The opinion of the court was delivered by: BECKER
In Stull v. School Board of Western Beaver Jr.-Sr. H.S., 459 F.2d 339 (3d Cir. 1972), the Court of Appeals held that the right of an individual to control his personal appearance, including his hairstyle, was sufficiently substantial to be accorded the protection of the liberty assurance of the Due Process Clause of the Fourteenth Amendment. Stull involved a school dress code proscribing the wearing of hair covering the ears and below the collar line. However, the Stull court, following the lead of Gere v. Stanley, 453 F.2d 205 (3d Cir. 1971), another school dress code case, also held that the protected right was not absolute, and that it was necessary that the Court assess the reasonableness of the regulation in relation to its object and balance the right sought to be protected against the legitimate but countervailing interests of the community.
That balancing test is central to decision of the case before us, which presents the question whether a municipal fire department can justify an infringement upon the constitutionally protected right of a fireman to control his own hairstyle and appearance. In the Stull and Gere cases, the justification asserted by the authorities was principally that of decorum and discipline in the ambience of the classroom and the schoolyard. In the present case the community interests asserted are those of safety, the integrity of the fire department as a "paramilitary" organization, and good grooming for public appearance's sake.
The plaintiffs are two former Philadelphia firemen who were discharged for noncompliance with Directive 13 of the Philadelphia Fire Department (Department), a regulation which prescribes the length and neatness of hair at the front, back, and sides of the head. They have sued under the Civil Rights Act, 42 U.S.C. § 1983, seeking an injunction against enforcement of Directive 13 against them and a declaration that the regulation is unconstitutional on its face and as applied, together with reinstatement, back pay, and counsel fees. Named as defendants are Joseph R. Rizzo, the Philadelphia Fire Commissioner, Hillel S. Levinson, the City's Managing Director,
and the City of Philadelphia.
Prior to August 26, 1968, the Department had no written appearance regulations.
On that date, Assistant Chief Ralph Kress issued a short memorandum to the divisional chiefs regarding personal appearance which was superseded by a series of written orders culminating in Directive 13.
Directive 13 reads as follows:
SUBJECT: PERSONAL APPEARANCE
A. This directive is disseminated in order to ensure a neat personal appearance that does not interfere with nor detract from the safe and proper wearing of uniforms and equipment.
1. Members will have their hair properly cut and neatly trimmed on the sides.
2. Hair at the back of the neck will be kept trimmed in an even and tapered fashion.
3. Hair on top of the head will not be overly long and will be combed or brushed in such a manner that it will remain clear of the forehead. It will not protrude from under the band of the cap or helmet.
4. Bush, Afro, Natural, Freedom or other similar styles will be worn in moderation.
a. If hair is combed, picked, blown, or teased, it will not exceed 1 1/2" in height, nor protrude from under the band of the cap or helmet at the front or sides.
b. Hair at the back of the neck will be kept trimmed in an even and tapered fashion.
5. The attached illustrations will be used as a guideline.
1. Members will be clean shaven.
2. Moustaches will be permitted, but must conform to the following provisions:
a. Moustaches will be kept neat and closely trimmed.
b. Moustaches will not extend beyond the corners of the mouth or below the upper lip.
3. Beards or goatees will not be permitted.
4. The attached illustrations will be used as a guideline.
1. Sideburns will be kept neatly trimmed and close to the face.
2. Sideburns will not extend below the middle of the ear.
3. The attached illustrations will be used as ...