Murphy v. Pocatello School District 25

480 P.2d 878, 94 Idaho 32, 1971 Ida. LEXIS 258

• Court: Idaho Supreme Court
• Decided: February 10, 1971
• Docket: 10482
• Status: Published

Opinions

McFADDEN, Justice.

In March of 1969 Chris Murphy was called to the office of Mr. Evans, the vice-principal of Highland High School in Pocatello, and 'told to get his hair cut; Murphy-refused and was suspended.

This action was instituted on behalf of Chris Murphy by John C. Murphy, his father and guardian ad litem, the plaintiff-appellant here. Appellant sought a writ of mandate to compel Pocatello School District No. 25, Rulon M. Ellis, superintendent of the school district, and Lionel Bowser, principal of Highland High School, the defendants-respondents, to reinstate Chris Murphy as a senior in the Highland High School following young Murphy’s suspension from school for failure to comply with a rule of the school district concerning hair style.

Murphy filed this action on April 7, 1969, following his suspension from Highland High School on March 27, 1969. The trial court issued its order and alternative writ of mandate requiring the respondents to show cause on April 21, 1969, why they should not be enjoined and restrained during the pendency of the action from refusing young Murphy permission to return to school, and further issued a temporary restraining order against the respondents from refusing to allow Murphy to return as a regularly enrolled student. By his complaint, Murphy sought a permanent writ of mandate against the respondents, and also prayed for damages sustained by reason of the acts of the respondents in suspending him from attendance at school.

Respondents moved to dismiss the action, and also appeared before the court on the date required in the order to show cause. Testimony was adduced at that time on behalf of both the appellant and the respondents. Following the hearing on April 21, 1969, the trial court two days later issued a memorandum decision and order which denied the petition for writ of mandate, dismissed the petition and dissolved the restraining order. The respondents then filed a motion for summary judgment. The trial court in a memorandum decision recited

“upon stipulation of counsel that the Motion for Summary Judgment could be determined based upon the files, records, and evidence as heretofore presented to the Court * * * ”

and then ordered that the motion for summary judgment be granted. Summary judgment for the respondents was entered on May 22, 1969. Appeal was ta|<en from the order of April 28, 1969 dismissing the petition for writ of mandate, and from the summary judgment dated May 22, 1969.

The facts are substantially as follows. In 1956 the Board of Trustees of the school district adopted rules and regulations dealing with student dress, one of which, item “4.f Student Dress,” provided:

“When in the judgment of the principal, the dress, hair style, or affected appearance of any student detracts from the academic atmosphere of the school community and is disruptive of good order and discipline, that student may be suspended from school until such condition is corrected.”

In implementing this rule at Highland High School, Mr. Bowser, the principal, who had helped to draft the foregoing rule, established a rule of thumb test of hair style acceptability of “off the eyes, off the ears, and off the collar.” The school authorities determined that young Murphy’s hair style was in violation of the rule since his hair was over his collar.

Murphy attended Highland High School for approximately three years commencing with his sophomore year. Witnesses testified that his grades were average or better and his attendance and conduct satisfactory, except for the instances in prior years when he had allowed his hair to grow too long. In his junior year he had suffered a suspension for letting his hair grow too long and for some other undisclosed reason, but was reinstated after a day’s suspension and after he had his hair cut.

Mr. Ellis, the superintendent of the Pocatello schools, testified that the reason for the rule relative to student dress and hair style was to maintain the proper academic and disciplinary atmosphere.

Mr. Bowser, the principal of Highland High School stated that the rule was necessary for control of a student body of over twelve hundred.

Mr. Evans, the vice-principal stated, in effect, that the line regarding student appearance must be drawn somewhere and that letting down in one area would lead to letting down in other areas as well. It was his opinion that the “long hair” rule was preventative. As support for this conclusion, Mr. Evans stated that informal dress at school dances results in more disciplinary problems than at formal events. At no point did Mr. Evans establish a correlation between long hair and disciplinary problems.

The record reflects that Murphy as a pupil was not unruly or disruptive and that his attendance and work at school were satisfactory, if not above average. Some of Murphy’s fellow students, and one of his instructors testified that Murphy’s hair style did not create any problem of disturbance in the various classes, and did not distract from the academic atmosphere. The school district’s only testimony regarding an actual problem with a long-haired male student related to an incident involving a forcible haircutting by students of a fellow student on the school grounds about a year before Murphy was suspended. The facts surrounding the incident were not made clear at the hearing. Respondents point out that after this present action was commenced several “long-haired” students felt the necessity of asking the faculty for protection from certain other students. This action was deemed necessary even though the “long-haired” students were within the standards established by the school authorities. The question is thus raised as to who actually was to blame for these hair-related “disturbances.”

