*1 504 P.2d 919 litem, guardian

Wayne PENDLEY, ad Appellant, Pendley, Donald C. DIS- UNION SCHOOL

MINGUS HIGH TRICT NO. 4 YAVAPAI OF COUN- TY, Arizona, Appellee.

No. 11002-PR. Arizona,

In Banc. 21, 1972.

Dec.

tection” clauses of the Fourteenth the Constitution of the United States?

2. Did the hair violate Wayne Pendley’s other constitu- tionally protected rights? for determination facts appeal this matter on follows. as Mingus The school dress code of Union High District contained School formulated Hand Book was Student comprised of the student a committee officers, body president, three other student council, faculty the student advisor high faculty, a member of the high principal, the school district superintendent, president provided part in fol- school board. : lows boys. requirements

“Haircut for Side- times. Hair burns must neat all forehead, should collar and be off ”*** ears. . Wayne Pendley’s hair did not conform to this He aware that was code. was code, but nevertheless violation of sought register attend classes when opened August was of 1970. He register prohibited permitted to but was Mickey Clifton, Phoenix, L. appel- for classes, attending and he thereafter from lant. special brought complaint for action Beck, Thelton Yavapai County D. Atty., County. Superior Yavapai Prescott, for appellee. application the court sit- was tried to ting advisory jury. with an CAMERON, Vice Chief Justice. hearing, testimony by super- At the granted petition for review of intendent, psychologist, teachers, the school opinion decision Ap- of the Court of community, and members members of the

