Decided May 5, 1976.
Schools — Dress code — Hair length — Authority of board of education to enact — R.C. 3313.20 — Grooming guidelines invalid, when — Applied to yearbook pictures.
CERTIFIED by the Court of Appeals for Fayette County.
The instant cause is before this court upon certification by the Court of Appeals for Fayette County that its decision herein is in conflict with the decision of the Court of Appeals for Knox County in Laucher v. Simpson (1971), 28 Ohio App.2d 195.
The pertinent facts of this cause are simple and undisputed. Appellee Thomas McClung was a student and resident of the Washington C.H. City School District during the 1974-1975 school year, his senior year of high school. Appellee attended classes that year, however, at the Laurel Oaks Joint Vocational Center in Wilmington, Ohio, where he studied masonry.
In effect during the 1974-1975 school year at Washington Senior High School, and for the two preceding school years, were certain "Student Dress and Grooming Guidelines" promulgated by the Board of Education of the city of Washington C.H., and approved by the student council of Washington Senior High School. The relevant portion of these "guidelines," which were printed in the student handbook approved by the board of education on April 2, 1973, provided:
"Boys must be neat and clean about their dress and grooming at all times. * * * Hair is to be neat, clean and trimmed in such a way as to be out of the eyes and off the shoulders when seated. Sideburns are to be neatly trimmed, not flaring, and are permitted one inch below the ear lobe. Faces should be clean shaven at all times with no mustaches or beards."
The Laurel Oaks Joint Vocational Center did not enforce the above grooming guidelines because its students represented over ten separate school districts. Thus appellee, whose hair length admittedly violated those guidelines, was permitted to attend, and did attend, classes throughout the 1974-1975 school year.
In the fall of 1974, appellee had his picture taken for insertion in the school yearbook to be published in June 1975. Under the date of February 5, 1975, appellee received a letter from the Assistant Principal of the Washington Senior High School notifying him that his picture was not acceptable for publication in the yearbook based upon violation of the school grooming guidelines. Appellee had his picture taken again after receipt of the aforementioned letter, but with no change in the result.
On June 16, 1975, appellee and his father filed a complaint in the Court of Common Pleas of Fayette County, alleging that the Washington Senior High School grooming guidelines violated the First, Ninth and Fourteenth Amendments to the Constitution of the United States, and requesting the court to declare the hair grooming guidelines invalid and to enjoin the appellant board of education from proceeding to publish the 1974-1975 school yearbook without appellee's picture contained therein.
Upon trial before the court, appellee testified that he knew that his hair length violated the school grooming guidelines when his picture was taken for yearbook purposes, but that he wore his hair at its then present length due to "personal preference." He also testified that he was never suspended from school as a result of his hair length being in violation of the aforesaid grooming guidelines, although he was denied admission to certain school functions.
Mr. Fred Jones, principal of Washington Senior High School, testified that he made the final decisions as to the admission or rejection of individual pictures in the school yearbook, and that appellee's pictures did not comport with the school's grooming guidelines. He testified further that in his personal opinion the grooming guidelines are necessary in order to control minorities and extremists, to promote school pride, and for safety and health reasons. Upon cross-examination, Jones conceded that the grooming guidelines did not specify penalties for violations thereof, and that certain pictures published in the preceding two year's school yearbooks were "questionable" with regard to compliance with the grooming guidelines.
The Court of Common Pleas held the portion of the grooming guidelines at issue herein to be reasonable and valid regulations, and not arbitrary, discriminatory, devoid of educational value or constituting an abuse of discretion. Accordingly, the court dissolved the temporary injunction it had issued prior to the trial of this cause, denied the requested permanent injunction, and entered judgment for the appellants.
Upon appeal, the Court of Appeals for Fayette County reversed that judgment, and issued a permanent injunction restraining publication of the 1975 Washington Senior High School yearbook absent appellee's picture contained therein.
The cause is now before this court for review and final determination.
Mr. Robert L. Simpson, for appellees.
Messrs. Kiger Roszmann, Mr. James A. Kiger and Mr. Gary D. Smith, city solicitor, for appellants.
Appellee contends that Section 1, Article I of the Ohio Constitution and the Fourteenth Amendment to the Constitution of the United States protect his right to determine his own personal appearance. It appears that appellee argues that the grooming guidelines involved herein infringe upon his personal liberty as protected by the aforementioned state and federal constitutional provisions.
Appellants, on the other hand, deny that any constitutional issue or issues are presented by the within cause, and maintain that the issue is whether the Washington Senior High School grooming guidelines are reasonably related to the educational process.
