28, 1971. (2 NT 106-108; Plaintiffs' Exhibit 1)
The Court of Appeals for the Third Circuit has recently decided one of the burgeoning number
of cases in which a male public school student sues to enjoin enforcement of a regulation governing the length to which he may grow his hair. Gere v. Stanley, 453 F.2d 205 (3d Cir., 1971). In that case, Plaintiff Gere had been suspended after his "long hair caused disturbances to the extent that fellow-students approached the principal on several occasions with substantial complaints. In each case, action by the principal was required to alleviate the condition of unrest or turmoil in the school." 453 F.2d at 206). With this background, the Court found that the hair length regulation did not violate any rights which Gere might have under the Fourteenth Amendment. The Court assumed arguendo that the wearing of long hair in public school is a personal liberty protected by the Due Process Clause of the Fourteenth Amendment, but held that the hair length regulation was reasonable under the test of West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S. Ct. 578, 581, 81 L. Ed. 703 (1937); "[The] liberty safeguard [by the Fourteenth Amendment] is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process." This test in the school context was stated in Gere to be that "[if] a particular pattern of student conduct is disruptive of the educational process, a narrow rule circumscribing the behavior is not infirm under the Constitution or the common law when sufficiently justified." (453 F.2d at 209) In Gere, "[the] educational process . . . was disrupted . . . when students refused to sit near Gere in class because of the dirtiness of his hair and in the cafeteria because they were afraid that his habit of leaning down over his food, apparently dipping his hair into the food, and then throwing his hair back, would result in their being annoyed by the consequences." (453 F.2d at 209.) In a footnote to this sentence, the Court noted that "[presumably], these problems were never caused by long-haired female students, so that we are not presented with a question of sex discrimination." (note 9 453 F.2d at 210.) Because of these disruptions to the educational process, the Court found the regulation reasonable.
The factual background of the present case is markedly different from that found in Gere. Here there had been no disruption to the educational process caused by long hair per se. (See Findings of Fact #12, 15-18). The only incident connected with long hair which approaches disruption of the educational process occurred when about twenty male students who had been sent out to get hair cuts were meeting with the attorney for the Plaintiffs in this case in the school parking lot, thus distracting some of the students in classrooms which face the parking lot. If any weight is to be given to this incident, it should be minimal since even passing motorcycles and bicycles cause the students in classrooms facing the parking lot to be distracted. However, it is my view that this incident should not be considered at all as a justification for the hair-length regulation because it never would have taken place had there not been such a regulation. As to the other incidents connected with long hair, none of these were actually disruptive of the educational process. Unlike the situation in Gere, these incidents did not lead to protests to the principal nor require the principal to alleviate any conditions of turmoil or unrest. Aside from these incidents, Defendants have attempted to prove that the hair length regulation is justified in three separate ways. First, they contend that the regulation is desirable as a mechanism for teaching students to obey rules. (1 NT 199-202). If this rationale were accepted, the most arbitrary, discriminatory regulation or law could be justified. Second, they contend that "long hair on male students in defiance of the regulation has endangered the conduct of the normal activities which Shikellamy has had in the past which require a fairly strict form of discipline." The Court has difficulty discerning the meaning of this language. What is clear, however, is that this contention must fail because without such a regulation, there would not be this disciplinary problem, and in addition because the testimony in this regard was merely speculative (1 NT 193). Third, Defendants contend that male long hair imperils the safety and well-being of shop students. While this is a legitimate concern, it does not justify a regulation applicable to all students whether or not they take shop. A shop rule requiring use of a fillet would eliminate the hazard.
Unlike the situation in Gere, violators
of the hair length regulation here were placed in a so-called "tutorial assistance program" instead of being suspended. In my view, this is a difference without a distinction for purposes of constitutional analysis. Any deprivation imposed to induce compliance with the regulation would permit the Plaintiffs to invoke the protection of the Fourteenth Amendment. But it cannot be gainsaid that these Plaintiffs were in fact denied substantial educational benefits here: classroom lecture and discussion, foreign language instruction, field and laboratory work, and normal association with their peers.
All of the reasons offered in support of the regulation, individually or together, do not sufficiently justify it. The hair regulation is related only very minimally and marginally to its alleged primary objective, maintenance of discipline in order to foster education.
The regulation must fall under the test of Gere and West Coast Hotel, despite the presumption
which exists in favor of its validity.
In the discussion thus far, I have assumed that the wearing of long hair by students in public school is a "liberty" within the meaning of the Fourteenth Amendment.
Because the Court in Gere held that under the facts in that case the hair regulation there was reasonable, they did not reach this issue. (See Gere, note 7). Having arrived at a contrary result here, with respect to the reasonableness of the regulation, I now hold that the wearing of long hair by students in public school is a "liberty" within the meaning of the Fourteenth Amendment.
It is my view that the wearing of long hair by anyone is a "liberty" within the meaning of the Fourteenth Amendment. As the Court of Appeals for the First Circuit pointed out in Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir. 1970), to hold to the contrary is to suggest that a state might require a conventional coiffure of all its citizens.
In Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S. Ct. 693, 694, 98 L. Ed. 884 (1954), a unanimous Court stated that:
"Although the Court has not assumed to define 'liberty' with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective."