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December 2, 1974

Raymond Edwin POE, K-1106, Plaintiff,
Stewart WERNER, Commissioner of the Bureau of Corrections of Pennsylvania, et al., Defendants

Rosenn, Circuit Judge, Sheridan, Chief District Judge, and Muir, District Judge. Rosenn, Circuit Judge (concurring). Muir, District Judge (dissenting).

The opinion of the court was delivered by: SHERIDAN


SHERIDAN, Chief District Judge.

 Plaintiff, Raymond Edwin Poe, presently an inmate at the State Correctional Institution at Rockview, Bellefonte, Pennsylvania, brought this action under the Civil Rights Act, 42 U.S.C.A. §§ 1983-1985, seeking injunctive relief against the defendants, Stewart Werner, Commissioner of the Bureau of Corrections of Pennsylvania and Glen R. Jeffes, Superintendent of the State Correctional Institution at Dallas. Federal jurisdiction is invoked under 28 U.S.C.A. § 1343. Specifically, plaintiff requests the court to enjoin the enforcement of the hair length regulation for inmates promulgated by the Pennsylvania Bureau of Corrections and the enforcement of the institutional policy at Dallas requiring supervised showers for homosexuals.

 Subsequent to the filing of the complaint, plaintiff was transferred from the State Correctional Institution at Dallas to Rockview, where plaintiff's showers are not supervised. For this reason plaintiff's request for injunctive relief with respect to the institutional policy at Dallas which requires supervised showers for homosexuals was dismissed as moot.

 There remains plaintiff's contention that the hair length regulation of the Bureau of Corrections is unconstitutional. Since plaintiff seeks injunctive relief restraining state officials from the enforcement, operation and execution of a statewide prison regulation on the ground of its unconstitutionality, a three-judge court has been convened pursuant to 28 U.S.C.A. § 2281. King v. Smith, 1968, 392 U.S. 309, 311-312 & n. 3, 88 S. Ct. 2128, 20 L. Ed. 2d 1118; Sands v. Wainwright, 5 Cir. (en banc) 1973, 491 F.2d 417; see Procunier v. Martinez, 1974, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224.

 The Bureau's regulation with respect to hair length of prisoners provides:




The purpose of this directive is to establish guidelines for resident grooming that permit individuality and are consistent with practices in the community.




Hair that does not fall below the top of the collar in length, a beard or goatee no longer than three inches, a mustache and sideburns shall be permitted provided they are neat and clean.




A. Any feminine hair style shall be permitted.


B. Unless otherwise determined by the Superintendent of the State Correctional Institution at Muncy, hair dyeing and tinting be done only by the institutional beautician.


C. The use of all cosmetics shall be permitted in good taste."

 The institution has interpreted this regulation as to permit inmates to wear their hair to the level of the collar on their uniform shirts, which have a standard sportshirt type of collar. Poe, however, wants to wear his hair at shoulder length. He contends that the regulation violates the due process clause and the equal protection clause of the fourteenth amendment.

  Whether the right to select the length of one's hair is a constitutionally protected right is a question which has sharply divided the lower federal courts. *fn1" There is a similar lack of agreement among those courts that have recognized such a constitutional right as to its precise nature -- that is, which provisions of the Constitution protect it. *fn2" In addition, those courts which have found a constitutionally protected right have differed as to what label to choose for it -- that is, whether the right is "fundamental," "substantial," "basic" or simply a "right" -- and consequently have differed on what kind of showing the government must make in order to override the protected constitutional interest. *fn3"

 In Stull v. School Board of Western Beaver Junior-Senior High School, 3 Cir. 1972, 459 F.2d 339, the Court of Appeals for the Third Circuit held that the governance of the length and style of one's hair is implicit in the liberty assurance of the due process clause of the fourteenth amendment. However, the court asserted that personal freedoms are not absolute and, reaffirming the test previously established in Gere v. Stanley, 3 Cir. 1971, 453 F.2d 205, aff'g M.D.Pa.1970, 320 F. Supp. 852, held that a court must assess the reasonableness of the hair regulation in relation to its subject, to reconcile the protected right with the legitimate interests of the community. As stated in Gere v. Stanley, supra, wherein the court held that the evidence presented by the school authorities constituted an adequate justification of a student hair regulation, "the liberty guaranteed by the Fourteenth Amendment implies absence of arbitrary interferences, but not immunity from reasonable regulations." 453 F.2d at 209.

