Montalvo v. Madera Unified Sch. Dist. Bd. of Education

• Decision Date: 17 November 1971
• Court: California Court of Appeals Court of Appeals
• Parties: Daniel MONTALVO, a minor, etc., Plaintiff and Appellant, v. MADERA UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION et al., Defendants and Respondents. Civ. 1373.

Page 593

98 Cal.Rptr. 593

21 Cal.App.3d 323

Daniel MONTALVO, a minor, etc., Plaintiff and Appellant, v. MADERA UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION et al., Defendants and Respondents.

Civ. 1373.

Court of Appeal, Fifth District, California.

Nov. 17, 1971.

Hearing Denied Jan. 13, 1972.

[21 Cal.App.3d 326] Fred J. Hiestand, San Francisco, for plaintiff and appellant.

Danald C. Thuesen, amicus curiae, Fresno, for plaintiff and appellant.

Herbert Bartow, Roy E. Wolfe and Bartow & Christiansen, Madera, for defendants and respondents.

OPINION

GEO. A. BROWN, Associate Justice.

This case involves the validity of a school regulation at Thomas Jefferson Junior High School in Madera limiting the hair length of students attending that public institution. After due notice the minor plaintiff, who was 14 at the time, was suspended on the opening day from the seventh grade for his refusal to comply with the hair regulation then in effect. Three days later he was reinstated after complying with the regulation by getting a haircut. This action in declaratory relief immediately followed.

At the commencement of the trial it was stipulated that the hair regulation was duly adopted, that the minor appellant, Daniel Montalvo, was in fact in violation of the regulation, and that he was suspended because of such violation. It was further stipulated that the pertinent issues of law were:

(a) Whether the governing board of said school district under the California and federal Constitutions could regulate the length and style of hair.

(b) Whether or not the hair regulation in question was constitutionally reasonable.

After a three-day non-jury trial the court rendered its decision for the school district and against the appellant. Findings of fact were waived. The judgment, among other matters, recites:

'That the California Legislature is vested with the power to carry out the mandate of the operation of a free public school system in California. (California Constitution, Article 9, Section 1) The Legislature has conferred upon school boards statutory authority to promulgate rules and regulations governing the conduct and operation of public schools (Education Code §§ 921, 925) and pupils must comply with those rules and regulations. (Education Code § 10609; California Administrative Code, Title 5, Education, Article 7, §§ 62, 64 ^*) That the 'General Board Policy Relating to Student Grooming and Dress' * * * was duly adopted by the Board of Education of Madera Unified School District pursuant to the foregoing statutory authority and is valid.

'* * * 62

'That said hair regulation * * * was duly adopted by officials of Madera Unified School District under the statutory authority of Education Code §§ 921, 925 and 10609 and California Administrative Code, Title 5, Article 7, §§ 62, 64 ^** and that there was and is substantial justification for the adoption and enforcement of said hair regulation; to-wit: strong evidence that the wearing of long hair by male pupils in schools of the Madera Unified School District has and does substantially disrupt and interfere with the proper and orderly conduct of the educational processes, has a prejudicial and adverse effect on the academic atmosphere and decorum of the classroom, causes divisiveness and hostility among pupils and presents health and safety hazards.

'That said hair regulation is reasonable and rational and reasonably relates to and serves to enhance the educational function and the health and safety of the pupils of said school district; that the public benefits thereby produced outweigh the consequent impairment of the male student's constitutional rights and there are no alternatives less subversive of those rights.

'That the action of officials of Madera Unified School District in the adoption and enforcement of said hair regulation were not and are not arbitrary, fraudulent, capricious or an abuse of discretion.

'That said hair regulation is not vague or uncertain.

'That said hair regulation is applicable, and enforced by officials of Madera Unified School District, equally and uniformly to all male students of said school district.

'That said hair regulation was and is valid and enforceable under the United States Constitution and the laws and Constitution of the State of California.

'That plaintiff DANIEL MONTALVO was lawfully suspended by school officials from Thomas Jefferson Junior High School on September 16, 17 and 18, 1969, for violation of said hair regulation and his refusal to comply with the direction of school officials that he have his hair cut to comply with said hair regulation. That said suspension did not violate any of plaintiff's rights under the United States Constitution or the California Constitution.'

Aside from the problem of whether the cause is moot, the central question on this appeal pertains to the constitutional validity of the hair style regulation under the facts of this case.