Statutory provisions which are involved in this action are:

I.C. § 33-205. “Denial of school attendance. — The board of trustees may deny attendance at any of its schools, by suspension or expulsion, to any pupil who is an habitual truant, or who is incorrigible, or whose conduct, in the judgment of the board, is such as to be continuously disruptive of school discipline, or of the instructional effectiveness of the school. Any pupil having been suspended or expelled may be readmitted to the school by the board of trustees upon such reasonable conditions as may be prescribed by the board; but such readmission shall not prevent the board from again suspending or expelling such pupil for cause.

No pupil shall be expelled without the board of trustees having first given notice to the parent or guardian of the pupil, which notice shall state the time and place where such parent or guardian may appear and show cause why the pupil should not be expelled. Any pupil who is within the age of compulsory attendance, who is expelled as herein provided, shall come under the purview of the youth rehabilitation law, and an authorized representative of the board shall file a petition with the probate court of the county of the pupil’s residence, in such form as the court may require under the provisions of section 16-1807.”

I.C. § 33-506, which provides in pertinent part:

“ * * * and the board [of trustees] shall have the following powers and duties :

1. To make by-laws, rules and regulations for its government and that of the district, consistent with the laws of the state of Idaho and the rules and regulations of the state board of education; * * * »

I.C. § 33-512, which provides in pertinent part:

“The board of trustees of each school district shall have the following powers and duties:

******

6. To prescribe rules for the disciplining of unruly or insubordinate pupils ; * *

In this particular action the authority of the board of trustees to adopt rules concerning the standard hair style of the individual students of the district is being challenged. Under the framework of the school system as it exists in this state, the board of trustees of each district is charged with the responsibility of conducting and financing the schools within the confines of the district.

In general, appellant asserts that the requirement that he wear his hair in conformity with the requirement of the school officials is in violation of his constitutional rights. In particular, appellant asserts that his rights to procedural due process were denied under I.C. § 33-205. The record, however, reflects that Murphy, his father and Murphy’s counsel were given sufficient notice and opportunity to be heard.

But the substantive constitutional issues appellant raises cannot be disposed of as easily. It must be noted that the traditional presumption of legislative validity does not apply to the substantive issues appellant raises under the First, Fifth, Ninth and Fourteenth Amendments. The United States Supreme Court has repeatedly required something more of legislation involving fundamental rights than merely some reasonableness or some relation to the public health, safety and welfare. See, e. g., United States v. O’Brien, 391 U.S. 367 at pp. 376, 377, 88 S.Ct. 1673 at p. 1679, 20 L.Ed.2d 672 (1968), and cases cited in footnotes; Griswold v. State of Connecticut, 381 U.S. 479 at pp. 497-498, 85 S.Ct. 1678 at pp. 1688-1689, 14 L.Ed.2d 510 (1965) and cases cited therein.

Respondents would have this court adhere to the proposition that “School District rules controlling student demeanor and appearance will not be overruled upon judicial review unless the rules appear to be arbitrary and capricious; or unless they bear no effective relationship to the educational process with which the schools are concerned; or, unless the rules violate a clearly defined constitutional right.”

At the time of the hearing of this case before the trial court in the closing months of the 1968-69 school term, there were several cases from other jurisdictions dealing with this issue of the validity of rules adopted by school authorities regulating students’ hair style and length, which cases were divided in ultimate conclusions. Cases relied upon by the trial court included: Ferrell v. Dallas Indep. School Dist., 392 F.2d 697 (5th Cir. 1968); Davis v. Firment, 269 F.Supp. 524 (E.D.La.1967); Leonard v. School Committee of Attleboro, 349 Mass. 704, 212 N.E.2d 468, 14 A.L.R.3d 1192 (Mass.1965). In each of these cases relied on by the trial court in its memorandum opinion, the rule of the particular school was upheld.

Cases decided at the time of the district court ruling herein which denied the validity of the particular rule were: Zachry v. Brown, 299 F.Supp. 1360 (N.D.Ala.1967); Finot v. Pasadena City Board of Education, 250 Cal.App.2d 189, 58 Cal.Rptr. 520 (1967), (involving a beard worn by a teacher).

