Van Dusen and James Rosen, Circuit Judges and Edward R. Becker, District Judge.
EDWARD R. BECKER, District Judge.
The School Board of the Western Beaver Junior-Senior High School (Board), like so many of its counterparts throughout the land, has promulgated a dress code which, inter alia, proscribes the wearing of hair covering the ears and below the collar line. James Robert Stull (James), a fifteen year old schoolboy, like so many of his peers, has adopted a hairstyle which offends the cited provisions of the code. As is shown by the record, including the testimony offered by plaintiffs and defendants in the District Court, James is neat and wellgroomed, and has been neither the subject nor object of disruptive incidents at the school. However, his refusal to respond to directives to comply with the code has set James and the Board upon a collision course which led to James' suspension from school and this Civil Rights Act (42 U.S.C. § 1983) lawsuit, alleging a violation of James' federally protected constitutional rights and seeking injunctive relief.*fn1 Without making findings of fact, the District Judge dismissed, on the grounds that the paramount interest in prescribing rules and regulations for the maintenance of order and discipline in the public school system lay with the state, and that the review of such rules and regulations was a function of the state rather than the federal courts.*fn2 This appeal followed.
This is the second time this Court has been called upon to join the continually burgeoning roster of federal courts which have been called upon to enter, in Judge Coffin's rather apt metaphor, the "thicket"*fn3 of cases involving the confrontation between youth and the school administrators over male hairstyles. The first occasion was the case of Gere v. Stanley, 453 F.2d 205 (1971), where a student challenged a regulation similar to that now under attack.*fn4 In September of 1969, a dress code, including a vaguely worded hair regulation, was promulgated by the Principal of the Blue Ridge High School in New Milford, Pa. for the new school year. It was promulgated at the request of faculty members who had complained "that style changes were causing disruptions and distractions in the classroom." Gere grew shoulder length hair and a goatee in clear violation of the rule and was the source of disruption at the school. Students refused to sit near him in the cafeteria because his hair was very dirty and on several occasions groups of students approached the principal about the unhealthy condition of his hair. Gere was suspended in March of 1970 and thereafter filed suit seeking to enjoin the enforcement of the regulation; he returned to class pending disposition of the case.
During the summer of 1970 a new code was adopted by the faculty, administrative staff and student council which contained a slightly different hair regulation. When Gere returned to school, he was suspended because his hair was in violation of the new code. He did not return, but filed a second suit challenging the new hair regulations. The district court consolidated the actions and held that even though the length of one's hair was a protected right under the Fourteenth Amendment, in view of the interference with the educational process the regulation was reasonable and necessary.
On appeal, this Court found that the district court had jurisdiction (see discussion, supra n. 1). It then assumed arguendo that Gere had a constitutional right to choose his hairstyle*fn5 and proceeded to determine the validity of the regulation in light of the test laid down by Mr. Chief Justice Hughes in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937), which requires the Court to assess the reasonableness of the regulation in relation to its subject, to reconcile the right sought to be protected with the legitimate interests of the community. The Court balanced the right asserted against the authority of the school board to "insure an atmosphere conducive to educational purposes", and found the regulation justified because, in light of the evidence of disruption of the educative process caused by Gere, the regulation was not an arbitrary exercise of the school board's power. However, the Court noted at footnote 11:
"We express no opinion regarding a case where a school board bans long hair without a background of disturbances of this nature. In such a case, the school board may or may not be able to justify a regulation applicable to its schools by presenting expert testimony that long hair would in some way be detrimental to the educational process in the school district in question.";
"Until such time as we are faced squarely with the underlying constitutional issue, i. e., whether a school board, without justifying the rule, may regulate the length of hair worn by male students, we feel that both logic and precedent require the application of the balancing test set forth in the text."
The record in this case requires that we squarely face the underlying constitutional issue. As of our latest count, we are the ninth of the circuit courts to do so.
In its opinion in Massie v. Henry, 455 F.2d 779, filed February 2, 1972, the Fourth Circuit joined the First, Seventh, and Eighth Circuits in holding regulations limiting the length of hair invalid, at least in the absence of persuasive reason and persuasive proof to support their promulgation and enforcement.*fn6 The Fifth, Sixth, Ninth and Tenth Circuits, on the other hand, have refused to interfere with school regulations that prohibit long hairstyles, essentially on the basis that the right to select the length of one's hair is too insubstantial to constitute a right protected by the federal Constitution and therefore to warrant federal court consideration.*fn7 On six occasions now the Supreme Court has denied certiorari,*fn8 and on three of these strong dissents have been filed.*fn9
We are not insensitive to the force of the proposition that it is more desirable that the matters here involved be left to the local authorities.*fn10 On the other hand, there can be no doubt that the regulation under attack inhibits the student's personal liberty to fashion his own appearance and life style. The question does not present itself in a vacuum, but rather in the ...