Pendley v. Mingus Union High School Dist. No. 4 of Yavapai County

• Decision Date: 21 December 1972
• Docket Number: No. 11002--PR,11002--PR
• Citation: 504 P.2d 919,109 Ariz. 18
• Parties: Wayne PENDLEY, by his guardian ad litem, Donald C. Pendley, Appellant, v. MINGUS UNION HIGH SCHOOL DISTRICT NO. 4 OF YAVAPAI COUNTY, Arizona, Appellee.
• Court: Arizona Supreme Court

Page 919

504 P.2d 919

109 Ariz. 18

Wayne PENDLEY, by his guardian ad litem, Donald C. Pendley, Appellant, v. MINGUS UNION HIGH SCHOOL DISTRICT NO. 4 OF YAVAPAI COUNTY, Arizona, Appellee.

No. 11002--PR.

Supreme Court of Arizona, In Banc.

Dec. 21, 1972.

Mickey L. Clifton, Phoenix, for appellant

Thelton D. Beck, Yavapai County Atty., Prescott, for appellee.

CAMERON, Vice Chief Justice.

We granted this petition for review of a decision and opinion of the Court of Appeals reversing an order of the Superior Court of Yavapai County. The Superior Court ruled in favor of the Mingus Union High School District which had denied Wayne Pendley admission to school because the length of his hair exceeded that permitted by the school dress code. Although the attorney for the appellant, Wayne Pendley, presents four questions for review, we feel that there are only two questions before this court:

1. Was the regulation concerning length of hair for male students in violation of the 'due process' and 'equal protection' clauses of the Fourteenth Amendment to the Constitution of the United States?

2. Did the hair regulations violate any of Wayne Pendley's other constitutionally protected rights?

The facts necessary for a determination of this matter on appeal are as follows. The school dress code of Mingus Union High School District is contained in the Student Hand Book and was formulated by a committee comprised of the student body president, three other student officers, the faculty advisor to the student council, a member of the high school faculty, the high school principal, the school district superintendent, and the president of the school board. It provided in part as follows:

'Haircut requirements for boys. Sideburns must be neat at all times. Hair should be off the forehead, collar and ears. * * *'

Wayne Pendley's hair did not conform to this code. He was aware that it was in violation of the code, but nevertheless sought to register and attend classes when school opened in August of 1970. He was permitted to register but was prohibited from attending classes, and he thereafter brought a complaint for special action in the Superior Court of Yavapai County. The application was tried to the court sitting with an advisory jury.

At the hearing, testimony by the superintendent, teachers, the school psychologist, members of the community, and members of the student body was heard. The testimony indicated that Wayne was of superior academic ability, that he felt a desire to challenge authority, that he had taken part in printing an 'underground newspaper', and that he had agitated for a place on campus where the students could smoke. Wayne's testimony indicated that he was familiar with the haircut requirement, but believed it was an unlawful or unconstitutional regulation:

'Q Wayne, do you have any religious views that have any bearing at all 'A No, sir, I do not.

upon your wearing of your hair in the style that you have chosen?

'Q Do you have any ideological or political beliefs that contribute to your choice in hair styling?

'A No, sir.

'Q Does your manner of wearing your hair, is it intended by you as an expression of any ideas?

'A No, not particularly.

'Q Is your hairstyle supposed to be a symbol of anything?

'A A symbol of my choice. More of a symbol of my desire to appear the way I wish to.

'Q It's a symbol, then, of your individuality?

'A My individual rights.

'Q Would you say its a symbol of your belief that you don't have to comply with some of the rules and regulations of the school board?

* * *

* * *

'THE WITNESS: * * * no, sir, I do not believe it is a symbol of that.'

The high school district offered testimony indicating that the hair style of Wayne Pendley was a disruptive influence at Mingus Union High School and it had a detrimental effect upon the educational climate at the school. Rita Scroggins, the secretary of the student body, testified:

'Q Would you tell the jury the extent of your observations of such occurrences or the extent of your hearing of such conversations, how frequent and to what extent?

'A Well, it usually comes up in the lulls of classes or at lunchtime when you don't have anything to talk about. And Wayne was--his hair still, because, I guess, it is longer than anyone else's.

* * *

* * *

'Q * * * Do you know whether there is any undercurrent of desire on the part of any students to forcibly cut Wayne Pendley's hair?

'A Yes, there is, I am sure.'

And Buddy Rhodes, a letterman in the junior class, testified:

'Q Are you able to tell us whether the manner in which Wayne Pendley wears his hair creates any distraction among the students?