Since the time of the trial court hearing there have been a number of other decisions dealing with this issue. Those which have upheld the validity of the rule include: Jackson v. Dorrier, 424 F.2d 213 (6th Cir. 1970); Brownlee v. Bradley County, 311 F.Supp. 1360 (E.D.Tenn.1970); Crews v. Cloncs, 303 F.Supp. 1370 (S.D.Ind.1969); Brick v. Board of Education, 305 F.Supp. 1316 (D.Colo.1969); Farrell v. Smith, 310 F.Supp. 732 (D.Maine 1970); Neuhaus v. Torrey, 310 F.Supp. 192 (N.D.Cal.1970) (where the school grooming rule was applied to athletes only).

Cases decided subsequent to the trial court’s hearing which have held the particular rule invalid are: Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969); Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala. 1969); Westley v. Rossi, 305 F.Supp. 706 (D.Minn.1969); Meyers v. Arcata Union High School Dist., 269 Cal.App.2d 549, 75 Cal.Rptr. 68 (1969); Sims v. Colfax Community School Dist., 307 F.Supp. 485 (S.D. Iowa 1970) (dealing with female coiffure). Calbillo v. San Jacinto Junior College, 305 F.Supp. 857 (S.D.Texas 1969). See also: Goldstein, “Reflections on Developing Trends in the Law of Student Rights,” 118 U.Pa.L.Rev., p. 612 (1970); Goldstein, “The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Non-Constitutional Analysis,” 117 U.Pa.L.Rev., p. 373, (1969).

The issue in this and other similar “long hair” cases is well articulated by Goldstein, “Reflections on Developing Trends, etc.,” supra, that issue being:

“ * * * whether, under our total legal system, and the presumptions of the societal and governmental systems within which it exists, the interest of the school system outweighs that of the student and his parent in making private decisions regarding personal appearance.” Goldstein, supra, pp. 616-617.

Continuing, Goldstein states:

“ * * * Rather than merely comparing a regulation to some abstract quality of reasonableness or arbitrariness, current judicial scrutiny includes an examination of its asserted purpose and effect, the factual bases underlying this assertion, and the countervailing factors such as privacy and individual decision-making that are displaced if the rule is upheld. In essence, the courts not only are seeking to ask hard questions that the Leonard case [Leonard v. School Comm., [349 Mass. 704], 212 N.E.2d 468 (Mass.1965) and other early decisions such as Davis v. Firment, 269 F.Supp. 524 ([D.C.] 1968), which follow Leonard] avoided, but are also striving to answer them by weighing all of the relevant factors in order to reach an optimal balance. In resolving each case and reaching this often delicate balance, the courts are heavily influenced by a growing general feeling that in our society, privacy and individuality need protection.” Goldstein at 617, supra.

It must be recognized that the courts will, albeit reluctantly, intervene in conflicts which arise in the operation of the school systems if such conflicts “directly and sharply implicate basic constitutional values,” Epperson v. Arkansas, 393 U.S. 97 at 104, 89 S.Ct. 266 at 270, 21 L.Ed.2d 228 (1968), and this will be done even if the disciplinary powers of school authorities will be diminished if the regulation is not upheld. The Constitution protects minor high school students as well as adults from unlawful governmental infringement on their constitutional rights. See e. g., West Virginia State Bd. of Education v. Barnette, 319 U.S. 624 at 637, 63 S.Ct. 1178 at 1185, 87 L.Ed. 1628 (1943); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 at 506-507, 89 S.Ct. 733 at 736-737, 21 L.Ed.2d 731 (1969).

The scheme of authority as related to school boards has been discussed by Gold-stein in his article “The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Non-Constitutional Analysis,” 117 U.Pa.L.Rev., 373 (1969). Therein he makes the point (and in our opinion, correctly so) that “ * * * a school board has the power, and only that power, over student conduct and status which is properly related to its function of educating the pupils in its charge.” (Supra, at 387). In other words, the school board has no general legislative power over the youth in its geographic territory. “ * * * Forced conformity to a social value system is the function of the representative general legislature. Although we usually elect our school boards, as we do our state legislatures and municipal governments, we do not elect them to perform this general legislative function.” (Supra, at 392).

As applied to the case at hand, the record reflects that the reason for the regulation was to assure tranquility in the school and to avoid confrontations between those students wearing long hair and other students — an attempt to avoid disturbances in the operation of the school. However, the record also reflects that Murphy’s attendance at school and in his classes created no disturbance with the other students or with his teacher. The only time that trouble arose as regarding Murphy personally, was when the rule itself was being enforced.

