Joseph Edward MASSIE, Jr., et al., Appellants, v. Stanley
HENRY, Chairman of Board of Education of Haywood County, N.
C., et al., Appellees

No. 15325

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

455 F.2d 779; 1972 U.S. App. LEXIS 11519

May 4, 1971, Submitted on Briefs

February 2, 1972, Decided


DISPOSITION:
[**1]

Reversed and remanded.

JUDGES:
Haynsworth, Chief Judge, and Boreman and Winter, Circuit Judges. Boreman, Senior Circuit Judge (dissenting).

OPINIONBY:
WINTER

OPINION:

[*780] WINTER, Circuit Judge:

The minor plaintiffs, male students at the Tuscola Senior High School, Haywood County, North Carolina, were suspended from school for their deliberate refusal to conform to a "guide line," recommended by a student-faculty-parent committee and adopted by the high school principal, regulating the length of hair and side burns. Plaintiffs wore their hair at a length extending below their collars and below and covering their ears; and at least two of the plaintiffs wore their side burns below their ear lobes, all in violation of the regulation. Their suit for declaratory and injunctive relief under 42 U.S.C.A. @ 1983 followed. The district court, finding the regulation justified, and finding that none of plaintiffs' constitutional rights had been denied them, dismissed the action. We reverse.

- I -

The operative facts proved at the trial and found by the district court are as stated. Additionally, the district court found that establishment of the regulation had been requested by the [**2] President of the Student Body following an incident in which a student with long hair was called a "hippie" and a fight ensued.

There was also evidence before the district court that the length of plaintiffs' hair evoked considerable jest, disgust and amusement rendering the restoration and preservation of order in the classrooms difficult. Two "long hair" students reported that they had been threatened with being beaten up. One teacher said that plaintiffs had difficulty in writing on the black board because their hair fell into their eyes. A welding instructor stated that he would not permit a student with long hair to take his course or even enter his classroom because of the danger of fire and injury from flying sparks and molten metal particles.

There was no claim that plaintiffs' hair was unhygienic. Indeed, plaintiffs testified that they washed it daily, and the district judge said that it appeared clean and well-groomed when plaintiffs were in court.

- II -

Whether the right of a male to wear long hair and to have long or fulsome side burns is a constitutionally protected right is a question which has given birth to a rash of recent litigation resulting in conflicting [**3] adjudications. And if the right is recognized as a constitutionally protected one, there is a similar lack of agreement as to its precise nature, that is, the chapter and verse of the Constitution which protects it. Unquestionably, the issue is current because there is abroad a trend for the male to dress himself more extravagantly both in the nature, cut and color of his clothing and the quantity and mode of his facial and tonsorial adornment. The shift in fashion has been more warmly embraced by the young, but even some of the members of this court, our male law clerks and counsel who appear before us have not been impervious to it. With respect to hair, this is no more than a harkening back to the fashion of earlier years. For example, many of the founding fathers, as well as General Grant and General Lee, wore their hair (either real or false) in a style comparable to that adopted by plaintiffs. Although there exists no depiction of Jesus Christ, either reputedly or historically accurate, He has always been shown with hair at least the length of that of plaintiffs. If the validity and enforcement of the regulation in issue is sustained, it follows that none of these persons [**4] would have been permitted to attend Tuscola Senior High School. *

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* Substantially every president of the United States serving before the time of Woodrow Wilson would also have been in violation of this regulation. After Garfield, occupants of the White House had their hair cut somewhat shorter, but Arthur's mutton chop sideburns, Harrison's full beard and the mustaches of Cleveland, Roosevelt and Taft would have been in violation of the regulation. Before Wilson, only McKinley might have passed muster. Although presidents may have responded sooner to the trend to shorter hair, older men, within the memory of some of the judges of this court, were frequently seen with their hair long enough to have been in violation of this regulation.

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[*781] - III -

If we limit ourselves only to dscisions of United States Courts of Appeals, we find that the Fifth Circuit, in Ferrell v. Dallas Independent School District, 392 F.2d 697 (5 Cir. 1968), cert. den., 393 U.S. 856, 89 S. Ct. 98, 21 L. Ed. 2d 125 (1968), upheld [**5] the validity and enforcement of a school regulation which excluded male students having a "Beatle type haircut" upon the mere showing that their presence in the schools might be disruptive. Circuit Judge Tuttle dissented, expressing the view that equal protection had been denied, and that the majority was overly prone to limit the exercise of constitutional rights because of the possibility that disorder, resistance or violence might ensue. Although Ferrell implicitly and explicitly assumed a constitutional right to select the length of one's hair, later Fifth Circuit decisions appear to proceed on the basis that the right to select the length of one's hair is too insubstantial to warrant federal court consideration. Wood v. Alamo Heights Independent School District, 433 F.2d 355 (5 Cir. 1970); Stevenson v. Board of Ed. of Wheeler County, Georgia, 426 F.2d 1154 (5 Cir. 1970), cert. den., 400 U.S. 957, 91 S. Ct. 355, 27 L. Ed. 2d 265 (1970); Griffin v. Tatum, 425 F.2d 201 (5 Cir. 1970); Davis v. Firment, 408 F.2d 1085 (5 Cir. 1969).

