(dissenting).
Regretfully, I find it necessary to dissent from the view taken by the majority on the law and the facts of this case. I take this action even though at first blush it appears that this type of case concerning the regulation of hair length for students is one of trivia, but on closer examination the issues in the case are more important and fundamental to our society.
The disposition made by the Court of Appeals in reversing the decision of the trial, court should also be our disposition. Pendley v. Mingus Union High School District No. 4, 17 Ariz.App. 512, 498 P.2d 586 (1972). In essence, the Court of Appeals took the position that a school board has no authority to issue regulations concerning the length of hair of male students. Such regulations are not a legitimate area of authority for action by school boards. As a general proposition, I agree with the Court of Appeals.
The same Court of Appeals in Komadina v. Peckham, 13 Ariz.App. 498, 478 P.2d 113 (1971), reminds us that:
“Deviating hair styles in no way indicate a lack of good conduct, decorum or virtue. Nor does short hair necessarily indicate moral excellence, integrity or nobleness.” 13 Ariz.App. at 500, 478 P.2d at 115.
*26The majority of this Court, however, has seen fit to hold contrary to the position of the Court of Appeals. The majority proceeds further to hold that not only is the regulation a proper function of a school board, but it is also a constitutionally permissible regulation.
The position of the majority allows the school district to deny an education to a student which the state normally makes available to all students of this age, based upon the failure of that student to conform to a hair length established by the governing board of the school district in a so-called “dress code” for students. The student is denied the privilege granted to similar students based upon a standard to be measured by the length of his hair. The majority can find no constitutional infirmity with such a standard. I disagree. To me this is a denial of that liberty reserved ' to the people by the Ninth Amendment and protected from state interference by the Fourteenth Amendment.
“The Founding Fathers wrote an amendment for speech and assembly; even they did not deem it necessary to write an amendment for personal appearance. We conclude that within the commodious concept-of liberty, embracing ■ freedoms great'and small, is the right to wear one’s ■ hair.as he wishes.” Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir. 1970).
It is true that not all governmental regulations which interfere with a constitutional right are impermissible if they are in an area within the constitutional power of the state, and further an important or substantial governmental interest, which governmental interest is unrelated to the suppression of- the particular right, and the incidental restriction on the right is no greater thán is essential to the furtherance of the substantial government interest. See: United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). It is argued that the regulation in this case was necessary to avoid school disruption. Interestingly enough, the evidence discloses that for the period of time the petitioner was in school there was no disruption, and, except for the feelings of the school administration, the process of education continued without incident or interruption.
This case actually brings sharply into focus the action by one group, using government action, to require conformity by others not in sympathy with the ruling group. This is illustrated by the testimony ■ of the District Superintendent which disclosed that he felt long hair was a sign of a defiant attitude. He and the School Board felt that short hair should be the standard for the school system, and it was in the best interest of the students.
In support of the School Board position, no less a person than the school psychologist was called to testify and 'as he concluded:
“I feel that this standard was democratically arrived at by the majority, and therefore it seems entirely reasonable, as an educator and psychologist, to assume that this is beneficial.”
In addition, he testifies:
“Q Dr. Perry, you suggested at one point in your direct examination that you believe that it’s well that we try to teach children to imitate society. What segment of society were you referring to, please, sir ?
“A I thought that was implied. I would ask them to imitate the judges, the doctors, the lawyers, the best in our society.
jij 5|« % j}s
“Q Are you saying that wherever you live, then, that it might be well to try to imitate the professionals in that particular—
“A The best of the professionals. Yes, I would.
“Q Are you suggesting that perhaps the best of Yavapai County is equal to or better than maybe the society of Phoenix?
“A Equal to, yes.”
To the psychologist the standard was clear — even obvious. The worth of good *27men, be they farmer, cowboy, or blue-collar worker, did not even get honorable mention from this self-styled “educator.”
The above witnesses were, no doubt, sincere in their beliefs, but the issue is more fundamental. Can the school system require its students to accept a style of appearance accepted by the majority as good and proper ? Stated in another fashion, the question is whether a school district may order conformity by all students to the standard of good grooming prescribed by the school board? I think not.
The Court of Appeals speaking through Judge Hathaway said it so eloquently:
“. . . we cannot but wince when an institution presumably dedicated to the education of our young people on matters including the virtues of our constitutional form of government and the liberties guaranteed thereby, bars from its premises a student whose hair style appears comparable to that of the founding fathers.” Pendley v. Mingus Union High School District No. 4, 498 P.2d at 590.
I sincerely hope that the school boards ■of this state do not take the majority too literally and use this case as precedent to follow the example of the school board in this case.