peals reversing Superior an order testi- body was heard. The of the student Yavapai County. Superior Wayne superior mony indicated that Court ruled in favor of the ability, felt a desire that he academic which had denied part authority, he taken challenge had Wayne Pendley admission to school be- “underground newspaper”, printing an cause the of his hair exceeded that agitated place for a and that he had permitted by the school di-ess code. Al- smoke. campus students could where the attorney appellant, that he was testimony indicated Wayne Pendley, presents questions four but requirement, haircut familiar with the review, feel that only we there are two unconsti- unlawful an believed was questions before this court: regulation: tutional regulation concerning length 1. Was religious you Wayne, do “Q of hair for male violation all bearing at pro- process” “equal the “due views your wearing your Yes, is, hair in “A I there am sure.” have chosen ? Buddy Rhodes, a letterman in the sir, No, class, do not. junior testified: *3 any “Q you ideological “Q you Do or Are to able tell us whether the political beliefs that contribute to Wayne manner your styling? choice in hair his hair any wears creates distrac- among tion the students ? No, sir. “A Yes, “A sir. A lot of times is there a your your wearing “Q manner of Does during about it conversation classes hair, you by as an it intended ex- and between classes. pression any of ideas? “Q you any Do know whether there is No, particularly. "A feeling amongst any of the students hairstyle supposed “Q your to be a Is at to anything school as whether symbol anything? of ought Wayne’s to be done about symbol my “A A choice. More of hair? symbol my appear to desire Well, “A talking a lot of them are about way I wish to. themselves, it cutting ought or he your then, symbol, indi- “Q It’s have it cut.” viduality ? McDonald, And Richard another student rights. My “A individual School, High Mingus at Union testified: your symbol you say its “Q Would you “Q any Have ever observed dis- comply you belief that don’t traction, year, this school created regula- with some of the rules and Wayne Pendley’s length hair ? tions board? “A You mean class? *1* V ^ “Q In or out. * * * no, sir, I “THE WITNESS: “A Yes. symbol of that.” not believe it is do any “Q you Have observed attention fo- high offered testi- school district on hair heard con- cused or style of indicating the hair mony hair in versation about his class? disruptive Wayne influence Pendley was Oh, High it had Mingus yes. “A Union School effect the educational a detrimental “Q you Are of an under- also aware Scroggins, the climate at the school. Rita amongst feeling the stu- current of body, secretary the student testified: ought be dents that jury the extent you tell the “Q Would cut? occur- your of such observations “A Yes.” your hear- rences the extent or Mingus Superintendent Union conversations, how fre- ing of such regarding High testified School quent extent? and to what purpose regulation: of hair Well, up the lulls usually it comes “A say hair has a definite you I or at lunchtime when of classes disciplining of the bearing about. anything talk don’t have school, still, disci- whether it be in the be- Wayne was—his plines any- themselves whether cause, longer it is guess, young- discipline as it relates one else’s. “Q ^[******] Wayne part * * * undercurrent Pendley’s Do know whether hair? desire forcibly on the there cut nity dress There was also Mingus standards code sters.” Union a reflection the area High encompassed that the the commu- District, Cottonwood, Clarkdale, Cornville, namely Today Federal Circuit Courts. there are Sedona, Rock, Sycamore Red Jerome, appear well over would Canyon. evenly, split 4 to the Circuit Courts uphold regulations enforcing whether jury interrogatories answered three requirements hairgrooming student’s of a submitted to them as follows: regulations, upholding hair. For Is “INTERROGATORY NO. Flake, (10th see Freeman 448 F.2d v. School District’s College ; King Cir. 1971) Saddleback Jr. Regulation relative to hair un- 1971); (9th 445 F.2d Cir. arbitrary reasonable and a rea- without Dorrier, Jackson proper regu- sonable connection with the *4 ; 1970) and v. Ind. School Ferrell Dallas discipline lation of management and (5th 1968). For 392 F.2d Cir. jury The school? is no. answer striking regulations, Massie down see “INTERROGATORY NO. Has the 1972); Henry, (4th 455 F.2d 779 Cir. v. style Wayne hair Pendley been a dis- Bishop Colaw, (8th v. Cir. ruptive proc- influence on the educational ; Thurston, 1971) 424 F.2d 1281 Richards Mingus ess at High Union The School? Kahl, ; (1st 1970) and Breen v. Cir. jury yes. answer is recent (7th F.2d 1034 most Cir. The “INTERROGATORY 3. Do NO. appear Carpenter, to be Arnold v. style feel the Wayne Pendley hair 1972) regu (7th finding the hair Cir. be a disruptive will future influence on invalid, Schmidt, 460 lation and Karr v. process Mingus educational Union 1972), upholding the F.2d 609 High jury School? The yes.” answer is grooming regulation. A reading reporter’s transcript Supreme The Court has United States indicates jury’s that the answers were am- not taken cases the Circuit Court ply supported by the evidence. though urged Doug- even to do so. Justice petition. trial court dismissed the las, review, petition in a of a denial Pendley appealed to the Appeals stated: court, reversed trial see “Today to decide declines Court Mingus School, High Union 17 Ariz. public whether a school constitu App. 512, (1972), P.2d and the tionally permit to refuse a student High School District solely attend hair meets because his brought petition in this court review disapproval with the au granted. which we certi thorities. Court also denied orari Olff v. East Side Union PRELIMINARY DISCUSSION District, 404 U.S. 1042 S. [92 The first “hair case” find is the we could pre 736], Ct. 30 L.Ed.2d case Nunan, of Ho Ah Kow v. 12 F.Cas. 252 sented the same issue. I dissented (No. 6,546) (C.C.Calif.1879) in which the Olff, opinion. an and filed For the same upheld peti- Court California therein, expressed to reasons I dissent allegation tioner Ho’s the sheriff of only day. eight I add circuits now City County Francisco even San passed question. wide On ordinance, acting under an had no ly rationales, disparate upheld four have clip queque while Ho was serv- regulations (citations school hair omit ing jail pay a six month term for failure to ted), four struck them down a fine. The District held that (citations omitted). cutting equal hair Ho’s denial of protection compelling and un- “I and constituted cruel can of no conceive more punishment applied usual discretionary when to one of ju reason exercise our ancestry. Chinese mag-, Prior to there had risdiction conflict of such only nitude, been student importance two on an issue of bear cases law; process property, due Amendment and Ninth without

ing on- First Flake, deny any person juris- nor within its rights.” Freeman v. equal protection 31 L.Ed. diction of the laws.” U.S. 489 (1972). 2d considering In whether the school Black, denying regulations violate the Fourteenth Amend- The late Mr. Justice - ment, particularly suspend regulations process a- due motion clauses, appears equal protection pri- pending appeal, stated to be we must look what marily other members of Unit- the attitude of themselves. ed Court: Our statute reads: Courts, high in of education of “The the federal “A. records of " heavy shall, management of the cluding ours, burden of for the show school, powers duties litigation high have all in connection with cases litigation great importance vested common school trustees.” kind § —the (as handle if 15-545 amended) our must be able to A.R.S. Courts responsibility perform their are to (as amended) con- 15-441 A.R.S. § Moreover, society. our Consti cerning common schools states: pow sought to tution has distribute the *5 pre- “A. The board of trustees shall government ers of in Nation between this gov- the scribe and enforce rules for and the United the Sure States States. schools, ernment the inconsistent of not ly perform the judiciary federal can prescribed by state with law or rules the greater no than service to the Nation to board of education.” unhampered per leave the in the States purely formance of local affairs. Sure Due Process A.

