King v. Saddleback Junior College District, 26452

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtHAMLEY, CARTER and TRASK, Circuit
Citation445 F.2d 932
PartiesLindahl KING et al., Plaintiffs-Appellees, v. SADDLEBACK JUNIOR COLLEGE DISTRICT, a public corporation; Fred H. Bremer, Superintendent, Defendants-Appellants. Robert OLFF, a minor by and through his guardian Ad Litem, Mrs. Sonny Olff, Plaintiff-Appellee, v. EAST SIDE UNION HIGH SCHOOL DISTRICT, Defendant-Appellant.
Docket Number25132.,No. 26452,26452
Decision Date27 July 1971

445 F.2d 932 (1971)

Lindahl KING et al., Plaintiffs-Appellees,
SADDLEBACK JUNIOR COLLEGE DISTRICT, a public corporation; Fred H. Bremer, Superintendent, Defendants-Appellants.

Robert OLFF, a minor by and through his guardian Ad Litem, Mrs. Sonny Olff, Plaintiff-Appellee,

Nos. 26452, 25132.

United States Court of Appeals, Ninth Circuit.

June 25, 1971.

Rehearing Denied July 27, 1971.

445 F.2d 933

No. 25132:

William M. Siegel, County Counsel, Maurice B. Hill, Deputy County Counsel, San Jose, Cal., for appellants.

Paul N. Halvonik, Charles C. Marson, American Civil Liberties Union, Elliot G. Steinberg, San Francisco, Cal., for appellees.

No. 26452:

Adrian Kuyper, County Counsel, John F. Powell, Deputy County Counsel, Santa Ana, Cal., for appellant.

Patricia Herzog, Corona Del Mar, Cal., A. L. Wirin, Fred Okrand and Laurence R. Sperber, Los Angeles, Cal., for appellee.

Before HAMLEY, CARTER and TRASK, Circuit Judges.

Rehearing Denied in No. 26452 July 27, 1971.

TRASK, Circuit Judge:

Each of these cases is an appeal from an order of the district court enjoining the enforcement of a provision of a school dress code providing for limitations on the length of hair of male students. The cases were argued and submitted at the same time. They involve issues which are substantially the same. They will be considered together.

445 F.2d 934

No. 25,132 was a petition for injunctive and declaratory relief filed by Robert Olff, a minor, by his guardian ad litem, Mrs. Sonny Olff, against the East Side Union High School District in the United States District Court for the Northern District of California.

No. 26,452 was a complaint for an injunction and for declaratory relief filed by Lindahl King and others against the Saddleback Junior College District and Fred H. Bremer, its Superintendent and the President of the College, in the United States District Court for the Central District of California.

Jurisdiction in each case was invoked below under the Fourteenth Amendment, the Civil Rights Act (42 U.S.C. § 1983), and 28 U.S.C. § 1343 and here under 28 U.S.C. § 1292(a) (1).

Article IX of the California Constitution provides for the establishment of a public school system with County Boards of Education and County Superintendents. Section 5 of that article delegates to the Legislature the duty of implementing this provision.

"The California Legislature is vested with the power to carry out the mandate of the operation of a free public school system in California. (Calif. Const., art. IX, § 1.) The Legislature has conferred upon school boards statutory authority to promulgate rules and regulations governing the conduct and operation of public schools. `Every school district shall be under the control of * * * a board of education.\' (Ed.Code, § 921.) `The governing board of each school district shall prescribe and enforce rules not inconsistent with law or with the rules prescribed by the State Board of Education for its own government.\' (Ed.Code, § 925.) All pupils must comply with school regulations. (Ed.Code, § 10609; Calif. Adm.Code, Title 5, Education, art. 7, p. 50 § 62.) A Board of Education of a school district has power to adopt a Code of Pupil Discipline and, as a part thereof, a `Good Grooming Policy\' to insure personal cleanliness and neatness of dress (see Calif.Adm.Code, Title 5, art. 7, §§ 62, 64), providing the rule does not unreasonably infringe upon the exercise of a constitutional right. (Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499, 501-502, 55 Cal.Rptr. 401, 421 P.2d 409.)" Akin v. Board of Education of Riverside Unified School Dist., 262 Cal.App.2d 161, 68 Cal.Rptr. 557 (1968), cert. denied, 393 U.S. 1041, 89 S.Ct. 668, 21 L.Ed.2d 590.

It was pursuant to this authority that the East Side Union High School District adopted its "Policies Pertaining to Student Behavior".1 The stated objectives were:

"1. To facilitate the teaching and learning situation in the class room.
2. To establish and maintain decorum in the schools and community.
3. To aid our youth in the development of responsible attitudes and habits.
4. To aid in the fulfillment of the responsibility invested in the school by the State of California and the community of the East Side Union High School Dist." C.T. 7.

