This is an appeal by Saddleback Junior College District from a grant of two preliminary injunctions sought by Lindahl King and two other students at the Junior College.
Lindahl King alleged in a complaint filed in the United States District Court that he was refused registration at Saddleback Junior College, a public corporation, unless and until he conformed his hair style to the requirements of the established dress code of the school. The regulation in question proscribes:
He sought a declaratory judgment invalidating the regulation and an injunction enjoining the Junior College District, its Superintendent, and the president of the college from enforcing the regulation. He also prayed for a preliminary injunction restraining enforcement of the dress regulation pending final hearing. Jurisdiction was asserted under 42 U.S. C. § 1983 and 28 U.S.C. § 1343.
The matter came on for hearing on December 29, 1969, on affidavits and memoranda of law. On January 6, 1970, the District Court issued its preliminary injunction enjoining the defendants from refusing to register King in the college and from refusing to allow him to attend classes on the ground that his hair style was not acceptable under the applicable dress code.
Subsequently, two other students were added as plaintiffs, and on January 19, 1970, a hearing was held on their similar complaints. Upon a substantially like record the District Court, on February 5, 1970, issued the preliminary injunction in identical form against the defendants and in favor of the new plaintiffs, Mark Carlson and Michael Martin.
It is the function of a preliminary injunction to preserve the status quo pending a determination of the action on the merits. Washington Capitols Basketball Club, Inc. v. Barry, 419 F.2d 472, 476 (9th Cir. 1969). Here the students were seeking to register for a forthcoming term. They had not yet begun the current term at the college. The preliminary injunction went beyond the preservation of the then existing status quo and decreed that the applicants should be permitted to register in violation of the regulation and prior to a determination of its validity. On this the court abused its discretion. Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808-809 (9th Cir. 1963), cert. denied, 375 U.S. 821, 84 S.Ct. 59, 11 L. Ed.2d 55 (1963).
Factors to be taken into consideration in weighing an application for a preliminary injunction are the relative importance of the rights asserted, the acts to be enjoined, the hardship that would result during the pendency of the action from granting or refusing to grant a preliminary injunction, the probability of ultimate success, and the public interest. Unicon Management Corp. v. Koppers Co., 366 F.2d 199, 204-205 (2d Cir. 1966).
In considering the acts to be enjoined, it is immediately apparent that the court is presuming to interfere with the day-to-day operation of the public school system. The record here discloses that Section 1052 of the California Education Code provides that the governing board of a school district is given the authority to prescribe rules for the government and discipline of schools under its jurisdiction. Public junior colleges are secondary schools and a part of the public school system of the state. (§ 22650, California Education Code.)
The Supreme Court has stated that, where school authorities are shown to have formally acted, the courts should interfere only with great caution.
Although the rights being here asserted cannot be minimized, the pleadings and District Court opinion do not indicate that plaintiffs have claimed a deprivation of rights under the First Amendment. As we view it, under the circumstances of this case, plaintiffs at most invoke the peripheral or penumbral right either of privacy or to be let alone. See Griswold v. Connecticut, 381 U.S. 479, 484-485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Since the factual existence of this right itself is in doubt at this point in the proceeding, we do not think plaintiffs' case is entitled to the per se status guaranteed by the Constitution
As to the probability of ultimate success upon the merits of the complaint, from the present state of the record it is not clear whether plaintiffs will, at trial, be able to carry their burden
An appeal from an order of the district court granting or denying a preliminary injunction presents only the narrow question of whether or not the grant of the order is an abuse of discretion. Washington Capitols Basketball Club, Inc. v. Barry, supra. Where preservation of the status quo favors denial of the injunctions, where the probability of ultimate success is in doubt, where the appellants have not shown any real hardship resulting from denial, and where the record at this time is based on affidavits which are confusing and contradictory, we do not believe the two preliminary injunctions should have been granted.
The preliminary injunctions are vacated and the cause remanded to the district court for further proceedings.
It is nevertheless appropriate to note that the authorities on the legal questions involved are is disarray. Two circuits have considered the problem with differing results. Ferrell v. Dallas Independent School Dist., 392 F.2d 697 (5th Cir. 1968), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969).
The number of District Court cases dealing with the problem is becoming epidemic. See, e. g., Davis v. Firment, 269 F.Supp. 524 (E.D.La.1967); Zachry v. Brown, 299 F.Supp. 1360 (N.D.Ala. 1969); Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala.1969); Crews v. Cloncs, 303 F.Supp. 1370 (D.Ind.1969); Richards v. Thurston, 304 F.Supp. 449 (D.Mass. 1969); Olff v. East Side Union High School Dist., 305 F.Supp. 557 (N.D.Cal. 1969); Westley v. Rossi, 305 F.Supp. 706 (D.Minn.1969); Brick v. Board, 305 F.Supp. 1316 (D.Colo.1969); Sims v. Colfax Community School Dist., 307 F.Supp. 485 (S.D.Iowa 1969); Neuhaus v. Torrey, 310 F.Supp. 192 (N.D.Cal.1970).
The United States Supreme Court has not directly considered the problem. In Tinker, supra, the Court found that the wearing of armbands for the purpose of expressing ideas was akin to speech and entitled to First Amendment protection. The Court, however, carefully noted that the problem posed therein did "not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment." 393 U.S. at 507-508, 89 S.Ct. at 737.
Analogous cases have turned on whether a violation of the school regulation in question caused or threatened to cause disturbance and disruption of the academic process. Compare Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966), with Blackwell v. Issaquena County Bd. of Ed., 363 F.2d 749 (5th Cir. 1966).