 Given the conflict among the federal courts on the constitutional issues involved, initially the court is confronted with the question of whether a three-judge court is bound to follow the decisions of the court of appeals for the circuit in which it is located, or whether it is bound only by decisions of the Supreme Court, to which a right of direct appeal exists. There is a difference of opinion among the federal courts on this question. *fn4" Given our resolution of the instant case, we need not decide this issue. Nor do we decide whether there is a constitutional right to govern one's own hair length.

 Assuming Arguendo that the governance of the length and style of one's hair is a constitutionally protected right, the right is not inflexible or unaffected by conditions and circumstances under which it is asserted. When the right is invoked by a prisoner confined in a penal institution under sentence, a court must assess the reasonableness of the prison regulation in relation to its purpose and reconcile the arguably protected constitutional right with the legitimate penal interests of the state. One of the primary functions of government is the preservation of societal order through the enforcement of criminal law, and the maintenance of penal institutions is an essential part of that task. The identifiable governmental interests at stake in this task are the preservation of internal order and discipline, the maintenance of institutional security, and the rehabilitation of prisoners. Procunier v. Martinez, 1974, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224.

 The defendant has presented evidence that the prison hair regulation furthers all three of these governmental interests. In addition, evidence was presented that the regulation promotes the hygiene of the residents. Long hair in a closed male institution impedes the control of homosexuality and invites the attentions and sexual attacks of homosexual predators in the institution "because they appear to the predators as very feminine individuals." *fn5" It is a disruptive factor that interferes with the maintenance of peaceful relations among the prison's inmates. Long hair provides a place for the concealment of contraband, a concern heightened by the fact that the prisoners work outdoors and have open contact visiting. It also impairs the ability of prison officials to identify inmates from their institutional photographs. Finally, the hair regulation can be viewed as furthering the rehabilitative function of the prison of restoring in the inmate population that minimal degree of personal discipline that is essential to a safe and orderly society. The normal activity to which a prison is committed -- the involuntary confinement and isolation of large numbers of people, some of whom have demonstrated a capacity for violence -- necessarily requires that considerable attention be devoted to the maintenance of institutional security and internal order and discipline. The court holds that the evidence presented by the defendant, particularly with respect to contraband, homosexuality and prisoner hygiene, are considerations sufficiently paramount in the administration of the prison to justify the hair regulation.

 While the federal courts have differed sharply on the issue of the constitutionality of public school hair regulations, the courts have consistently held prison hair regulations with respect to incarcerated inmates to be constitutionally valid. Rinehart v. Brewer, 8 Cir. 1974, 491 F.2d 705; Daugherty v. Reagan, 9 Cir. 1971, 446 F.2d 75; Blake v. Pryse, 8 Cir. 1971, 444 F.2d 218; Brooks v. Wainwright, 5 Cir. 1970, 428 F.2d 652; Brown v. Wainwright, 5 Cir. 1970, 419 F.2d 1376; United States ex rel. Goings v. Aaron, D.Minn.1972, 350 F. Supp. 1; Williams v. Batton, E.D.N.C.1972, 342 F. Supp. 1110. Thus, in Rinehart v. Brewer, 8 Cir. 1974, 491 F.2d 705, the Court of Appeals for the Eighth Circuit, which previously had held that a student possessed a constitutionally protected right to govern his personal appearance and that a high school dress code regulating hair length and style was unconstitutional, Bishop v. Colaw, 8 Cir. 1971, 450 F.2d 1069, nevertheless upheld the validity of a prisoner hair length regulation, reasoning as follows:


"The constitutional considerations presented by a public school hair regulation are qualitatively different from those involved in an otherwise similar prison regulation. Even if one ignores the prison administrator's substantially greater concern over identification, security against contraband, and maintenance of peaceful relations among the institution's patrons, a warden's interest in hair length regulation is readily distinguishable from that of the public school principal. The primary function of the public school is to educate its students. Any concern over the maintenance of discipline is secondary to the purpose of education. The primary function of the prison, however, is to restore in the inmate population that minimal degree of personal discipline that is essential to a safe and orderly society. On the basis of this difference alone we feel Bishop v. Colaw is distinguishable and Ralls [ Ralls v. Wolfe, 448 F.2d 778 (8th Cir.)] and Blake are controlling. As for plaintiff's contention that we have abandoned our restrained approach to review of matters involving prison administration, we disagree. We are, of course, always sensitive to any deprivation of a prisoner's fundamental constitutional rights. Nevertheless, we also remain highly deferential to the discretion of the prison administrator where, as here, a reasonable disciplinary regulation is enforced with at least the minimal procedural fairness required by the constitution." 491 F.2d at 706.

 Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights of the ordinary citizen, a retraction justified by the considerations underlying our penal system. Pell v. Procunier, 1974, 417 U.S. 817, 94 S. Ct. 2800, 41 L. Ed. 2d 495; Wolff v. McDonald, 1974, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935; Price v. Johnston, 1948, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356. Some deprivations are a necessary and expected result of being an inmate of a penal institution, which must provide for the custody, discipline and rehabilitation of those who have violated the law. The task of determining the rights and deprivations of state prisoners falls principally upon the prison authorities, whose judgment in the exercise of this important responsibility the federal courts will not ordinarily question. Gray v. Creamer, 3 Cir. 1972, 465 F.2d 179. A wide latitude in anticipating the probable consequences of allowing certain conduct or practices in a prison environment is essential to the proper discharge of the prison administrator's duty. See Procunier v. Martinez, 1974, 416 U.S. 396, 414, 94 S. Ct. 1800, 40 L. Ed. 2d 224; Gittlemacker v. Prasse, 3 Cir. 1970, 428 F.2d 1, 4. We agree with the Court of Appeals for the Ninth Circuit that "while little vestige remains of the old concept that a convict is civilly dead, we have not reached the point where we second guess the state authorities on the length of prisoners' hair." Daugherty v. Reagan, 9 Cir. 1971, 446 F.2d 75.

 For the foregoing reasons, we hold that the prisoner hair regulation in the instant case furthers the substantial penal interests of security, order, prisoner hygiene and rehabilitation and that these governmental interests outweigh the arguably protected constitutional right of personal governance of hair length and style.

 There remains plaintiff's contention that the inmate hair regulation violates the equal protection clause of the fourteenth amendment because it does not restrict feminine hair length or style. The equal protection clause requires that persons similarly circumstanced be treated the same by the law unless there is a legitimate basis for treating them differently. In deciding whether state action unconstitutionally classifies, the Supreme Court has articulated two essentially distinct tests for deciding equal protection claims. See, e.g., San Antonio Independent School District v. Rodriguez, 1973, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16. The traditional test requires that state action must be upheld if there is a reasonable basis for the classification and the basis is rationally related to the achievement of a legitimate state interest. San Antonio Independent School District v. Rodriguez, supra; Dandridge v. Williams, 1970, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491; McDonald v. Board of Election Commissioners of Chicago, 1969, 394 U.S. 802, 89 S. Ct. 1404, 22 L. Ed. 2d 739; Morey v. Doud, 1957, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485. If, however, the state action affects a "fundamental" right or creates a "suspect" grouping, the state action will be carefully and meticulously scrutinized in search of the requisite compelling state interest. Dunn v. Blumstein, 1972, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274; Graham v. Richardson, 1971, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534; Cipriano v. City of Houma, 1969, 395 U.S. 701, 89 S. Ct. 1897, 23 L. Ed. 2d 647; Shapiro v. Thompson, 1969, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600; Skinner v. Oklahoma, 1942, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655.