ly 'policies thought few can be of that capable deciding States are more of course, must, of be some There length of the of the hair school day-to authority operate to a a school on boys.” Schmidt, Karr U.S. supports amply day basis and statute 592, 593, 27 L.Ed.2d pass authority the board to the of (1971). the regulations for reasonable and rules 5th orderly operation of the school. apparent di- that there is a wide n , has Circuit stated: vergence opinion as of to whether . justice by requiring cause of is served our in “Regulations are essential - courts to concern themselves with the discipline on maintaining and order length granted of a hair. re- student’s We Thus property are reasonable. in hope view this case in the that our assign students rules litigation subject decision future on this unnecessary dis- particular class, a forbid n might jurisdiction unnecessary. in this prohibit in the classroom cussion between exchange of conversation THE FOURTEENTH AMENDMENT students reasonable are even

Section 1 of the Fourteenth Amendment regulations infringe basic these on such to the United States Constitution reads as asso- rights as freedom ciation, follows: they are for because orderly presentation classroom persons “All or naturalized born Therefore, reg- activities. reasonable States, juris- subject United measurably ulation contrib- is one which thereof, the Unit- diction citizens utes to order and maintenance they ed and of State wherein system.” decorum the educational within or enforce shall make reside. No State Byars, Burnside priv- abridge shall law which (5th 1966). Cir. ileges of the of citizens or immunities de- so States; 5th has also nor shall State stated United Circuit life, liberty, long by the or determination prive person of there is a regulation school board that regulation of a school board is reason- management best interest of unreasonable, able or just should do school, regulation will be sustained. nothing more. Courts not should Education, v. Board intrude “lawfully Stevenson vested * * * opinion com- This discretion” of the school board. ports approach the traditional to the with review the courts of the wis- Judicial equal protection question. See “Students’ dom rather than the reasonableness of Right Appearance Personal Choice usurpation amounts to Schools,” Re- 36 Missouri Law Public legislative delegation power (1971). view 529 separa- the school board and violates the power tion of fundamental form Trask, Judge speaking 9th Ozell government. See “Administration Circuit, ap- has followed the traditional Law, Review,” Washington Scope of proach process holding to due rule 707, 710, Law find Review arbitrary on hair is not or unreason- process no due violation the enactment able if it has rational basis and is di- and enforcement of dress code interest, rectly related to a vital state i. e. School District. the maintenance of order in the school. Judge up Trask held further that it is Equal B. Protection person contesting regulation carry showing the burden of that it is in- There evidence in was no valid. regulation applied case that the unfair unevenly. ly or There was no preference

“This is that other who had hair viola- against styles certain male hair or the ion the dress code were admitted persons to which desire to wear *6 not, any the is in defendant nor there their hair. This court could not care religious dication of racial or discrimina right less. is of Admittedly, tion. there was a differenti develop authorities to a code of girls regulation itself between and conduct ation dress best the conducive to their boys girls could of have fulfillment their responsibility to edu- could, cate, do boys but we longer than the and to do it without unconstitu- meaningful is a distinc not feel tionally infringing rights of equal protec purpose tion for the of must do those who live under it. not We argument in this tion case. plaintiffs estab- believe that any lished the of existence substantial PROTECTED CONSTITUTIONALLY right which is these constitutional RIGHTS infringed. being two We are instances (cid:127) satisfied that the authorities have Pendley’s Wayne Regarding constitu- rights acted with consideration for the tionally protected rights, we must look feelings of their students and have regulations upon stu- the effect of codes, including their the ones enacted required If is the courts dents. caution here, in question of best interest rules considering of reasonableness process. might the educational A court board, regulations of the school professional disagree judgment, their with similarly when are restrained courts not operation but it should not take over the regula- considering the rules and whether Arkansas, Epperson of their schools. ap- tions, properly equally enacted and 97, 104, 266, 393 L.Ed. U.S. 21 constitutionally protected plied, violate King (1968).” 2d 228 v. Saddleback rights of students. The United College District, supra, Junior Court has made clear: 932 at 940. system, state-operated “In our schools keep Courts should in mind that not be of totalitarianism. enclaves they when are possess asked to determine whether School officials do not absolute students;

