404 U.S. 1042 (1972), 71-498, Olff v. East Side Union High School District

• Citation: 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736
• Party Name: Robert OLFF, a minor, by and through his guardian ad litem, Mrs. Sonny Olff v. EAST SIDE UNION HIGH SCHOOL DISTRICT.
• Case Date: January 17, 1972
• Court: U.S. Supreme Court

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404 U.S. 1042 (1972)

92 S.Ct. 703, 30 L.Ed.2d 736

Robert OLFF, a minor, by and through his guardian ad litem, Mrs. Sonny Olff

v.

EAST SIDE UNION HIGH SCHOOL DISTRICT.

No. 71-498.

United States Supreme Court.

January 17, 1972

OPINION

On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, dissenting.

It seems incredible that under our federalism a State can deny a student education in its public school system unless his hair style comports with the standards of the school board.

Some institutions in Asia require their enrollees to shave their heads. Would we sustain that regulation if imposed by a public school?

Would we sustain a public school regulation requiring male students to have crew cuts?

The present regulation--to some at least--seems as extreme as the examples given. It provides:

'Hair shall be trim and clean. A boy's hair shall not fall below the eyes in front and shall not cover the ears, and it shall not extend below the collar in back.'

Robert Olff, a 15-year-old boy speaking through his mother, has a full panoply of constitutional rights, though he is a minor. We said in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 [92 S.Ct. 704] :

'Students in school as well as out of school are 'persons' under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.'

Moreover, a parent's control over the child, though not absolute as witness our decisions placing sanctions against child labor, is pervasive. We said in Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645:

'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose

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primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.'

Hair style is highly personal,¹ an idiosyncracy which I had assumed was left to family or individual control and was of no legitimate concern to the State. It seems to me to be as much a purely private choice as was the family-student decision, sustained against a State's prohibition, to study the German language in a public school. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042. That family-student right, the Court held, was included within 'liberty' as the word is used in the Fourteenth Amendment. Id., at 400, 43 S.Ct., at 627. Opposed there--as in the present case--is the authoritarian philosophy favoring regimentation. The Court said:

'In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation

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between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.' Id., at 402, 43 S.Ct., at 627.

The word 'liberty' is not defined in the Constitution. But as we held in [92 S.Ct. 705] Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, it includes at least the fundamental rights 'retained by the people' under the Ninth Amendment. Id., at 484, 85 S.Ct., at 1681. One's hair style, like one's taste for food, or one's liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme--a scheme designed to keep government off the backs of people. ² That is not to say that the police power of the state is powerless to deal with known evils. An epidemic of lice might conceivably authorize a shearing of locks. Other like crises might be imagined. But I see no way of allowing a State to set hair styles for patrons of its schools, any more than it could establish a welfare system only for men with crew cuts and women with bobbed

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hair. ³ Once these lines are drawn, a serious question of equal protection of the law is raised. ⁴

[92 S.Ct. 706] The federal courts are in conflict and the decisions in disarray. ⁵ We have denied certiorari where the lower

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court has sustained the school board ⁶ and also where it has overruled them. ⁷ The question tendered is of great personal concern to many and of unusual constitutional importance which we should resolve. I would grant this petition and set the case for argument.

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Notes:

[1] Feelings run high among people concerning hair styles. Yet as Professor Chaffee said:

'This breach of the peace theory is peculiarly liable to abuse when applied against unpopular expressions and practices. It makes a man a criminal simply because his neighbors have no self-control and cannot refrain from violence. The reductio ad absurdum of this theory was the imprisonment of Joseph Palmer, one of Bronson Alcott's fellow-settlers at 'Fruitlands,' not because he was a...