 The prisoner hair regulation does not impinge on the exercise of a fundamental right, and no suspect classification is created. We do not believe that the hair regulation should be subject to the more stringent standard but rather is constitutional if the differing treatment of men and women inmates rests upon some ground of difference actually having a reasonable and substantial relation to the legitimate object of the regulation. Royster Guano Co. v. Virginia, 1919, 253 U.S. 412, 415, 40 S. Ct. 560, 64 L. Ed. 989. This is the test the Supreme Court has utilized in recent cases involving equal protection challenges to government enactments providing that different treatment be accorded individuals on the basis of their sex. Kahn v. Shevin, 1974, 416 U.S. 351, 352, 94 S. Ct. 1734, 40 L. Ed. 2d 189; Geduldig v. Aiello, 1974, 417 U.S. 484, 94 S. Ct. 2485, 41 L. Ed. 2d 256; Reed v. Reed, 1971, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225; but cf. Frontiero v. Richardson, 1973, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (plurality opinion). *fn6"

 This test appears to be an alternative to both traditional rational basis analysis and strict scrutiny. When utilizing the compelling governmental interest test, a court not only requires that a classification further the legislative goals but also examines the legislative purposes often finding them insufficiently important to justify the suspect classification or the impingement of the fundamental right. Thus, under strict scrutiny analysis, some classifications, which are rationally related to the asserted state interest, would still be unconstitutional because the governmental interest is not compelling. When a court applies the traditional reasonable basis analysis, it searches for legislative goals which arguably justify the classification established, and it does not carefully examine whether these goals are actually furthered. In contrast to the reasonable basis and strict scrutiny approaches, the analysis employed by the Supreme Court in recent sex classification cases indicates that the Court will uphold a state enactment so long as there is actual proof that the asserted state interest is furthered. *fn7" Kahn v. Shevin, supra; Geduldig v. Aiello, supra; Reed v. Reed, supra; but cf. Frontiero v. Richardson, supra. This test imposes on the government a heavier burden with respect to justification of the classification than the traditional reasonable basis test, since the state must produce evidence that the classification actually furthers the asserted state purposes, but the state need not show a compelling governmental interest. Therefore, in the instant case the hair regulation is not violative of equal protection so long as the sex classification rests upon some ground of difference which bears a reasonable and substantial relation to the penal interests the hair regulation furthers.

 Unlike the prisons in which male inmates are incarcerated, the sole state women's correctional institution is a minimum security facility which has no strict limitations on permissible items of personal property and no strict regimentation of conduct or personal appearance. It is an open institution where the women inmates live in cottages. The nature of the prison environment at the women's facility differs significantly form that existing at the men's penal institutions and hence different regulations are constitutionally permissible. See Wark v. Robbins, 1 Cir. 1972, 458 F.2d 1295 (upholding differential penalties for men and women who escape from prison). Furthermore, since men and women differ physically and psychologically, the court believes that prison administrators are free to give differential treatment to male and female inmates based on perceived natural and practical differences. In the instant case the penal authorities could reasonably conclude that the greater aggressiveness and disposition toward violent action frequently displayed by male prisoners makes institutional security, maintenance of internal discipline and prevention of homosexual attacks -- penal goals which the hair regulation furthers -- a much greater problem in the men's prisons than in the women's correctional institution. Likewise the greater importance of personal appearance to women than men largely eliminates any hygienic problems with respect to long hair of female inmates. In short, there is a validating relationship between the varying behavioral patterns of the two sexes and the regulatory distinction between the sexes with respect to hair length. Thus we do not believe that the gender classification in the instant case is arbitrary; rather it rests on real and substantial differences which bear a just and reasonable relation to the purposes of the regulation. Unlike the men's prisons, institutional security, contraband, homosexual attacks and internal discipline are not major problems at the women's institution. The court holds that the sex classification bears a rational relationship to the legitimate penal interests which the hair regulation advances, and hence the regulation is not violative of equal protection. See New Rider v. Board of Education of Independent School District No. 1, 10 Cir. 1973, 480 F.2d 693; King v. Saddleback Junior College District, 9 Cir. 1971, 445 F.2d 932, 939. See also Ughbanks v. Armstrong, 1908, 208 U.S. 481, 28 S. Ct. 372, 52 L. Ed. 582; Sas v. Maryland, D.Md. 1969, 295 F. Supp. 389, 418, 419, aff'd sub nom. Tippett v. State of Maryland, 4 Cir. 1971, 436 F.2d 1153.

 Plaintiff's request for injunctive relief will be denied. The foregoing shall constitute the court's findings of fact and conclusions of law.

 Circuit Judge ROSENN joins in that part of this opinion which holds that the hair regulation does not violate the due process clause. He concurs in the balance of the opinion.

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