authority over their B. Students Fundamental Freedom Under the as as well out of school are Ninth Amendment ‘persons’ They under our Constitution. approved The Fifth Circuit has the fol- possessed rights of fundamental lowing language by a District Court: respect, just State must “Plaintiff that student contends Davis respect obligations themselves must their has a personal right ‘fundamental of free to the State.” Tinker v. Moines Des grooming’ choice argues of that such Independent District, Community School right reasoning under the can be found 503, 511, 739, 733, 393 U.S. S.Ct. v. Connecti Griswold [Griswold L.Ed.2d cut, 14 L.Ed. U.S. 2d this case fall case. But if is to 510] not words, student does In other Griswold, within there must the ambit protection of lose the Constitution provisions specific provision or be some must, schoolyard. when he enters We Rights of the Bill of from which student therefore, if in the instant case en see emanates, or, grooming if right Davis’ of the dress code forcement violated permissible approach it is to follow the rights. constitutional right Goldberg, must at Justice be Speech least ‘fundamental.’ Court is A. Amendment Freedom First opinion right not that this of such Wayne in Although his it can be based nature that on right to did not assert a First guarantees provided Rights in the Bill length, the hair at desired wear his and, right privacy may while the be so brief raised counsel in the issué was ‘fundamental,’ sacred as be the same appeal. certainly ‘right cannot said for the grooming’.” free choice Davis argument First Amendment assumes Firment, F.Supp. (E.D.La. wearing of hair certain 1967), affirmed Curiam Per symbolic wearing of arm- as was Independent Tinker Moines bands in v. Des Community supra. We is a find that there do not cases in found protected newly constitutional —free accepted long wearing court has Ninth Amend appearance dom —in *7 as pure symbolic and the United right to that the nor do believe ment we specifically State Court has ex- right long fundamental hair is a wear .fall length cluded the of hair First from guarantees penumbra of ing within the questions Amendment : Con Rights. Griswold v. the Bill of See 1678, necticut, 479, 85 S.Ct. 381 U.S. present problem posed the case “The (1969). L.Ed.2d 510 length regulation of the relate does not type clothing, the of skirts or the that school’s therefore hold We deportment.” Tinker Des style, or regulations do violate other funda rights nor Independent Community School Amendment Moines Ninth by the protected United rights 508, mental 507, supra, 393 U.S. at do find we Neither Constitution. 733, by the Constitu any rights protected Amendment there is a First If been vi of Arizona tion the State length, certain wear hair a we one’s olated. being what is said been unable to ascertain is a First and do not believe there we CONCLUSION See this case. orderly more may result in a it While Expres- sepa- “Constitutional Law —Freedom issues to consider presentation of the raised this rately questions sion,” Brooklyn (1972). the Law Review 802 various does, admit, (cid:127)case, problem tionally protected rights, confuse the these we are waters believe a few into which should therefore we not wade. rsomewhat. concerning propriety of court the comments Although charged the courts are with the operation into intrusion very grave heavy responsibility pro- merited. board is tecting citizens, rights individual students, including from encroachments important perhaps most is Education upon their rights, basic constitutional we governments: local función of state and duty discharged believe can be very good citi- foundation “It is while at paying the same time deference to zenship. Today principal instru- it is a authority day- of the school board in the to cultural awakening the child ment to-day operation of our schools. values, profes- preparing him later The decision of Appeals the Court of training, helping to ad- and in him sional 512, Ariz.App. 498 P.2d vacated just normally to his environment.” and the order of the trial court is affirmed. Topeka, v. Board of Education of Brown 691, 686, 347 U.S. HAYS, J.,C. and STRUCKMEYER 873, 880, (1954). L.Ed. 38 A.L.R.2d 1180 LOCKWOOD, JJ., concur. authority of The boundaries between rights and the a school board to act HOLOHAN, (dissenting). Justice act the board’s Regretfully, I find it to dissent necessity infringe blurred. If are of by majority from the view taken on the power, (cid:127)school board does not have absolute of this law and facts case. I take rights -neither are constitutional appears action at first even blush .(cid:127)privileges the student absolute. type concerning regula- that this of case courts in these cases then must face tion of hair for students is one of rights balancing task of of the various trivia, but on is- closer examination the so, represented. doing 'interests In important sues the case are more courts must realize that are not the society. fundamental to our depository -ultimate common wisdom and disposition made (cid:127)sense. true that some writers would Appeals in reversing the decision of the urge upon authority that the courts trial, court disposition. should also be our regulate very school board to conduct is limited and that the courts should become Ariz.App. No. 498 P.2d more day-to-day operation involved in the essence, Ap- In the Court of schoolyard. classroom Pro- See peals position a school took Goldstein, Scope fessor “The and Sources authority has no to issue con- Regulate (cid:127)of Authority School Board cerning length of hair of male students. Status, Student Conduct and A Nonconsti- *8 legitimate area Such are not a Analysis,” University tutional Penn- 117 authority by for action school boards. (cid:127)sylvania Law (1969) Review 373 “Re- proposition, agree general As a I with Developing flections on in Trends the Law n of Student Appeals. Rights,” University Pennsylvania (1970), Law Review Appeals cit- The Komadina same opinion Appeals Peckham, 498, ed of the Court of Ariz.App. 478 P.2d in this case. (1971), reminds us that:

However, always we “Deviating styles way believe that there is in no indicate danger .a attempt when the conduct, courts to decide good decorum or vir- lack in the questions first instance which necessarily tue. does short hair in- Nor delegated "been duly legally elected and excellence, integrity dicate moral or governmental (cid:127)constituted local Ariz.App. officers. nobleness.” at Absent clear violation of the constitu- P.2d at 115. however, petitioner in school Court, period has of time the was this majority of and, disruption, except for the no position there was contrary to the to hold fit seen administration, pro- feelings of the school majority Appeals. The

the Court in- process of education continued without only is the to hold that further ceeds interruption. of a school cident proper function regulation a per- constitutionally board, it is also but actually brings sharply into case This regulation. missible using gov- group, by focus the action one by position majority action, conformity allows require of the ernment deny to a ruling an education sympathy district others not with normally makes by the state group. which illustrated student This is n age, based Superintendent all students of dis- which available to conform of that sign the failure student long hair was a closed that he felt govern- by established to a hair He and the School defiant attitude. district in a so- ing hair should be felt that short Board for students. called “dress code” system, standard for the school and was granted to privilege is denied the student the students. interest of best upon a standard students based similar posi- Board support In by length of his hair. The measured tion, person than the school no less a infirm- majority can find no constitutional testify and 'as he psychologist called to was disagree. To ity a standard. I with such concluded: liberty reserved this is a denial of that me demo- was feel that standard “I ' people to the Ninth majority, and cratically arrived by the protected interference from state reasonable, entirely therefore it seems Fourteenth Amendment. psychologist, to as- as an educator and Founding an amend “The Fathers wrote sume that this is beneficial.” they assembly; even ment addition, In he testifies: an deem it to write did not Perry, suggested at “Q you Dr. one appearance. personal amendment you point your that direct examination conclude that within commodious n try that to teach believe that it’s well we liberty, embracing freedoms concept-of seg- society. children to imitate What small, right to one’s great'and wear n to, referring society you ment of were he wishes.” Richards hair.as please, sir ? Thurston, (1st implied. I thought regu- governmental I It is true that not all judges, the to imitate the would ask them lations interfere with constitution- doctors, lawyers, the best impermissible in an right al if are society. power of area the constitutional within important or substan- state, and further an % jij 5|« j}s governmental interest, govern- tial you “Q saying Are wherever suppres- mental interest is unrelated to then, live, might be well particular right, and the inci- of- the sion in that professionals try to imitate the greater is no dental restriction on particular— thán is essential the furtherance professionals. best of “A The government substantial interest. See: Yes, would. O’Brien, States v. 391 U.S. United perhaps you suggesting that “Q Are and Tink- (1968), 20 L.Ed.2d 672 *9 Yavapai County equal to or the best of Community Independent er Des Moines v. Phoe- maybe society of better District, 393 U.S. nix? argued that 21 L.Ed.2d It is to, Equal yes.” regulation in this case was the standard was psychologist To the disruption. Interestingly to avoid school good worth clear —even obvious. The enough, that for discloses evidence

27: men, they farmer, cowboy, or blue-col- worker, get not even honorable men-

lar did self-styled

tion from “educator.” were, doubt, sin-

The above witnesses no beliefs, more

cere their but the issue is system

fundamental. Can the school re-

quire style accept ap- its students

pearance accepted by majority good fashion, proper in another Stated ? is whether a school district conformity by

order all students to the good grooming prescribed

standard of

the school I think not. board? Appeals speaking through Court of

Judge Hathaway eloquently: said so

“. . . we cannot but wince when an presumably

institution dedicated to the young people

education of our on matters

including the virtues of our constitutional government

form of and the liberties

guaranteed thereby, prem- bars from its

ises student appears whose hair

comparable to founding that of the fa-

thers.”

School District No. P.2d sincerely hope that the school boards

n ofthis state do not majority take the too

literally and use this precedent case as example

follow the

this case.

504 P.2d 928 Joy HALENAR,

Linda widow of Robert J. Halenar, Deceased, on behalf herself and Halenar, Jr., on behalf of Robert James H. Petitioners, al., et Arizona,

SUPERIOR COURT of IN AND FOR COUNTY OF MARICOPA al., Respondents. et

No. 10822. Arizona, In Banc.

Dec. 21, 1972.