'A Yes, sir. A lot of times there is a conversation about it during classes and between classes.

'Q Do you know whether there is any feeling amongst any of the students at school as to whether anything ought to be done about Wayne's hair?

'A Well, a lot of them are talking about cutting it themselves, or he ought to have it cut.'

And Richard McDonald, another student at Mingus Union High School, testified:

'Q Have you ever observed any distraction, this school year, created by the length of Wayne Pendley's hair?

'A You mean in class?

'Q In or out.

'A Yes.

'Q Have you observed any attention focused on his hair or heard any conversation about his hair in class?

'A Oh, yes.

'Q Are you also aware of an undercurrent of feeling amongst the students that Wayne's hair ought to be cut?

'A Yes.'

The Superintendent of Mingus Union High School District testified regarding the purpose of hair regulation:

'A I say that the hair has a definite bearing on the disciplining of the school, whether it be in the disciplines themselves or whether it be in discipline as it relates to youngsters.'

There was also testimony that the school dress code was a reflection of the community standards in the area encompassed by the Mingus Union High School District The jury answered three interrogatories submitted to them as follows:

namely Cottonwood, Clarkdale, Cornville, Red Rock, Sedona, Jerome, and Sycamore Canyon.

'INTERROGATORY NO. 1. Is the Mingus Union High School District's Regulation relative to hair length unreasonable and arbitrary without a reasonable connection with the proper regulation of discipline and management of the school? The jury answer is No.

'INTERROGATORY NO. 2. Has the hair style of Wayne Pendley been a disruptive influence on the educational process at Mingus Union High School? The jury answer is Yes.

'INTERROGATORY NO. 3. Do you feel the hair style of Wayne Pendley will be a future disruptive influence on the educational process at Mingus Union High School? The jury answer is Yes.'

A reading of the reporter's transcript indicates that the jury's answers were amply supported by the evidence.

The trial court dismissed the petition. Pendley appealed to the Court of Appeals which reversed the trial court, see Pendley v. Mingus Union High School, 17 Ariz.App. 512, 498 P.2d 586 (1972), and the Mingus Union High School District brought a petition for review in this court which we granted.

PRELIMINARY DISCUSSION

The first 'hair case' we could find is the case of Ho Ah Kow v. Nunan, 12 F.Cas. 252 (No. 6,546) (C.C.Calif.1879) in which the District Court of California upheld petitioner Ho's allegation that the sheriff of the City and County of San Francisco even though acting under an ordinance, had no right to clip his queque while Ho was serving a six month jail term for failure to pay a fine. The District Court held that the cutting of Ho's hair was a denial of equal protection and constituted cruel and unusual punishment when applied to one of Chinese ancestry. Prior to 1969, there had been only two student hair cases in the Federal Circuit Courts. Today there are well over 40, and it would appear that the Circuit Courts are split evenly, 4 to 4, whether to uphold regulations enforcing hairgrooming requirements of a student's hair. For upholding school regulations, see Freeman v. Flake, 448 F.2d 258 (10th Cir. 1971); King v. Saddleback Jr. College District, 445 F.2d 932 (9th Cir. 1971); Jackson v. Dorrier, 424 F.2d 213 (6th Cir. 1970); and Ferrell v. Dallas Ind. School District, 392 F.2d 697 (5th Cir. 1968). For striking down the regulations, see Massie v. Henry, 455 F.2d 779 (4th Cir. 1972); Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971); Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970); and Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969). The most recent appear to be Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972) finding the hair regulation invalid, and Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972), upholding the grooming regulation.

The United States Supreme Court has not taken any of the Circuit Court cases even though urged to do so. Justice Douglas, in a denial of a petition for review, stated:

'Today the Court declines to decide whether a public school may constitutionally refuse to permit a student to attend solely because his hair style meets with the disapproval of the school authorities. The Court also denied certiorari in Olff v. East Side Union High School District, 404 U.S. 1042 (92 S.Ct. 703, 30 L.Ed.2d 736), which presented the same issue. I dissented in Olff, and filed an opinion. For the same reasons expressed therein, I dissent today. I add only that now eight circuits have passed on the question. On widely disparate rationales, four have upheld school hair regulations (citations omitted), and four have struck them down (citations omitted).

'I can conceive of no more compelling reason to exercise our discretionary jurisdiction than a conflict of such magnitude, on an issue of importance bear The late Mr. Justice Black, in denying a motion to suspend school regulations pending appeal, stated what appears to be the attitude of other members of the United States Supreme Court:

ing on First Amendment and Ninth Amendment rights.' Freeman v. Flake, 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489 (1972).

'The records of the ...