The Sixth Circuit in Jackson v. Dorrier, 424 F.2d 213 (6 Cir. 1970), cert. den., 400 U.S. 850, 91 S. Ct. 55, 27 L. Ed. 2d 88 (1970), followed the [**6] Fifth Circuit's decision in Ferrell. The Sixth Circuit held, upon evidence that the wearing of excessively long hair caused classroom disruption and constituted a distraction from the educational process, that there was no violation of a First Amendment right (the evidence was that the "long hair" students adopted that style to further a musical group of which they were members), that there was no denial of substantive or procedural due process, that there was no denial of equal protection (the district court had found that the regulation banning long hair had a real and reasonable connection with successful operation of the educational system and the maintenance of discipline) and that there had been no violation of the right of privacy. Accordingly, it sustained enforcement of a regulation which was applied to prohibit the wearing of excessively long hair and suspension of students who violated it.

More recently, the Ninth Circuit has held that a suit by male students who objected to compliance with a school regulation limiting the length of their hair failed to establish "the existence of any substantial constitutional right . . . being infringed," King v. Saddleback Junior [**7] College District, 445 F.2d 932, 940 (9 Cir. 1971); and the Tenth Circuit has followed the lead of the Fifth Circuit in treating the problem as one too insubstantial to justify cognizance of it in the federal courts. Freeman v. Flake, 448 F.2d 258 (10 Cir. 1971).

In contrast, the First, Seventh and Eighth Circuits have found regulations limiting the length of hair invalid, at least in the absence of persuasive reason and persuasive proof to support their promulgation and enforcement. Their approach to these issues is quite different from that of the other circuits. See note, 84 Harv.L.Rev. 1702 (1971). See also, the opinion of Mr. Justice Douglas dissenting with regard to the denial of certiorari in Olff v. East Side Union High School District, 404 U.S. 1042, 92 S. Ct. 703, 30 L. Ed. 2d 736 (1972). In Breen v. Kahl, 419 F.2d 1034 (7 Cir. 1969), cert. den., 398 U.S. 937, 90 S. Ct. 1836, 26 L. Ed. 2d 268 (1970), it was held that the right to select the length of one's hair was a due process right, falling within the penumbras of the First Amendment or within the rights guaranteed by the Ninth Amendment, and one which could be limited only upon a showing of substantial countervailing [**8] state interests. [*782] In Breen, the regulation was invalidated and the expulsion and threatened expulsions were nullified. The court rejected the state justification that long hair may distract short haired students from their school work, that students whose appearance conforms to community standards perform better in school, and that, in any event, the power of a school board to discipline must be upheld.

Factually, Breen is distinguishable from the case at bar and the decision in Ferrell but Crews v. Cloncs, 432 F.2d 1259 (7 Cir. 1970), which followed, is more in point. In Crews, a male student with long hair was denied readmission to high school because of the length of his hair. In holding that the student was entitled to an injunction to require his readmission, the court reiterated its holding in Breen that the right to select the length of one's hair was a personal freedom protected by the Constitution and then considered whether the substantial burden of justification to limit the right had been shown. The court rejected, as sufficient grounds of justification, evidence that other students were distracted and preoccupied in observing the [**9] plaintiff, and evidence that short hair was required for health and safety reasons when engaging in athletics or laboratory work around Bunsen burners. As to the former, the court invoked the principle that it is absurd to punish a person because his neighbors lack self-control and cannot refrain from violence; and, as to the latter, the court concluded that the objectives of health and safety could be achieved by use of hair nets or other protective devices.

Richards v. Thurston, 424 F.2d 1281 (1 Cir. 1970), was decided on the sparse facts that the male student, whose hair fell loosely about his shoulders, was suspended from school because of an unwritten policy (treated as a regulation) prohibiting "unusually long hair." An injunction to require his reinstatement was affirmed, the court holding that the right to select the length and style of one's hair was a personal right of liberty protected by the due process clause and that that right could be limited only by an outweighing state interest justifying the intrusion. Because the record was so bare, the court had no occasion to discuss specific evidence, but it elaborated on the outweighing state interest by saying:

Once [**10] the personal liberty is shown, the countervailing interest must either be self-evident or be affirmatively shown. We see no inherent reason why decency, decorum, or good conduct requires a boy to wear his hair short. Certainly eccentric hair styling is no longer a reliable signal of perverse behavior. We do not believe that mere unattractiveness in the eyes of some parents, teachers, or students, short of uncleanliness, can justify the proscription. Nor, finally, does such compelled conformity to conventional standards of appearance seem a justifiable part of the educational process.