We ultimately are faced with the question — upon what constitutional premise is the right to wear one’s hair in any manner desired based?

The cases upholding a student’s right to wear long hair have generally stated expressly or by implication that the right is based upon: the First Amendment — as within the periphery of “expression” (specifically as an extension of Tinker v. Des Moines Independent Community School Dist., supra); the Fifth Amendment — as part of the concept of substantive due process ; the Ninth Amendment — as other rights not enumerated in the first eight amendments and which are retained by the people; the Fourteenth Amendment which makes the Bill of Rights applicable to the states and which also includes concepts of substantive due process and equal protection of the laws; a combination of the above enumerated amendments culminating in Justice Douglas’ now famous “penumbras, formed by emanations” from a number of constitutional amendments which, taken as a whole, form a “zone of privacy” into which the state is not permitted to trespass. Griswold v. Connecticut, 381 U. S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965).

In the Murphy case, possibly we could simply rely on the First Amendment since Murphy testified that his hair style involved expression of his individuality and of his philosophical attitudes. This could be done under an extension of Tinker, supra, and similar cases involving a mode of individual expression. This was done partially in Breen v. Kahl, supra. The problem with this approach, however, is that the test of what is “expression” becomes subjective rather than objective which could pose serious problems in future litigation in the First Amendment area. Also, as was stated in Richard v. Thurston, supra, 424 F.2d at 1283, regarding how far the First Amendment should be expanded to protect modes of expression, “ * * * as the nonverbal message becomes less distinct, the justification for the substantial protections of the First Amendment becomes more remote.”

We could also uphold Murphy’s right to wear his hair in any manner of his choosing since the right appears and has been held to be embodied in the concepts of “life” and/or “liberty” of the intentionally broad language of the Fifth and Fourteenth Amendments. “ * * * as to each situation, the due process clause allows the courts to adjudge whether, in the circumstances, the right to life, to dissipate one’s funds, to marital privacy, to breed children, to dress as one pleases and the like may be invaded by the state.” (Abrams, “What are the Rights Guaranteed by the Ninth Amendment,” 53 A.B.A. Journal 1033 at 1039). (Emphasis added.) The courts of this country have not been reluctant to uphold rights not specifically provided for under the broad due process clauses of the Fifth and Fourteenth Amendments. See, e. g., Richards v. Thurston, 424 F.2d 1281 at 1284 (1970).

Finally, but probably the most relevant constitutional premise of all, is the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Neither from the words themselves nor from the records and other contemporaneous material concerning the creation of the Ninth Amendment is it exactly clear what “rights" are retained by the people. What is clear from an examination of the history and origin of the Ninth Amendment is that the absence of a specific constitutional provision dealing with the rights of privacy, personal taste, the right to be left alone, and the like, does not compel the conclusion that no such right exists. On the contrary, the opposite conclusion is compelled. As in the Fifth and Fourteenth Amendment due process cases which have interpreted and necessarily expanded what life, liberty and pursuit of happiness mean, the determination of what rights exist and in which situations under the broad and general language of the Ninth Amendment is clearly, and again necessarily, left to judicial determination.

Therefore, under both the Idaho Constitution, art. 1, §§ 1 and 21,¹ and under the Ninth Amendment of the United States .Constitution made applicable to the states by the Fourteenth Amendment (under Gris-wold, supra), we hold the right to wear one’s hair in a manner of his choice to be a protected right of personal taste not to be interfered with by the state unless the state can meet the “substantial burden” criteria similar to that set out in the cases holding in favor of the student, supra. For example, if it is established that the exercise of personal taste, as manifested by personal appearance, has substantially impaired some societal interest, then the state may intervene.

Thus, it is our conclusion that the respondents have failed to establish the “substantial burden of justification” essential to sustain the validity of this regulation. The record fails to reflect that there was any substantial health, safety, academic or disciplinary problem created by the wearing of long hair.

The judgment of the trial court is reversed and the cause remanded for further proceedings in conformity with the views expressed herein. Costs to appellant.

McQUADE, C. J., and DONALDSON, J., concur.

1 . Idaho Const, art. 1, § 1. Inalienable rights of man. — All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.

Idaho Const, art. 1, § 21. Reserved rights not impaired. — This enumeration of rights shall not be construed to impair or deny other rights retained by the people.