At the outset we are confronted with determining whether the cause has become moot. The appellant complied with the regulation in order to be readmitted to school. Secondly, while this appeal has been pending the school grooming code was changed.

Appellant's compliance under the compulsion of a continued suspension from school does not render the matter moot (Uyeda v. Brooks (1965) 348 F.2d 633 at 635 (6th Cir.) (Reversed on other grounds, Uyeda v. Brooks (1966) 365 F.2d 326 (6th Cir))). This position was not mentioned in the trial court, nor is it included in the stipulation as to the issues to be resolved by the trial court. Also, despite involuntary compliance, the plaintiff has a continuing interest in determining the validity of the regulation since the suspension remains a part of his disciplinary record.

The regulation under which the suspension occurred read in part:

'Regarding: Hair Length for Boys Attending Madera Unified School District

Hair must be worn clean and well groomed. Boys must keep their hair neat and trimmed above eyes, ears, and collars. Hair must be tapered up from the neck.'

While this cause has been pending on appeal the above regulation was repealed and a new regulation was adopted, which reads in pertinent part as follows:

'Hair (Boys)

1. Must be clean at all times.

2. No longer than collar length.'

It is to be noted that the new regulation retains a provision which prohibits hair from being longer than collar length. The latter regulation is not part of the record; however, the contents thereof have been called to the court's attention by respondent and we may take judicial notice thereof. (Evid.Code § 459, subd. (a); Evid.Code § 452, subd. (b); Witkin, Cal.Evid., 2d Ed., 1966, pp. 153 and 170.)

It is true that under some circumstances the repeal of a statute during the pendency of a cause on appeal will render further consideration thereof moot (Hake v. City of Bakersfield (1942) 49 Cal.App.2d 174, 121 P.2d 25; Callie v. Board of Supervisors (1969) 1 Cal.App.3d 13, 81 Cal.Rptr. 440). Nevertheless, if the repealing statute or regulation re-enacts a material portion of the repealed statute or regulation which forms a part of the basis for the lower court's determination the matter is not moot since the determination by the lower court inheres after, as well as before, the change (Carter v. Stevens (1930) 208 Cal. 649, 651, 284 P. 217; In re Dapper (1969) 71 Cal.2d 184, 189, 77 Cal.Rptr. 897, 454 P.2d 905). Further, this is a matter of general public interest and there is a likelihood of recurrence of the controversy between other students and respondent or among others similarly situated (Diamond v. Bland (1970) 3 Cal.3d 653 at 657, 91 Cal.Rptr. 501, 477 P.2d 733; People v. West Coast Shows, Inc. (1970) 10 Cal.App.3d 462 at 468, 89 Cal.Rptr. 290). Therefore, we decline to consider the cause moot and proceed to adjudicate the issues on their merits.

Without question the school authorities have the right and obligation to promulgate rules and regulations governing the conduct and operations of the Thomas Jefferson Junior High School, including those relating to student grooming and dress, and the pupils are required to comply with such valid directives (Cal.Const., art. IX, § 1; Ed.Code, §§ 921, 925, 10609; Cal.Admin.Code, tit. 5, div. 2, art. 2, §§ 300, 302). Such rules and regulations are subject, however, to being tested against constitutionally protected rights of the students.

It is further clear that students do have rights which are protected by the federal and California state Constitutions and that they do not shed them at the schoolhouse gate (Tinker v. Des Moines Independent Com. Sch. Dist. (1969) 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731). However, it must be recognized that a student may be subject to far more stringent regulations than an adult outside a school environment due to his immaturity and status as a student in a school environment where disciplinary and health problems and considerations relating to safety of minors take on special significance.

'* * * 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 (1968) 390 U.S. 629, 638, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195; Akin v. Board of Education of Riverside, etc., Dist. (1968) 262 Cal.App.2d 161, 166, 68 Cal.Rptr. 557.) We specifically reject appellant's contention that a student is in the same position as an adult not in a school environment. The courts have universally recognized this difference, including those situations where First Amendment rights admittedly are involved. (Tinker v. Des Moines Independent Com. Sch. Dist., Supra, 393 U.S. at 507, 89 S.Ct. at 737; L.A. Teachers Union Local 1021, American Federation of Teachers v. L.A. City Bd. of Ed. (1969) 71 Cal.2d 551, 558, 78 Cal.Rptr. 723, 455 P.2d 827.)

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