In recent years the federal courts have been called upon to determine whether an individual has a constitutionally protected interest in selecting his or her personal hairstyle. The decisions in those cases evidence a panorama of views on the issue, and have involved military, police, and fire personnel, as well as students. The United States Supreme Court has, until recently, refused to consider the issue, having denied certiorari in at least nine cases.
See, e.g., Campbell v. Beaughler (C.A. 9, 1975), 519 F.2d 1307 (upholding regulation); Hough v. Seaman (C.A. 4, 1974), 493 F.2d 298 (striking down anti-wig regulation); Miller v. Ackerman (C.A. 8, 1973), 488 F.2d 920 (striking down anti-wig regulation); Friedman v. Froehlke (C.A. 1, 1972), 470 F.2d 1351 (striking down anti-wig regulation).
See, e.g., Ashley v. Macon (C.A. 5, 1975), 505 F.2d 868 (upholding regulation); Dwen v. Barry (E.D.N.Y. 1971), 336 F. Supp. 487, reversed and remanded, 483 F.2d 1126 (C.A. 2, 1973) (summary judgment inappropriate), regulation held invalid upon remand in unreported opinion, affirmed without opinion, 508 F.2d 836, reversed sub. nom. Kelley v. Johnson (1976), 44 L.W. 4469 (Decision announced April 5, 1976); Stradley v. Andersen (C.A. 8, 1973), 478 F.2d 188 (upholding regulation).
The First, Fourth, Seventh and Eighth Circuits have held that a student has a constitutional right to select a particular hair style or hair length, although without agreement as to the source of such right. The various opinions have been based upon the First Amendment freedom of speech clause, the Ninth Amendment rights retained by the people, the equal protection clause of the Fourteenth Amendment, and the due process guarantees of the Fifth and Fourteenth Amendments. See, e.g., Richards v. Thurston (C.A. 1, 1970), 424 F.2d 1281; Massie v. Henry (C.A. 4, 1972), 455 F.2d 779; Long v. Zopp (C.A. 4, 1973), 476 F.2d 180; Mick v. Sullivan (C.A. 4, 1973), 476 F.2d 973; Holsapple v. Woods (C.A. 7, 1974), 500 F.2d 49, certiorari denied, 419 U.S. 901; Arnold v. Carpenter (C.A. 7, 1972), 459 F.2d 939; Crews v. Cloncs (C.A. 7, 1970), 432 F.2d 1259; Breen v. Kahl (C.A. 7, 1969), 419 F.2d 1034, certiorari denied, 398 U.S. 937; Torvik v. Decorah Community Schools (C.A. 8, 1972), 453 f. 2d 779; Bishop v. Colaw (C.A. 8, 1971), 450 F.2d 1069.
On the other hand, the Third, Fifth, Sixth, Ninth and Tenth Circuits have rejected such constitutional claims. See, e.g., Zeller v. Donegal School Dist. Bd. of Educ. (C.A. 3, 1975), 517 F.2d 600; Murray v. West Baton Rouge Parish School Bd. (C.A. 5, 1973), 472 F.2d 438; Karr v. Schmidt (C.A. 5, 1972), 460 F.2d 609, certiorari denied, 409 U.S. 989; Gfell v. Rickelman (C.A. 6, 1971), 441 F.2d 444; Jackson v. Dorrier (C.A. 6, 1970), 424 F.2d 213, certiorari denied, 400 U.S. 850; King v. Saddleback Jr. College Dist. (C.A. 9, 1971), 445 F.2d 932, certiorari denied, 404 U.S. 979 and sub. nom. Olff v. East Side Union High School Dist. (1972), 404 U.S. 1042; Hatch v. Goerke (C.A. 10, 1974), 502 F.2d 1189; Freeman v. Flake (C.A. 10, 1971), 448 F.2d 258, certiorari denied, 405 U.S. 1032 (1972).
In Kelley v. Johnson, supra, fn. 2, decided April 5, 1976, the United States Supreme Court upheld a hair length regulation applicable to policemen. In so doing, however, the court clearly emphasized that its holding was premised upon the fact that a policeman is a public employee, as distinguished from a member of the citizenry at large. Since students are not public employees, the decision in Kelley v. Johnson is not applicable to the cause at bar.
Holsapple v. Woods, Karr v. Schmidt, Freeman v. Flake, King v. Saddleback Jr. College Dist., Olff v. East Side Union High School Dist., Jackson v. Dorrier, Breen v. Kahl, all supra, fn. 4; Stevenson v. Board of Educ. of Wheeler Co., Ga. (C.A. 5, 1970), 426 F.2d 1154, certiorari denied, 400 U.S. 957; Ferrell v. Dallas Indep. School Dist. (C.A. 5, 1968) 392 F.2d 697, certiorari denied, 393 U.S. 856.