The articles covered sixteen subjects including "General Conduct," "Attendance," "Personal Appearance, Cleanliness and Neatness of Dress," "Tobacco," "Alcohol," "Drugs," "Obscenities," "Fighting," and "Hazing." Under the subject of "Personal Appearance" standards are set out for both boys and girls with seven items to be observed by boys and five items to be observed by girls. The item in question here provides:

"c. Hair shall be trim and clean. A boy\'s hair shall not fall below the eyes in front and shall not cover
445 F.2d 935
the ears, and it shall not extend below the collar in back." C.T. 7.

The "Personal Appearance" section further provides that "a district committee of students, teachers, administrators and parents shall each year review changing styles as they affect appropriateness of dress for the consideration of the Superintendent."

The Director of Personnel of the district executed an affidavit (C.T. 48-49) stating how this annual review was carried out. She stated that she served as Chairman of a Behavior Code Review Committee which met on four occasions during May and June of 1969. The committee was composed of:

"1. The PTA president from each school;
2. A parent from the `integrated parents group\' from each school (parents from each school representing various ethnic groups);
3. The ASB Associated Student Body president elect from each school;
4. Another elected ASB officer of the opposite sex from the president;
5. A teacher from each school;
6. In addition to above a woman counselor from Overfelt and four administrators from various schools in the district were appointed." C.T. 48.

With respect for the result of the annual review, the affidavit states that the following action was taken:

"At the meeting of June 23, 1969, there were 22 members of the committee present of whom seven were students. Referring to article IV, Item C under Boys, the following was voted on and passed by a vote of 20 ayes and 2 noes:
`Hair shall be trim and clean. A boy\'s hair shall not fall below the eyes in front and shall not extend below the collar in back.\'"

This affidavit was not controverted.

It was against this backdrop of regulation that Robert Olff, age 15 years, attempted to register as a third year high school student at James Lick High School in San Jose, one of the schools of the East Side Union High School District. The teacher who interviewed him was of the opinion that his hair was in violation of the grooming code and asked him to see one of the vice principals. He did so and was refused enrollment until his hair was made to conform.2

Upon the rejection of Olff by the school he filed a complaint seeking injunctive relief, a declaratory judgment and damages. The court directed the school to show cause why a preliminary injunction should not issue enjoining the defendants from excluding the plaintiff. On the return date of that order the plaintiff, Olff, testified briefly, the defendant school district introduced a number of affidavits, and the matter was submitted. The court enjoined the defendant from enforcing the regulation in question and enjoined the defendant from excluding the plaintiff from attending the school. Olff v. East Side Union High School District, 305 F.Supp. 557 (N.D.Cal.1969). We reverse for reasons hereinafter set forth.

The second case, No. 26,452, has been here before. An order for a preliminary injunction was vacated and the cause remanded for further proceedings. King v. Saddleback Junior College District, 425 F.2d 426 (9th Cir. 1970). The

445 F.2d 936
record does not indicate that any witnesses testified upon trial after remand. Certain exhibits were ordered filed, additional authorities were submitted with memoranda of law and arguments of counsel, and an order and memorandum opinion thereupon issued. The court held that the regulation in question was in violation of both the due process and equal protection clauses of the Fourteenth Amendment, 318 F.Supp 89. The school district and superintendent appeal. We reverse

In this case the Board of Trustees also adopted a "Student Handbook" which contained, among other things, a dress code for men and for women. At least three meetings of the Board were held at which the provisions of the code were considered. (Plaintiff's Exh. 2 and 3). It had been prepared by the administration of the school and submitted to the student body whose representative attended the last two meetings and voiced the opinion of the student body. There was some revision and apparent agreement on all items except the regulation concerning hair for men. The students wished it to read "clean and combed."3 The administration, having in mind the rejection of similar school grooming codes because "unconstitutionally vague," desired to eliminate such a problem. (Plaintiff's Exh. 2 at 2). The result was language almost identical with that of the Olff case.4 In neither case was there any evidence that length of hair led to any disruption among students.

The constitutional, statutory and regulatory authority for a junior college is the same as that for a high school, since both institutions are a part of the public secondary school system of the state. Cal.Educ.Code §§ 5552, 22650 (West 1969).5

The authorities in the welter of cases involving men's hair dress versus school regulations are about equally divided in their results, some of which hold the regulation invalid; e. g., Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970); Griffin v. Tatum, 425 F.2d 201 (5th Cir. 1970) (partially invalid); Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970); Breen v. Kahl, 419 F.2d...

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