After argument and careful consideration of defendant's motion, we determine that, while the action should not be dismissed, we will stay further proceedings herein pending the exhaustion of administrative remedies and judicial review provided for by the City Civil Service Regulations. Sections 17.061, 17.062, 17.063.
It has been held that "[the] right to wear one's hair at any length or in any desired manner is an ingredient of personal freedom protected by the United States Constitution." Breen v. Kahl, 419 F.2d 1034 (7 Cir. 1969) cert. denied, 398 U.S. 937, 90 S. Ct. 1836, 26 L. Ed. 2d 268 (June 2, 1970). Any regulation which limits this right must be "sufficiently justified" as furthering an "important or substantial governmental interest", which "is unrelated to the suppression of free expression" and any "incidental restriction on the alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968).
While the burden of justification for such a regulation is "substantial", there may be "different justifications" for the regulation of the hair styles of adults, such as firemen, than there are for students of a high school. Breen v. Kahl, supra, 419 F.2d at 1036.
The alleged justifications advanced in this case are that, for reasons of safety and internal discipline of the firemen, the regulations are necessary, reasonable and proper to insure the efficient operation of the fire department.
At this time, we refrain from consideration of the merits of these reasons, since we conclude that the plaintiffs have not sufficiently established any immediate irreparable injury which cannot be fully redressed by the utilization of available administrative remedies and state judicial review. Craycroft v. Ferrall, 408 F.2d 587, 598 (9 Cir. 1969). Our "deference to [City --] * * * administrative authorities comports with the basic policy of avoiding the unnecessary resolution of constitutional questions." Nelson v. Miller, 373 F.2d 474, 480 (3 Cir. 1967) cert. denied 387 U.S. 924, 87 S. Ct. 2042, 18 L. Ed. 2d 980 (1967).
Accordingly, we enter the following
Now, this 11th day of Aug., 1970, after consideration of defendants' motion to dismiss, it is ordered that:
1. the motion to dismiss the action against the City of Philadelphia is granted and the complaint against the defendant is dismissed;