See, e.g., Akridge v. Barres (1974), 65 N.J. 266, 321 A.2d 230 (upholding police regulation); Brookes v. Tri-Co. Met. Transp. Dist. (1974) 18 Ore. App. 614, 526 P.2d 590 (upholding municipal corporation employee regulation); Kraus v. Board of Educ. (Mo. 1973), 492 S.W.2d 783 (upholding school regulation); Pendley v. Mingus U.H.S. Dist. No. 4 of Yavapai Co. (1972), 109 Ariz. 18, 504 P.2d 919 (upholding school regulation); Blaine v. Board of Educ. (1972), 210 Kan. 560, 502 P.2d 693 (upholding school regulations).
In our view, the instant cause does not present the hair length issue in a form traditionally considered ripe for adjudication. The present controversy does not concern suspension from school, or expulsion from extracurricular activities, but rather, in essence, whether a graduating senior and his classmates may in years to come enjoy the nostalgic remembrances of "those carefree days of youth" through the media of a school yearbook containing accurate pictorial portrayals of the students as they then appeared.
Accordingly, pursuant to the established practice of this court, we do not reach, nor do we decide, the constitutional issues arguably presented herein, as resolution of those issues upon the record before us, and in the specific factual context of this cause, is not essential to the disposition we reach. See Kent v. Kelley (1975), 44 Ohio St.2d 43; Bedford Hts. v. Tallarico (1971), 25 Ohio St.2d 211; State v. Western Union Telegraph Co. (1951), 154 Ohio St. 511; State, ex rel. Lieux, v. Westlake (1951), 154 Ohio St. 412.
With respect to appellants' contention that the grooming guidelines herein involved are reasonably related to a valid educational purpose and, therefore, should be sustained, we reach the same conclusion as indicated above with regard to the alleged constitutional issues presented herein, albeit for different reasons.
R.C. 3313.20 provides, in pertinent part:
"The board of education shall make such rules and regulations as are necessary for its government and the government of its employees, pupils of its schools, and all other persons entering upon its school grounds or premises. * * *"
R.C. 3313.47 provides, in pertinent part:
"Each city, exempted village, or local board of education shall have the management and control of all of the public schools of whatever name or character in its respective district. * * *"
Conceding, arguendo, that R.C. 3313.20 provides statutory authority to a board of education to enact and enforce "such rules and regulations as are necessary for * * * the government of its * * * pupils," the threshold question presented herein is what relationship, if any, the Washington Senior High School grooming guidelines have to the publication of a school yearbook after the close of the school year.
It may well be that the Washington Senior High School grooming guidelines are necessary to promote discipline, to maintain order, to secure the safety of the pupils, and to provide a healthy environment conducive to academic purposes. Certainly the governing school authorities in this state should be accorded wide latitude in the day-to-day administration of our academic institutions. However, the record in the instant cause does not demonstrate that such arguably valid educational purposes will be served by application of the Washington Senior High School grooming guidelines to yearbook pictures. The Washington Senior High School yearbook, as the trial testimony revealed, is normally distributed after graduation. Any effect the grooming guidelines have upon the educational process at Washington Senior High School will have occurred during the school year, and extending application of these guidelines beyond the end of the school year is unnecessary for the government of the pupils. Additionally, the grooming guidelines themselves fail to specify what action will be taken by the school officials against students found to be in violation thereof.
Moreover, the record in this cause reveals that the grooming guidelines were not applied uniformly in prior years with respect to yearbook pictures. Many pictures appearing in the 1973 and 1974 school yearbooks visibly violated the grooming guidelines. Regardless of whether these guidelines are reasonably necessary to effectuate a valid educational purpose, uniformity of application is required, and is not apparent upon the record in this cause.
The record in this cause does not contain pictures, other than appellee's, submitted for publication in the 1975 school yearbook. Accordingly, this court is unable to determine whether the grooming guidelines were applied uniformly in the 1974-1975 school year with respect to inclusion of pictures in the 1975 school yearbook.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed. Appellants are hereby ordered to include appellee's picture in the 1975 school yearbook, or be enjoined from publishing and/or distributing same.
O'NEILL, C.J., CORRIGAN, STERN, CELEBREZZE and W. BROWN, JJ., concur.
HERBERT and P. BROWN, JJ., would remand the cause to the Court of Appeals under Section 6, Rule III, Rules of Practice of the Supreme Court.