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.
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
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.
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. *
* 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.
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.
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.
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.
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
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.]