Id., 424 F.2d at 1286.

Finally, Bishop v. Colaw, 450 F.2d 1069 (8 Cir., 1971), the latest expression on the subject, held invalid and unenforceable a dress regulation which, inter alia, required male students to wear their hair at a length shorter than their collar and above their ears. The Court considered thoroughly prior court of appeals, as well as district court, decisions on the subject. It rejected the claim that the plaintiff (Stephen) was deprived of any First Amendment right for lack of any "evidence suggesting that Stephen's hairstyle represented a symbolic expression [**11] of any kind," 450 F.2d at 1074; and while it noted the possibility of a claim of denial of equal protection (discrimination between males with differing hair lengths), it declined to pass on this issue. It also rejected the argument that the regulation violated Stephen's parents' rights because the record showed that they supported but did not select Stephen's hairstyle. It did hold, however, that Stephen had a due process right to govern his own personal appearance, declining in the process to choose a label as to whether the right was "fundamental," "substantial," "basic," or simply [*783] a "right," but that the right was not absolute and must yield when its exercise infringed upon the rights of others. The court then examined the purported justifications for the regulation, i. e., disruption in the classroom, sanitation problem in the swimming pool, safety problem in shop classes, and asserted correlation of long hair with poor grades, and, finding them insufficient to demonstrate the necessity for the regulation, invalidated it.

- IV -

We find Breen, Crews, Richards and Bishop, and their decisional approaches, more persuasive than Ferrell and its progeny, [**12] and we have concluded to follow the former.

Perhaps the length of one's hair may be symbolic speech which under some circumstances is entitled to the protection of the First Amendment. But the record before us does not establish that the minor plaintiffs selected the length of their hair for any reasons other than personal preference. For that reason, we prefer in this case to treat their right to wear their hair as they wish as an aspect of the right to be secure in one's person guaranteed by the due process clause, Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 35 L. Ed. 734 (1891); Bishop v. Colaw, 450 F.2d at 1075; Clews v. Cloncs, supra, 432 F.2d at 1263-1264; Richards v. Thurston, supra, 424 F.2d at 1284-1285, but having overlapping equal protection clause considerations since the purported limitation of the right was by a state public school official. But, our inquiry is not ended by this conclusion, because, as said in Bishop v. Colaw, 450 F.2d at 1075, "personal freedoms are not absolute; they must yield when they intrude upon the freedoms of others. Our task, therefore, is to weigh the competing interests asserted here. In doing so, [**13] we proceed from the premise that the school administration carries the burden of establishing the necessity of infringing upon Stephen's freedom in order to carry out the educational mission of the . . . High School."

So, too, we turn to the sufficiency of proof of state interest and violation of the rights of others in this case which may constitute justification for the regulation. There was no evidence that consideration of health entered into the picture; the only claimed justifications were the need for discipline and considerations of safety. We think the proof of the disruptive effect of some students having long hair was insufficient to justify the regulation and its enforcement. Proof that jest, disgust and amusement were evoked, rendering restoration and preservation of order difficult, and that there were threats of violence was insufficient. Moreover, there was no proof of the ineffectiveness of discipline of disrupters or a showing of any concerted effort to convey the salutary teaching that there is little merit in conformity for the sake of conformity and that one may exercise a personal right in the manner that he chooses so long as he does not run afoul of considerations [**14] of safety, cleanliness and decency. In short, we are inclined to think that faculty leadership in promoting and enforcing an attitude of tolerance rather than one of suppression or derision would obviate the relatively minor disruptions which have occurred.

The asserted considerations of safety need not detain us long. Unrestrained or unprotected long hair is undoubtedly a safety hazard in a welding shop or in a laboratory where Bunsen burners or other fire are present, but it is manifest that hairbands, hairnets or protective caps provide a complete solution, short of shearing one's locks. Requiring restraint or protection is, we think, the manner in which the state interest should be asserted.

Since the regulation lacks justification outweighing the minor plaintiffs' rights, the district court should declare it invalid and enjoin its enforcement in the particulars alleged.

Reversed and remanded.

[Extensive dissenting text by Senior Circuit Judge Boreman followed this ruling, but the ruling stood as detailed above.]

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