the conflict between the circuits in the federal judiciary, and the general lack of consensus among the authorities over federal constitutional theory, counsel for Smith and the School Board urges that this court abstain from deciding whether Breese has any rights under...